The Slavery Conventions: The Travaux Preparatoires of the 1926 League of Nations Convention and the 1956 United Nations Convention (The Travaux Preparatoires of Multilateral Treaties, 1)

The Slavery Conventions

The Travaux Préparatoires of Multilateral Treaties

VOLUME 1

The Slavery Conventions The Travaux Préparatoires of the 1926 League of Nations Convention and the 1956 United Nations Convention

By

Jean Allain

LEIDEN • BOSTON 2008

This book is printed on acid-free paper. Library of Congress Cataloging-in-Publication Data Allain, Jean, 1965The slavery conventions : the travaux preparatoires of the 1926 League of Nations convention and the 1956 United Nations convention / by Jean Allain. p. cm. — (The travaux preparatoires of multilateral treaties ; v. 1) Includes index. ISBN 978-90-04-15861-0 (hardback : alk. paper) 1. Slavery—Law and legislation—Legislative history. 2. Slavery Convention (1926) 3. Convention on the abolition of slavery, the slave trade, and institutions and practices similar to slavery I. Title. K3267.A935 2008 342.08'7—dc22 2008005551

ISSN 1875-9807 ISBN 978 90 04 15861 0 Copyright 2008 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishing, IDC Publishers, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. printed in the netherlands

For Léo and Lola

Contents Preface .......................................................................................... Acknowledgements .......................................................................

xv xvii

The Slavery Conventions Introduction The 1926 The 1953 The 1956

............................................................................. Slavery Convention ............................................. Protocol Amending the Slavery Convention ....... Supplementary Convention ................................

3 8 15 18

1926 League of Nations Slavery Convention Introduction .............................................................................

31

Preamble ................................................................................... 1925 British Draft Protocol ................................................ 1925 Draft Convention ...................................................... 1926 Slavery Convention .................................................... Commentary .......................................................................

39 40 41 43 47

Article 1 (Definitions) .............................................................. Article 1(1) (Slavery) ............................................................ 1925 British Draft Protocol .............................................. 1925 Draft Convention .................................................. 1926 Slavery Convention ............................................... Commentary ................................................................... Article 1(2) (Slave Trade) ................................................... 1925 British Draft Protocol .............................................. 1925 Draft Convention .................................................. 1926 Slavery Convention ............................................... Commentary ................................................................... Overall Commentary ...........................................................

50 51 51 52 54 57 60 60 61 64 65 65

viii

Contents

Article 2 (Suppression) ............................................................. 1925 British Draft Protocol ................................................ 1925 Draft Convention ...................................................... 1926 Slavery Convention .................................................... Commentary .......................................................................

69 70 71 74 78

Article 3 (Slave Trade at Sea) ................................................... 1925 British Draft Protocol ................................................ 1925 Draft Convention ...................................................... 1926 Slavery Convention .................................................... Commentary .......................................................................

80 81 82 86 92

Article 4 (Mutual Assistance) ................................................... 1925 British Draft Protocol ................................................ 1925 Draft Convention ...................................................... 1926 Slavery Convention .................................................... Commentary .......................................................................

95 96 96 99 100

Article 5 (Forced Labour) ........................................................ 1925 British Draft Protocol ................................................ 1925 Draft Convention ...................................................... 1926 Slavery Convention .................................................... Commentary ........................................................................

101 102 103 114 121

Article 6 (Penalties) .................................................................. 1925 British Draft Protocol ................................................ 1925 Draft Convention ...................................................... 1926 Slavery Convention .................................................... Commentary .......................................................................

125 126 126 127 129

Article 7 (Laws and Regulations) ............................................. 1925 British Draft Protocol ................................................ 1925 Draft Convention ...................................................... 1926 Slavery Convention .................................................... Commentary .......................................................................

130 131 131 134 136

Article 8 (Compromissory Clause) .......................................... 1925 British Draft Protocol ................................................ 1925 Draft Convention ......................................................

138 139 139

Contents

ix

1926 Slavery Convention .................................................... Commentary .......................................................................

141 143

Article 9 (Overseas Territories) ................................................. 1925 British Draft Protocol ................................................ 1925 Draft Convention ...................................................... 1926 Slavery Convention .................................................... Commentary .......................................................................

145 146 146 148 150

Article 10 (Denunciation) ........................................................ 1925 British Draft Protocol ................................................ 1925 Draft Convention ...................................................... 1926 Slavery Convention .................................................... Commentary .......................................................................

151 152 152 152 154

Article 11 (Accession) ............................................................... 1925 British Draft Protocol ................................................ 1925 Draft Convention ...................................................... 1926 Slavery Convention .................................................... Commentary .......................................................................

155 156 156 157 160

Article 12 (Entry into Force) ................................................... 1925 British Draft Protocol ................................................ 1925 Draft Convention ...................................................... 1926 Slavery Convention .................................................... Commentary .......................................................................

162 163 163 164 166

1953 Protocol Amending the 1926 Slavery Convention 1951 Draft Protocol of the Ad Hoc Committee on Slavery ..... 1953 Draft Protocol of the Secretary-General ........................... 1953 Draft Resolution of the United Kingdom ....................... Commentary ............................................................................

173 180 186 201

1956 United Nations Supplementary Convention Introduction .............................................................................

207

x

Contents

Title of the Convention ........................................................... 1954 British Draft Convention ........................................... 1956 Draft Convention ...................................................... 1956 Convention ................................................................. Commentary .......................................................................

219 219 219 222 228

Preamble ................................................................................... 1954 British Draft Convention ........................................... 1956 Draft Convention ...................................................... 1956 Convention ................................................................. Commentary .......................................................................

231 232 234 239 246

Article 1 (Servitudes) ................................................................ Introductory Paragraph ........................................................ 1954 British Draft Convention ...................................... 1956 Draft Convention .................................................. 1956 Convention ............................................................ Paragraph (a) 1954 British Draft Convention ...................................... 1956 Draft Convention .................................................. 1956 Convention ............................................................ Paragraph (b) 1954 British Draft Convention ...................................... 1956 Draft Convention .................................................. 1956 Convention ............................................................ Paragraph (c) (i) 1954 British Draft Convention ...................................... 1956 Draft Convention .................................................. 1956 Convention ............................................................ Paragraph (c) (ii) 1954 British Draft Convention ...................................... 1956 Draft Convention .................................................. 1956 Convention ............................................................ Paragraph (c) (iii) 1954 British Draft Convention ...................................... 1956 Draft Convention .................................................. 1956 Convention ............................................................

248 249 249 252 257 266 269 272 273 276 278 287 288 292 298 298 300 301 301 303

Contents

xi

Paragraph (d) 1954 British Draft Convention ...................................... 1956 Draft Convention .................................................. 1956 Convention ............................................................ Overall Provisions of Article 1 ............................................ Commentary .......................................................................

304 308 315 318 322

Article 2 (Marriage) .................................................................. 1954 British Draft Convention ........................................... 1956 Draft Convention ...................................................... 1956 Convention ................................................................. Commentary .......................................................................

326 327 332 339 348

Article 3 (Slave Trade) .............................................................. 1954 British Draft Convention ........................................... 1956 Draft Convention ...................................................... 1956 Convention ................................................................ Commentary .......................................................................

350 351 358 399 439

Article 4 (Slaves at Sea) ........................................................... 1954 British Draft Convention ........................................... 1956 Draft Convention ...................................................... 1956 Convention ................................................................. Commentary .......................................................................

445 446 447 454 458

Article 5 (Mutilation) .............................................................. 1954 British Draft Convention ........................................... 1956 Draft Convention ...................................................... 1956 Convention ................................................................. Commentary .......................................................................

461 462 464 469 473

Article 6 (Criminal Offence) .................................................... 1954 British Draft Convention ........................................... 1956 Draft Convention ...................................................... 1956 Convention ................................................................ Commentary .......................................................................

475 476 478 480 490

Article 7 (Definition) ............................................................... a) Slavery ............................................................................

492 493

xii

Abbreviations

1954 British Draft Convention ...................................... 1956 Draft Convention .................................................. 1956 Convention ............................................................ Commentary ................................................................... b) A Person of Servile Status ............................................... 1954 British Draft Convention ...................................... 1956 Draft Convention .................................................. 1956 Convention ........................................................... Commentary .................................................................. c) Slave Trade ..................................................................... 1954 British Draft Convention ...................................... 1956 Draft Convention ................................................. 1956 Convention ........................................................... Commentary ..................................................................

493 498 501 509 513 513 514 516 521 523 523 524 524 528

Article 8 (Cooperation and Communication) .......................... 1954 British Draft Convention ........................................... 1956 Draft Convention ...................................................... 1956 Convention ................................................................ Commentary .......................................................................

530 531 534 545 548

Article 9 (Reservations) ............................................................ 1954 British Draft Convention ........................................... 1956 Draft Convention ...................................................... 1956 Convention ................................................................ Commentary .......................................................................

550 551 554 559 572

Article 10 (Compromissory Clause) ........................................ 1954 British Draft Convention ........................................... 1956 Draft Convention ...................................................... 1956 Convention ................................................................ Commentary .......................................................................

575 576 578 587 598

Article 11 (Consent to be Bound) ........................................... 1954 British Draft Convention ........................................... 1956 Draft Convention ...................................................... 1956 Convention ................................................................ Commentary .......................................................................

600 601 602 608 631

Contents

xiii

Article 12 (Overseas Territories) ............................................... 1954 British Draft Convention ........................................... 1956 Draft Convention ...................................................... 1956 Convention ................................................................ Commentary ....................................................................... Article 13 (Entry into Force) ................................................... 1954 British Draft Convention ........................................... 1956 Draft Convention ...................................................... 1956 Convention ................................................................ Commentary .......................................................................

634 635 637 657 702 707 708 709 713 716

Article 14 (Denunciation) ........................................................ 1954 British Draft Convention ........................................... 1956 Draft Convention ...................................................... 1956 Convention ................................................................ Commentary .......................................................................

717 718 719 726 734

Article 15 (Final Clause) .......................................................... 1954 British Draft Convention ........................................... 1956 Draft Convention ...................................................... 1956 Convention ................................................................ Commentary .......................................................................

736 737 738 739 740

Appendices 1925 British Draft Protocol ..................................................... 1925 Draft Convention ........................................................... 1926 Slavery Convention ........................................................ 1953 Protocol Amending the Slavery Convention .................. 1955 (1926 Slavery Convention as amended) ......................... 1954 British Draft Convention ............................................... 1956 Draft Supplementary Convention on Slavery and Servitude .............................................................................. 1956 Supplementary Convention on the Abolition of Slavery [. . .] .......................................................................... Index ............................................................................................

743 746 751 759 763 771 777 784 793

Preface This book brings together the drafting history of the two international instruments devoted to the abolition of slavery and lesser forms of human exploitation. These travaux préparatoires can be read on different levels: they provide snap-shots of bygone eras, of diplomacy at the height of the colonial era and at the peak of the decolonisation process. They give insights into the functioning of both the League of Nations and the United Nations in their infancies. The preparatory works however, more than anything else, provide insights into what the drafters were seeking to achieve when they negotiated the slavery conventions of 1926 and 1956. The legal value of any travaux préparatoires is acknowledged in Article 32 of the 1969 Vienna Convention on the Law of Treaties, which notes that recourse “may be had had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion” so as to confirm an interpretation, or where such an interpretation would leave “the meaning ambiguous or obscure” or lead to “a result which is manifestly absurd or unreasonable”. In the case at hand the importance of the travaux préparatoires is clear, as the definition of ‘slavery’ – established more than eighty years ago, reconfirmed thirty years later and introduced once more, into the 1998 Rome Statue of the International Criminal Court – remains contested as to its interpretation. Nowhere is this more evident than in the judgements of the European Court of Human Right in its 2005 Siliadin v. France case and the Appeals Chamber of International Criminal Tribunal for the former Yugoslavia in the 2002 Kunarac et als. case. The Slavery Conventions: The Travaux Préparatoires of the 1926 League of Nations Convention and the 1956 United Nations Convention thus brings together for the first time the negotiation history of the slavery conventions to help shed light on what slavery means, but also on what is to be understood by the terms: ‘a person of servile status, ‘institutions and practices similar to slavery’, ‘debt bondage’, ‘serfdom’; and concepts such as forced labour, forced marriage, and child exploitation. These travaux

xvi

Preface

préparatoires provide a fascinating glimpse into attempts by the United Kingdom to have the slave trade at sea assimilated to piracy. ‘Glimpse’, because British attempts to make this connection go back as far as the Duke of Wellington and the Congress of Verona of 1822 and persist through the 1890 Brussels Conference as well as through the negotiations of both the 1926 and 1956 conventions, only reaching a conclusion with the 1958 Convention on the High Seas and the 1982 Law of the Sea Convention. These travaux préparatoires are a reproduction of material found in the Archives of the League of Nations and documentation held at the Library of the United Nations, both in Geneva. The Slavery Conventions is not a ‘guide to the travaux préparatoires’, that is: it does not seek to abridge the preparatory works or be selective in what is included. Instead, this book faithfully brings together all relevant material which was generated in negotiating the 1926 Slavery Convention and the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery. By relevant material, what is meant is material that was generated by States, collated by State representatives at the League of Nations and the United Nations and, ultimately, developed through negotiation by those diplomats given Full Power to conclude such international instruments. A conscious decision has been made to provide minimum commentary. While a section is devoted to considering each article of each instrument, such space is rarely used to analyse the provisions; instead it provides context, but more so it simply highlights the dynamics that were at work and the salient points which manifested themselves during the negotiation process. Ultimately, The Slavery Conventions: The Travaux Préparatoires of the 1926 League of Nations Convention and the 1956 United Nations Convention provides the ground work necessary to understand – in law – what States mean when they sought to address specific types of human exploitation.

Acknowledgements The drafting of the travaux préparatoires of the slavery conventions is meant as a reference book for scholars, but more so for practitioners, be they judges, prosecutors or defence lawyers. They provide the spade work, the foundational work, of the law related to slavery, so that it may be applied both internationally and domestically. Drafting the travaux préparatoires has been a gruelling experience, as much time has been spent acting as a stenographer, simply imputing the various declarations made under the auspices of the League of Nations and United Nations, of reproducing the discussions of both technocrats and diplomats as they sought agreement on the provisions of the 1926 Slavery Convention and the 1956 Supplementary Convention. Yet, the working on the drafting history of these Conventions has also been rewarding, because it provides a foundation for sound analysis of what slavery, servitude, forced labour and trafficking means in law. This is rather important, as for too long ‘slavery’ has been used as a visceral term, with an every-growing list of practices finding shelter under its umbrella; so that, for instance such items as incest, apartheid and colonialism have be considered by the UN Working Group on Contemporary Forms of Slavery under the rubric of ‘slavery’. As a result, the legal definition of slavery has slumbered into a shadowland of disuse where it retaines its normative value amongst States but hibernates as an antislavery tool for repression or advocacy against human exploitation. That dormancy can not continue; as slavery now comes up against a countervailing human right, the right of a person, accused of enslavement, of knowing the charges being brought against him. The 2000 Palermo Protocol on the prevention, suppression and punishment of trafficking in persons and the 2005 Council of Europe Convention on Action against Trafficking in Human Beings both include slavery and servitude as types of exploitation which are to be criminalised. Further, with the coming into force in 2002 of the Rome Statute, the International Criminal Court has jurisdiction to hold individuals criminally responsible for enslavement as a crime against humanity and sexual slavery as both a crime against humanity and a war crime.

xviii

Acknowledgements

Thus, although the project of drafting the travaux préparatoires has been demanding, it value speaks for itself. In essence the drafting the travaux préparatoires has required me to be in Geneva, on hand at the Archives of the League of Nations and in the Library of the United Nations where the raw material is located. Yet, modern technology as allowed me to get away with visiting Geneva the first time for this project for a ten-day stint in March-April 2005. At that time, I took literally thousands of digital pictures of archival material related to the 1926 Slavery Convention, and more generally anything related to slavery which transpired during the League era. That trip was paid for through funding of the School of Law, Queen’s University of Belfast, and its generous start-up package for new staff. The material gathered has been vital, as what emerged is a clear understanding of what is meant by ‘the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’; that is of the definition of slavery. I have, over the last two years, given talks on the subject at abolitionist conferences where I have been enriched by the discussions of what is, by all accounts, the most vibrant area of study in History departments internationally. I would be remised, at this point, if I did not mention the support of the British Academy in the guise of a Overseas Conference Grant which allowed me to present a paper at the second Biennial Conference of the European Society of International Law, held at Paris 1 – Sorbonne, in May 2006. That paper entitled “Slavery and the League of Nations: Ethiopia as a Civilised Nations”, was later published in the Journal of the History of International Law. Further, in 2007 in the context of the bicentenary of the United Kingdom’s abolition of the slave trade, I had the opportunity to present a number of papers specifically on the definition of slavery at abolitionist conferences in England, at the University of York and at Conference hosted by the Wilberforce Institute for the Study of Slavery and Emancipation, University of Hull. These public considerations of the definition of slavery culminated in my being invited by the Office of the Prosecutor of the International Criminal Court, in the context of their Guest Lecture Series, to share my thoughts on the definition of slavery both in general international law and within the context of the Rome Statute. As I noted during these discussions, my understanding of the definition of slavery could only be considered as being provisional, as I had yet to complete my work on the travaux préparatoires of the slavery conventions.

Acknowledgements

xix

This I was able to do, while on research leave paid for by the School of Law and Queen’s University of Belfast, and with the support, once again, of the British Academy. I am grateful to the British Academy for having awarded me a ‘Small Research Grant’ – while small from their perspective, loomed quite large from mine – as it allowed me to complete this manuscript during the late summer and early fall of 2007 while living in Geneva; and to carry on through the closing months of 2007 with research in relation to slavery as it manifests itself in various sub-areas of international law, including humanitarian law, human rights law, labour law, and law of the sea. The School of Law at Queen’s University also provided me funding to travel to the Archives of the United Kingdom at Kew, the British Library in London, and Rhodes House Library at the University of Oxford on the trail of the Viscount Cecil of Chelwood Papers and Lord Lugard Papers. Finally, the University’s Publication Fund assisted in the indexing of the text. Individuals I wish to thank include Christine Chinkin and Rachel Murray who acted as referees on my application for the Research Grant to the British Academy. I wish to thank Mrs. Pejovic, the Archivist of the League of Nations, and the staff of the United Nations Library, Geneva, for their invaluable assistance. My time in Geneva was made enjoyable by the fact that by chance, a good friend, John Drummond was stationed in Geneva during my stay. John and I had studied together at HEI – the Graduate School of International Studies – University of Geneva in the mid-1990s. Since then Mr. Drummond has taken me in his wheel to the top of Mont Ventoux, Col de la Madeleine, and Alpe d’Huez; and, it must be said, to the bottom of two international football pools. Our weekly lunch/chess encounters have been a welcome distraction and always looked forward to. My final thought of acknowledgement and thanks are reserved for Gina Bekker. Over eight months, starting from the end of May 2007, we have lived out of suitcases with Léo, who turned two and little Lola, not yet a year. Since the last day in July we have been apart, me in Geneva and she in South Africa where she had taken the children to give them the sun during her maternity leave from School of Law, University of Ulster, where she lectures in human rights. In the last three years she has managed that job, given us two children, and completed her Ph.D. But most of all she has lived her life with me; and for this I remain grateful

xx

Acknowledgements

and blessed on a daily basis. While the glory of the dedication of this book goes to our two children, my true dedication is found each time I take her hand. JA Palais des Nations, Geneva September 2007

The Slavery Conventions

Introduction One might pause to ask why the appearance of these travaux préparatoires some eighty years after the negotiation of the 1926 Slavery Convention and more than fifty years after the appearance of the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery. The answer lies in two locations: the first, the inclusion of crimes which touch on slavery in several new international instruments: the second, two recent decisions by international courts which come to diametrically opposite understandings of what slavery means in law. In November 2000, the United Nations General Assembly adopted the Palermo Protocol to the UN Convention against Transnational Organized Crime. That protocol, entitled United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children establishes, as its definition of ‘trafficking in persons’, the following: ‘Trafficking in persons’ shall mean the 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. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.1

That definition is reproduced word-for-word in the 2005 Council of Europe Convention on Action against Trafficking in Human Beings. As a result, not only does the 1926 Slavery Convention become relevant, but so too does the 1956 Convention which seeks to abolish practices similar to slavery.

1

Article 3(a), 2001 United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children and Article 4(a), 2005 Council of Europe Convention on Action against Trafficking in Human Beings. Emphasis added.

4

Introduction

Beyond this, however, is the International Criminal Court which came into existence in 2002, and creates ‘enslavement’ as a crime against humanity and ‘sexual slavery’ as both a crime against humanity and a war crime. Its Statute reproduces word-for-word the essence of the definition of slavery found in the 1926 and 1956 conventions, establishing that enslavement “means the exercise of any or all of the powers attaching to the right of ownership over a person”.2 While there might be justification enough in developing the travaux préparatoires to assist in the interpretation of these new instruments; just as pressing is the fact that the European Court of Human Rights and the International Criminal Tribunal for the former Yugoslavia have made determinations, which appear to be in opposition to each other where slavery is concerned. For the European Court, in the 2005 Siliadin v. France case – where a Togolese child in France was held as an unpaid domestic worker for more than four years, working fifteen hour days with no days off, – constituted violation of the provisions of Convention touching on servitude but not slavery. The European Court, which cites the definition of slavery of the 1926 Slavery Convention, notes that: this definition corresponds to the ‘classic’ meaning of slavery as it was practiced for centuries. Although the applicant was, in the instant case, clearly deprived of her personal autonomy, the evidence does not suggest that she was held in slavery in the proper sense, in other words that Mr and Mrs B. exercised a genuine right of legal ownership over her, thus reducing her to the status of an ‘object’.3

For the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia, in its 2002 judgment in the Kunarac et als. case related to the systematic detention and rape of women by Serbian force in the town of Foca, Bosnia-Herzegovina, in 1992, it had also considered the 1926 definition of slavery: The Appeals Chamber will however observe that the law does not know of a ‘right of ownership over a person’. Article 1(1) of the 1926 Slavery Convention speaks more guardedly ‘of a person over whom any or all of the powers attaching to the right of ownership are exercised.’ That language is to be preferred.

2 3

See Article 7(2)(c), Rome Statue of the International Criminal Court, 17 June 1998. European Court of Human Rights, Siliadin v France (Application 73316/01), 26 July 2005, para. 122.

Introduction

5

The Appeals Chamber considers that the question whether a particular phenomenon is a form of enslavement will depend on the operation of the factors or indicia of enslavement identified by the Trial Chamber. These factors include the “control of someone’s movement, control of physical environment, psychological control, measures taken to prevent or deter escape, force, threat of force or coercion, duration, assertion of exclusivity, subjection to cruel treatment and abuse, control of sexuality and forced labour”.

The Appeals Chamber accepted “the chief thesis of the Trial Chamber that the traditional concept of slavery, as defined in the 1926 Slavery Convention and often referred to as ‘chattel slavery’, has evolved to encompass various contemporary forms of slavery which are also based on the exercise of any or all of the powers attaching to the right of ownership”. It went on to say: In the case of these various contemporary forms of slavery, the victim is not subject to the exercise of the more extreme rights of ownership associated with ‘chattel slavery’, but in all cases, as a result of the exercise of any or all of the powers attaching to the right of ownership, there is some destruction of the juridical personality; the destruction is greater in the case of ‘chattel slavery’ but the difference is one of degree.4

It would appear from the above that these two judicial instances have come to different conclusions where ‘slavery’ is concerned, for the European Court of Human Rights, a “genuine right of legal ownership” was not exercised and thus ‘slavery’ did not transpire in the case at hand. For the Yugoslav Tribunal, “Article 1(1) of the 1926 Slavery Convention speaks more guardedly ‘of a person over whom any or all of the powers attaching to the right of ownership are exercised.’ That language is to be preferred”; and thus found that in the “destruction of the juridical personality”, enslavement had taken place. If this be an issue of treaty interpretation, in the sense of Article 31 of the Vienna Convention on the Law of Treaties (re: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”); then maybe resort could also be made to the supplementary means of interpretation available at Article 32 of the Vienna Convention, which reads:

4

International Criminal Tribunal for the former Yugoslavia, Kunarac et als. (IT-96-23 &-IT-96-23/1-A) Judgment, 12 June 2002, paras. 117–119.

6

Introduction

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.

Thus, the production of these travaux préparatoires of the slavery conventions are meant to assist, ‘as a supplementary means of interpretation’ those that seek to define not only slavery, but various servile statuses, as well as other provisions of both the 1926 and 1956 slavery conventions.

The Slavery Conventions The elaboration of the travaux préparatoires of the slavery conventions: the Slavery Convention signed at Geneva, September 25, 1926 and the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery provides a snapshot of two very different worlds. The first, shows a ‘gentlemen’s club’ atmosphere of the early years of the League of Nations; the second, a picture of an international system in flux, the Cold War persists, but more importantly the decolonisation process is opening multilateral diplomacy of the United Nations to new members whose ideas and perspectives are different to those of the founding members of the club of nations. The overriding ethos of the negotiations of the 1926 Slavery Convention is a continuation of the ‘civilising mission’ of the nineteenth century: that the scourge which is being addressed does not transpire at home, but is primarily to be dealt with abroad either in the colonies or with non-member States of the League of Nations. Where overseas territories were concerned a ‘territorial clause’ – later to be termed a ‘colonial clause’ – was introduced at Article 9 of the Convention, thus allowing metropolitan States to determine which of their territories would be bound by the obligations of the 1926 Convention or, conversely, which territories might be exempt from obligations flowing from the Slavery Convention. Hardly surprising then in this context of seeking to legislate abroad was that the provisions on forced labour were the most discussed in the negotiation process, as it was recognised that all States “civilised

Introduction

7

or uncivilised” utilised forced labour. As Professor Suzanne Miers notes, in British India and Burma, for instance, forced labour for public works was “considered essential”. Thus, those negotiating the 1926 Convention ensured that the forced labour provisions “were only as strong as their interests allowed”.5 The negotiations of the 1956 Supplementary Convention by contrast were not as harmonious. As issues of slavery and servitude were alive and well in States which were involved in the negotiation process, agreement was always going to be difficult. It was clear that no ‘gentlemen’s agreement’ was going to permeate the process; especially as tensions between Western colonial States and newly independent States (supported by the Socialist block) were growing. The Bandung Conference having transpired in April 1955, a rather frosty reception awaited the British and French delegations during the drafting process of 1956, as tensions were heightened by the growing Suez Crisis (the Suez Canal Company having been nationalised in July 1956; with British, French and Israeli forces entering Egypt in October 1956) and anti-colonial fervour growing in Algeria. Despite the fact that the 1926 and 1956 Conventions were negotiated in two very different contexts, the processes of negotiation of each of the instruments followed similar patterns. Both the Slavery Convention and the Supplementary Convention emerge from provisions first proposed by the United Kingdom which, during the first half of the twentieth century, maintained the lead role it had played during the totality of nineteenth century were the abolition of slavery and the slave trade were concerned. These British draft conventions were then considered and redrafted by representatives both at the League of Nations and with regard to the later instrument at the United Nations. Finally, these drafts were then considered and negotiated by diplomats holding Full Powers, allowing for the emergence of the slavery conventions.

5

Suzanne Miers, Slavery in the Twentieth Century: Evolution of a Global Problem, 2003, pp. 127 and 128.

8

Introduction

The 1926 Slavery Convention Viscount Cecil of Chelwood, the British Delegate to the League of Nations played an instrumental role in bringing about the 1926 Slavery Convention. He was the individual who acted as Rapporteur to the Assembly of the League of Nations during the drafting process of 1925 and 1926. He had great ambitions for a convention related to the suppression of slavery and the slave trade, as he noted in introducing the Draft Convention in 1925: I personally have no doubt that, if this Convention is accepted by the nations and carried into effect, it will constitute one of the greatest advances towards complete human freedom that has ever been made. I believe that it will free tens or hundreds of thousands of unhappy beings from conditions which closely resemble slavery and which now exist. It will be of untold advantage to humanity in general.6

Yet as Viscount Cecil understood the Draft Convention which emerged was not as strong as it might otherwise have been, noting to the Assembly that what was being proposed was “general principles which might be adopted usefully by all civilized nations as a minimum code in the matter of slavery”.7 In essence, the significance of the travaux préparatoires of the 1926 League of Nations’ Slavery Convention is that it clarifies the obligations that States have to suppress slavery and the slave trade, but also the rather limited provisions of forced labour when used for private ends. These preparatory works consider the definition of slavery as established in Article 1 of the 1926 Convention as “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised”, and highlights the interpretation given to this provision during the drafting process, including that of the Union of South Africa: “a person is a slave if any other person can, by law or enforceable custom, claim such property in him as would be claimed if he were an inanimate

6

7

League of Nations, Question of Slavery: Report of the Sixth Committee; Resolution, League of Nations Official Journal (Special Supplement 33) Records of the Sixth Assembly: Text of Debates, Nineteenth Plenary Meeting, 26 September 1925, p. 157. League of Nations, Journal of the Sixth Assembly of the League of Nations, Geneva 1925, No. 3, 9 September 1925, pp. 24–25.

Introduction

9

object”;8 and the Sixth Committee of the Assembly of the League of Nations: “the maintenance by a private individual of rights over another person of the same nature as the rights which an individual can have over things”.9 Yet it should be emphasised that Article 1(1) does not speak of a ‘right of ownership’ of one over another, but the ‘powers’ attached to such a right of ownership. The travaux préparatoires of the 1926 Slavery Convention also establish what is not slavery, by indicating that States were unwilling to accept that conditions analogous to slavery (re: “domestic slavery and similar conditions”) were to be subsumed in the definition found in Article 1, where there were no powers attached to the right of ownership present.10 With regard to the obligations found in Article 2 of the 1926 Convention which flow from the definitions of ‘slavery’ and the ‘slave trade’ established in Article 1, little discussion regarding this provision transpired during the drafting process. States agreed rather easily “to prevent and suppress the slave trade”; while there was more hesitance with regard to slavery itself, as States opted for its gradual abolition: “to bring about, progressively and as soon as possible, the complete abolition of slavery in all its forms”. The gradual abolition of slavery accepted in the 1926 Convention appeared to Germany, for one, to be a step backwards, as it noted that at Saint Germain-en-Laye, in 1919, a treaty was concluded “whose signatories undertake to assure the complete suppression of slavery in all its forms, [which] seemingly goes further than the present proposal”.11 The issue which States and their representatives at the League of Nations paid close attention to was with regard to forced labour. It appears that States negotiating the 1926 Convention under the auspices of the League of Nations were rather confident that slavery and the slave trade were not

8

9

10 11

League of Nations, Draft Convention on Slavery, Replies of Governments, Reply from the Government of the Union of South Africa, A.10(a).1926.VI, 22 July 1926, p. 5; as found in League of Nations, Publications of the League of Nations, VI.B.Slavery.1926, 1–7. League of Nations, Slavery Convention: Report presented to the Assembly by the Sixth Committee, A.104.1926.VI, as found in League of Nations, Publications of the League of Nations, VI.B.Slavery.1926, VI.B.5, 24 September 1926, pp. 1–2. Id., p. 2. League of Nations, Draft Convention on Slavery, Replies of Governments, Reply from the Government of Germany, A.10(a).1926.VI, 22 July 1926, p. 4; as found in League of Nations, Publications of the League of Nations, VI.B.Slavery.1926, VI. B. 3.

10

Introduction

transpiring on their territory or that of their colonial possessions, but as Viscount Cecil would relate, this was not the case with regard to forced labour: “I do not think that there is any nation, civilised or uncivilised, which does not possess powers enabling the Government, for certain purposes and under certain restrictions, to require forced or compulsory labour on the part of its citizens”.12 As a result, there were attempts to exclude the provision regarding forced labour from the Convention, to water down its essence, and to ensure that the provisions did not specifically mention territories mandated to members of the League of Nations. In the end, Article 5 (Forced Labour) of the 1926 Convention – the most controversial and most discussed provision during the drafting process – was limited to gradually suppressing forced labour for private ends, that is “for purposes other than the public services properly so-called, such labour is treated in the Convention on exactly the same lines as slavery, namely it is provided that this form of labour should be discontinued as soon as possible”.13 Beyond obligations regarding slavery, the slave trade and forced labour, the 1926 Convention sought to include one further substantive item to be suppressed during the drafting process: the slave trade at sea. Twice during the drafting process, the British sought to have the slave trade at sea assimilated to piracy; yet the other delegations to the League of Nations resisted; and, as such, much of the substance of what was to become Article 3 of the 1926 Convention was removed. The result was that State Parties were to simply “adopt all appropriate measures with a view to preventing and suppressing the embarkation, disembarkation and transport of slaves in their territorial waters and upon all vessels flying their respective flags” and “to negotiate as soon as possible a general Convention with regard to the slave trade” at sea. Beyond the obligations flowing from Article 3, the 1926 Convention also requires States, under Article 6 to “undertake to adopt the necessary measures in order that severe penalties

12

13

League of Nations, Question of Slavery: Report of the Sixth Committee: Resolution, League of Nations Official Journal (Special Supplement 33) Records of the Sixth Assembly: Text of Debates, Nineteenth Plenary Meeting, 26 September 1925, pp. 156–157. League of Nations, Question of Slavery: Report of the Sixth Committee: Resolution, League of Nations Official Journal (Special Supplement 33) Records of the Sixth Assembly: Text of Debates, Nineteenth Plenary Meeting, 26 September 1925, pp. 156–157.

Introduction

11

may be imposed in respect of such infractions”, and under Article 7 “to communicate to each other and to the Secretary-General of the League of Nations any laws and regulations which they may enact with a view to the application of the provisions of the present Convention”. The former, like the latter provisions, “laid down a very vague rule” as the Belgium Government would rightly point out.14 The final provisions of the 1926 Convention, which deal with dispute settlement (Article 8), reservations (Article 9), denunciation (Article 10), accession (Article 11), and entry into force (Article 12) are instructive, as their discussion in the drafting process showed the extend to which European negotiators sought to ensure that the Convention did not apply to their foreign territories, be they colonies or mandates. The discussions in the travaux préparatoires regarding Articles 7 and 8, for instance, emphasise the fears that the Convention would become a mandate system for colonial powers with regard to slavery, the slave trade and/or forced labour; and were most evident in the insistence on a so-called ‘colonial clause’ being included as Article 9 of the Convention, thus allowing colonial Powers to reserve obligations with regard to their overseas possessions. For those reading through the travaux préparatoires, this will not appear too surprising as, although the 1926 Slavery Convention emerges as a rather benign instrument, much of the discussion that takes place during the drafting process is on the basis of a dichotomy between ‘civilised nations’ where slavery and the slave trade did not transpire (though Portugal was noticeably nervous) and so-called ‘un-civilised nations’, where this scourge had to be eliminated. Thus, there are references to ‘the natives’, to ‘backwards peoples’ and to semi-civilised’ and ‘uncivilised’ countries throughout the discussions. This dichotomy of civilised/uncivilised is perhaps most apparent in a 1925 Note by the Portuguese Delegate relating to forced labour. In that Note, General Freire d’Andrade stated that the forbidding of forced labour sent the wrong message to the indigenous populations of the colonies, as it suggests “to the native races that its prohibitions implies for them a right to idleness”;15 and that the abolition

14

15

League of Nations, Draft Convention on Slavery, Replies of Governments, Reply from the Government of Belgium, A.10(a).1926.VI, 22 July 1926, p. 2; as found in League of Nations, Publications of the League of Nations, VI.B.Slavery.1926, 1–7. League of Nations, Note Submitted to the First Sub-Committee of the Sixth Committee by the Portuguese Delegate, General Freire d’Andrade, A.VI/S.C.1/2.1925, 11

12

Introduction

of forced labour might interfere in “developing sufficiently in the interests of humanity, the riches and resources of those African countries placed under their sovereignty”.16 In many ways, the manner in which the League of Nations dealt with the issue of slavery is manifest in its relationship with Ethiopia; in the manner in which that State was admitted to the League and in the failure of the League of Nations to act through collective security to repulse the 1936 Italian annexation of Ethiopia. That story, however, is told elsewhere.17 Turing to consider the States which have consented to the 1926 Slavery Convention the following are the seventy-eight States Parties to the 1926 Slavery Convention as of 1 January 2008. Note that those consenting after 7 July 1955 to the 1926 Slavery Convention, are bound by the Convention as amended by the 1953 Protocol which transfers the function as powers of the 1926 Convention from the League of Nations to the United Nations. Afghanistan (November 9th, 1935) Antigua and Barbuda (25 October 25th, 1988) Australia ( June 18th, 1927) Austria (August 19th, 1927) Azerbaijan (16 August 16th, 1996) Bahamas (10 June 10th, 1976) Bangladesh ( January 7th, 1985) Barbados ( July 22nd, 1976) Belgium (September 23rd, 1927) Benin (April 4th, 1962) Bolivia (October 6th, 1983) Bulgaria (March 9th, 1927) Cameroon (March 7th, 1962) Canada (August 6th, 1928)

16 17

Israel ( January 6th, 1955) Italy (August 25th, 1928) Latvia ( July 9th, 1927) Liberia (May 17th, 1930) Mali (February 2nd, 1973) Mauritania ( June 6th, 1986) Mexico (September 8th, 1934) Monaco ( January 17th, 1928) Morocco (May 11th, 1959) Burma (no date indicated) Netherlands ( January 7th, 1928) New Zealand ( June 18th, 1927) Nicaragua (October 3rd, 1927) Niger (August 25th, 1961) Norway (September 10th, 1927)

September 1925, as found in Folder R.67.D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925, p. 3. Id., p. 5. See Jean Allain, “Slavery and the League of Nations: Ethiopia as a Civilised Nation”, Journal of the History of International Law, Vol. 8, 2006, pp. 213–244.

Introduction

Central African Republic (September 4th, 1962) Chile ( June 20th, 1995) China (April 22nd, 1937) Congo (October 15th, 1962) Côte d’Ivoire (December 8th, 1961) Croatia (October 12th, 1992) Cuba ( July 6th, 1931) Czech Republic (February 22nd, 1993) Denmark (May 17th, 1927) Dominica (August 17th, 1994) Ecuador (March 26th, 1928) Egypt ( January 25th, 1928) Estonia (May 16th, 1929) Fiji ( June 12th, 1972) Finland (September 29th, 1927) France (March 28th, 1931) Syria ( June 25th, 1931) Lebanon ( June 25th, 1931) Ghana (May 3rd, 1963) Germany (March 12th, 1929) Greece ( July 4th, 1930) Guatemala (November 11th, 1983) Guinea (March 30th, 1962) Haiti (September 3rd, 1927) Hungary (February 17th, 1933) India ( June 18th, 1927) Iraq ( January 18th, 1929) Ireland ( June 18th, 1930)

13

Poland (September 17th, 1930) Portugal (October 4th, 1927) Romania ( June 22nd, 1931) Saint Lucia (February 14th, 1990) Saint Vincent and the Grenadines (November 9th, 1981) Senegal (May 2nd, 1963) Seychelles (May 5th, 1992) Spain (September 12th, 1927) Slovakia (May 28th, 1993) Solomon Islands (September 3rd, 1981) Sudan (September 15th, 1927) Suriname (October 12th, 1979) Sweden (December 17th, 1927) Switzerland (November 1st, 1930) Turkey ( July 24th, 1933) The Former Yugoslav Republic of Macedonia ( January 8th, 1994) Togo (February 27th, 1962) Turkmenistan (May 1st, 1997) Union of South Africa (including South West Africa) ( June 18th, 1927) United Kingdom of Great Britain and Northern Ireland ( June 18th, 1927) United States of America (March 21st, 1929)

Beyond these seventy-seven States, the following forty-one are States which have become party to the 1926 Slavery Convention by way of consenting to the 1953 Protocol amending the 1926 Slavery Convention, this after the Protocol’s amendments came into force on 7 July 1955. Thus the total number of States party to the 1926 Slavery Convention as of 1 January 2008 is one-hundred and eighteen.

14

Introduction

Albania ( July 2nd, 1957) Algeria (November 22nd, 1963) Bahrain (March 27th, 1990) Belarus (September 13th, 1956) Bosnia and Herzegovina (September 1993) Brazil ( January 6th, 1966) Cyprus (April 21st, 1986) Ethiopia ( January 21st, 1969) Jamaica ( July 30th, 1964) Jordan (May 5th, 1959) Kuwait (May 28th, 1963) Kyrgyzstan (September 5th, 1997) Lesotho (November 4th, 1974) Libyan Arab Jamahiriya (February 14th, 1957) Madagascar (February 12th, 1964) Malawi (August 2nd, 1965) Malta ( January 3rd, 1966) Mauritius ( July 18th, 1969) Mongolia (December 20th, 1968) Montenegro (October 23rd, 2006) Nepal ( January 6th, 1963) Nigeria ( June 27th, 1961) Pakistan (September 30th, 1955)

Papua New Guinea ( January 27th, 1982) Philippines ( July 12th, 1955) Russian Federation (August 8th, 1956) Saint Vincent and the Grenadines (November 9th, 1981) Saudi Arabia ( July 5th, 1973) Serbia (March 12th, 2001) Sierra Leone (March 13th, 1962) Sri Lanka (March 21st, 1958) Sudan (September 9th, 1957) Trinidad and Tobago (April 11th, 1966) Tunisia ( July 15th, 1966) Uganda (August 12th, 1964) Ukraine ( January 27th, 1959) United Republic of Tanzania (November 28th, 1962) Uruguay ( June 7th, 2001) Viet Nam (August 14, 1956) Yemen (February 9th, 1987) Zambia (March 26th, 1973)

The following are reservations which have been made to the 1926 Slavery Convention: Bahrain (27 March 1990) The accession by the State of Bahrain to the said Convention shall in no way constitute recognition of Israel or be a cause for the establishment of any relations of any kind therewith.

Note that on 25 June 1990, the Secretary-General received from the Government of Israel the following objection concerning the reservation: The Government of the State of Israel has noted that the instruments of accession of Bahrain [to the Slavery Convention signed on 25 September 1926 and amended by the Protocol of 7 December 1953 and to the Supplementary Convention on the abolition of Slavery, the Slave Trade, and

Introduction

15

Institutions and Practices Similar to Slavery of 7 September 1956 contain a declaration in respect of Israel.

Burma (no date indicated) The Convention is not binding upon Burma in respect of Article 3 in so far as that Article may require her to enter into any convention whereby vessels by reason of the fact that they are owned, fitted out or commanded by Burmans, or of the fact that one-half of the crew is Burman, are classified as native vessels or are denied any privilege, right or immunity enjoyed by similar vessels of other States signatories of the Covenant or are made subject to any liability or disability to which similar ships of these other States are not subject.

India ( June 18th, 1927) The signature of the Convention is not binding in respect of Article 3 in so far as that article may require India to enter into any convention whereby vessels, by reason of the fact that they are owned, fitted out or commanded by Indians, or of the fact that one half of the crew is Indian, are classified as native vessels, or are denied any privilege, right or immunity enjoyed by similar vessels of other States signatories of the Covenant or are made subject to any liability or disability to which similar ships of such other States are not subject.

Spain (September 12th, 1927) For Spain and the Spanish Colonies, with the exception of the Spanish Protectorate of Morocco.

United States of America (March 21st, 1929) Subject to the reservation that the Government of the United States, adhering to its policy of opposition to forced or compulsory labour except as punishment for crime of which the person concerned has been duly convicted, adheres to the Convention except as to the first subdivision of the second paragraph of Article 5, which reads as follows: (I) Subject to the transitional provisions laid down in paragraph (2) below, compulsory or forced labour may only be exacted for public purposes.

The 1953 Protocol Amending the Slavery Convention When, in 1949 the Secretary-General was asked by the Economic and Social Council to establish a body of experts to ‘suggest methods of

16

Introduction

attacking’ issues of slavery and servitude, he suggested that this Ad Hoc Committee on Slavery might consider the possibility of the United Nations taking over the functions and powers of the League of Nations in regard to the 1926 Slavery Convention. The 1950–51 Ad Hoc Committee on Slavery followed this advice and drafted a protocol with an attached annex which was meant to bring the 1926 Convention into the United Nations system. That draft Protocol was revised first by the Secretary-General, then by the United Kingdom in 1953, before passing through the Sixth Committee (Legal) – getting a thorough critical consideration at the hands of the Israel Delegate, Mr. Robinson – before passing as General Assembly Resolution 794 (VIII) of 23 October 1953. On 7 December 1953, Liberia, Switzerland, and the United Kingdom became party to the Protocol, thus in accordance with Article III, paragraph 1, the Protocol came into force as it was meant to do so when two States ratified its provisions. In accordance with Article III, paragraph 2, the amendments found in the annex of the Protocol came into force on 7 July 1955, as twentythree States had become party to the 1953 Protocol amending the Slavery Convention. Those twenty-three States are: Afghanistan (August 16th, 1954) Australia (December 9th, 1953) Austria ( July 16th, 1954) Canada (December 17th, 1953) China (December 14th, 1955) Cuba ( June 28th, 1954) Denmark (March 3rd, 1954) Egypt (September 29th, 1954) Finland (March 19th, 1954) India (March 12th, 1954) Iraq (May 23rd, 1955) Italy (February 4th, 1954) Liberia (December 7th, 1953) Mexico (February 3rd, 1954)

Monaco (November 12th, 1954) New Zealand (December 16th, 1953) Norway (April 11th, 1957) South Africa (December 29th, 1953) Sweden (August 17th, 1954) Switzerland (December 7th, 1953) Syrian Arab Republic (August 4th, 1954) Turkey ( January 14th, 1955) United Kingdom of Great Britain and Northern Ireland (December 7th, 1953)

As a result, a new regime was created. For those States which are not party to the 1926 Convention, consenting to that instrument means that they are bound, as per Article III (2) by the amendments of the Protocol as well: “any State becoming a Party to the Convention, after

Introduction

17

the amendments thereto have come into force, shall become Party to the Convention as so amended”. This exists beside the regime manifest in those States which have consented to the 1926 Slavery Convention, but have yet to adopt the 1953 Protocol amending the Slavery Convention. There are nine such States: Bulgaria, Estonia, Lebanon, Haiti, Latvia, Netherlands, Poland, Portugal, and Sudan. In total there are fifty-nine States Party to the 1953 Protocol Amending the 1926 Convention. The other States which became party to the Protocol after 7 July 1955 are: Azerbaijan (August 16th, 1996) Bahamas ( June 10th, 1976) Bangladesh ( January 7th, 1985) Barbados ( July 22nd, 1976) Belgium (December 13th, 1962) Bolivia (October 6th, 1983) Bosnia and Herzegovina (September 1st, 1993) Cameroon ( June 27th, 1984) Chile ( June 20th, 1995) Croatia (October 12th, 1992) Dominica (August 17th, 1994) Ecuador (August 17th, 1955) Fiji ( June 12th, 1972) France (February 14th, 1963) Germany (May 29th, 1973) Greece (December 12th, 1955) Guatemala (November 11th, 1983) Guinea ( July 12th, 1962) Hungary (February 26th, 1958)

Ireland (August 31st, 1961) Israel (September 12th, 1955) Mali (February 2nd, 1973) Mauritania ( June 6th, 1986) Morocco (May 11th, 1959) Myanmar (April 29th, 1957) Netherlands ( July 7th, 1955) Nicaragua ( January 14th, 1986) Niger (December 7th, 1964) Romania (November 13th, 1957) Saint Lucia (February 14th, 1990) Saint Vincent and the Grenadines (November 9th, 1981) Serbia (March 12th, 2001) Solomon Islands (September 3rd, 1981) Spain (November 10th, 1976) Turkmenistan (May 1st, 1997) United States of America (March 7th, 1956)

Thus, there are sixty States which are party to the 1926 Slavery Convention as amended by the Protocol of 1953. One final point might be mentioned, in becoming party to the Protocol in July 1955, the Netherlands informed the Secretariat that the 1926 Convention as amended would apply to the Netherlands Antilles, Netherlands New Guinea, and Surinam.

18

Introduction

The 1956 Supplementary Convention The 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery can not be, like Viscount Cecil of Chelwood and the 1926 Slavery Convention, personified by the work of one person. The negotiation process of the 1956 Convention was driven by the will of the General Assembly but more so by the Economic and Social Council of the United Nations. In fact, as late as 1953, the Secretary-General, Trygve Lie (having resigned but not yet left office), questioned the need for such a supplementary convention, noting that the institutions and practices considered by a 1950–51 Ad Hoc Committee on Slavery (debt bondage, serfdom, forced marriage, child exploitation) were covered “in the main” by “the undertaking contained in Article 2(b) of the International Slavery Convention of 1926, interpreted in the light of the definition of slavery contained in Article 1(1) of the same Convention”.18 Yet, as information regarding slavery, the slave trade, and other forms of servitude was considered as being insufficient, the SecretaryGeneral proposed that “one or more separate and additional conventions be prepared which would aim at the elimination of such institutions or practices resembling slavery in their effects as are not already covered by the International Slavery Convention of 1926”.19 The negotiation process which ultimately led to the signing of the 1956 Supplementary Convention is significant as it establishes, under Article 1, four types of institutions or practices: debt bondage, serfdom, forced marriage, and child exploitation; which require State Parties to act upon by taking ‘all practicable and necessary legislative measures to bring about progressively and as soon as possible’ their complete abolition. Article 1 truly supplements the 1926 Slavery Convention, because it seeks to suppress these four servile statuses, ‘whether or not they are covered by the definition of slavery contained in article 1 of the Slavery Convention’. In other words, where the powers attached to the right of ownership are not present. This in effect means that, for instance, debt

18

19

United Nations Economic and Social Council, Slavery, the Slave Trade, and other forms of Servitude (Report of the Secretary-General), UN Doc. E/2357, 27 January 1953, p. 27. Id., p. 61.

Introduction

19

bondage would be considered slavery if it could be shown that the powers attached to the right of ownership were present; where such powers were not, then such debt bondage would be considered a servile status under the 1956 Convention. In such a scenario, it must be emphasised that where debt bondage manifested powers attached to the right of ownership, it would be covered by both the 1926 Convention as well as the 1956 Supplementary Convention (i.e.: ‘whether or not [. . .] covered by [. . .] the Slavery Convention’). Article 2 points to the need, while not making it mandatory, to prescribe a minimum age for marriage and to encourage consent to be freely expressed in front of competent civil or religious authorities. While no more than this could be agreed to within the provisions of the 1956 Supplementary Convention, a Resolution by the diplomatic Conference recommend that consideration by the Economic and Social Council be given to establishing a minimum age of marriage, “preferably of no less than 14 years”.20 Where the slave trade is concerned; the United Kingdom once more sought to assimilate the slave trade at sea to piracy. Again it was rebuffed, as it had been during the negotiations of the 1926 Convention and even as far back as the 1822 Congress of Verona. While the United Kingdom was rather quick to forgo the provisions equating slaving to piracy in general terms, it held out until the end to that equation where the right of visit was concerned. Yet, during the negotiation process, as it become clear that the majority of the diplomatic Conference was against the inclusion of such provisions, the United Kingdom sought to reduce the obligations which might flow from a right to visit. Thus such a right to visit would only entail a right to visit and search, but not to seize, it being left to the flag State’s jurisdiction to act in cases of violations of the proposed article. Despite this minimalist right to visit, the United Kingdom withdrew its proposal before the vote, acknowledging that it found favour with only a minority of the delegations. Article 4, for its part, mirrors provisions found in the final act of the 1890 Brussels Conference and tracks the proposed language of the International Law Commission, that is,

20

United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Final Act and Supplementary Convention, UN Doc. CONF.24/23, 7 September 1956, p. 6.

20

Introduction

that: ‘any slave who takes refuge on board any vessel of a State Party to this Convention shall ipso facto be free’. The provisions of Article 5 require States Parties to criminalise the marking of individuals to indicate their status or to punish them, in the guise of branding, mutilating, etc. These provisions criminalising branding are further buttressed by the provisions of Article 6 which criminalise, in general terms, the act of enslavement, either directly or indirectly through, for instance, being an accessory or by conspiring to enslave. As has been noted in the Commentary to Article 7(a), the definition of ‘slavery’ has been reproduced verbatim from the 1926 Convention into the 1956 Supplementary Convention which means that its understanding, in light of the travaux préparatoires, must extend throughout the negotiation process of both the 1926 and 1956 instruments. It appears that the Anti-Slavery Society recognised the essence of the interpretation put forward by the Secretary-General in his 1953 Memorandum as to the scope of Article 1, as it was the Society which proposed the formula ‘whether or not they are covered by the definition of slavery contained in article 1 of the Slavery Convention’, be introduced into Article 1. What does emerge of value, with regard to the provisions of Article 7(a) is the willingness to define not only ‘slavery’, but also ‘slave’. As for Article 7(b), it is clear that the elephant in the room at both the meetings of the drafting Committee and the UN diplomatic Conference was that the 1948 Universal Declaration of Human Rights had established that ‘no one shall be held in slavery or servitude’. Yet the negotiators of the 1956 Convention were calling for the progressive abolition or abandonment of prescribed servitudes. As a result, as the negotiation process transpired, the term ‘servitude’ was systematically removed from the substantive provisions of the Convention. Thus emerged a need, for instance, where the provisions of Article 6 (Criminal Offence) were concerned to speak of those servitudes enumerated in Article 1. As a result, what emerged was a definition of ‘a person of servile status’ as pointing to those institutions and practices found at Article 1. It can be said that up to this point in the negotiation process at the diplomatic Conference of 1956, the delegations had benefited from a truly friendly and fruitful negotiation process, probably made most evident in the negotiation of Article 2, where the tricky subjects of religion and minimum age of consent, where marriage was concerned, these were agreed to with a spirit of compromise. This can not be said for what was to fol-

Introduction

21

low. In essence, it appears that having been freed from the constrains of considering the substantive articles of the 1956 Convention; when attention of the Conference turned to the final clauses, the political divisions prevalent at the time within United Nations came to the fore. In retrospect, it might seem odd that a compromissory or reservation clause could generate discord, but it should be recalled, that the United Nations, and what we would come to be termed the United Nations system had been in existence for barely ten years when the 1956 Convention was being negotiated. Remembering that the Vienna Convention on the Law of Treaties would not emerge until 1969 and multilateral treaty negotiations had yet to become a fixture of international relations by the mid-1950s. As a result, issues which might seem rather matter-of-fact today had to be considered in depth and often led to real differences of opinion. Add to this the Cold War divide, the emerging Non-Alignment Movement, and the growing Suez Crisis; it was clear that negotiations were not going to be easy. Where Article 9 touching on reservations was concerned, it was an ideological issue which confronted the negotiators as they sought to work around the Soviet Union’s policy of supporting the inclusion in all instruments of a clause which allowed for reservations. Ultimately this failed, as the Representative of the Union of Soviet Socialist Republics was defeated in his quest to have provisions on reservations deleted from the text. Instead, a further vote was taken in which it was agreed that ‘no reservation may be made to this Convention’. Likewise, an attempt by the Representative of the Union of Soviet Socialist Republics to weaken the provisions of the compromissory clause at Article 10 by making recourse to the International Court of Justice optional, was thwarted. Though it must be said, the provisions which were finally agreed upon required the parties to turn to other modes of dispute settlement before unilaterally seizing the International Court. It was with regard to what might appear a rather innocuous provision of Article 11 touching on consenting to be bound to the Convention that the division between colonial Powers and anti-colonial States manifest itself. Recalling that it took more than six years and two advisory opinions of the International Court of Justice to break the deadlock which saw membership in the United Nations stalled until 1955; it is clear that the issue of whether non-members of the United Nations should be allowed to join the 1956 Convention was a live one. Although those

22

Introduction

for and against allowing non-members of the United Nations to join the Convention appeared far apart, reconciliation of their positions came as a result of the assurance that recognition of States would not be at issue. This was achieved by turning to the General Assembly – where a State that was not a member of the United Nations, of any of its specialised agencies, or of the Statute of the International Court of Justice –, which could, by vote, decided to invite a State to become bound by the provision of the 1956 Convention. While Article 11 made for some interesting discussions, those regarding Article 12 were, especially during the diplomatic Conference, at their most explosive. The divide between those who favoured a ‘territorial clause’ and those who opposed a ‘colonial clause’ was manifest in the language used. The hostility towards the overseas territory clause was apparent early on as accusations that it was precisely in those territories that slavery and servitude were ‘most widespread’ were made. Most vocal in this vein was the Observer from Saudi Arabia who, when challenged on his State’s laws on enslavement, spoke of a press campaign engineered by the United Kingdom and France,21 “when the Saudi Arabian Government had submitted the question of Algeria to the United Nations and when difficulties with the United Kingdom had arisen about the Buraimi Oasis”. Leaving aside consideration of the overseas clause, Mr. Baroody said that “the so-called champions of freedom might still be worthy of the term if they desisted from fighting people who were called ‘rebels’ in Algeria but who were in fact Moslems trying to secede from France”. Cooler heads did prevail, it being recognised that colonial powers had ceded some autonomy to their overseas territories, and thus this should be respected by establishing a clause which mandated the metropolitan State to consent to be bound in those territories where no consent was required, and to seek agreement in those colonies where consent was required. The final two provisions on Article 14 (Denunciation) and Article 15 (Final Clause) for their part did not raise any important issues of substance. Turning to States having consented to the Supplementary Convention, as of 1 January 2008, the following are the States party to the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery:

21

See “Slave Traffic Dispute”, The Times (London), 21 August 1956, p. 7.

Introduction

Afghanistan (November 16th, 1966) Albania (November 8th, 1958) Algeria (October 31st, 1963) Antigua and Barbuda (October 25th, 1988) Argentina (August 13th, 1964) Australia ( January 6th, 1958) Austria (October 7th, 1963) Azerbaijan (August 16th, 1996) Bahamas ( June 10th, 1976) Bahrain (March 27th, 1990) Bangladesh (February 5th, 1985) Barbados (August 9th, 1972) Belarus ( June 5th, 1957) Belgium (December 13th, 1962) Bolivia (October 6th, 1983) Bosnia and Herzegovina (September 1st, 1993) Brazil ( January 6th, 1966) Bulgaria (August 21st, 1958) Cambodia ( June 12th, 1957) Cameroon ( June 27th, 1984) Canada ( January 10th, 1963) Central African Republic (December 31st, 1970) Chile ( June 20th, 1995) China (May 28th, 1959) Congo (August 25th, 1977) Côte d’Ivoire (December 10th, 1970) Croatia (October 12th, 1992) Cuba (August 21st, 1963) Cyprus (May 11th, 1962) Czech Republic (February 22nd, 1993) Democratic Republic of the Congo (February 28th, 1975) Denmark (April 24th, 1958)

23

Djibouti (March 21st, 1979) Dominica (August 17th, 1994) Dominican Republic (October 1st, 1962) Ecuador (March 29th, 1960) Egypt (April 17th, 1958) Ethiopia ( January 21st, 1969) Fiji ( June 12th,1972) Finland (April 1st, 1959) France (May 26th, 1964) Germany ( January 14th, 1959) Ghana (May 3rd, 1963) Greece (December 13th, 1972) Guatemala (November 11th, 1983) Guinea (March 14th, 1977) Haiti (February 12th, 1958) Hungary (February 26th, 1958) Iceland (November 17th, 1965) India ( June 23rd, 1960) Iran (December 30th, 1959) Iraq (September 30th, 1963) Ireland (September 18th, 1961) Israel (October 23rd, 1957) Italy (February 12th, 1958) Jamaica ( July 30th, 1964) Jordan (September 1957) Kuwait ( January 18th, 1963) Kyrgyzstan (September 5th, 1997) Lao People’s Democratic Republic (September 9th, 1957) Latvia (April 14th, 1992) Lesotho (November 4th, 1974) Libyan Arab Jamahiriya (May 16th, 1989) Luxembourg (May 1st, 1967) Madagascar (February 29th, 1972) Malawi (August 2nd, 1965) Malaysia (November 18th, 1957)

24

Introduction

Mali (February 2nd, 1973) Malta ( January 3rd, 1966) Mauritania ( June 6th, 1986) Mauritius ( July 18th, 1969) Mexico ( June 30th, 1959) Mongolia (December 20th, 1968) Montenegro (October 23rd, 2006) Morocco (May 11th, 1959) Nepal ( January 7th, 1963) Netherlands (December 3rd, 1957) New Zealand (April 26th, 1962) Nicaragua ( January 14th, 1986) Niger ( July 22nd, 1963) Nigeria ( June 26th, 1961) Norway (May 3rd, 1960) Pakistan (March 20th, 1958) Peru (September 1956) Philippines (November 17th, 1964) Poland ( January 10th, 1963) Portugal (August 10th, 1959) Romania (November 13th, 1957) Russian Federation (April 12th, 1957) Rwanda (October 4th, 2006) Saint Lucia (February 14th, 1990) Saint Vincent and the Grenadines (November 9th, 1981) San Marino (August 29th, 1967) Saudi Arabia ( July 5th, 1973) Senegal ( July 19th, 1979) Serbia (March 12th, 2001) Seychelles (May 5th, 1992) Sierra Leone (March 13th, 1962) Singapore (March 28th, 1972)

Slovakia (May 28th, 1993) Slovenia ( July 6th, 1992) Solomon Islands (September 3rd, 1981) Spain (November 21st, 1967) Sri Lanka (March 21st, 1958) Sudan (September 9th, 1957) Suriname (October 12th, 1979) Sweden (October 28th, 1959) Switzerland ( July 28th, 1964) Syrian Arab Republic (April 17th, 1958) The Former Yugoslav Republic of Macedonia ( January 18th, 1994) Togo ( July 8th, 1980) Trinidad and Tobago (11 April 1966) Tunisia (15 July 1966) Turkey (17 July 1964) Turkmenistan (1 May 1997) Uganda (12 Aug 1964) Ukraine (3 December 1958) United Kingdom of Great Britain and Northern Ireland (30 April 1957) United Republic of Tanzania (28 November 1962) United States of America (6 December 1967) Uruguay (7 June 2001) Zambia (26 March 1973) Zimbabwe (1 December 1998)

Introduction

25

When States became party to the 1956 Convention, they where required, as per Article 12, to make a declaration as to overseas territories which the Convention applied ipso facto.22 The following are those declarations: Australia ( January 6th, 1958) All the non-self governing, trust and other non-metropolitan territories for the international relations of which Australia is responsible.

France (May 26th, 1964) All the territories of the Republic (Metropolitan France, overseas departments and territories).

Italy (February 12th, 1958) Somaliland under Italian Administration.

Netherlands (December 3rd, 1957) Surinam, the Netherlands Antilles and Netherlands New Guinea.

New Zealand (April 26th, 1962) The Cook Islands (including Niue) and the Tokelau Islands.

United Kingdom of Great Britain and Northern Ireland (April 30th, 1957) The Channel Islands and the Isle of Man.

United States of America (December 6th, 1967) All territories for the international relations of which the United States of America is responsible.

Further, under Article 12 (2) States were to notify the UN Secretary-General when it had received the consent (where such consent was required) of

22

Article 12(1) of the 1956 Convention reads: This Convention shall apply to all non self-governing, trust, colonial and other nonmetropolitan territories for the international relations of which any State Party is responsible; the Party concerned shall, subject to the provisions of paragraph 2 of this article, at the time of signature, ratification or accession declare the non-metropolitan territory or territories to which the Convention shall apply ipso facto as a result of such signature, ratification or accession.

26

Introduction

an overseas territory to be bound by the provisions of the Convention.23 If one considers the drafting history of what would become Article 12 of the 1956 Convention, it is not surprising that the only State to have needed to make such a notification was the United Kingdom. Recalling that in the case at hand, the United Kingdom had to “endeavour to secure the needed consent of the non-metropolitan territory” within a period of twelve months of its consent; which was 30 April 1957. The following are the overseas territories and the dates on which such notifications were made to the Secretary-General: September 6th, 1957: Aden, Bahamas, Barbados, Basutoland, Bechuanaland, Bermuda, British Guiana, British Honduras, Brunei, Cyprus, Falkland Islands, Fiji, Gambia, Gibraltar, Hong Kong, Jamaica, Kenya, Antigua, Montserrat, St. Kitts-Nevis, Virgin Islands, Malta, Mauritius, North Borneo, St. Helena, Sarawak, Seychelles, Sierra Leone, Singapore, Somaliland Protectorate, Swaziland, Tanganyika, Gilbert and Ellice Islands, Solomon Islands Protectorate, Grenada, St. Lucia, St. Vincent, Zanzibar, Federation of Rhodesia and Nyasaland, Bahrain, Qatar, The Trucial States (Abu Dhabi, Ajman, Dubai, Fujairah, Ras al Khaimah, Sharjah and Ummal Qaiwain)

October 18th, 1957: Dominica and Tonga

October 21st, 1957: Kuwait

October 30th, 1957: Uganda

23

Article 12(2) of the 1956 Convention reads: In any case in which the previous consent of a non-metropolitan territory is required by the constitutional laws or practices of the Party or of the non-metropolitan territory, the Party concerned shall endeavour to secure the needed consent of the non-metropolitan territory within the period of twelve months from the date of signature of the Convention by the metropolitan State, and when such consent has been obtained the Party shall notify the Secretary-General. This Convention shall apply to the territory or territories named in such notification from the date of its receipt by the Secretary-General.

Introduction

27

November 14th, 1957: Trinidad and Tobago

July 1st, 1957: The Federation of Nigeria

What now follows is a genealogy, article by article, of the provisions of the 1926 Slavery Convention and the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery.

1926 League of Nations Slavery Convention

Introduction The move toward establishing an international instrument meant to suppress slavery and the slave trade has its genesis in an attempt in the early 1920s to focus on issues of slavery in Ethiopia, a non-Member of the League of Nations. In 1922, Sir Arthur Steel-Maitland, the Delegate from New Zealand to the League of Nations, submitted two Resolutions to the Assembly of the League of Nations, the first relating to slavery in Ethiopia; the second, “to refer to the appropriate Committee the question of the recrudescence of slavery in Africa in order that it be considered and propose the best methods for combating the evil”.1 The Assembly, for its part, passed only the latter resolution, thus making slavery a question of international concern. The Assembly, having adopted Steel-Maitland’s proposal, referred the issue to its Sixth Committee (re: Political) which, in turn, created a Sub-Committee to consider the issue of slavery.2 A year later that Sub-Committee sought to have the Council of the League of Nations “entrust to a competent body the duty of continuing the investigation” of the question of slavery, “with a view to obtaining further information on the subject”.3

1

2

3

League of Nations, Third Assembly of the League of Nations, Motion Proposed by Sir Arthur Steel-Maitland, Delegate for New Zealand, on September 7, 1922, 23253 (A/47/1922). League of Nations, Record of the Third Assembly, Meetings of the Committees, VI Minutes of the Sixth Committee (Political Questions), Second Meeting, 11 September 1922, p. 10. The Sub-Committee was mandated to consider three issues: slavery, mandates and the Bondelzwart Insurrection. League of Nations, Report of the First Sub-Committee to the Sixth Committee, Record of the Fourth Assembly, Meetings of the Committees, VI Minutes of the Sixth Committee (Political Questions), Annex 10, p. 40. Note that, parallel to work of the Assembly, the Council of the League of Nations instructed the Secretary-General to circulate letters to the League Members “asking them to supply the Council with any information on the existing situation as regards the matter of slavery”, which he did in 1922 and 1923.

32

Introduction

As a result, the Council of the League of Nations created, on 14 March 1924, the Temporary Slavery Commission: a body which would exist for only two years but was to change fundamentally the emphasis of the League’s work in the area of slavery from being one of monitoring, to one of legislating the international suppression of slavery, the slave trade and forced labour. The Temporary Slavery Commission, in its final Report of 25 July 1925, made plain that it was “unable to lay before the Council a complete statement of the existing situation”4 in regard to slavery; however, it did provide the League’s Council with suggestions as to the areas it might consider following-up upon, including calling for “abolition of the legal status of slavery”. To that end, the final Report of the Temporary Slavery Commission emphasised that the “most important measure for the gradual abolition of slavery is that the status of slavery should no longer be recognised in the eye of the law”. Further, the Commission sought to define what it meant by the notion of abolition of the legal status of slavery: The ‘abolition of the legal status’ means that every slave has the right to assert his freedom, without ransom and without going through any formal process of fulfilling any prior condition, by simply leaving his master if he desire to do so. He enjoys and can exercise all the civil rights of a free man – e.g., can sue and be sued in court, can prosecute his master for ill-treatment, and can bequeath and inherit property.5

While the Commission gave voice to issues regarding the slave trade, slave-raiding, serfdom, and forced labour in its Report, its most enduring contribution was the call for an international convention on slavery, wherein the majority of the Temporary Slavery Commission’s Members believed that the “following suggestions might form the subject clauses to be embodied” in such an instrument:

4

5

Again, acting at the behest of the Council, the Secretary-General, in 1923, also sought information regarding slavery in “colonial possessions”. See League of Nations, Memorandum by the Secretary-General, The Question of Slavery, 4 August 1924, 38385 (A/25/1924). League of Nations, Letter from the Chairman of the Commission to the President of the Council and Report of the Commission, 1.19.1925. VI, 25 July 1925. League of Nations, Temporary Slavery Commission, Report of the Temporary Slavery Commission adopted in the Course of its Second Session, July 13th–25th July, 1925, A.19.1925. VI, 25 July 1925, p. 3.

Introduction

33

– Abolition of the legal status of slavery; – Right of pursuit across inland frontiers; – Infliction of the severest penalties on persons who have taken part in a raid or in the transport of slaves; – Creation of a transit depot; – Centralisation of information concerning the origin, destination and transport of freed slaves; – Right of pursuit in territorial waters; – The transport of slaves by sea to be regarded as an act of piracy – Legislation for the suppression of the abuses of peonage; – Non-recognition of the legal status of predial slavery or serfdom; and – Prohibition of forced or compulsory labour, except for essential public works and services and in return for adequate remuneration.6

As Viscount Robert Cecil of Chelwood would later relate, when the Report of the Temporary Slavery Commission was delivered to the Sixth Committee of the Assembly of the League of Nations, it could have been dismissed as “one of those vague and general resolutions” and been of no “great service”; yet “at the suggestion of the British Government, a different course has been followed. The Sixth Committee has drawn up a Convention”.7 Having been forced to put aside a Draft Protocol presented by the British Government meant to be opened for signatures forthwith, Viscount Cecil proposed a resolution to the Assembly that a Draft Convention be sent to Governments and considered with an eye to representatives being delegated Full Power by the next annual meeting of the Assembly “to sign the Convention with or without alteration”.8 The Resolution adopted reads: The Assembly, Considering that the Members of the League of Nations have undertaken, in virtue of Article 23(b) of the Covenant, to secure just treatment of the native inhabitants of territories under their control; Having examined the report of the Temporary Slavery Commission which has been communicated to all the Members of the League of Nations; and

6 7

8

Id., p. 2. League of Nations, Records of the Sixth Assembly: Text of Debates, League of Nations Official Journal (Special Supplement 33), Nineteenth Plenary Meeting, 26 September 1925, p. 156. Id.

34

Introduction

Being of opinion that a Convention is the best way of giving effect to the suggestions made in this report of accomplishing the work undertaken by the League of Nations for the suppression of slavery; Decide to recommend for approval the annexed draft Convention; And request the Council to communicate this draft to all States members of the League and to such other States as the Council may specify, with a view to the conclusion of a Convention which will be as far as possible in conformity with this draft, and invite the above-mentioned States: (a) To forward to the Secretary-General not later than June 1st, 1926, any observations that they may desire to make regarding the provisions of this draft; (b) To appoint at a later date plenipotentiaries who will meet at the time of the opening of the seventh Assembly to re-examine, if necessary, the articles of the draft Convention and to sign immediately the text of the Convention which has been agreed upon; (c) To make every effort to adopt at once all possible measures in conformity with the provisions of the draft Convention in question; (d) to assist one another forthwith in the abolition of the slave trade, slavery and conditions analogues thereto, by all practicable means and, in particular, by the conclusion of special agreements and arrangements.9

The Draft Convention which Viscount Cecil would lay before the Assembly was one which had its genesis in the pen of the British member of the Temporary Slavery Commission, Sir Frederick Lugard. Lugard was one of the leading experts of the day on issues of slavery and “considered the suppression of slave raiding and trading to be ‘the essential work’ of his life”.10 Lugard had intended to present his draft to the Temporary Slavery Commission, but had sought Viscount Cecil’s (and hence the British Government’s) support for the initiative. Viscount Cecil asked Lugard not to have it considered by the Commission, as it was decided that the United Kingdom, using the Lugard Draft as a basis, would prepare its own proposal. This proposed draft, in the form of a Draft Protocol, was not without its critics, as the Portuguese Delegate questioned the very need for a legal instrument, stating that “he was unable to see the advantages of the proposed Protocol”; as he noted that slavery “existed chiefly in countries which were not members of the League of Nations and which could not sign the proposed Protocol”, while those “Members

9 10

Id., p. 159. Susanne Miers, Slavery in the Twentieth Century: The Evolution of a Global Problem, 2003, p. 103.

Introduction

35

of the League which had colonies in Africa were already bound by the Treaty of St. Germain”.11 Despite the Portuguese intervention, the 1925 British Draft Protocol – a “watered down version of the treaty”12 – was considered by the Assembly of the League of Nations, after having been modified by the “Sixth Committee, with the help of a Sub-Committee and a small Drafting Committee”.13 The Drafting Committee consisted of Viscount Cecil, Albrecht Gohr – the former Chairman of the Temporary Slavery Commission – and “delegates from France, Italy, Portugal, and the Netherlands”.14 For its part the Sub-Committee consisted of delegates from “Abyssinia, Australia, Belgium, Brazil, British Empire, France, India, Italy, Japan, Netherlands, Norway, Portugal, Spain, [and] Uruguay”.15 By the wording of the Resolution adopted by the Assembly, it was clear that the wishes of the Assembly was that States would accept the 1925 Draft Convention as far as possible, in the form it was presented; thus avoiding the need to convene an ad hoc conference to negotiate and adopt such an instrument. This way forward, however, was opposed rather strongly by the Director of the Legal Section of the League of Nations, Dr. Van Hamel, in November 1925: It seems highly desirable, if the conclusion of international conventions is to be reached in the most correct and perfect form guaranteeing the most satisfactory manner of international legislation, that the final stage should be left to a separate conference [. . .]. [. . .]

11

12

13

14

15

League of Nations, Slavery: Report of the Temporary Slavery Commission and Resolution and Draft Protocol proposed by the British Government, Appointment of a Sub Committee, Official Journal, Record of the Sixth Assembly, Meetings of the Committees, Minutes of the Sixth Committee (Political Questions), Special Supplement No. 39, 8 September 1925, p. 7. For consideration of the Treaty of Saint Germain-en-Laye see infra., Section iv of the Preamble. Susanne Miers, “Slavery and the Slave Trade as International Issues 1890–1939”, Slavery and Abolition, Vol. 19, 1998, p. 28. League of Nations, Question of Slavery: Report of the Sixth Committee to the Assembly, League of Nations Official Journal (Special Supplement 33), Annex 29, A.130.1925. VI, 26 September 1925, p. 435. Susanne Miers, Slavery in the Twentieth Century: The Evolution of a Global Problem, 2003, p. 123. League of Nations, Journal of the Sixth Assembly of the League of Nations, Geneva 1925, No. 3, 9 September 1925, p. 26.

36

Introduction

To leave the drafting of a convention to the necessarily somewhat involved methods of the Assembly and to the rushed and incidental manner in which unavoidably that kind of work is done at the Assembly Committees may be satisfactory enough for the initial stage. From the Assembly such matters can pass to the Governments for consideration. For the final stage, however, it is most highly undesirable and, from a general legal point of view, it is a method that should be discarded.16

Dr. Van Hamel’s note, which also pointed to the fact that non-Members of the League would not be able to participate in deliberation if such negotiations transpired within the Assembly, was, however, not taken up as a result of the feedback received by States in the ensuing months which pointed to their willingness to delegate to their representatives before the Assembly the power to conclude a slavery convention.17 In the course of the year after the Assembly adopted Viscount Cecil’s 1925 Resolution, a number of States made observations in regard to the League of Nations’ Draft Convention; and ultimately a revision of its provisions would take place in 1926. Yet, it should be noted that, by and large, the 1925 Draft Convention was sustained and found the light of day through its incorporation into the 1926 Convention to Suppress the Slave Trade and Slavery. While States provided comments on the 1925 Draft over the ensuing year, which were considered by the Sixth Committee, a Sub-Committee and Albrecht Gohr, formally of the Temporary Slavery Commission,18

16

17

18

League of Nations, Dr. van Hamel to Captain Gilchrist, Minute Sheet 1/46781/46781, 21 November 1925, in Folder R.76.D.47833 entitled Draft Convention on Slavery: Discussion of the 37th Session of the Council, December 1925. See League of Nations, Draft Convention on Slavery, Report by [League of Nations Secretary-General] Sir Austen Chamberlain adopted by the Council June 9th 1926, A.9.1926.VI, 22 June 1926. Note that the Portuguese Delegate also believe that an international conference was preferable to the delegation of Full Powers to League representatives. See League of Nations, Note Submitted to the First Sub-Committee of the Sixth Committee by the Portuguese Delegate, General Freire d’Andrade, A.VI/S.C.1/2.1925, 11 September 1925, as found in Folder R.67.D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925, p. 2. In his Report to the Assembly in the lead up to the adoption of the 1926 Convention, Viscount Cecil noted the working procedure which had transpired within the League of Nations: The Six Committee, with the help of a Sub-Committee, and assisted by M.Gohr, Chairman of the Temporary Slavery Commission, considered anew in light of the

Introduction

37

much of the modification to the 1925 British Draft Protocol transpired in the very short period of time of fifteen days between the adopting of the Draft Protocol on 9 September 1925 and the adoption of a Draft Convention on 26 September 1925. The most valuable preparatory material garnered from the Archives of the League of Nations in Geneva allowing for a reconstruction of the drafting process of the 1926 Slavery Convention includes the 1925 British Draft Protocol and Viscount Cecil of Chelwood’s Report of 9 September 1925 to the Assembly of the League of Nations considering the Protocol’s provisions. With regard to the period between 9 September and the adoption of the 1925 Draft Convention on 26 September, the Archives have a near complete set of the working papers of the Sub-Committee and the Drafting Committee of the Sixth Committee of the League of Nations, as well as the Reports of the Drafting Committee, Sub-Committee and the Sixth Committee. Unfortunately, no minutes were recorded during the deliberations of the Sub-Committee and Drafting Committee in 1925, so that any insights gained as to why changes transpired at this stage are to be gleamed from the second Report which Viscount Cecil presented to the Assembly on behalf of the Sixth Committee on issues of slavery. During the calendar year between the adoption of the 1925 Draft Convention in 1925 and the adoption of the 1926 Convention to Suppress the Slave Trade and Slavery; the most valuable documents to the preparatory works are the replies by States to the Assembly’s request for comment on the 1925 Draft Convention. Beyond this, the work of the Sub-Committee and the Legal Section of the League of Nations in August and September 1926 are of relevance and most important with regard to the final provisions (re: Articles 9 to 12) of the 1926 Convention. Finally, the 1926 Report of the Sixth Committee, once more presented

observations which had been made by various Governments and by members of the Committee, the Draft Slavery Convention which was prepared by the last ordinary session of the Assembly. As a result of the careful consideration given to this question during the sixth ordinary session of the Assembly, it was unnecessary to go over much of the ground which had been so fully covered on the previous occasion [. . .]. League of Nations, Slavery Convention: Report of the Sixth Committee to the Assembly, A.104.1926.VI, 25 September 1926, p. 1; as found in Publications of the League of Nations, VI.B.Slavery.1926.5.

38

Introduction

by Viscount Cecil, introducing the various provisions of the 1926 Slavery Convention and the oral report he makes to the Assembly as found in the minutes are of significant importance to the generation of the travaux préparatoires of the 1926 Convention.

The Preamble Whereas the signatories of the General Act of the Brussels Conference of 1889–90 declared that they were equally animated by the firm intention of putting an end to the traffic in African slaves; Whereas the signatories of the Convention of Saint Germain-en-Laye of 1919, to revise the General Act of Berlin of 1885, and the General Act and Declaration of Brussels of 1890, affirmed their intention of securing the complete suppression of slavery in all its forms and of the slave trade by land and sea; Taking into consideration the report of the Temporary Slavery Commission appointed by the Council of the League of Nations on June 12th, 1924; Desiring to complete and extend the work accomplished under the Brussels Act and to find a means of giving practical effect throughout the world to such intentions as were expressed in regard to slave trade and slavery by the signatories of the Convention of Saint Germain-en-Laye, and recognising that it is necessary to conclude to that end more detailed arrangements than are contained in that Convention; Considering, moreover, that it is necessary to prevent forced labour from developing into conditions analogous to slavery, Have decided to conclude a Convention and have accordingly appointed as their Plenipotentiaries: [. . .] Who, having communicated their full powers, have agreed as follows:

40

1926 Slavery Convention

i. 1925 British Draft Protocol Having considered the report of the Temporary Committee on Slavery; Whereas the signatories of the General Act of the Brussels Conference of 1889–90 declared that they were equally animated by the firm intention of putting an end to the traffic in African slaves; Whereas the signatories of the Convention of Saint Germain-en-Laye of 1919, to revise the General Act of Berlin of 1885 and the General Act and Declaration of Brussels of 1890 affirmed their intention of securing the complete suppression of slavery in all its forms and of the slave trade by land and sea; Desiring to complete and extend the work accomplished under the Brussels Act and to find a means of giving practical effect throughout the world to such intentions as were expressed in regard to slave trade and slavery by the signatories of the Convention of Saint Germain-en-Laye; and Being further of opinion that it is desirable to regulate the employment of forced labour so as to prevent conditions analogous to those of slavery arising therefrom: Decide to open the attached Protocol immediately for signature by all States, and expresses the desire that the greatest possible number of States may adhere thereto as soon as possible. The Assembly further invites the Council to consider whether any additional measures may be practicable for carrying out the purposes of the annexed Protocol and to furnish the Seventh Assembly with a report. A record of the signatures to and ratification of the annexed Protocol will also be placed on the agenda of that Assembly.1

What would become the preamble of the 1926 Slavery Convention, started as the above introduction of a draft resolution to the Assembly of the League of Nations by Viscount Cecil of Chelwood on 8 September 1925. At that session, the Assembly, despite British wishes to have the Resolution along with the attached Protocol adopted, “decided to refer the Report of the Temporary Slavery Commission and the proposal of

1

League of Nations, Journal of the Sixth Assembly of the League of Nations, Geneva 1925, No. 3, 9 September 1925, p. 25.

The Preamble

41

the British Government to a sub-committee” for further consideration.2 On its face, the draft resolution did not look likely to be accepted by the Assembly, as it appeared to have been rushed upon the Assembly by the British Government and not well thought out. The draft Resolution mandated that the Protocol be “immediately” open for signature despite the fact that Delegates would not have had Full Powers, nor the instructions from their governments to undertake such an act. Further, the draft resolution acknowledged that this was not the final word, but that the League’s Council might “consider whether any additional measures may be practicable to carrying out the purposes of the annexed Protocol”.3

ii. 1925 Draft Convention Whereas the signatories of the General Act of the Brussels Conference of 1889–90 declared that they were equally animated by the firm intention of putting an end to the traffic in African slaves; Whereas the signatories of the Convention of Saint Germain-en-Laye of 1919, to revise the General Act of Berlin of 1885 and the General Act and Declaration of Brussels of 1890 affirmed their intention of securing the complete suppression of slavery in all its forms and of the slave trade by land and sea; Desiring to complete and extend the work accomplished under the Brussels Act and to find a means of giving practical effect throughout the world to such intentions as were expressed in regard to slave trade and slavery by the signatories of the Convention of Saint Germain-en-Laye, Have decided to conclude a Convention and have accordingly appointed as their Plenipotentiaries: …………………………………………………………………….. Who, having communicated their full powers, have agreed as follows:4

2

3

4

Id., 26. The Assembly went on to decide that the sub-committee would be “composed of representatives of the following countries: Abyssinia, Australia, Belgium, Brazil, British Empire, France, India, Italy, Japan, Netherlands, Norway, Portugal, Spain, Uruguay”. League of Nations, Slavery Convention: Report of the Sixth Committee to the Assembly, A.104.1926.VI, 25 September 1926, p. 1; as found in Publications of the League of Nations, VI.B.Slavery.1926.5. League of Nations, Annex: Draft Convention, League of Nations Official Journal (Special Supplement 33) Records of the Sixth Assembly: Text of Debates, 26 September 1925, p. 439.

42

1926 Slavery Convention

In moving from the provisions of the introduction to the 1925 British Draft Protocol towards the preamble of the 1925 Draft Convention, what remains of the introduction are three of the four substantive provisions – paragraphs two, three and four – with, not surprisingly, the procedural paragraphs regarding the move to have the draft Resolution accepted by the Assembly disappearing. Thus, common to the introduction of the 1925 Draft Protocol and the preamble of the 1925 Draft Convention (and it should be said – of the 1926 Convention) are the following provisions: Whereas the signatories of the General Act of the Brussels Conference of 1889–90 declared that they were equally animated by the firm intention of putting an end to the traffic in African slaves; Whereas the signatories of the Convention of Saint Germain-en-Laye of 1919, to revise the General Act of Berlin of 1885 and the General Act and Declaration of Brussels of 1890 affirmed their intention of securing the complete suppression of slavery in all its forms and of the slave trade by land and sea; Desiring to complete and extend the work accomplished under the Brussels Act and to find a means of giving practical effect throughout the world to such intentions as were expressed in regard to slave trade and slavery by the signatories of the Convention of Saint Germain-en-Laye;

As for the introduction of new elements into the preamble of the 1926 Draft Convention, they are simply ‘procedural’ provisions meant to link the preamble to the articles of the Convention: Have decided to conclude a Convention and have accordingly appointed as their Plenipotentiaries: …………………………………………………………………….. Who, having communicated their full powers, have agreed as follows:

These provisions were introduced during the deliberations of the Drafting Committee of the Sub-Committee of the Sixth Committee of the Assembly on 22 September 1926, replacing the working draft which simply read: “Have agreed to the following provisions”.5 Finally, in putting forward

5

League of Nations, Sixth Committee, Sub Committee 1, Drafting Committee, “Slavery, Synopsis of the Convention”, 22 September 1925, A.VI/S.C.1/Drafting Committee/12(1), p. 1.

The Preamble

43

the 1925 Draft Convention, Viscount Cecil sought to comment on all its provisions on an article-by-article basis, though with respect to the provisions of the preamble, he simply stated that the “preamble refers to the previous action taken in international conventions to put down the slave trade. I think it requires no comment here”.6

iii. 1926 Slavery Convention Whereas the signatories of the General Act of the Brussels Conference of 1889–90 declared that they were equally animated by the firm intention of putting an end to the traffic in African slaves; Whereas the signatories of the Convention of Saint Germain-en-Laye of 1919, to revise the General Act of Berlin of 1885, and the General Act and Declaration of Brussels of 1890, affirmed their intention of securing the complete suppression of slavery in all its forms and of the slave trade by land and sea; Taking into consideration the report of the Temporary Slavery Commission appointed by the Council of the League of Nations on June 12th, 1924; Desiring to complete and extend the work accomplished under the Brussels Act and to find a means of giving practical effect throughout the world to such intentions as were expressed in regard to slave trade and slavery by the signatories of the Convention of Saint Germain-en-Laye, and recognising that it is necessary to conclude to that end more detailed arrangements than are contained in that Convention; Considering, moreover, that it is necessary to prevent forced labour from developing into conditions analogous to slavery, Have decided to conclude a Convention and have accordingly appointed as their Plenipotentiaries: The President of the Supreme Council of Albania: Dr. D. Dino, Envoy Extraordinary and Minister Plenipotentiary to His Majesty the King of Italy. The President of the German Reich: Dr. Carl von Schubert, Secretary of the State of Foreign Affairs.

6

League of Nations, Question of Slavery: Report of the Sixth Committee to the Assembly, League of Nations Official Journal (Special Supplement 33), Annex 29, A.130.1925.VI, 26 September 1925, p. 435.

44

1926 Slavery Convention

The President of the Federal Austrian Republic: M. Enerich von Pflügl, Envoy Extraordinary and Minister Plenipotentiary, representative of the Federal Government accredited to the League of Nations. His Majesty the King of Belgians: M.L. de Brouckère, member of the Senate, first delegate of Belgium to the Seventh Ordinary Session of the Assembly of the League of Nations. His Majesty the King of the United Kingdom of Great Britain and Ireland and of the British Dominions beyond the Seas, Emperor of India: The Right Honorable Viscount Cecil of Chelwood, K.C., Chancellor of the Dutchy of Lancaster. For the Dominion of Canada: The Right Honorable Sir George E. Foster, G.C.M.G., P.C., LL.D., Senator, Member of the King’s Privy Council of Canada. For the Commonwealth of Australia: The Honorable J.G. Latham, C.M.G., K.C., M.P., Attorney-General of the Commonwealth. For the Union of South Africa: Mr. Jacobus Stephanus Smit, High Commissioner of the Union in London. For the Dominion of New Zealand: The Honorable Sir James Parr, K.C.M.G., High Commissioner in London. And for India: Sir William Henry Hoare Vincent, G.C.I.E., K.C.S.I., member of the Council of the Governor-General of India. His Majesty the King of the Bulgarians: M.D. Milkoff, Chargé d’Affaires at Berne, permanent representative of the Bulgarian Government accredited to the League of Nations. The Chief Executive of the Chinese Republic: M. Chao-Hsin Chu, Envoy Extraordinary and Minister Plenipotentiary at Rome. The President of the Republic of Colombia: Dr. Francisco José Urrutia, Envoy Extraordinary and Minister Plenipotentiary to the Swiss Federal Council, representative of Colombia on the Council of the League of Nations. The President of the Republic of Cuba: M.A. de Agüero y Bethancourt, Envoy Extraordinary and Minister Plenipotentiary to the President of the German Reich and to the President of the Austrian Federal Republic. His Majesty the King of Denmark and Iceland: M. Herluf Zahle, Envoy Extraordinary and Minister Plenipotentiary to the President of the German Reich. His Majesty the King of Spain: M.M. Lopez Roberts, Marquis de la Torrehermosa, Envoy Extraordinary and Minister Plenipotentiary to the Swiss Federal Council. The President of the Estonian Republic: General Johan Laidoner, Member of Parliament, President of the Committee for the Foreign Affairs and National Defence. Her Majesty the Empress and Queen of the Kings of Abyssinia and his Imperial and Royal Highness the Prince Regent and Heir to the Throne: Debjazmatch Guetatchou, Minister of the Interiror; Lidj Makonnen

The Preamble

45

Endelkatchou, Kentiba Gebrou, Ato Tasfae, Secretary of the Imperial League of Nations Department at Addis-Abeba. The President of the Republic of Finland: M. Rafael W. Erich, Envoy Extraordinary and Minister Plenipotentiary to the Swiss Federal Council, permanent delegate of Finland accredited to the League of Nations. The President of the French Republic: Count B. Clauzel, Minister Plenipotentiary, head of the French League of Nations Department. The President of the Hellenic Republic: M.D. Caclamanos, Envoy Extraordinary and Minister Plenipotentiary, Chargé d’Affaires at Berne, permanent delegate accredited the League of Nations. His Majesty the King of Italy: Professor Vittorio Scialoja, Minister of State, Senator, representative of Italy on the Council of the League of Nations. The President of the Republic of Latvia: M. Charles Duzmans, permanent representative accredited to the League of Nations. The President of the Republic of Liberia: Baron Rodolphe A. Lehmann, Envoy Extraordinary and Minister Plenipotentiary to the President of the French Republic, permanent delegate accredited to the League of Nations. The President of the Republic of Lithuania: M.V. Sidzikauskas, Envoy Extraordinary and Minister Plenipotentiary to the President of the German Reich. His Majesty the King of Norway: Dr. Fridtof Nansen, Professor at the University of Oslo. The President of the Republic of Panamá: Dr. Eusebio A. Moralses, Professor of Law at the Panamá National Faculty, Finance Minister. Her Majesty the Queen of the Netherlands: Jonkheer W.F. van Lennep, Chargé d’Affaires a.i of the Netherlands at Berne. His Majesty the Emperor of Persia: His Highness Prince Arfa, Ambassador, delegate of Persia accredited to the League of Nations. President of the Polish Republic: M. Auguste Zaleski, Minister for Foreign Affairs. President of the Republic of Portugal: Dr. A. de Vasconcellos, Minister Plenipotentiary, in charge of the League of Nations Department at the Ministry of Foreign Affairs. His Majesty the King of Roumania: M.N. Tiulesco, Professor at the University of Bucharest, Envoy Extraordinary and Minister Plenipotentiary to His Britannic Majesty, representative of Roumania on the Council of the League of Nations. His Majesty the King of the Serbs, Croats and Slovenes: Dr. M. Jovanovitch, Envoy Extraordinary and Minister Plenipotentiary to the Swiss Federal Council, permanent delegate accredited to the League of Nations. His Majesty the King of Sweden: M. Einar Hennings, Envoy Extraordinary and Minister Plenipotentiary to the Swiss Federal Council. President of the Czechoslovak Republic: M. Ferdinand Veberka, Envoy Extraordinary and Minister Plenipotentiary to the Swiss Federal Council.

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The President of the Republic of Uruguay: M.B. Fernandez y Medina, Envoy Extraordinary and Minister Plenipotentiary to his Majesty the King of Spain Who, having communicated their full powers, have agreed as follows:7

In the intervening year between the 1925 Draft Convention and the adoption by the Assembly of the Resolution opening the 1926 Slavery Convention for signature, Viscount Cecil of Chelwood – in presenting his Report of the Sixth Committee to the Assembly of the League of Nations noted that the “Sixth Committee, with the help of a Sub-Committee, and assisted by M. Gohr, Chairman of the Temporary Slavery Commission, considered anew in light of the observations which had been made by various Governments and by members of the Committee, the Draft Slavery Convention which was prepared by the last ordinary session of the Assembly”.8 As far as the preamble is concerned, the British Government made two proposals, the first finds its way into the 1926 Convention wordfor-word and was meant to demonstrate that the present convention builds on the Convention of Saint Germain-en-Laye, which the British believed “had been proved by subsequent experience to be insufficiently detailed”.9 That provision, which appears as the fourth paragraph, reads: and recognising that it is necessary to conclude to that end more detailed arrangements than are contained in that Convention;

The Second proposal, pointed to the fact that not only does the proposed convention deal with issues of slavery and the slave trade but also

7

8

9

League of Nations, Slavery Convention, Geneva, September 25th, 1926, C.586. M.223.1926.VI, 16 October 1926; as found in Publications of the League of Nations, VI.B.Slavery.1926. VI.B.7. League of Nations, Slavery Convention: Report of the Sixth Committee to the Assembly, League of Nations Official Journal, Records of the Seventh Ordinary Session of the Assembly; text of the Debates (Special Supplement 44), Annex 20, A.104.1926.VI, 25 September 1926, p. 415. League of Nations, Draft Convention on Slavery, Replies of Governments, Reply from the British Government, A.10.1926.VI, 21 July 1926, p. 2; as found in Publications of the League of Nations, VI.B.Slavery.1926, VI.B.2.

The Preamble

47

of forced labour and, as such, should be reflected in the preamble. The original British proposal reads: Being further of opinion that it is desirable to regulate the employment of forced labour so as to prevent conditions analogous to those of slavery arising therefrom.10

The above provision, having been considered and modified; wherein it maintained the essence of its substance, whilst bringing it into line with the rest of the preamble as: Considering, moreover, that it is necessary to prevent forced labour from developing into conditions analogous to slavery,

The final addition to the preamble which is included in the 1926 Slavery Convention points to the work of the Temporary Slavery Commission: Taking into consideration the report of the Temporary Slavery Commission appointed by the Council of the League of Nations on June 12th, 1924;

While mention is made of the report of the Commission in the 1925 British Protocol, it was dropped in the 1925 Draft Convention, only to re-emerge in the 1926 Convention in the same form: “Taking into consideration the report of the Temporary Slavery Commission”.11 The final phrase regarding the date of appointment of the Commission by the Council was added during the proofing stage.12

iv. Commentary on the Preamble of the 1926 Slavery Convention Having considered the evolution of the preamble above, it is worth noting that in Viscount Cecil’s Report presenting the 1926 Convention to the Assembly, he provided an article-by-article consideration of the provisions being put forward; however no comment in regard to the preamble was

10 11

12

Id., pp. 2–3. League of Nations, Draft Convention Relating to Slavery, A.VI/8.1926, 23 September 1926, p. 1; as found in Folder R.77.D.46781 entitled Draft Convention on Slavery: Discussion at the 7th Assembly; 1926. See League of Nations, Corrected Proofs, Draft Convention Relating to Slavery, in Folder R.78. D.53389 entitled Convention relative à l’esclavages, Genève 1926; Text de la Convention et commentaries, p. 1.

48

1926 Slavery Convention

made; instead, it was simply introduced into the Convention which would soon be open for signature. It should be noted that the substance of the preamble points not only to the work of the Temporary Slavery Commission, but also to three international instruments: the 1885 General Act of Berlin, 1889–90 General Act of the Brussels Conference; and the 1919 Convention of Saint Germain-en-Laye. A word or two should be provided regarding these instruments as they form part of the historical antecedents of the movement to suppress slavery and the slave trade. The 1885 Berlin Conference, which led to the granting to King Leopold of Belgium (in a private capacity) the Congo Free State, ultimately provided for the free navigation of the Congo River and, more generally, a framework for the effective occupation of the African coast by European States in what was to become a template for the “Scramble for Africa”.13 Where issues of slavery were concerned, by way of the Declaration Relative to the Slave Trade attached to the General Act of the Conference of Berlin, States Parties agreed that, within the Congo Basin, the slave trade would be forbidden: Seeing the trading in slaves is forbidden in conformity with the principles of international law as recognized by the Signatory Powers, and seeing also that the operations, which, by sea or land, furnish slaves to trade, ought likewise to be regarded as forbidden, the Powers which do or shall exercise sovereign rights or influence in the territories forming the Conventional basin of the Congo declare that these territories may not serve as a market or means of transit for the trade in slaves of whatever race they may be. Each of the Powers binds itself to employ all the means at its disposal for putting an end to this trade and for punishing those who engage in it.14

The second instrument mentioned, the 1889–90 Brussels Conference, for its part, dealt with arms agreements and the traffic in spirits: but focused, above all, on the suppression of the African slave trade on land and at sea. Its General Act established a maritime zone of the high seas skirting much of sub-Saharan Africa wherein States had a right to visit,

13

14

See generally, H.W. Wesseling, Divide and Rule: the Partition of Africa 1880–1914, 1996. Article 9, General Act of the Conference of Berlin, relative to the Development of Trade and Civilization in Africa; the free navigation of the River Congo, Niger, etc.; the Suppression of the Slave Trade by Sea and Land; the occupation of Territory on the African Coast, etc. 26 February 1885. Sir E. Hertslet, The Map of Africa by Treaty, Vol. 2, 1967, p. 474.

The Preamble

49

search, and detain ships of a certain tonnage suspected of involvement in the slave trade.15 Of note also was the establishment of the first ever treaty monitoring body and the first inter-governmental organization to be located on African soil: the International Bureau in Zanzibar, meant to receive information from States party to the General Act regarding their efforts to suppress slavery and the slave trade.16 The third instrument mentioned, the 1919 Convention of Saint Germain-en-Laye, is of note as its full title indicates, it abrogates the two previous instruments, for those States that ratified it: the Convention revising the General Act of Berlin of 26 February 1885 and the General Act and Declaration of Brussels of 2 July 1890. As the 1919 Convention also contained, within its provisions, the Covenant of the League of Nations it was a treaty which amongst others, the United States of America, did not become party to. Where issues of slavery were concerned, the Convention mandated colonial powers in Africa to “endeavour to secure the complete suppression of slavery in all its forms and of the slave trade by land and sea”.17 Further, attached to the Convention was the “Declaration Relative to the Slave Trade” which repeated mutatis mutandis the Declaration originally found in the 1885 General Act of the Conference of Berlin, which is reproduced above.

15

16

17

Article 24, General Act of the Brussels Conference relative to the African Slave Trade, 2 July 1890, Sir E. Hertslet, The Map of Africa by Treaty, Vol. 2, 1967, p. 499. For a consideration of the nineteenth century moves to suppress the slave trade, see: Jean Allain, “Nineteenth Century Law of the Sea and the British Abolition of the Atlantic Slave Trade”, British Yearbook of International Law, Vol. 77, 2007. See Article 77 General Act of the Brussels Conference, op. cit. n. 15. For the work of the International Bureau in Zanzibar see: Documents relatives à la Répression de la Traite des Esclaves publiés en execution des Articles LXXXI et suivants de l’Act Général de Bruxelles; from 1892 to 1913 under the heading “Bureau international maritime de Zanzibar”. See Article 11, Convention revising the General Act of Berlin of 26 February 1885 and the General Act and Declaration of Brussels of 2 July 1890, 10 September 1919.

Article 1 (Definitions) 1. 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. 2. The slave trade includes all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging him; all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged, and, in general, every act of trade or transport in slaves.

Article 1 (Definitions)

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a) Slavery

i. 1925 British Draft Protocol ARTICLE 1 For the purpose of the present Protocol, the slave trade and slavery are defined as follows: [. . .] 2) Slavery is a status in which one person exercises a right of property over another.1

When Article 1 of the British Draft Protocol was originally proposed, Viscount Cecil noted that “it merely defined ‘the slave trade’ and ‘slavery’” and that “he did not think that any objection would be raised”.2 Yet, as we shall see, this was not to be, as the transition from the 1925 Draft Protocol proposed by Great Britain to the 1925 League of Nations Draft Convention marked fundamental changes in the definition of slavery and the slave trade. In terms of the drafting process of this provision, Article 1 provides the definition of slavery and the slave trade; although in the 1925 British Draft Protocol, ‘slave trade’ was placed before ‘slavery’, while that order was reversed in the 1925 Draft Convention and maintained in the 1926 Convention. What follows is a consideration of the evolution of both definitions, first considering the definition of slavery, then turning to the evolution of the term ‘slave trade’ in the preparatory works.

1

2

League of Nations, Journal of the Sixth Assembly of the League of Nations, Geneva 1925, No. 3, 9 September 1925, p. 25. League of Nations, Slavery: Draft Resolution and Protocol proposed by the British Government (continuation): Statement by Viscount Cecil, Official Journal, Record of the Sixth Assembly, Meetings of the Committees, Minutes of the Sixth Committee (Political Questions), Special Supplement No. 39, 14 September 1925, p. 14.

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ii. 1925 Draft Convention ARTICLE 1 For the purpose of the present Convention, the following definitions are agreed upon: 1. 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.3 [. . .]

When the Drafting Committee met to consider the provisions of the 1925 Draft Protocol, they expanded the definition of slavery from “a status in which one person exercises a right of property over another”, to read as follows: Slavery is the status of a person over whom another person or group of persons exercises the power attaching to proprietorship; or is the holding of a pledge or who is complied to serve such other person or group of persons for an undetermined time.4

The development of the definition came as a result of a draft which Albrecht Gohr, the Chair of the Temporary Slavery Commission proposed. That Proposal was used as a working document by the Drafting Committee and was later to be amended in the following manner, first by the Drafting Committee: Slavery is the status of a person over whom another person or group of persons exercises the power attaching to ownership [proprietorship]; or is the possession [holding] of a pledge or who is complied to serve such other person or group of persons for an undetermined period [time].5

3

4

5

League of Nations, Annex: Draft Convention, League of Nations Official Journal (Special Supplement 33) Records of the Sixth Assembly: Text of Debates, 26 September 1925, p. 439. League of Nations, Slavery: Draft Protocol Text proposed by M.Gohr (as amended), A.VI/S.C.1/5, 9 September 1925; as found in Folder R.67.D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925. League of Nations, Slavery: Draft Protocol Text proposed by M.Gohr (with handwritten amendments), A.VI/S.C.1/5.1926, 9 September 1925; as found in Folder R.67.D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925.

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53

Then by the Sub-Committee: Slavery is the status of a person over whom another person or group of persons exercises the power attaching to proprietorship; or is the holding of a pledge or who is complied to serve such other person or group of persons for an undetermined time.6

So as to read: Slavery is the status of a person over whom another person or group of persons exercises the powers attached to proprietorship.7

However, this definition would be forsaken for one put forward by Lord Cecil of Chelwood8 when, on 22 September, the Drafting Committee, having once more considered the issue proposed the following definition: 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.9

This definition of slavery – unaltered – would find its way into the 1926 Slavery Convention.

6

7

8

9

League of Nations, Slavery: Draft Protocol Text adopted by Sub-Committee of the VIth Commission on 17th of September 1925 (with handwritten amendments) A.VI/ S.C.1/8.1926 as found in Folder R.67.D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925. League of Nations, Slavery: Draft Protocol Text adopted by Sub-Committee of the VIth Commission on 17th of September 1925 A.VI/S.C.1/8.1926 as found in Folder R.67. D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925. See League of Nations, Slavery, A.VI/SC1/ Drafting Committee/14. (this document number having been pencilled out and replaced with A.VI/6.1925), 24 September 1925; as found in Folder R.67.D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925, where it reads: “Amendments proposed by Lord Cecil to the text of draft Convention adopted by the Drafting Committee of the SubCommittee of the VIth Commission (Document A.VI/S.C.I/ Drafting Committee 12 (1))”. League of Nations, Sixth Committee, Sub-Committee, Drafting Committee Slavery: Synopsis of the Convention (with handwritten amendments so as to be re-entitled Sixth Committee, Slavery: Synopsis of the Convention), A.VI/S.C.I/ Drafting Committee/12(1) Revised (this document number having been pencilled out and replaced with A.VI/5.1925, 22 September 1925); as found in Folder R.67.D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925.

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iii. 1926 Slavery Convention ARTICLE 1 1. 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.10[. . .]

The definition of ‘slavery’ having been agreed to in the 1925 Draft Convention, it was now left to States to comment upon it; three States did so: Belgium, Germany, and the Union of South Africa. For Belgium, it considered that the “definition given does not appear to the Belgium Colonial authorities to be strictly accurate. They consider that the fact that any or all of the powers attaching to the right of ownership are exercised over a person does not necessarily mean that that person is a slave”.11 Where Belgium considered the definition too wide, Germany considered it too narrow, making plain first that it “is exceptionally difficult to define slavery, inasmuch as the legal conception of civilised States and those of the African natives do not completely coincide”. The Germany Reply went on to say that the definition is precisely that: “too narrow, since prisoners of war derived from ancient tribal feuds are not bought, and according to the laws of many tribes, may not be sold, although they constitute a very important class of the un-free population”. As a result of these considerations, Germany put forward a proposed amendment to the definition of slavery. While acknowledging the appropriate nature of Article 1 as it stood, it went on to say: “it might be made clearer by adding the words ‘under private law’ after the word ‘exercised’, so that:

10

11

League of Nations, Slavery Convention, Geneva, September 25th, 1926, C.586. M.223.1926.VI, 16 October 1926; as found in Publications of the League of Nations, VI.B.Slavery.1926. VI.B.7. League of Nations, Draft Convention on Slavery, Replies of Governments, Reply from the Government of Belgium, A.10(a).1926.VI, 22 July 1926, p. 1; as found in Publications of the League of Nations, VI.B.Slavery, 1926.VI.B.3.

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Article 1, Section 1 would then read as follows: Slavery is the status of a person over whom any or all of the powers attaching to the right of ownership are exercised, under private law, by some other person or group of persons.12

Finally, South Africa made a rather lengthy submission which will be considered more fully in time; however, with regard to the definition of slavery it sought to elaborate on its understanding of the term: No exception can be taken to the definition of ‘slavery’ and ‘the slave trade’ contained in Article 1. That definition puts as the test of slavery the status or condition of a person over whom all or any of the powers attaching to the right of ownership are exercised. In other words, a person is a slave if any other person can, by law or enforceable custom, claim such property in him as would be claimed if he were an inanimate object; and thus the natural freedom of will possessed by a person to offer or render his labour or to control the fruits thereof or the consideration therefrom is taken from him. The term also seems to imply a permanent status or condition of a person whose natural freedom is taken away, for from the proprietary interest of the other person in the person to whom that status attaches is implied a right of disposal of sale, gift or exchange. It follows therefore that, if slavery is to be abolished or non-recognised by any community, the right of sale, gift or disposal of persons in a condition of slavery must also be abolished or measures taken that it shall have no recognition by the laws of that community. Article 1 therefore proceeds to define ‘slave trade’ as including all acts involved in the capture, acquisition or disposal of a person with intent that he shall thus become reduced to slavery and therefore as including also all acts involved in selling or exchanging him or any trade or transactions in such persons. If the draft Convention had merely proceeded to impose on the contracting parties the duty to prevent within their community any person being in a condition of slavery as defined in Article 1 or to prevent or refuse to recognise trade in slaves, there would be little criticism to offer upon the draft. But in Article 2(b), the draft Convention desires to bring about the disappearance not only of slavery as defined in Article 1 but to bring about progressively the disappearance of what is called “domestic slavery and similar conditions”. It is obviously therefore desired to extend the definitions given in Article 1 (which makes property or rights of ownership the test) to conditions wherein no property of one person in another is recognised by law – such as the relationship by custom of heads of families to persons

12

League of Nations, Draft Convention on Slavery, Replies of Governments, Reply from the Government of Germany, A.10(a).1926.VI, 22 July 1926, p 3; as found in Publications of the League of Nations, VI.B.Slavery, 1926.VI.B.3.

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related to them by consanguinity or marriage or to person who are deemed by adoption to be placed in such relationships. This seems to go beyond the object of the draft Convention as set out in the Preamble. If it does not go beyond those objects, there seems no reason why the so-called domestic slavery should not be included in the definition of Article 1. The argument seems to be that the so-called domestic slavery can only be brought to an end progressively; and thus admittedly the draft Convention is asking the signatories to the Convention to interfere as opportunity presents itself in the social conditions and custom of the people forming their communities. It is even uncertain as to what would thus be suppressed because to ‘domestic slavery’ is added ‘or similar condition – an expression by which, it is explained, is meant all forms of “debt slavery”, enslaving of persons disguised as adoption of children, and the acquisition of girls by purchase disguised as payment of dowry. Now either such persons are sui juris or they are not. If they are sui juris, they can only become subject to domestic slavery or similar conditions by a voluntary act, and the essential element of slavery is absent. If they are not sui juris, they can only be subject to domestic slavery or similar conditions by the acts of those who by law are their guardians, and it is no more than a form of paternal power. If, further, they have become domestic slaves or persons in similar conditions in the manner indicated, that can only be because others have acquired a right of property in them, and they are therefore slaves as defined in Article 1. There seems no reason, then, to differentiate them from the person in a condition of slavery defined in that article. If, on the other hand, no right of property in them exists, the scope of the draft Convention seems to be extended to compel the signatories to undertake to interfere in social customs. It would seem to be desirable that these social customs which signatories are to undertake to interfere with should be more clearly defined.13

Finally, in discussing the issue of forced labour (in regard to Article 5 of the 1925 Draft Convention), the observation of the Union of South Africa sought to make the distinction between it and slavery: “In the first case it is slavery, because the compeller has a proprietary right in respect of the compelled. In the latter case there is some element of choice or consent on the part of the compelled”.14

13

14

League of Nations, Draft Convention on Slavery, Replies of Governments, Reply from the Government of the Union of South Africa, A.10(a).1926.VI, 22 July 1926, p. 5; as found in Publications of the League of Nations, VI.B.Slavery, 1926.VI.B.3. Emphasis in the original. League of Nations, Draft Convention on Slavery, Replies of Governments, Reply from the Government of the Union of South Africa, A.10(a).1926.VI, 22 July 1926, p. 5;

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57

Despite those proposals and proposed amendments, as noted earlier, no changes were made to the provisions relating to the definition of slavery as between the 1925 Draft Convention and 1926 Convention. Thus neither the comments of Belgium nor those of Germany – or the proposed German amendment – were accepted by those drafting the 1926 Convention. Instead Lord Cecil simply stated that: No change has been made in this article. The text is primarily the result of the work of legal experts, and appears to the Committee to correspond satisfactorily with the chief object they had in view.15

One last item should be mentioned with regard to the travaux préparatoires and the definition of ‘slavery’: the reader should be made aware that this provision should be read in conjunction with Article 2(b) of the 1926 Slavery Convention as, following the lead of the Union of South Africa, emphasis was placed not so much on the nomenclature of the type of exploitation – say: debt bondage; as on the need to demonstrate that powers attached to the right of ownership were present.

iv. Commentary on Article 1(1) of the 1926 Convention The League of Nations Archives reveal little in regard to the substance of the provisions of the definition of slavery as it evolved from 1925 to 1926. An unexplained gap emerges as regards to why the definition presented by Gohr, which was considered and later modified, but was subsequently jettisoned in favour of the provision put forward by Viscount Cecil. Likewise, the very definition put forward by Viscount Cecil is nowhere elaborated upon in the archival material. Yet the value of the travaux préparatoires must lie, ultimately, with the manner in which States reacted to provisions put forward by drafters working within the intergovernmental League of Nations. In this case while the German proposed amendment was not taken on board, nor were its, or Belgiums’, comments

15

as found in League of Nations, Publications of the League of Nations, VI.B.Slavery, 1926.VI.B.3. See supra. Article 1(1). League of Nations, Slavery Convention: Report of the Sixth Committee to the Assembly, League of Nations Official Journal, Records of the Seventh Ordinary Session of the Assembly; text of the Debates (Special Supplement 44), Annex 20, A.104.1926.VI, 25 September 1926, p. 415.

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considered fundamental enough to change the definition proposed, the South African intervention does give scope to one’s understanding of the provisions of Article 1(1) of the 1926 Convention to Suppress the Slave Trade and Slavery. In seeking to gain an understanding of the provisions of Article 1, so as to make a larger argument, the submission by the Union of South Africa provides a rewording of the provisions, thus, adding a supplementary means of interpreting the term ‘slavery’ as found in the 1926 Convention. It is thus worth reproducing here once again the relevant provision of the Reply of Union of South Africa to the request by the Assembly of the League of Nations to comment on the 1925 Draft Convention: a person is a slave if any other person can, by law or enforceable custom, claim such property in him as would be claimed if he were an inanimate object;

The result of this enslavement as noted in the Reply of the Union of South Africa, as provided by the South African High Commissioner, Jacobus Smit, was that: the natural freedom of will possessed by a person to offer or render his labour or to control the fruits thereof or the consideration therefrom is taken from him.

Providing further understanding of the parameters of the definition of slavery as put forward in the 1925 Draft and accepted as such in the 1926 Convention, in regard its ratione tempori and to the implication to be drawn from proprietorship are as follows: The term also seems to imply a permanent status or condition of a person whose natural freedom is taken away, for from the proprietary interest of the other person in the person to whom that status attaches is implied a right of disposal of sale, gift or exchange.16

One further item in regard to the definition of ‘slavery’ as developed by the League of Nations might be mentioned. In his Report to the Assembly of the League of Nations in 1926 Viscount Cecil sought, through the

16

League of Nations, Draft Convention on Slavery, Replies of Governments, Reply from the Government of the Union of South Africa, A.10(a).1926.VI, 22 July 1926, p. 5; as found in Publications of the League of Nations, VI.B.Slavery.1926, 1–7. Emphasis in the original.

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backdoor, to voice the Sixth Committee’s understanding of a wider the definition of slavery. Speaking in regard to Article 2 – which will be considered shortly – he noted that the emphasis in that article on “domestic slavery and similar conditions” had been omitted “because it was believed that such conditions came within the definition of slavery contained in the first article and that no further prohibition of them in express terms was necessary”. Cecil then went on to say that: This applies not only to domestic slavery but to all those conditions mentioned by the Temporary Slavery Commission and to which I referred to last year, i.e., “debt slavery”, the enslaving of persons disguised as the adoption of children, and the acquisition of girls by purchase disguised as payment of dowry, etc.

To his credit, however, Viscount Cecil did qualify this pronouncement saying that “even if, as is possible, these last practices do not come under the definition of slavery as it is given in Article 1, the Commission is unanimously of the opinion that they must be combated”.17 He then gave an interpretation of Article 2 which the Sixth Committee agreed upon which includes their understand of the term slavery. The Sixth Committee: interprets Article 2 as tending to bring about the disappearance from written legislation or from the custom of the country of everything which admits the maintenance by a private individual of rights over another person of the same nature as the rights which an individual can have over things.18

For their part, States did not recognise the definition of slavery as touching on the items noted by the Temporary Slavery Commission as being somehow embedded in Article 1 of the 1926 Convention; instead, it would take the signing of the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery to do so. Put differently, slavery requires that the powers attached to the right of ownership be present; the 1956 Supplementary Convention dealing with serfdom, debt bondage, forced marriage and child exploitation seeks to put an end to these practices “whether or not

17

18

League of Nations, Slavery Convention: Report presented to the Assembly by the Sixth Committee, A.104.1926.VI, as found in Publications of the League of Nations, VI.B.Slavery.1926, VI.B.5, 24 September 1926, pp. 1–2. Id. Emphasis added.

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they are covered by the definition” found in Article 1 of the 1926 Convention: in essence in situations where the powers attached to the right of ownership are not present. To understand the overall context of the definition of slavery of Article 1, reference should also be made to the evolution of Article 2 of the 1926 Convention. Likewise to get a fuller understanding of the definition of slavery in general international law, reference should be made to the travaux préparatoires of Articles 1 and 7 of the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery.

b) Slave Trade

i. 1925 British Draft Protocol ARTICLE 1 For the purpose of the present Protocol, the slave trade and slavery are defined as follows: The slave trade consists in the capture or purchase of persons with the object of selling or bartering them as slaves; the sale of persons acquired for this purpose by capture, purchase or barter, together with the transport operation involved by this traffic.19 [. . .]

In introducing the provisions regarding the slave trade as found in the 1925 British Draft Protocol, Viscount Cecil of Chelwood stated that the first article “merely defined slave trade and slavery; to these definitions he did not think that any objection would be raised”.20 With regard to 19

20

League of Nations, Journal of the Sixth Assembly of the League of Nations, Geneva 1925, No. 3, 9 September 1925, p. 25. League of Nations, Slavery: Draft Resolution and Protocol proposed by the British Government (continuation): Statement by Viscount Cecil, Official Journal, Record of

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61

this pronouncement Viscount Cecil was correct, as the Sixth Committee adopted Article 1 “without discussion”;21 as did the Assembly of the League of Nations.

ii. 1925 Draft Convention ARTICLE 1 For the purpose of the present Convention, the following definitions are agreed upon: [. . .] 2. The slave trade includes all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging him; all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged, and in general, every action of trade or transport of slaves.22

The definition of the slave trade proposed by the British Delegation was broken down into its component parts by Albrecht Gohr in his proposal which constituted the working document of the Drafting Committee of the Sixth Committee of the Assembly of the League of Nations. Mr. Gohr’s proposal also included an all encompassing final clause which took into consideration elements of the slave trade as defined in domestic legislation:

21

22

the Sixth Assembly, Meetings of the Committees, Minutes of the Sixth Committee (Political Questions), Special Supplement No. 39, 14 September 1925, p. 12. League of Nations, Slavery: Examination of the Report of the Sub-Committee and of the Draft Convention, Official Journal, Special Supplement No. 39, Record of the Sixth Assembly, Meetings of the Committees, Minutes of the Sixth Committee (Political Questions), 24 September 1925, p. 28. League of Nations, Annex: Draft Convention, League of Nations Official Journal (Special Supplement 33) Records of the Sixth Assembly: Text of Debates, 26 September 1925, p. 439.

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For the purpose of the present Protocol it is understood that: 1) The slave trade consists in: the capture or purchase of a person with the object of making him a slave; the sale or purchase of a person acquired for such purpose; the transfer, as a slave, of a person to whom the transferrer owes a legal or customary duty or protection of whom he has undertaken to protect; any other operation having as their object the slave trade or the transport of slaves; and any other act which is considered by the legislation of a state in which it takes place as an act connected with the slave trade.23

The Drafting Committee modified the language of the Gohr Draft, for instance, “sale or purchase” in the second line was changed to read “sale or barter” as in the 1925 British Draft Protocol,24 and the final clause regarding domestic legislation was removed.25 What remained after these modifications was the following definition adopted by the Sub-Committee, which also, at this stage, reversed the order of the definition of ‘slavery’ and the ‘slave trade’ so that the ‘slave trade’ would now appear after ‘slavery’: 2) The slave trade consists in: the capture or purchase of a person with the object of making him a slave; the sale or barter of a person required for such purpose; the transfer, as a slave, of a person to whom the transferrer owes a legal or customary duty or protection of whom he has undertaken to protect; any other operation having as their object the slave trade or the transportation of slavers.26

23

24

25

26

League of Nations, Slavery: Draft Protocol Text proposed by M. Gohr (with handwritten amendments), A.VI/S.C.1/5.1926, 9 September 1925; as found in Folder R.67. D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925. League of Nations, Slavery: Draft Protocol Text proposed by M.Gohr (as amended), A.VI/S.C.1/5.1926, 9 September 1925; as found in Folder R.67.D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925. League of Nations, Slavery: Draft Protocol Text adopted by Sub-Committee of the VIth Commission on 17th of September 1925 (with handwritten amendments) A.VI/ S.C.1/8.1926; as found in Folder R.67.D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925. League of Nations, Slavery: Draft Protocol Text adopted by Sub-Committee of the VIth Commission on 17th of September 1925 A.VI/S.C.1/8.1926; as found in Folder R.67.

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While the Sub-Committee was working on the definition of the slave trade, the Australian Delegation put forward the following proposal, which sought to bring together the various elements of the slave trade by focusing on the acts committed: For the purpose of the present Protocol the slave trade is defined as follows; The acquisition of person by capture, purchase, or other means with a view to their enslavement or to their sale or barter, and Any other act which in the legislation of the country concerned shall be deemed to be the slave trade.27

This proposal was at once included in the Sub-Committee’s draft by the Drafting Committee, which thereafter deleted it,28 though the SubCommittee would take on board the need to provide a definition which stylistically flowed; as opposed to being truncated in point-form by offering the following: For the purpose of the present Protocol, the following definitions are agreed upon: [. . .] 2. The slave trade includes all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging him; all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged, and in general every action of trade or transport of slaves.29

27

28

29

D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925. League of Nations, Slavery: Protocol, Definition of Slavery, prepared by the Australian Delegate, A.VI/S.C.1/6.1926, 15 September 1926; as found in Folder R.67.D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925. League of Nations, Sixth Committee, Sub-Committee, Drafting Committee Slavery: Synopsis of the Convention (with handwritten amendments so as to be re-entitled Sixth Committee, Slavery: Synopsis of the Convention), A.VI/S.C.I/ Drafting Committee/12(1) Revised (this document number having been pencilled out and replaced with A.VI/5.1925, 22 September 1925); as found in Folder R.67.D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925. League of Nations, Sixth Committee, Slavery: Synopsis of the Convention, A.VI/5.1925, 22 September 1925, p. 3; as found in Folder R.67.D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925.

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Although the Sixth Committee, in drafting its report to the Assembly, originally put forward a terse definition in line with the Australian proposal: 2. The slave trade includes all acts involved in the capture, acquisition, disposal, sale, purchase, or transport of slaves, or of other person with intent to reduce them to slavery.30

It reverted to the Drafting Committee’s newly crafted definition which was, ultimately to make its way into the 1926 Convention: 2. All acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging him; all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged, and in general every act of trade or transport of slaves.31

iii. 1926 Slavery Convention ARTICLE 1 [. . .] 2. The slave trade includes all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging him; all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged, and, in general, every act of trade or transport in slaves.32

30

31

32

League of Nations, Question of Slavery: (mimeographed) Draft Report Presented to the Sixth Assembly by the Sixth Committee (with handwritten amendments), A.VI/5(a).1925, 23 September 1925; as found in Folder R.67.D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925. League of Nations, Question of Slavery: Draft Report Presented to the Sixth Assembly by the Sixth Committee, A.VI/6.1925, 23 September 1925; as found in Folder R.67. D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925, p. 2. League of Nations, Slavery Convention, Geneva, September 25th, 1926, C.586. M.223.1926.VI, 16 October 1926; as found in Publications of the League of Nations, VI.B.Slavery.1926. VI.B.7.

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The definition of the slave trade as found in the 1925 Draft Convention would not be modified before being incorporated into the 1926 Convention, States not deeming it necessary to comment on the provision related to the definition of the slave trade. Thus, the definition of the slave trade of the 1926 Convention reads as stated above.

iv. Commentary on Article 1(2) of the 1926 Slavery Convention Little comment can be made regarding Article 1(2), the definition of the slave trade, as the League of Nations Archives reveal no information regarding either the motivations of the committees involved in its drafting, or consideration given to the provision by States in their comments on the 1925 Draft Convention. As will become evident when considering the comments of States of later provisions of the Draft Convention, the primary issue of concern was not the definition in relation to either slavery or the slave trade, but the obligation which might flow from having to act upon the defined notions of slavery, the slave trade; and, it should be noted, forced labour.

v. Commentary on Article 1 of the 1926 Slavery Convention With respect to the overall drafting of Article 1, in his 1925 Report to the Assembly proposing the 1925 Draft Convention, Viscount Cecil of Chelwood attached the following commentary: Some members of the Committee thought at the beginning of our discussions that a definition of slavery and the slave trade was unnecessary the terms were in themselves clear, but as they have not always the same meaning in all legislations, it was decided that a definition was required. The text now submitted is primarily the result of the work of legal experts, and is based on the minimum provisions of existing colonial legislation and on the previous international convention on this subject.33

33

League of Nations, Question of Slavery: Report of the Sixth Committee to the Assembly, League of Nations Official Journal (Special Supplement 33), Annex 29, A.130.1925. VI, 26 September 1925, p. 435.

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Though not found in the final draft of his Report, as originally penned, Viscount Cecil’s consideration of Article 1 was deemed to be required for “legal reasons”.34 One year on, in reporting on the provisions of Article 1 proposed for inclusion in what would become the 1926 Convention, Viscount Cecil, reporting to the Sixth Committee in his capacity as Rapporteur for the Sub-Committee charged with drafting the Treaty, simply stated that the “Preamble and Article 1 were agreed to without discussion”.35 As this was duly accepted by the Sixth Committee, Viscount Cecil of Chelwood later submitted a Report before the Assembly of the League of Nations on behalf of the Sixth Committee which in draft form read: No change has been made in this article. The text is primarily the result of the work of legal experts, and is based on the minimum provisions of existing colonial legislation and on previous international conventions.

But this was modified in the following fashion: No change has been made in this article. The text is primarily the result of the work of legal experts, and is based on the minimum provisions of existing colonial legislation and on previous international conventions [appears to the Committee to correspond satisfactorily with the chief object they had in view].36

So as to ultimately read:

34

35

36

See League of Nations, Question of Slavery: (mimeographed) Draft Report Presented to the Sixth Assembly by the Sixth Committee (with handwritten amendments), A.VI/5(a).1925, 23 September 1925; as found in Folder R.67.D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925. League of Nations, Slavery: Examination of the Report of the Sub-Committee and of the Draft Convention, Official Journal, Special Supplement No. 39, Record of the Sixth Assembly, Meetings of the Committees, Minutes of the Sixth Committee (Political Questions), 24 September 1925, p. 28. League of Nations, Seventh Assembly of the League of Nations, Sixth Committee, Notes for the Rapporteur’s Report on Slavery, International Convention on Slavery, Report Present to the Seventh Assembly by the Sixth Committee, Rapporteur Lord Cecil of Chelwood, A.104.1926.VI, 24 September 1926. (Note that this document was modified by hand to read: League of Nations, Slavery Convention, Report Presented to the Assembly by the Sixth Committee, Rapporteur: Viscount Cecil of Chelwood.)

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No change has been made in this article. The text is primarily the result of the work of legal experts, and appears to the Committee to correspond satisfactorily with the chief object they had in view.37

The preparatory works leading to the establishment of Article 1 of the 1926 Slavery Convention provide limited, though significant, insight into the drafting of the provisions regarding the definition of ‘slavery’. By reformulating the definition of slavery, the Union of South Africa provides jurists with a supplementary means of interpreting this provision. While the definition of slavery in the 1926 Convention reads: “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”; the South African Delegate, Jacobus Smit, stated that slavery should be understood in the following terms: “a person is a slave if any other person can, by law or enforceable custom, claim such property in him as would be claimed if he were an inanimate object”.38 Smit’s further comments, on behalf of the Government of the Union of South Africa are also of note, as he speaks of the loss of freedom over one’s labour or its benefits, and the benefit of that labour for the slave owner whom has “right of disposal of sale, gift or exchange” of not only the labour of the individual, but also of that individual.39 Furthermore, the understanding which the Sixth Committee gave to the term slavery is also of note as the Delegates of States which sat on that Committee in 1926 had been given Full Power to negotiate and sign the 1926 Convention by their respective Governments. The Sixth Committee, it will be recalled considered slavery to be “the maintenance by a private individual of rights over another person of the same nature as the rights which an individual can have over things”.40 But more importantly that

37

38

39 40

League of Nations, Slavery Convention: Report of the Sixth Committee to the Assembly, League of Nations Official Journal, Records of the Seventh Ordinary Session of the Assembly; text of the Debates (Special Supplement 44), Annex 20, A.104.1926.VI, 25 September 1926, p. 415. League of Nations, Draft Convention on Slavery, Replies of Governments, Reply from the Government of the Union of South Africa, A.10(a).1926.VI, 22 July 1926, p. 5; as found in League of Nations, Publications of the League of Nations, VI.B.Slavery.1926, 1–7. Id. League of Nations, Slavery Convention: Report presented to the Assembly by the Sixth Committee, A.104.1926.VI, as found in Publications of the League of Nations, VI.B.Slavery.1926,VI.B.5, 24 September 1926, pp. 1–2.

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for slavery to exist within the terms of the 1926 Slavery Convention, though the practice or institution might be termed serfdom or forced marriage, what was required was that the powers attached to the right of ownership be present.

Article 2 (Suppression of Slavery and the Slave Trade) The High Contracting Parties undertake, each in respect of the territories placed under its sovereignty, jurisdiction, protection, suzerainty or tutelage, so far as they have not already taken the necessary steps: (a) To prevent and suppress the slave trade; (b) To bring about, progressively and as soon as possible, the complete abolition of slavery in all its forms.

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i. 1925 British Draft Protocol ARTICLE 2 The signatory States shall: (a) Suppress all forms of the slave trade; (b) Provide for the eventual emancipation of all slaves in their respective territories, and also for as speedy an elimination of domestic and other slavery as social conditions will allow.1

Article 2 was meant to create State obligations with regard to ‘slavery’ and the ‘slave trade’ as defined in Article 1. When Viscount Cecil of Chelwood introduced the 1925 Draft Protocol proposed by the British Government he was rather terse in regard to the provisions of sub-paragraph (a), simply noting that it “definitely obligated all the signatories to suppress all forms of the slave trade”. Where the provisions were more nuanced was with regard to ‘slavery’ and the obligations being attached to it, with Viscount Cecil noting that sub-paragraph (b) “was very cautiously worded”. Reiterating that sub-paragraph, Viscount Cecil noted that the British Government “recognized that, with regard to domestic slavery, a very difficult question arose, and therefore all that they could ask States to agree to was the desirability of getting rid of domestic slavery, and to do so as and when the opportunity offered”.2

1

2

League of Nations, Journal of the Sixth Assembly of the League of Nations, Geneva 1925, No. 3, 9 September 1925, p. 25. League of Nations, Slavery: Draft Resolution and Protocol proposed by the British Government (continuation): Statement by Viscount Cecil, Official Journal, Record of the Sixth Assembly, Meetings of the Committees, Minutes of the Sixth Committee (Political Questions), Special Supplement No. 39, 14 September 1925, p. 14.

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ii. 1925 Draft Convention ARTICLE 2 The High Contracting Parties undertake, each in respect of the territories placed under its sovereignty, jurisdiction, protection or tutelage, so far as they have not already taken the necessary steps: (a) To prevent and suppress the slave trade; (b) To bring about progressively and as soon as possible the disappearance of slavery in every form, notably in the case of domestic slavery and similar conditions.3

During the drafting process an opening paragraph was added to the provisions of Article 2 in the 1925 Draft Convention; France having proposed the following amendment to Article 2: “The high contracting Parties undertake in so far as they have not already taken the necessary 4 steps”. Although this proposal was not taken up in full, the notion of ‘necessary steps’ did find its way into the final draft. As to the rest of the provision, as the Portuguese Delegate had noted in the Assembly of the League of Nations, in 1925, slavery “existed chiefly in countries which were not members of the League of Nations and which could not sign the proposed Protocol”.5 As a result, the opening paragraph focuses on areas under colonial or mandatory administration. As to the sub-paragraphs of Article 2; during considerations of the provisions related to the slave trade, 3

4

5

League of Nations, Annex: Draft Convention, League of Nations Official Journal (Special Supplement 33) Records of the Sixth Assembly: Text of Debates, 26 September 1925, p. 439. League of Nations, Amendments proposed by the French Delegation to the Draft Protocol submitted by Viscount Cecil, A.VI/S.C.1/4.1925, not dated, as found in Folder R.67. D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925. League of Nations, Slavery: Report of the Temporary Slavery Commission and Resolution and Draft Protocol proposed by the British Government, Appointment of a Sub Committee, Official Journal, Record of the Sixth Assembly, Meetings of the Committees, Minutes of the Sixth Committee (Political Questions), Special Supplement No. 39, 8 September 1925, p. 7.

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the Drafting Committee toyed with the idea of including the notion of ‘abolish’ along with ‘prevent and suppress’ in sub-paragraph a) but ultimately rejected it.6 Thus, when it came time for the Sixth Committee’s Rapporteur, Viscount Cecil, to report to the Assembly, no comments were required or provided, as the provision of sub-paragraph (a) regarding the absolute prohibition of the slave trade remained the same as the 1925 British Draft Protocol. With respect to the provisions of sub-paragraph (b) dealing with obligation focused on slavery, the Drafting Committee considered two sets of obligations which might be attached to what is considered as two types of slavery. For ‘slavery’ proper, it proposed that States “endeavour to secure the gradual disappearance in every form”; while for ‘domestic slavery and similar conditions’ such gradual disappearance should transpire only “so far as is compatible with the well-being of the peoples and the maintenance of order”.7 This set of two different obligations in regard to the suppression of slavery, however, barely survived forty-eight hours, as the Drafting Committee itself moved to delete the modification regarding the wellbeing of the peoples and the maintenance of order from sub-paragraph (b).8 Despite these provisions having been proposed, but ultimately not included in sub-paragraph (b), this paragraph did go through a substantial redrafting. No longer was the end product (“eventual emancipation”) the focus of the provision; instead it was the process (“progressively and as soon as possible”) which was the new basis, within sub-paragraph 2(b), towards gradually suppressing slavery. Viscount Cecil, in introducing the 1925 Draft Convention to the Assembly of the League of Nations, sought to justify why the obligations flowing from slavery did not include immediate suppression and thus had been couched in ‘progressive’ terms. He stated that: in common with the Temporary Slavery Commission, we shall all recognise that in certain cases, in the past the attempt to do away with slavery

6

7 8

League of Nations, Sixth Committee, Sub Committee 1, Drafting Committee, “Slavery, Synopsis of the Convention”, A.VI/S.C.1/Drafting Committee/12(1), 22 September 1925, p. 2. Id. League of Nations, Slavery, 24 September 1925, A.VI/SC1/ Drafting Committee/14, 24 September 1925; as found in Folder R.67.D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925.

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and other similar conditions in an abrupt manner, although noble in its inspiration, has resulted in unforeseen and regrettable hardships for the individuals whose conditions it was sought to alleviate, and even in grave social upheavals. In these circumstances the Sixth Committee felt that the abolition of slavery, however desirable, could only be successfully brought about with due regard to the maintenance of order and the well-being of the people concerned. At the same time, the Committee was confident that each Government concerned would do its utmost to bring about the total disappearance of slavery at the very earliest moment.9

In his Report to the Assembly of the League of Nations, Viscount Cecil then turned to the notion of ‘similar conditions’ which he noted was meant to “include all forms of “debt slavery”, the enslaving of persons disguised as the adoption of children, and the acquisition of girls by purchase disguised as payment of dowry, etc. as mention in the report of the Temporary Slavery Commission”.10 In presenting his Report to the Assembly, Cecil noted that such similar conditions “approach very close to and are, in fact a form of slavery, but are not usually included in the simple term slavery. With respect to all those, we ask for their abolition, we ask all the nations to agree to their abolition, which will be carried out, as all reform must necessarily be carried out, as progressively as may be possible, and as soon as possible”.11 Viscount Cecil, did not however, report to the Sixth Committee that the Belgium Delegate had proposed that the provisions of Article 2(b) remove the distinction between ‘slavery’ and ‘domestic slavery’ so that it would simply read: “to bring about progressively the disappearance of slavery in every form”.12 In fact, it was Viscount Cecil himself who opposed the change, noting that he “would be sorry to see this alteration; he thought the terms ‘domestic slavery and similar conditions’ were usually understood as distinct from slavery,

9

10 11

12

League of Nations, Appendix, Draft Convention, League of Nations Official Journal (Special Supplement 33) Records of the Sixth Assembly: Text of Debates, Nineteenth Plenary Meeting, 26 September 1925, pp. 435–436. Id. League of Nations, Question of Slavery: Report of the Sixth Committee; Resolution, League of Nations Official Journal (Special Supplement 33) Records of the Sixth Assembly: Text of Debates, Nineteenth Plenary Meeting, 26 September 1925, p. 156. League of Nations, Slavery: Examination of the Report of the Sub-Committee and of the Draft Convention, Official Journal, Special Supplement No. 39, Record of the Sixth Assembly, Meetings of the Committees, Minutes of the Sixth Committee (Political Questions), 24 September 1925, p. 28.

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though they might possibly be considered as a form of slavery. M. Gohr, Chairman of the Temporary Slavery Commission had also thought that it was desirable to have some reference to domestic slavery in this article”.13 As a result of this intervention, the Belgium Delegate withdrew his proposal. However this was not to be the last word with regard to the phrase ‘domestic slavery and similar conditions’, as it would once more come under scrutiny during the drafting process of the 1926 Convention.

iii. 1926 Slavery Convention ARTICLE 2 The High Contracting Parties undertake, each in respect of the territories placed under its sovereignty, jurisdiction, protection, suzerainty or tutelage, so far as they have not already taken the necessary steps: (a) To prevent and suppress the slave trade; (b) To bring about, progressively and as soon as possible, the complete abolition of slavery in all its forms.14

As has been noted earlier, States provided comments on the 1925 Draft Convention. Where Article 2 is concerned, the Union of South Africa made observations which cut to the core of the attempt to make a distinction in the obligations flowing from the notions of the slave trade and slavery. South Africa observed that the proposed “Convention as drafted goes somewhat further than seems necessary for the abolition of slavery and the slave trade”.15 The argument put forward revolved around the final

13 14

15

Id. League of Nations, Slavery Convention, Geneva, September 25th, 1926, C.586. M.223.1926.VI, 16 October 1926; as found in Publications of the League of Nations, VI.B.Slavery.1926. VI.B.7. League of Nations, Draft Convention on Slavery, Replies of Governments, Reply from the Government of the Union of South Africa, A.10(a).1926.VI, 22 July 1926, p. 5; as found in Publications of the League of Nations, VI.B.Slavery.1926, VI.B.3.

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clause of sub-paragraph (b): “notably in the case of domestic slavery and similar conditions”, which the Union considered an attempt to extend the definition of slavery as spelled out in Article 1 of the Draft Convention. It pointed out that in the comments provided by the Sixth Committee that ‘domestic slavery and similar conditions’ is to be understood as “‘debt slavery’, the enslaving of persons disguised as the adoption of children, and the acquisition of girls by purchase disguised as payment of dowry”; and goes on to raise the following legal issue: Now either such persons are sui juris or they are not. If they are sui juris, they can only become subject to domestic slavery or similar conditions by a voluntary act, and the essential element of slavery is absent. If they are not sui juris, they can only be subject to domestic slavery or similar conditions by the acts of those who by law are their guardians, and it is no more than a form of paternal power. If, further, they have become domestic slaves or persons in similar conditions in the manner indicated, that can only be because others have acquired a right of property in them, and they are therefore slaves as defined in Article 1.

The South African observation continued: There seems no reason, then, to differentiate them from the person in a condition of slavery defined in that article. If, on the other hand, no right of property in them exists, the scope of the draft Convention seems to be extended to compel the signatories to undertake to interfere in social customs. It would seem to be desirable that these social customs which signatories are to undertake to interfere with should be more clearly defined.

In concluding, the Union of South Africa requested that “the provisions of Article 2(b) [. . .] should be deleted or considerably modified or clarified”.16 Germany for its part, proposed that this distinction between ‘slavery’ and ‘domestic slavery’ should be done away with, and that instead subparagraph (b) should simply read: “to abolish slavery in all its forms”.17 Its basis for making this proposal was that it appeared that States were backtracking on what had been agreed to at Saint Germain-en-Laye, which Germany noted: “was concluded seven years ago and whose signatories

16 17

Id. League of Nations, Draft Convention on Slavery, Replies of Governments, Reply from the Government of Germany, A.10(a).1926.VI, 22 July 1926, p. 4; as found in Publications of the League of Nations, VI.B.Slavery.1926, VI.B.3.

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undertake to assure the complete suppression of slavery in all its forms, [which] seemingly goes further than the present proposal”.18 Despite wishing to ensure that slavery and the slave trade were treated in the same manner, Germany did propose a new sub-paragraph, saying that a number of “conditions resembling slavery” existed and such servitude could be addressed by accepting the following amendment: To endeavour, as far as possible, to bring about the disappearance of conditions of servitude resembling slavery, e.g. debt slavery, sham adoption, childhood marriage, traffic in women, etc.19

This proposal, like the one made by the Delegate of Haiti (“To endeavour to bring about as soon as possible the disappearance of all voluntary or involuntary subjections”).20 was not taken up by the Sixth Committee, though the provisions of sub-paragraph (b) were in fact modified. Viscount Cecil reported to the Assembly of the League of Nations that: A slight change has been made in the drafting of sub-paragraph (b) of this article, the words “notably in the case of domestic slavery and similar conditions” being now omitted. This modification was made because it was believed that such conditions came within the definition of slavery contained in the first article and that no further prohibition of them in express terms was necessary.21

Viscount Cecil then went on to enumerate these types of domestic slavery and similar conditions as “all those conditions mentioned by the Temporary Slavery Commission and to which I referred to last year, i.e., “debt slavery”, the enslaving of persons disguised as the adoption of children, and the acquisition of girls by purchase disguised as payment of dowry, etc.” Though, in line with the observations made by the Union of South Africa, Viscount Cecil had to admit that:

18 19

20

21

Id. League of Nations, Draft Convention on Slavery, Replies of Governments, Reply from the Government of Germany, A.10(a).1926.VI, 22 July, p 3. League of Nations, Draft Convention on Slavery and Proposed Amendments, A.VI/ S.C.1/1, 10 September 1926; as found in Folder R.77.D.46781 entitled Draft Convention on Slavery: Discussion at the 7th Assembly; 1926. League of Nations, Slavery Convention: Report presented to the Assembly by the Sixth Committee, A.104.1926.VI, as found in League of Nations, Publications of the League of Nations, VI.B.Slavery.1926, VI.B.5, 24 September 1926, p. 1.

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Even if, as is possible, these last practices do not come under the definition of slavery as it is given in Article 1, the [Temporary Slavery] Commission is unanimously of the opinion that they must be combated. In a more general way, it interprets Article 2 as tending to bring about the disappearance from written legislation or from the custom of the country of everything which admits the maintenance by a private individual of rights over another person of the same nature as the rights which an individual can have over things.22

Ultimately, the provision accepted as Article 2(b): “To bring about, progressively and as soon as possible, the complete abolition of slavery in all its forms” is very close to the one which, as noted earlier, had been proposed by the Belgium Delegate, Mr. Louwers in 1925: “to bring about progressively the disappearance of slavery in every form”. One final item should be mentioned in regard to Article 2. Germany made one further proposal that sought to soften the blow of freedom for both the slave and the slave owners in the following manner: The Contracting Parties will see that bona-fide slave-owners are suitably compensated for the loss of their slaves. The compensation shall be made out of public funds but may be recovered from the slave if he is sufficiently wealthy. Liberated slaves, if they so desire, are to be restored to their homes, if not, they are to be settled on the land under State supervision, the costs to be borne by the liberation Government.23

For its part, the Sixth Committee, Viscount Cecil reported, “carefully considered certain definite proposals which were made for the purpose of alleviation the hardships which might result from the transition period, fully realising that the measures which would be most appropriate to this end would probably vary with the circumstances existing in different localities and as different times, and that they must be left to the judgement of the Government responsible”. “The German delegation” noted: that, in order to minimise the loss which enfranchisement would cause to slave-owners, compensation should be provided for them. It also proposed that steps should be agreed on to enable the enfranchised slaves who could not be repatriated to being the life of freedom under possible economic conditions. The Committee, however, felt that these proposals, admirable

22 23

Id., pp. 1–2. League of Nations, Draft Convention on Slavery, Replies of Governments, Reply from the Government of Germany, A.10(a).1926.VI, 22 July 1926, p. 4; as found in League of Nations, Publications of the League of Nations, VI.B.Slavery.1926, VI.B.3.

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in many cases, could with difficulty be inserted in the Convention. They would require considerable safeguards against abuse and belonged rather to the sphere of national than international action.24

iv. Commentary on Article 2 of the 1926 Slavery Convention It was one thing for States to set down the definition of slavery and the slave trade in Article 1, it was quite another to agree on the obligations which might flow from such definitions. By adding an opening paragraph to Article 2, Members of the League of Nations negotiating the convention were making plain that slavery and the slave trade were not domestic issues, but touched on overseas territories they administered. While there was overall agreement as to the suppression and prevention of, the slave trade, for all intents and purposes, there was no need to speak of ‘abolition’, as the slave trade was legally abolished in all Member States. State delegates negotiating the 1926 Convention were not as quick to mandate the immediate prevention and suppression of slavery, instead agreeing on progressive suppression. In its reply to the League’s request to comments on the 1925 Draft Convention, Germany appears to have been correct in pointing out that the 1919 Treaty of Saint Germain-en-Laye had created further reaching obligations on its State Parties than was entailed in what would become the 1926 Convention. Article 11 of the Treaty of Saint Germain-en-Laye, required States to do more than to act ‘progressively’, it simply required that States “endeavour to secure the complete suppression of slavery in all its forms”. As originally conceived by the 1925 British Draft Protocol (and as found in the 1925 Draft Convention), an attempt was made to distinguish ‘slavery’ from ‘domestic slavery’. The notion of ‘domestic slavery’ was utilised by the Temporary Slavery Commission in its final Report of July 1925. It noted that it is: difficult to say precisely what constitutes the institution known as domestic or predial slavery or serfdom. In its effects upon the life of the slave or serf, the various forms differ enormously: they may imply the most abject servitude or, on the other hand, an obligation to service comparable to that due from a villein to his lord under the feudal system formerly common

24

Id.

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in Europe: they may give to the master or owner powers of life and death over the slave, or give him only certain customary privileges not specially onerous upon the latter; they may give the slave even a particularly favourable position in the master’s household.25

Viscount Cecil sought the removal of the term ‘domestic slavery’ from the provisions of Article 2(b) due to the fact that such types of servitude were to be considered as being subsumed in the term ‘slavery’ as defined by Article 1 of the 1926 Convention, if the powers attached to the right of ownership were present. As the German proposed amendment to Article 2 had pointed out, such institutions as the Temporary Slavery Commission highlighted as being ‘domestic slavery’ were in fact “conditions of servitude resembling slavery”.26

25

26

Albrecht Gohr, Letter from the Chairman of the Commission to the President of the Council and Report of the Commission, 1.19.1925. VI, 25 July 1925, p. 10. Id.

Article 3 (The Slave Trade at Sea) The High Contracting Parties undertake to adopt all appropriate measures with a view to preventing and suppressing the embarkation, disembarkation and transport of slaves in their territorial waters and upon all vessels flying their respective flags. The High Contracting Parties undertake to negotiate as soon as possible a general Convention with regard to the slave trade which will give them rights and impose upon them duties of the same nature as those provided for in the Convention of June 17th, 1925, relative to the International Trade in Arms (Articles 12, 20, 21, 22, 23, 24, and paragraphs 3, 4 and 5 of Section II of Annex II), with the necessary adaptations, it being understood that this general Convention will not place the ships (even of small tonnage) of any High Contracting Parties in a position different from that of the other High Contracting Parties. It is also understood that, before or after the coming into force of this general Convention the High Contracting Parties are entirely free to conclude between themselves, without, however, derogating from the principles laid down in the preceding paragraph, such special agreements as, by reason of their peculiar situation, might appear to be suitable in order to bring about as soon as possible the complete disappearance of the slave trade.

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i. 1925 British Draft Protocol ARTICLE 5 The act of conveying slaves on the high seas shall be deemed to be an act of piracy, and the public ships of the signatory States shall have the same rights in relation to vessels and persons engaged in such act as over vessels and persons engaged in piracy. Vessels and slaves captured in accordance with this article shall be brought before the courts of the country whose ship effected the capture and dealt with in accordance with its laws. Persons on board such vessels who are engaged in the act of conveying slaves on the high seas shall be handed over to the authorities of their own country to be brought before its courts. The slaves shall in all cases be set at liberty.1

As originally proposed, the substance of Article 3 of the 1926 Slavery Convention was included as Article 5 of the 1925 Draft Protocol put forward by the British Government. As conceived, this provision, which deals with suppression of the slave trade at sea, was meant to assimilate the trade to piracy. In proposing this article, Viscount Cecil pointed to the Temporary Slavery Commission, which in its Final Report, had suggested “that the transport of slaves by sea be considered as an act of piracy”.2 Including such a provision in the Draft Protocol, he wrote “would certainly have a psychological value in solemnly decreeing by the greatest international authority now existing that the slave trade was the most heinous of crimes”.3 However, he also recognised that the attempt

1

2

3

League of Nations, Journal of the Sixth Assembly of the League of Nations, Geneva 1925, No. 3, 9 September 1925, p. 26. League of Nations, Temporary Slavery Commission, Report of the Temporary Slavery Commission adopted in the Course of its Second Session, July 13th–25th, 1925, A.19.1925.VI, 25 July 1925, p. 7. League of Nations, Slavery: Draft Resolution and Protocol proposed by the British Government (continuation): Statement by Viscount Cecil, Official Journal, Record of the Sixth Assembly, Meetings of the Committees, Minutes of the Sixth Committee (Political Questions), Special Supplement No. 39, 14 September 1925, p. 14.

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to assimilate the slave trade to piracy “had excited a certain amount of anxiety on the part of some of the representatives on the ground that they did not quite know what the effect of declaring something to be piracy really would be”. As such, he was willing to substitute the provisions for a “reaffirmation of the provisions in the Brussels Act, which might be said to have been tested in practice, dealing with the suppression only applied to a definite maritime zone which was there described”.4 Cecil recognised that this would not have a detrimental effect, as “the maritime zone referred to in the Brussels Act did in fact include all the seas in which the slave trade was at all common”.5 As such, a completely new provision was introduced into the 1925 Draft Convention; a provision which did not point to the Brussels Act, in part because not all States were party to that instrument.

ii. 1925 Draft Convention ARTICLE 3 The High Contracting Parties undertake to adopt all appropriate measures with a view of preventing and suppressing the embarkation, disembarkation and transport of slaves in their territorial waters and upon all vessels flying their respective flags. The High Contracting Parties further recognise the value of separate agreements between the Powers concerned conferring on their warships, in certain zones in which they may consider the existence of traffic in slaves to be a possibility, special rights enabling them to prevent and suppress the said traffic on vessels flying the flag of any of the Powers which are parties to such agreements. The High Contracting Parties undertake to communicate to each other agreements which may be concluded for this purpose.6

4 5 6

Id., p. 15. Id. League of Nations, Annex: Draft Convention, League of Nations Official Journal (Special Supplement 33) Records of the Sixth Assembly: Text of Debates, 26 September 1925, p. 439.

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When the provisions of what would become Article 3 of the 1925 Draft Convention were proposed in the Drafting Committee, the original draft went beyond the obligations of “preventing and suppressing” of the trade at sea, instead requiring the adoption of “all appropriate measures with a view to abolishing, preventing and suppressing”;7 yet this fundamental obligation to take measures to abolish the slave trade was excluded by the Sixth Committee in preparation of its 1925 report for the Assembly of the League.8 Beyond this specific amendment to the substance of Article 3 of the 1925 Draft Convention; it is plain that Article 3, in its totality, is fundamentally different from what had been proposed by the British in their Draft Protocol.9 It was, therefore in a rather understated manner that Viscount Cecil noted that “Article 3 now reads somewhat differently”, as the provisions no longer resembled, in any manner, the proposal made in the 1925 British Draft Protocol: gone was the assimilation of slaving to piracy and the manner in which the slave trade on the seas would be addressed in domestic courts. Cecil noted that “the suggestion contained in the report of the Temporary Slavery Commission that the transportation of slaves by sea be considered as an act of piracy was incorporated in the original text of the Convention proposed by my Government. It was found, however, that this raised serious difficulties”.10 Although Cecil did not elaborate on

7

8

9

10

League of Nations, Slavery, Synopsis of the Convention, Sixth Committee, Sub Committee 1, Drafting Committee, A.VI/S.C.1/Drafting Committee/12(1), 22 September 1925, p. 4. League of Nations, Question of Slavery: Draft Report Presented to the Sixth Assembly by the Sixth Committee, A.VI/6.1925, 23 September 1925, p. 4; as found in Folder R.67.D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925. Note that both Portugal and France made proposals in regard to this provision which were not taken up. For the Portuguese proposed amendment see League of Nations, Amendments proposed by the Portuguese Delegation to the Draft Protocol submitted by Viscount Cecil, A.VI/S.C.1/3.1925, 11 September 1925; as found in Folder R.67. D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925, p. 5. For the French proposal see League of Nations, Amendments proposed by the French Delegation to the Draft Protocol submitted by Viscount Cecil, A.VI/ S.C.1/4.1925, not dated, as found in Folder R.67.D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925. League of Nations, Question of Slavery: Report of the Sixth Committee to the Sixth Assembly, A.130.1925.VI, 26 September 1925, p. 2; as found in Folder R.67.

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these difficulties in his Report to the Assembly, he had considered doing so in an earlier draft of that Report: I have been forced to admit, however, that the situation as regards action by sea is complicated by the provisions of the Brussels Act which are still in force for certain States, and by the regime which has been adopted for the suppression of the traffic in arms in the waters in which the slave trade is for the most part carried on.11

It should be noted that during the interval between the 1925 Draft Convention and the adoption of the 1926 Slavery Convention the British Government once more sought to have the provisions equating the slave trade to piracy included in the legal text to no avail. As a justification for a proposed amendment to the 1925 Draft Convention reintroducing the issues of slaving as piracy, the British Government stated: Certain crimes are regarded as being, in a peculiar degree, crimes against the human race. His Majesty’s Government considers that there is a general consensus of opinion in civilised States that the slave trade constitutes a crime of this nature. [. . .] It follows that, from this point of view, the slave trade by sea may be regarded as falling into the same category of crime as piracy.12

The British Government noted that the procedure set out in Article 3 of the 1925 Draft Convention, required States to conclude bilateral agreements to allow for visits on the high seas to suppress the slave trade, something which Great Britain considered to be “evidently a more cumbersome and to that extent a less desirable procedure than the conclusion of a general agreement between high contracting parties to that end”. Such a general agreement would not only be worthwhile on those ground, but would, the British Government argued, act “to civilise opinion on the matter” through a declaration made by the parties that “they regard the

11

12

D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925. League of Nations, Draft Report of the Sixth Commission [sic] on the question of Slavery by the Sixth Committee (handwritten title on mimeograph)”, 23 September 1925, A.VI/SC1/ Drafting Committee/13, p. 4; as found in Folder R.67.D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925. League of Nations, Draft Convention on Slavery, Replies of Governments, Reply from the British Government, A.10.1926.VI, 21 July 1926, p. 3; as found in Publications of the League of Nations, VI.B.Slavery.1926, VI.B.3.

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slave trade by sea as analogous to piracy”.13 As a result, it suggested that the first paragraph of the 1925 Draft Protocol, which had been removed from the 1925 Draft Convention should be reinserted. After quoting a rather large passage on piracy from Oppenheimer’s International Law so as to attempt to demonstrate the parameters of what obligations would be undertaken by assimilating slaving to piracy and thus seeking to alleviate the fears of other delegates, the British Reply notes that as Article 3 now stood, it would be a “somewhat sterile act for the high contracting parties to ‘recognise the value’ of separate agreements [. . .] in the absence of some definite declaration”. Despite this, the British Reply stated that they would be willing to sign such agreements.14 Viscount Cecil noted that, Article 3, having been redrafted to exclude the issue of the slave trade as piracy “reads in a much vaguer manner than I had hoped”;15 and was ultimately concerned, as made apparent in an early draft of his Report to the Assembly that “technical objections” and legal issues might prevent bilateral treaties from coming into existence.16 However, Cecil had come around to the provisions as found in the 1925 Draft Convention stating: “whilst Article 3 now reads somewhat differently, it definitely foresees the conclusion of separate agreements between the Powers most directly concerned in order to bring about the most effective co-operation on the seas, notably as regards measures to be taken in the case of ships of relatively small tonnage which are usually employed in this trade”.17 One final note might be made in regard to the move to adopting the 1925 Draft Convention. During the consideration by the Assembly of Viscount Cecil’s Report, the ordinarily quiet Delegate from Persia

13 14 15

16 17

Id. Id. League of Nations, Draft Report of the Sixth Commission [sic] on the question of Slavery by the Sixth Committee (handwritten title on mimeograph)”, A.VI/SC1/ Drafting Committee/13, 23 September 1925, p. 4; as found in Folder R.67.D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925. Id. League of Nations, Annex 29, Question of Slavery, Report of the Sixth Committee to the Assembly, League of Nations Official Journal (Special Supplement 33) Records of the Sixth Assembly: Text of Debates, A.130.1925.VI, 26 September 1925, p. 436.

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spoke up, simply saying that with regard to Article 3, his state would not allow its ships to be defined as “native”,18 and thus open to search.

iii. 1926 Slavery Convention ARTICLE 3 The High Contracting Parties undertake to adopt all appropriate measures with a view to preventing and suppressing the embarkation, disembarkation and transport of slaves in their territorial waters and upon all vessels flying their respective flags. The High Contracting Parties undertake to negotiate as soon as possible a general Convention with regard to the slave trade which will give them rights and impose upon them duties of the same nature as those provided for in the Convention of June 17th, 1925, relative to the International Trade in Arms (Articles 12, 20, 21, 22, 23, 24, and paragraphs 3, 4 and 5 of Section II of Annex II), with the necessary adaptations, it being understood that this general Convention will not place the ships (even of small tonnage) of any High Contracting Parties in a position different from that of the other High Contracting Parties. It is also understood that, before or after the coming into force of this general Convention the High Contracting Parties are entirely free to conclude between themselves, without, however, derogating from the principles laid down in the preceding paragraph, such special agreements as, by reason of their peculiar situation, might appear to be suitable in order to bring about as soon as possible the complete disappearance of the slave trade.19

In his oral report to the Assembly of the League of Nations on behalf of the Sixth Committee, Viscount Cecil of Chelwood noted:

18

19

League of Nations, Slavery Convention: Report of the Sixth Committee: Resolution, League of Nations Official Journal (Special Supplement 44) Records of the Seventh Ordinary Assembly: Text of Debates, Seventeenth Plenary Meeting, 25 September 1926, p. 136. League of Nations, Slavery Convention, Geneva, September 25th, 1926, C.586. M.223.1926.VI, 16 October 1926; as found in Publications of the League of Nations, VI.B.Slavery.1926. VI.B.7.

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As regards Article 3, which is an attempt to improve existing provisions dealing with the suppression of the slave trade at sea, the British Government was anxious, and would still prefer, to have done that by the simple process of declaring the slave trade as being on the same level as piracy. That would have given very wide powers to deal with any slave trader who was found pursuing his nefarious purpose. Objections, however, were raised to the proposal, and we fell back on the idea that we might perhaps apply the provisions of the Convention on the International Trade in Arms to the slave trade so far as maritime search was concerned.20

In his written Report on behalf of the Sixth Committee, Viscount Cecil again took up this theme of the British wish to have the slave trade assimilated to piracy: The British Government again supported a suggestion contained in the report of the Temporary Slavery Commission that the transport of slaves by sea be treated in the Convention as piracy. The Sixth Committee took the same attitude toward the question from a moral point of view, but many members of the Committee thought that serious difficulties arose as regards the application in law of this proposal. No attempt has therefore been made to incorporate a clause to this effect in Article 3.21

Despite an attempt to reintroduce the piracy provisions of its 1925 Draft Protocol back into the 1926 Convention, the British Government recognised that this would in all likelihood not transpire and thus, in making its comments on the 1925 Draft Convention also, in the alternative, sought to strengthen the bilateral regime which was proposed in that instrument. The British Government’s submission went on to say, that: “Failing, therefore, the adoption of the proposal assimilation slave trade by sea to piracy, the British Government would suggest that in place of the second paragraph of Article 3, the following sentence should be adopted”: The signatory States undertake as soon as possible to conclude an agreement whereby the warships of any signatory State in an area where the slave trade may be expected to exist shall be authorised to proceed against any vessel on

20

21

League of Nations, Slavery Convention: Report of the Sixth Committee: Resolution, League of Nations Official Journal (Special Supplement 44) Records of the Seventh Ordinary Assembly: Text of Debates, Seventeenth Plenary Meeting, 25 September 1926, p. 131. League of Nations, Slavery Convention: Report presented to the Assembly by the Sixth Committee, A.104.1926.VI, (VI.B.Slavery 1926, VI.B.5) 24 September 1926, p. 2.

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the high seas flying the flag of any signatory State and suspected of being engaged in the slave trade.22

This proposed amendment, though included in the text of Article 3 during the early drafting stage, was ultimately rejected as it sought to introduce the same obligations as those that would have arisen had the slave trade at sea been assimilated to piracy; and was, as a result, replaced with a provision along the lines proposed by France. As Viscount Cecil noted to the Assembly, the “French Government proposed that, instead, the provision of the Arms Trafficking Convention dealing with maritime rights should be inserted in the Convention, with the necessary adaptations to make them applicable to slaves”.23 As to the ‘necessary adaptations’, Viscount Cecil noted that they were required “to meet the anxiety of a certain Power, that this provision does not imply preference for any one of the signatory States over another – all of them are to be treated on the same terms”.24 While the French proposal was not accepted in toto, it was the basis upon which Article 3 was drafted. In putting forward its proposed amendments to the second paragraph of Article 3, it stated that: The French Government has no objection to the principles of the conclusion of separate agreements, as proposed in this article, but is of the opinion that agreements of this nature, apart from the fact that they might give rise to difficulties in the matter of interpretation, might in actual practice be found ineffective. There is every reason to believe that, if pursuit is authorised in certain regions only in the case of vessels flying the flag of one of the Contracting Powers, traffickers will abstain in such regions from flying the flags of those Powers. Pursuit would thus be effective only if extended to all flags. Efficacious it would no doubt prove, for an alleged suspicion of traffic in arms would be sufficient pretext for the captains of warships to pursue the vessels

22

23

24

League of Nations, “Draft Convention on Slavery, Replies of Governments, Reply from the British Government, A.10.1926.VI, 21 July 1926, p. 4; as found in Publications of the League of Nations, VI.B.Slavery.1926, VI.B.3. League of Nations, Slavery Convention: Report presented to the Assembly by the Sixth Committee, A.104.1926.VI, (VI.B. Slavery 1926, VI.B.5) 24 September 1926, p. 2. League of Nations, Slavery Convention: Report of the Sixth Committee: Resolution, League of Nations Official Journal (Special Supplement 44) Records of the Seventh Ordinary Assembly: Text of Debates, Seventeenth Plenary Meeting, 25 September 1926, p. 131.

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and make a search for slaves. There would thus be no difference between the preventive action to be taken against the two kinds of traffic.

It was this thinking, the French reply noted, which had it propose that the slavery convention have similar provisions to those of Article 24 of the Convention concerning Traffic in Arms.25 The amendment of the second paragraph proposed by the French Delegate, thus read: The High Contracting Parties, undertake, each in so far as it is concerned, to apply the rules set forth in the Annex to the present Convention with a view to the prevention and suppression of all transport of slaves in the maritime zone described hereunder in native vessels defined in paragraph I of the Annex, as having a tonnage not exceeding 500 tons (net tonnage). The maritime zone includes the Red Sea, the Gulf of Aden, the Persian Gulf and the Gulf of Oman and is bound by a line drawn from and following the latitude of Cap Guardafui to the point of intersection with longitude 57 East of Greenwich and proceeding thence direct to the point at which the eastern frontiers of Gwadar meets the second.26

The French Delegate then proposed a six paragraph annex which dealt with the specifics of the zone, the types of vessels, authorization to fly a specific flag, the identification of native ships at sea, and the procedures for verification of flag and the inspection of ships (the last three items being mutatis mutandis specific provisions found in the Arms Trafficking Convention). In Viscount Cecil’s Report to the Assembly, he noted

25

26

League of Nations, Draft Convention on Slavery, Replies of Governments, Reply from the Government of Belgium, A.10(a).1926.VI, 22 July 1926, p. 1; as found in League of Nations, Publications of the League of Nations, VI.B.Slavery.1926, VI.B.3. The provisions of Article 24 of the Convention for the Control of the International Trade in Arms, Munitions and Implements of War reads as follows: The High Contracting Parties who exercise authority over territories within the prohibited zones specified in Article 9 agree to take, so far as each may be concerned, the measures required for the enforcement of the present Convention, and in particular for the prosecution and repression of offences against the provisions contained therein and to appoint the necessary territorial and consular officers or special representatives competent for this purpose. They shall communicate these measures to the Central International Office and shall inform them of the competent authorities referred to in the preceding article. League of Nations, Draft Convention on Slavery, Article 3, Amendment proposed by the French Delegation, A.VI/S.C.1/5, 14 September 1926; as found in Folder R.77. D.46781 entitled Draft Convention on Slavery: Discussion at the 7th Assembly; 1926.

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that the French Proposal with its annexed provisions was considered by delegations to be too great a change to the Convention, and would thus “not be in consonance with their instructions”. The Sixth Committee, he went on to say, had instead decided to mention specific articles of the 1925 Convention dealing with the international arms trade which, he said “gives greater elasticity as to the final agreements to be made, and provides for the absolute equality of the signatory States”.27 Thus, while it would be the substance of the French proposal which would lead to the provision incorporated into the 1926 Convention; it was, in fact, the text of the following proposal, made by the Italian Delegation to the Drafting Committee, which was taken up by that Committee as its basis for part of the text of Article 3: The High Contracting Parties undertake to negotiate as soon as possible a general Convention with regard to the slave trade which will give them rights and impose upon them duties of the same nature as those provided for in the Arms Trafficking Convention (Articles 12, 20, 21, 22, 23, 24, and paragraphs 3, 4 and 5 of Section II of Annex II), with the necessary adaptations, which should in no case diminish the above mentioned rights and duties. It is understood that before the coming into force of this general Convention the H.C.P. [High Contracting Parties] are entirely free to conclude between themselves, on the basis of the principles laid down in the preceding article, such special agreements as, by reason of their peculiar situation, might appear to be suitable in order to bring about as soon as possible the complete disappearance of the slave trade.28

Note that the provisions of Articles 12, 20, 21, 22, 23, 24, and paragraphs 3, 4 and 5 of Section II of Annex II of the 1925 Convention for the Control of the International Trade in Arms, Munitions and Implements of War set out the following obligations: establishment a maritime zone around much of Africa (Article 12); inclusion of vessels of less than 500 tons (Article 20); requirement that native vessels carry manifests (Article 21); authorisation to fly a flag (Article 22); exchange of manifest forms

27

28

League of Nations, Slavery Convention: Report presented to the Assembly by the Sixth Committee, A.104.1926.VI, (VI.B. Slavery 1926, VI.B.5) 24 September 1926, p. 2. League of Nations, Draft Convention on Slavery, Article 3: Text proposed by Italian Delegate, A.VI/S.C.1/11, 22 September 1926; as found in Folder R.77.D.46781 entitled Draft Convention on Slavery: Discussion at the 7th Assembly; 1926.

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among States Party (Article 23); application of regulations in the zone (Article 24); right to visit (paragraph 3); competence to try the vessel and individuals suspected of slaving (paragraph 4); and the right to search (paragraph 5).29 As far as the overall provisions are concerned, the Drafting Committee deleted the final clause of the first paragraph: “which should in no case diminish the above mentioned rights and duties”; added at the beginning of the second paragraph the words “and after” following “It is understood that before”; and deleted “on the basis of ” and replaced it with: “without derogation from”,30 so that the provision now reads: The High Contracting Parties undertake to negotiate as soon as possible a general Convention with regard to the slave trade which will give them rights and impose upon them duties of the same nature as those provided for in the Arms Trafficking Convention (Articles 12, 20, 21, 22, 23, 24, and paragraphs 3, 4 and 5 of Section II of Annex II), with the necessary adaptations. It is understood that before and after the coming into force of this general Convention the H.C.P. are entirely free to conclude between themselves, without derogating from the principles laid down in the preceding article, such special agreements as, by reason of their peculiar situation, might appear to be suitable in order to bring about as soon as possible the complete disappearance of the slave trade.31

This provision was then amalgamated with the Article 3 of the 1925 Draft Convention by deleting its second paragraph and adding the above two paragraphs. The below facsimile of the working copy of the Sixth Committee makes this transaction clear (the items struck through being deleted, those in brackets added): The High Contracting Parties undertake to adopt all appropriate measures with a view of preventing and suppression the embarkation, disembarkation

29

30

31

See Convention for the Control of the International Trade in Arms, Munitions and Implements of War, 17 July 1925. League of Nations, Draft Convention on Slavery, Article 3: Text proposed by Italian Delegate, A.VI/S.C.1/11, 22 September 1926; as found in Folder R.77.D.46781 entitled Draft Convention on Slavery: Discussion at the 7th Assembly; 1926. League of Nations, Draft Convention on Slavery, Article 3: Text submitted by the Drafting Committee to the Sub-Committee of the VIth Commission, A.VI/S.C.1/11, 22 September 1926; as found in Folder R.77.D.46781 entitled Draft Convention on Slavery: Discussion at the 7th Assembly; 1926.

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and transport of slaves in their territorial waters and upon all vessels flying their respective flags. The High Contracting Parties further recognise the value of separate agreements between the Powers concerned conferring on their warships, in certain zones in which they may consider the existence of traffic in slaves to be a possibility, special rights enabling them to prevent and suppress the said traffic on vessels flying the flag of any of the Powers which are parties to such agreements. The High Contracting Parties undertake to communicate to each other agreements which may be concluded for this purpose. [The High Contracting Parties undertake to negotiate as soon as possible a general Convention with regard to the slave trade which will give them rights and impose upon them duties of the same nature as those provided for in the Arms Convention (Articles 12, 20, 21, 22, 23, 24, and paragraphs 3, 4 and 5 of Section II of Annex II), with the necessary adaptations. It is understood that before and [or] after the coming into force of this general Convention the H.C.P. are entirely free to conclude between themselves, without [however] derogating from the principles laid down in the preceding article, such special agreements as, by reason of their peculiar situation, might appear to be suitable in order to bring about as soon as possible the complete disappearance of the slave trade].32

iv. Commentary on Article 3 of the Slavery Convention Although the British Government twice sought to have provisions assimilating the slave trade to piracy included in the provisions of Article 3, this was not accepted by other Delegations. Such a proposal had a long antecedence, having been first mooted by the Duke of Wellington at the 1822 Congress of Verona;33 and though it was incorporated in a 1826 bilateral agreement between Great Britain and Brazil, and in a 1841 instrument with the Continental Powers, it ultimately was rejected on a number of occasions and thus never formed part of nineteenth century

32

33

League of Nations, Draft Convention Relating to Slavery, A.VI/8 1926, 23 September 1926, pp. 2–3; as found in Folder R.77.D.46781 entitled Draft Convention on Slavery: Discussion at the 7th Assembly; 1926. See “Memorandum of the Duke of Wellington”, British and Foreign State Papers, Vol. 10 (1822–1823), 1828, pp. 95–100. For a narrative using as its pivot British attempts to equate the slave trade to piracy, see the section on “‘Quasi-Piracy’: The Fight Against the Slave Trade” in Wilhelm Grewe, The Epochs of International Law, 2000, pp. 554–569.

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international law. As William Beach Lawrence, noted in his leading international law text of 1857: Piracy being the common enemies of all mankind, and all nations having an equal interest in their apprehension and punishment, they may be lawfully captured on the high seas by the armed vessels of any particular State, and brought within its territorial jurisdiction, for trial in its tribunals. This proposition, however, must be confined to piracy as defined by the law of nations, and cannot be extended to offences which are made piracy by municipal legislation. [. . .] The African slave trade, though prohibited by the municipal laws of most nations, and declared to be piracy by the statutes of Great Britain and the United States, and, since the Treaty of 1841, with Great Britain, by Austria, Prussia, and Russia, is not such by the general international law, and its interdiction cannot be enforced by the exercise of the ordinary right of visitation and search.34

It was this right of visitation and search which, ultimately Article 3 was meant to provide for.35 However, the failure of Great Britain to gain such a right via the assimilation of the slave trade at sea to piracy meant that Article 3, beyond requiring the Parties to “undertake to adopt all appropriate measures with a view to preventing and suppressing the embarkation, disembarkation and transport of slaves in their territorial waters and upon all vessels flying their respective flags”, focuses on the negotiation of a further multilateral treaty, or failing that or in the interim, bilateral treaties with a look to causing the “disappearance of the slave trade”. While Viscount Cecil was optimistic about the possibility of signing such arrangements, ultimately the second and third paragraphs of Article 3 were stillborn, having been dead-letter law from their inception. Thus, while Viscount Cecil of Chelwood would call to the attention of the Assembly the provisions of the final paragraph of Article 3 in the following manner: In particular, attention may be drawn to the third paragraph of Article 3, which provides for the conclusion of special agreements between the

34

35

William Beach Lawrence, Wheaton’s Elements of International Law, 6 edition, 1857, pp. 184, 185 and 186. For a consideration of the slave trade and piracy in a court case, see The Antelope [1825], 23 United States Supreme Court Reports 66. See generally, Jean Allain, “Nineteenth Century Law of the Sea and the British Abolition of the Atlantic Slave Trade”, British Yearbook of International Law, Vol. 77, 2007.

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signatory Powers. These agreements will enable the parties concerned to make arrangements of greater stringency and stipulations better suited to local conditions than are possible in a general international convention.36

It is left to Susanne Miers to explain the provision’s ultimate legacy: The Slavery Convention had bound signatories to negotiate a general convention against the maritime slave trade and envisaged that the colonial powers on the Red Sea coast would conclude special agreements between themselves. To be effective, these required the registration of native vessels, control of passengers at ports of embarkation and disembarkation, as well as joint naval patrols or the granting of mutual rights to search in each other’s territorial waters, as well as the exchange of information. These agreements were never concluded. They fell victim to colonial rivalry and the British fear that their long exercised right to search might be challenged by rising local powers [read: non-European Powers].37

As a result, while the first paragraph of Article 3 created obligations upon States party to the 1926 Slavery Convention, the second and third paragraphs were never acted upon, and thus remain dead-letter law.

36

37

“League of Nations, Slavery Convention: Report presented to the Assembly by the Sixth Committee”, A.104.1926.VI, (VI.B.Slavery 1926, VI.B.5) 24 September 1926, p. 2. Susanne Miers, Slavery in the Twentieth Century: The Evolution of a Global Problem, 2003, p. 182.

Article 4 (Mutual Assistance) The High Contracting Parties shall give to one another every assistance with the object of securing the abolition of slavery and the slave trade.

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i. 1925 British Draft Protocol The 1925 British Draft Protocol consists of eight proposed articles, while the 1926 Slavery Convention would come to include twelve, thus the provisions of Article 4 of the 1926 Slavery Convention is the first example of a provision which was not manifest in the 1925 British Draft Protocol but would emerge during the negotiation process. No record exists explaining either the genesis of Article 4, or the process by which it was decided that the 1926 Convention required a mutual assistance clause.

ii. 1925 Draft Convention ARTICLE 4 The High Contracting Parties shall give to one another every assistance with the object of securing the abolition of slavery and the slave trade.1

As originally conceived the 1925 British Draft Protocol provided at Article 6 a provision which compelled State Parties to place pressure on all States, whether or not they where party to the proposed Protocol, to respect its provisions. That article reads: “The signatory States engage to use their best endeavours to induce all other States to conform to and adopt the principles of this Protocol.2 This provision however seems to stray rather far from the notion of mutual assistance with its coercive overtones and its attempted reach over third States. Yet, as the following consideration of the proposal put to the drafting committees of the League of Nations

1

2

League of Nations, Records of the Sixth Assembly: Text of Debates, Appendix, Draft Convention, League of Nations Official Journal (Special Supplement 33), Nineteenth Plenary Meeting, 26 September 1925, p. 439. League of Nations, Annex I: Slavery: Draft Resolution and Protocol, Official Journal: Record of the Sixth Assembly, Meetings of the Committees, Minutes of the Sixth Committee (Political Questions) Special Supplement No. 39, 14 September 1925, p. 41.

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shows, it appears in fact that the provisions of Article 6 of the 1925 British Draft Protocol were indeed the genesis of Article 4 of the 1926 Convention. A proposal by France sought to soften the coercive language of Article 6 by proposing that the Parties “undertake to use their best endeavours to induce the other States to sign and adhere to the present Convention”.3 This provision, it appears, was used in conjunction with one proposed by Albrecht Gohr, the former Chair of the Temporary Slavery Commission, in relations to Article 2. Article 2, it will be recalled creates obligations to suppress slavery and the slave trade. In Gohr’s proposal for that Article, a third provision was included which required States “to assist each other with all the means at their command in suppressing the slave trade and slavery”.4 The Sub-Committee of the Sixth Committee charged with drafting the 1925 Draft Convention used Gohr’s proposal as its working draft and, taking into consideration the elements of Article 6 of the 1925 Draft Protocol as amended by France, came up with the following: The High Contracting Parties undertake to assist one another in the execution of the above mention obligations and to use their best endeavours to induce all other States to adopt and follow the principles of this Protocol.5

When that provision was passed onto the Drafting Committee, it was reworked so as to read: The High Contracting Parties shall make every effort to secure the abolition of slavery and the slave trade, and shall assist one another to this end.6

3

4

5

6

League of Nations, Amendments proposed by the French Delegation to the Draft Protocol submitted by Viscount Cecil, A.VI/S.C.1/4.1925, received 17 September 1925, as found in Folder R.67.D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925. League of Nations, Slavery: Draft Protocol Text proposed by M.Gohr, A.VI/S.C.1/5, 9 September 1925; as found in Folder R.67.D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925. See Article 2(c). See League of Nations, Slavery: Draft Protocol Text proposed by M.Gohr, A.VI/S.C.1/5 9 September 1925; and League of Nations, Slavery: Draft Protocol Text proposed by the Sub-Committee of the Sixth Committee, A.VI/S.C.1/8, 18 September 1925; as found in Folder R.67.D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925. League of Nations, Sixth Committee, Sub Committee 1, Drafting Committee, Slavery: Synopsis of the Convention, A.VI/S.C.1/Drafting Committee/12(1), 22 September

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That provision was, however, not deemed acceptable and was modified in the following manner by the Drafting Committee: The High Contracting Parties shall make every effort to secure [give to one another every assistance with the object of securing] the abolition of slavery and the slave trade, and shall assist one another to this end.7

So that the text of Article 4, on 22 September 1925, would read: The High Contracting Parties shall give to one another every assistance with the object of securing the abolition of slavery and the slave trade.8

It was this version of Article 4 which was ultimately accepted by the Drafting Committee, the Sub-Committee, the Sixth Committee, and the Assembly of the League of Nations as part of the drafting process of the 1925 Draft Convention. Further, as the provisions of Article 4 of the 1925 Draft Convention were accepted without modification for inclusion in the 1926 Slavery Convention, these provisions were, ultimately deemed acceptable to States as well. In making his Report in regard to the 1925 Draft Convention on behalf of the Sixth Committee to the Assembly of the League of Nations, Viscount Cecil of Chelwood did not provide any insights into the birth or evolution of Article 4. Instead he noted the types of mutual assistance which might be rendered, and pointed, “in particular” to “arrangements for the right of pursuit across inland frontiers, will be found in the report of the Temporary Slavery Commission”9 By ‘arrangements’ Viscount Cecil,

7

8 9

1925; as found in Folder R.67.D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925. League of Nations, Sixth Committee, Sub Committee 1, Drafting Committee, Slavery: Synopsis of the Convention (working draft), A.VI/S.C.1/Drafting Committee/12(1) Revised, 22 September 1925; as found in Folder R.67.D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925, p. 3. Id., p. 4. League of Nations, Annex 29, Question of Slavery, Report of the Sixth Committee to the Assembly, League of Nations Official Journal (Special Supplement 33) Records of the Sixth Assembly: Text of Debates, A.130.1925.VI, 26 September 1925, p. 436. With respect to the discussions by the Temporary Slavery Commission regarding pursuit, see: Temporary Slavery Commission, Report of the Temporary Slavery Commission adopted in the Course of its Second Session, July 13th–25th July, 1925, A.19.1925. VI, 25 July 1925, para. 28, at p. 5.

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meant via international instruments which would be “concluded by the States concerned, particularly those situated in Africa, Arabia or Asia, or those having possession in these parts of the world”. He also suggested that collaboration might take place with regard to slaves manumitted by Consular staff with “a view to liberating and repatriating slaves when and wherever possible”.10

iii. 1926 Slavery Convention ARTICLE 4 The High Contracting Parties shall give to one another every assistance with the object of securing the abolition of slavery and the slave trade.11

As no changes were made to the provisions of Article 4 of the 1925 Draft Convention when reworked to become the 1926 Convention, it should come as no surprise that States had very little to say with regard Article 4. The only comment provided by States was by the Belgium Government, which stated that “Article 4 only lays down a very vague rule which, moreover, partly covers the same ground as the obligation undertaken by States in the separate agreements referred to in Article 3.12 For his part, Viscount Cecil in introducing the 1926 Convention to be voted on by the Assembly, simply said that “Article 4 calls for no comment”.13 Despite 10 11

12

13

League of Nations, Annex 29, Id., p. 436. League of Nations, Slavery Convention, Geneva, September 25th, 1926, C.586. M.223.1926.VI, 16 October 1926; as found in Publications of the League of Nations, VI.B.Slavery.1926. VI.B.7. League of Nations, Draft Convention on Slavery, Replies of Governments, Reply from the Government of Belgium, A.10(a).1926.VI, 22 July 1926, p. 2; as found in Publications of the League of Nations, VI.B.Slavery.1926, 1–7. League of Nations, Slavery Convention: Report of the Sixth Committee: Resolution, League of Nations Official Journal (Special Supplement 44) Records of the Seventh Ordinary Assembly: Text of Debates, Seventeenth Plenary Meeting, 25 September 1926, p. 131.

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this, Cecil went on to note that the article “provides that every nation is to give assistance to each other in putting a stop to this evil”.14 In his 1926 Report, Viscount Cecil simply mentioned that “no change has been made in this article” and went on to give the two examples of mutual assistance which he had noted in his 1925 Report: establishing agreements to allow for pursuit across frontiers and Consular manumission.

iv. Commentary on Article 4 of the 1926 Slavery Convention Little need be said in regard to Article 4, but to point to the fact that, as with Article 3, Viscount Cecil’s wish to see agreements emerge regarding the rigorous obligations as a result of the 1926 Slavery Convention did not materialise. The provisions of Article 4 create a general obligation on States party to the Convention to assist each other. The provisions, at least in part, were de-coupled from Albrecht Gohr’s Proposal which ultimately formed the provisions of Article 2 of the 1926 Convention establishing obligations vis-à-vis both slavery and the slave trade. The provisions of Article 4 could easily have been included as a sub-paragraph of Article 2, thus negating the need to create a new, stand alone, article. A provision which, in the words of the Belgium Government, laid “down a very vague rule”.

14

Id.

Article 5 (Forced Labour) The High Contracting Parties recognise that recourse to compulsory or forced labour may have grave consequences and undertake, each in respect of the territories placed under its sovereignty, jurisdiction, protection, suzerainty or tutelage, to take all necessary measures to prevent compulsory or forced labour from developing into conditions analogous to slavery. It is agreed that: (1) Subject to the transitional provisions laid down in paragraph (2) below, compulsory or forced labour may only be exacted for public purposes. (2) In territories in which compulsory or forced labour for other than public purposes still survives, the High Contracting Parties shall endeavour progressively and as soon as possible to put an end to the practice. So long as such forced or compulsory labour exists, this labour shall invariably be of an exceptional character, shall always receive adequate remuneration, and shall not involve the removal of the labourers from their usual place of residence. (3) In all cases, the responsibility for any recourse to compulsory or forced labour shall rest with the competent central authorities of the territory concerned.

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i. 1925 British Draft Protocol ARTICLE 3 The signatory States, recognising the grave evils that may result from the employment of forced labour, except for essential public services, engage that, where it is necessary for special reasons to admit the employment of forced labour, they will take all necessary precautions, particularly where the labourers belong to the less advanced races, to prevent conditions analogous to these of slavery from resulting from such employment.1

What would become Article 5 of the 1926 Slavery Convention was first introduced as Article 3 of the 1925 British Draft Protocol and would, in the interim, as part of the 1925 Draft Convention, be labelled as Article 6. That forced labour appeared as the third provision of the 1925 Draft Protocol points to its importance. In introducing the Protocol, Viscount Cecil of Chelwood noted that with regard to Article 3: “forced labour did in fact not go as far as the report of the [Temporary] Slavery Commission recommended. It did not require [. . .] that it should only be permitted in return for adequate remuneration – a principle recognised in the B and C Mandates”.2 So as to reassure States, Viscount Cecil added that anyhow, this article “certainly did not go too far. It did not interfere with labour for essential public services at all, but it did say that forced labour should

1

League of Nations, Annex I: Slavery: Draft Resolution and Protocol, Official Journal: Record of the Sixth Assembly, Meetings of the Committees, Minutes of the Sixth Committee (Political Questions) Special Supplement No. 39, 14 September 1925, p. 41. 2 League of Nations, Slavery: Draft Resolution and Protocol proposed by the British Government (continuation): Statement by Viscount Cecil, Official Journal, Record of the Sixth Assembly, Meetings of the Committees, Minutes of the Sixth Committee (Political Questions), Special Supplement No. 39, 14 September 1925, p. 14. With regard to forced labour as discussed by the Temporary Slavery Commission, see: Temporary Slavery Commission, Report of the Temporary Slavery Commission adopted in the Course of its Second Session, July 13th–25th July, 1925, A.19.1925.VI, 25 July 1925, pp. 12–15.

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not be allowed to degenerate into slavery, a principle to which everybody would agree”. This demonstrated, he added the “extreme care with which the document had been drafted”, as “it would be for each Government to decide what was an essential public service and what were the precautions it ought to take to prevent the employment of forced labour degenerating into slavery”.3

ii. 1925 Draft Convention ARTICLE 6 The High Contracting Parties recognise that recourse to compulsory or forced labour may have grave consequences and undertake, each in respect of the territories placed under its sovereignty, jurisdiction, protection or tutelage, to take all necessary measures to prevent conditions analogous to those of slavery from resulting from compulsory or forced labour. It is agreed that: (1) In principle, compulsory and forced labour may be only exacted for public purposes; (2) In territories in which compulsory or forced labour for other than public purposes still survives, the High Contracting Parties shall endeavour progressively and as soon as possible to put an end to the practice. So long as such forced or compulsory labour exists, this labour shall invariably be of an exceptional character, shall always receive adequate remuneration, and shall not involve the removal of the labourers from their usual place of residence. (3) In all cases, the responsibility for any recourse to compulsory or forced labour shall rest with the central authorities of the territories concerned.4

3

4

League of Nations, Slavery: Draft Resolution and Protocol proposed by the British Government (continuation): Statement by Viscount Cecil”, id., p. 14. League of Nations, Annex: Draft Convention, League of Nations Official Journal (Special Supplement 33) Records of the Sixth Assembly: Text of Debates, 26 September 1925, p. 439.

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The provisions related to forced labour were the most contentious of the British Protocol as they worked their way through the process of being re-drafted for inclusion in the 1925 Draft Convention. In an unusual step, the Portuguese Delegation felt compelled to write directly to the Drafting Committee outlining its reservations to the 1925 British Draft Protocol, explaining that it was in “agreement with the general principles of Article 3 [of the 1925 British Draft Protocol], but considers that the question is not sufficiently ripe”.5 The Portuguese Note stated that: The text of this article, moreover, is not clear and might lend itself to various interpretations, which is always undesirable, especially in so delicate a question which closely concerns the sovereign powers of States and their systems of colonisation.6

[. . .] Article 3 of the draft Protocol deals with forced labour, which, if abused, may be tantamount to a form of slavery. Before going further, the Portuguese Delegation desires to declare categorically that its Government is of the opinion that compulsory labour imposed upon natives should be employed as little as possible and only for essential public works and services, and that this kind of labour should not be employed for private enterprise. Having stated this point quite clearly, without circumlocution, the Portuguese Delegation will proceed to set forth the reasons why it cannot without reservation accept Article 3 in its present form, not on account of the principles laid down therein but on account of its wording, and therefore of its interpretations and execution.

The Note then asks the questions: “What is forced labour or rather compulsory labour?” The Portuguese Note makes this distinction between forced and compulsory labour and states that “we are of the opinion that the words ‘compulsory labour’ should be used as being more suitable. ‘Forced labour’ might mean that which the courts may condemn certain criminals under common law. At any rate, the Portuguese Penal laws have imposed such penalties for nearly a century”.7 Portugal then

5

6 7

League of Nations, Note Submitted to the First Sub-Committee of the Sixth Committee by the Portuguese Delegate, General Freire d’Andrade, A.VI/S.C.1/2.1925, 11 September 1925, as found in Folder R.67.D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925, p. 5. Id., p. 2. Id., p. 3, n. 1.

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turned to the reasons why it could not accept the provisions of forced labour as they appeared in the 1925 Draft Protocol. The Note considers the work of the Temporary Slavery Commission, and makes two points: first, that the Commission’s recommendations had provided “very necessary elasticity” by laying down only principles, and no obligations; and second, that the Commission stated that labour issues were beyond its competence as they fell within the purview of the International Labour Organisation. The Note quotes the following passage of the Report of the Temporary Slavery Commission: “to propose labour legislations for backward peoples would be to undertake a task which lies entirely outside the competence of the Temporary Slavery Commission, all the more so that the Treaties of Peace [ending the First World War] have created the International Labour Organisation which is particularly well qualified to deal with this question”.8 Beyond this, the Portuguese Note considers that the forbidding of forced labour sent the wrong message to the indigenous populations of the colonies, as it suggests “to the native races that its prohibitions implies for them a right to idleness”; and that this was counter to their “well-being and their development” which would then impact on the development of their country.9 As such, the Portuguese Delegation considered that provisions regarding forced labour as proposed might well create “grave difficulties” for colonial powers, especially in Africa, as: They might be accused on the one hand of not respecting the regulations [regarding forced labour] of the Protocol, as now proposed, and on the other, if by too rigid an interpretation of the same Article they deprived themselves of local labour, they might equally be accused of not developing sufficiently in the interests of humanity, the riches and resources of those African countries placed under their sovereignty.

The Note concluded that the Portuguese Delegation could not accept the proposed provisions as is, because “its wording lacks that clarity and precision demanded by a question vital to the development of the colonies as well as that of the natives.10 Emerging from this intervention by Portugal was a submission to the Sub-Committee of the Sixth Committee that had been mandated by the

8 9 10

Id., p. 4. Id., p. 3. Id., p. 5.

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Assembly of the League of Nations to draft the convention dealing with the suppression of slavery and the slave trade. In that submission, Portugal proposed that, with regard to the provisions of forced labour of the British Draft Protocol, to “add to the word ‘forced’ in the second line the word ‘or compulsory’; and to add the following paragraph: The State signatories shall be at liberty to put their own interpretation on forced or compulsory labour and essential public works and services and to regulate the recruitment and treatment of workers as appears to them most equitable and most adapted to the circumstance of time and place.11

This provision was modified by hand and a clean copy presented to the Sub-Committee for consideration, as follows: The State signatories shall be at liberty to define the meaning of the terms ‘forced or compulsory labour’ and ‘essential public works and services’ as they think fit and to regulate the recruitment and treatment of workers as appears to them most equitable to the circumstance of time and place.12

While the proposal regarding ‘forced or compulsory labour’ found its way into the 1925 Draft Convention, the latter Portuguese Proposal did not. Beyond these Portuguese proposals, the Sub-Committee considered a number of other proposals, the first provided by France, which called for an additional paragraph to be added to Article 3 which read: It being understood that the performance of work in lieu of the payment of taxes cannot in any case be regarded as equivalent to forced labour.13

The second, was a Dutch proposal which read:

11

12

13

League of Nations, Amendments proposed by the Portuguese Delegation to the Draft Protocol submitted by Viscount Cecil, A.VI/S.C.1/3.1925, 11 September 1925, as found in Folder R.67.D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925, p. 5. League of Nations, Amendments proposed by the Portuguese Delegation to the Draft Protocol submitted by Viscount Cecil, A.VI/S.C.1/3.1925, not dated (received 17 September 1925), as found in Folder R.67.D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925, p. 5. League of Nations, Amendments proposed by the French Delegation to the Draft Protocol submitted by Viscount Cecil, A.VI/S.C.1/4.1925, not dated, as found in Folder R.67.D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925.

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The Signatory States, recognising that grave evils may result from the employment of forced or compulsory labour for other purposes than public works or services, engaged that where it is necessary for special reasons to admit the employment of such forced or compulsory labour, they will take all necessary precautions to prevent conditions analogous to those of slavery from resulting from such employment. It is understood that in cases of forced or compulsory labour for public works or services such precautions shall also be taken.14

Due to an inability to agree at the level of the Sub-Committee, a smaller Drafting Committee was formed to consider the issue. A number of proposals were put forward including ones be Misters Aubert,15 Fernandez y Medina,16 Gohr,17 Van Lynden,18 and Count Cippico;19 which did not move the process of drafting this provision forward. As a result, Viscount Cecil put forward, not a draft of a proposed article, but instead principles which might be accepted as being the basis of such an article:

14

15

16

17

18

19

League of Nations, Amendments proposed by the Dutch Delegation to the Draft Protocol submitted by Viscount Cecil, A.VI/S.C.1/7.1925, not dated, as found in Folder R.67.D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925. League of Nations, Sixth Committee, First Sub-Committee, Article 3, Draft submitted by M. Aubert, A.VI/S.C.1/Drafting Committee/3, not dated, as found in Folder R.67. D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925. League of Nations, Sixth Committee, First Sub-Committee, Article 3, Draft submitted by M. Fernandez y Medina, A.VI/S.C.1/Drafting Committee/4, not dated, as found in Folder R.67.D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925. League of Nations, Sixth Committee, First Sub-Committee, Article 3, Draft submitted by M. Gohr, A.VI/S.C.1/Drafting Committee/5, not dated, as found in Folder R.67. D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925. League of Nations, Sixth Committee, First Sub-Committee, Article 3, Draft submitted by M. Van Lynden, A.VI/S.C.1/Drafting Committee/6, not dated, as found in Folder R.67.D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925. League of Nations, Sixth Committee, First Sub-Committee, Article 3, Draft submitted by Count Cippico, A.VI/S.C.1/Drafting Committee/8, not dated, as found in Folder R.67.D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925.

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Forced labour should generally speaking be only for essential public services. Forced labour may be admitted for services not of a public nature for exceptional reasons. Forced labour must never be allowed to degenerate into slavery and must be adequately rewarded.20

Which were later transformed into a proposal by Viscount Cecil of Chelwood, that reads: The signatory States recognising that great evils may result from the employment of forced or compulsory labour agree (1) in principle forced or compulsory labour should only be employed for public purposes; (2) where exceptionally or to meet special cases forced or compulsory labour is employed for other than public purposes, it should only be so employed under the express authority of the Government of the territory concerned; (3) in no case should forced or compulsory labour be permitted to degenerate into anything in the nature of slavery.21

Yet, the Drafting Committee was unwilling to accept the Cecil proposal, instead it proposed the following: The signatory powers recognise that recourse to compulsory or forced labour may have grave consequences and agree to take all useful measures to prevent compulsory or forced labour creating the conditions analogous to slavery. It is understood that in principle compulsory or forced labour may only be exacted for public purposes and if exceptionally and in special cases it is necessary to have recourse thereto for other purposes an authorisation from the central authorities of the territory in question must always be obtained. Moreover, these special cases must gradually cease.22

20

21

22

League of Nations, Sixth Committee, First Sub-Committee, Article 3, Draft Protocol, Article 3, Principles laid down by Viscount Cecil, A.VI/S.C.1/Drafting Committee/7, not dated, as found in Folder R.67.D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925. League of Nations, Sixth Committee, First Sub-Committee, Article 3, Draft submitted by Viscount Cecil, A.VI/S.C.1/Drafting Committee/9, not dated, as found in Folder R.67.D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925. League of Nations, Sub-Committee of the Sixth Committee, Sub-Committee, Article 3,

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109

A modified version of this provision was adopted by the Drafting Committee: The High Contracting Parties recognise that recourse to compulsory or forced labour may have grave consequences and agree, each in respect to the territories placed under its sovereignty, jurisdiction, protectorate, or tutelage, to take all necessary measures to prevent conditions analogous to those of slavery from resulting from compulsory or forced labour. It is understood that, in principle, compulsory or forced labour may only be exacted for public purposes and that, if it is indispensable to have recourse thereto for other purposes, such labour shall invariably be of an exceptional and temporary character and shall not involve the removal of the labourers from their place of residence. In any case the responsibility for recourse to compulsory or forced labour shall rest with the central authorities of the territory, colony, protectorate, or mandated area in question. In territories in which compulsory or forced labour for the benefit of private individuals still survives, the High Contracting Parties. shall endeavour gradually to put an end to the practice.23

Yet, the essence of this provision would not make its way into the 1925 Draft Convention, as Viscount Cecil reintroduced a modification of his proposal, though in an expanded form, to the Drafting Committee which then adopted it. The new Cecil draft reads: The High Contracting Parties recognise that recourse to compulsory or forced labour may have grave consequences and agree, each in respect of the territories placed under its sovereignty, jurisdiction, protection or tutelage, to take all necessary measures to prevent conditions analogous to those of slavery from resulting from compulsory or forced labour. It is further agreed that: (1) in principle, compulsory and forced labour may be only exacted for public purposes and that, if it is indispensable to have recourse thereto for other purposes such labour shall invariably be of an exceptional and temporary character and shall not involve the removal of the labourers from their place of residence,

23

A.VI/S.C.1/Drafting Committee/10, 21 September 1925; as found in Folder R.67. D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925. League of Nations, Sixth Committee, Sub-Committee 1, Drafting Committee, Slavery: Synopsis of the Convention (revised), A.VI/S.C.1/Drafting Committee/12(1) Revised, 22 September 1925; as found in Folder R.67.D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925, p. 5.

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(2) In territories in which compulsory or forced labour for the benefit of private individuals still survives, the High Contracting Parties shall endeavour gradually to put an end to the practice; (3) In any case cases, the responsibility for any recourse to compulsory or forced labour shall rest with the central authorities of the territory colony, protectorate, or mandated area in question.24

When this provision was moved for consideration to the level of the Sub-Committee of the Sixth Committee, a further provision was added to it, one that was taken word-for-word from the Drafting Committee’s proposal: “if it is indispensable to have recourse thereto for other purposes such labour shall invariably be of an exceptional and temporary character and shall not involve the removal of the labourers from their place of residence”;25 so that the draft Article now read: The High Contracting Parties recognise that recourse to compulsory or forced labour may have grave consequences and agree, each in respect of the territories placed under its sovereignty, jurisdiction, protection or tutelage, to take all necessary measures to prevent conditions analogous to those of slavery from resulting from compulsory or forced labour. It is agreed that: (1) In principle, compulsory and forced labour may be only exacted for public purposes; (2) if it is indispensable to have recourse thereto for other purposes such labour shall invariably be of an exceptional and temporary character and shall not involve the removal of the labourers from their place of residence, (3) In territories in which compulsory or forced labour for the benefit of private individuals still survives, the High Contracting Parties shall endeavour gradually to put an end to the practice;

24

25

League of Nations, Slavery, Amendments proposed by Lord Cecil to text of Draft Convention adopted by the Drafting Committee of the Sub-Committee of the VIth Commission (Document A.VI/.S.C.I/Drafting Committee 12(1), A.VI/S.C.1/Drafting Committee/14, 24 September 1925; as found in Folder R.67.D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925, p. 5. League of Nations, Sixth Committee, Slavery: Synopsis of the Convention, A.VI/5.1925, 22 September 1925; as found in Folder R.67.D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925, p. 4.

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(4) In any case cases, the responsibility for any recourse to compulsory or forced labour shall rest with the central authorities of the territory colony, protectorate, or mandated area in question.26

When the provisions regarding forced labour were then moved up one further rung along the drafting process and considered at the level of the Sixth Committee, the Spanish Delegate, Leopoldo Palacios, pointing to the League of Nations Mandates Commission’s failure to agree on the issue and the absence, in the draft being considered, of mention of the need for adequate remuneration; called to “see this article suppressed entirely, since its only object appeared to be the continuance of forced labour”.27 Mr. Palacios sought to justify his stance in part in the following manner: “It seems quite natural that a protocol which was intended to be binding as between States in the campaign against slavery should also aim at condemning forced labour, only so far, however, as it might be assimilated to or might resemble slavery”. As such, the Spanish Delegate considered that the issue was covered by Article 2 (re: “To bring about progressively and as soon as possible the disappearance of slavery in every form”); and that the “question of forced labour in so far as such labour was not slavery in the real sense of the word must be left untouched”.28 Despite this, and after much discussion within the Sixth Committee, there was agreement that Article 6 would find its way into the 1925 Draft Convention, but with some modifications. First that sub-paragraphs 2 and 3 be combined so as to read: In territories in which compulsory or forced labour for other than public purposes still survives, the High Contracting Parties shall endeavour progressively and as soon as possible to put an end to the practice. So long as such forced or compulsory labour exists, this labour shall invariably be of an exceptional character, shall always receive adequate remuneration, and shall not involve the removal of the labourers from their usual place of residence.

26

27

28

League of Nations, Sixth Committee, Slavery: Synopsis of the Convention, A.VI/5.1925, 22 September 1925; as found in Folder R.67.D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925, p. 4. League of Nations, “Slavery: Examination of the Report of the Sub-Committee and of the Draft Convention”, Official Journal, Special Supplement No. 39, Record of the Sixth Assembly, Meetings of the Committees, Minutes of the Sixth Committee (Political Questions), 24 September 1925, p. 28. Id., p. 29.

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Further, a proposal by Mr. Palacios that the League of Nations mandates not be mentioned, and thus that ‘mandated areas’ be removed from the final paragraph was considered. This proposal was sought to be amended by Viscount Cecil, who proposed instead that the final clause simply read “after ‘authorities’ as follows: ‘of the territories concerned’”. This was the process by which the following provisions of Article 5 came to be included in the 1925 Draft Convention: The High Contracting Parties recognise that recourse to compulsory or forced labour may have grave consequences and undertake, each in respect of the territories placed under its sovereignty, jurisdiction, protection or tutelage, to take all necessary measures to prevent conditions analogous to those of slavery from resulting from compulsory or forced labour. It is agreed that: (1) In principle, compulsory and forced labour may be only exacted for public purposes; (2) In territories in which compulsory or forced labour for other than public purposes still survives, the High Contracting Parties shall endeavour progressively and as soon as possible to put an end to the practice. So long as such forced or compulsory labour exists, this labour shall invariably be of an exceptional character, shall always receive adequate remuneration, and shall not involve the removal of the labourers from their usual place of residence. (3) In all cases, the responsibility for any recourse to compulsory or forced labour shall rest with the central authorities of the territories concerned.29

In his oral introduction of the 1925 Report of the Sixth Committee to the Assembly of the League of Nations Viscount Cecil of Chelwood noted that the League was dealing for “the first time in international agreements – with the questions of forced labour”. He stated that forced labour was common: “in some form or another, [it] is admitted, I suppose in every State for public services, on the demand of the Government of that State. I do not think that there is any nation, civilised or uncivilised, which does not possess powers enabling the Government, for certain purposes and under certain restrictions, to require forced or compulsory labour on

29

League of Nations, Annex: Draft Convention, League of Nations Official Journal (Special Supplement 33) Records of the Sixth Assembly: Text of Debates, 26 September 1925, p. 439.

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the part of its citizens”.30 Though Viscount Cecil was at pains to make a distinction between forced labour among civilised nations and forced labour elsewhere: In uncivilised or semi-civilised countries that demand must necessarily and obviously be much more frequently made than in civilised countries. In civilised countries, of course, a number of social services are organised, which do not exist in an uncivilised country, and those social services have to be carried out, if necessary, by compulsory labour on the part of the citizens. It is therefore inevitable that, for public purposes, forced or compulsory labour must be admitted, and the Convention, therefore recognises this and says that, in principle, this is the only kind of forced labour that ought to be admitted.

In considering the provisions accepted by the Sixth Committee, Cecil noted that “as regards forced labour for private profit or for purposes other than the public services properly so-called, such labour is treated in the Convention on exactly the same lines as slavery, namely it is provided that this form of labour should be discontinued as soon as possible”. He went on to say that the Sixth Committee, “did not think that this was quite enough” as they determined that “no form of forced or compulsory labour involving the removal of the labourer from his home should henceforth be allowed”.31 As to Viscount Cecil’s actual Report to the Assembly, it noted that in “drafting this Article, the Committee confronted perhaps the most difficult of the problems before it”; and as a result, the Sixth Committee “felt that it was wiser to set up a minimum standard which was clearly understood and accepted than to adopt principles which would not perhaps in all cases be literally complied with. The above drafting [. . .] represents a definite attempt to deal with the question of forced labour in a general international agreement. This alone marks progress of considerable importance”.32 Viscount Cecil then moved to emphasise the relationship

30

31 32

League of Nations, Question of Slavery: Report of the Sixth Committee: Resolution, League of Nations Official Journal (Special Supplement 33) Records of the Sixth Assembly: Text of Debates, Nineteenth Plenary Meeting, 26 September 1925, pp. 156–157. Id., p. 157. League of Nations, Annex 29, Question of Slavery, Report of the Sixth Committee to the Assembly, League of Nations Official Journal (Special Supplement 33) Records of the Sixth Assembly: Text of Debates, A.130.1925.VI, 26 September 1925, p. 436.

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between forced labour and the basis of the Convention, that is, issues of slavery: “The first consideration of the Commission [. . .] was to make certain that forced labour under no circumstance would be allowed to degenerate into conditions analogous to slavery”. He then sought to justify the dichotomy of public verses private forced labour as found in the proposed Draft: In principle, the Committee was most decidedly opposed to the use of forced labour for other than public purposes, but at the same time it recognised that, owing to special conditions in certain colonies, it might be impossible to abolish it forthwith. The Draft Convention, however, subordinates such recourse to certain conditions that are considered essential in order to guard against the abuse to which this form of labour may give rise. In the first place, it can only be authorised in exceptional cases when there is imperious necessity; secondly, it shall always be adequately remunerated; finally, in no case must it involve the removal of the labourer from their usual place of residence. If these conditions are strictly observed, the evils of forced labour for private enterprises will be enormously diminished.33

iii. 1926 Slavery Convention ARTICLE 5 The High Contracting Parties recognise that recourse to compulsory or forced labour may have grave consequences and undertake, each in respect of the territories placed under its sovereignty, jurisdiction, protection, suzerainty or tutelage, to take all necessary measures to prevent compulsory or forced labour from developing into conditions analogous to slavery. It is agreed that: (1) Subject to the transitional provisions laid down in paragraph (2) below, compulsory or forced labour may only be exacted for public purposes. (2) In territories in which compulsory or forced labour for other than public purposes still survives, the High Contracting Parties shall endeavour progressively and as soon as possible to put an end to the practice. So long as such forced or compulsory labour exists, this labour shall invariably be of an exceptional character, shall always receive adequate remuneration, and shall not involve the removal of the labourers from their usual place of residence.

33

Id.

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(3) In all cases, the responsibility for any recourse to compulsory or forced labour shall rest with the competent central authorities of the territory concerned.34

Despite minor modifications taking place as between the terms of forced labour as found in the 1925 Draft Convention and the 1926 Slavery Convention, the overall provisions solicited the most comments by States of any article of the 1925 Draft Convention. For Portugal and the Union of South Africa, their comments were of a decidedly negative character. With regard to the Reply from the Portuguese Government to the Assembly’s request to provide comments on the 1925 Draft Convention, it went over much of the same material as was found in its Note which was submitted to the Sub-Committee of the Sixth Committee in 1925.35 For these reasons – related to the need to balance the labour rights of native peoples with the need for development of the colonies and the Draft Convention falling into the orbit of the work of the International Labour Organisation – the “Portuguese Government considers it absolutely essential that a definition of forced labour, paid or unpaid, for public service or private persons, should be set down in the Protocol, as are the definitions of slavery and the slave trade”. However, it doubted whether this was possible, as such: a definition will not easily be found if an attempt is made to solve all the problems and cover all the contingencies which may arise. For this reason the Portuguese delegates to the Assemblies of the League have several times suggested that a labour charter for colonial natives should be drawn up. After all, it is desirable that everybody should know what the League of Nations

34

35

League of Nations, Slavery Convention, Geneva, September 25th, 1926, C.586. M.223.1926.VI, 16 October 1926; as found in Publications of the League of Nations, VI.B.Slavery,1926.VI.B.7. See League of Nations, Note Submitted to the First Sub-Committee of the Sixth Committee by the Portuguese Delegate, General Freire d’Andrade, A.VI/S.C.1/2.1925, 11 September 1925; as found in Folder R.67.D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925; see supra, Section ii.

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regards as the most efficient and human means of utilising native labour without neglecting the welfare or injuring the development of the native.36

As for Union of South Africa, its opposition seemed to lie generally with regard to Article 6 of the 1925 Draft and its relationship to the overall Convention: The Draft Convention [. . .] wishes to bind the signatories to interference with certain industrial and economic conditions, for in Article 6 they are to take all necessary measures to prevent not only ‘slavery’ but conditions analogous to those of slavery resulting from forced or compulsory labour. Now forced or compulsory labour is either slavery or it is not. Either the person compelling another to such labour does so because he has from the time being the right of property in him, or the person doing the labour unwillingly does so because he fears that a worse thing may befall him. In the first case it is slavery, because the compeller has a proprietary right in respect of the compelled. In the latter case there is some element of choice or consent on the part of the compelled.

South Africa then picked up on a theme it had previously elaborated upon with regard to the definition of slavery as implying a permanent status:37 Further, ‘forced or compulsory labour’ implies only a temporary condition and permanency of the conditions appears to be one of the essentials of slavery. The remainder of Article 6 admits that such labour may be exacted for public purposes or for other than public purposes where the labour is of an exceptional character, the responsibility in both cases for recourse to such labour resting with the authorities of the particular community. This can only imply a very temporary condition for the person compelled to labour. The danger seems also here to be that the effect of the definition in Article 1 may be nullified because the slaver-owner proper, in regard to his real or proprietary slave, will be able to shield himself from Article 6.

South Africa concluded its observations by stating that “the provisions of [. . .] Article 6 should be deleted or considerably modified or clarified”.38

36

37

38

League of Nations, Draft Convention on Slavery, Replies of Governments, Reply from the Portuguese Government, A.10(b).1926.VI, 22 July 1926, p. 5; as found in Publications of the League of Nations, VI.B.Slavery, 1926.VI.B.4. League of Nations, Draft Convention on Slavery, Replies of Governments, Reply from the Government of the Union of South Africa, A.10(a).1926.VI, 22 July 1926, p. 5; as found in League of Nations, Publications of the League of Nations, VI.B.Slavery, 1926.VI.B.3. See supra, Article 1(1). League of Nations, Draft Convention on Slavery, Replies of Governments, Reply from

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As for the submissions made by Belgium and Germany, both States proposed amendments to what would become Article 5; but these did not find their way into the final draft. In the Reply of the Belgium Government to the League, it sought to modify the provisions of forced labour so as to allow its use “for the purposes of education and social welfare”.39 Yet as Viscount Cecil noted in his Report to the Assembly, despite the fact that: this provision had no other purpose than to give to the colonial Government the means to protecting the natives against their want of foresight, and to assist them in rising to a more advanced state of civilisation. The Commission, while recognising the disinterested and humanitarian motives for this suggestion, was not able to accept it. It feared that in its application this proposal might lead to grave abuses of exactly the type which the Convention itself was designed to prevent or suppress.40

As for the Germany proposals, one sought to penalise forced labour of native populations through the following provision which was meant to be added to Article 6: With the object of safeguarding the native against improper forced labour, the Contracting Parties will order: (a) That all labour contracts concluded for more than one month shall be reduced to writing and shall be subject of public control; (b) That any person who shall attempt to employ forced labour in excess of the aforesaid limits or shall, by bribery or other illegal means, endeavour to induce native chiefs to supply labour which is not voluntary on the part of the worker shall be adequately punished.41

39

40

41

the Government of the Union of South Africa, A.10(a).1926.VI, 22 July 1926, p. 6; as found in Publications of the League of Nations, VI.B.Slavery, 1926.VI.B.3. League of Nations, Draft Convention on Slavery, Replies of Governments, Reply from the Government of Belgium, A.10(a).1926.VI, 22 July 1926, p. 2; as found in Publications of the League of Nations, VI.B.Slavery, 1926.VI.B.3. League of Nations, “Slavery Convention: Report presented to the Assembly by the Sixth Committee”, A.104.1926.VI, (VI.B.Slavery 1926, VI.B.5) 24 September 1926, p. 3. League of Nations, Draft Convention on Slavery, Replies of Governments, Reply from the Government of Germany, A.10(a).1926.VI, 22 July 1926, p 5; as found in Publications of the League of Nations, VI.B.Slavery, 1926.VI.B.3.

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Here, once again Viscount Cecil explained why the provision was not included in the final draft of the 1926 Convention: “The Committee entirely agreed with the intentions of the authors of this proposal, but considered that such an addition [. . .] was unnecessary as in its opinion such punishment would be provided for as the result of stipulations in Article 6 [(penalties) of the 1926 Convention]”.42 Using another proposal by Germany as a benchmark, Viscount Cecil sought to emphasise, in his Report to the Assembly, a number of “stringent conditions [which] are imposed on forced labour for private purposes” – though it should be added, not forced labour for public purposes – within the provisions of Article 5(2): Among the conditions is the requirement that adequate remuneration should be paid to those subject to forced labour. In the case of forced labour for public purposes, this condition is not repeated. This omission has been made because there are cases where forced labour for public purposes is not remunerated in the ordinary sense of that word. For instances, in certain countries labour for public purposes is accepted instead of taxes. There are also other exceptional cases in which it could scarcely be said that compulsory labour for public purposes is, strictly speaking, remunerated. But though the requirement that adequate remuneration should be paid for forced labour for public purposes is not included in the Convention, the Committee is strongly of opinion that such remuneration should as a general rule be paid.43

The Report then considers the German proposal which had to do with forced labour being used only when no other means of carrying out public works was possible: “It is also of opinion that forced labour, even for public purposes, should not as a general rule be resorted to unless voluntary labour is unobtainable”. This pronouncement emanates from a German proposal to amend to Article 5(1); which was rather far reaching in scope:

42

43

League of Nations, “Slavery Convention: Report presented to the Assembly by the Sixth Committee”, A.104.1926.VI, (VI.B.Slavery 1926, VI.B.5) 24 September 1926, p. 3. Article 6 of the 1926 Convention reads: Those of the High Contracting Parties whose laws do not at present make adequate provision for the punishment of infractions of laws and regulations enacted with a view to giving effect to the purposes of the present Convention undertake to adopt the necessary measures in order that severe penalties may be imposed in respect of such infractions. Id.

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Forced labour may be exacted only for public purposes and even then only as an exception and when voluntary labour is not obtainable. In any case, it must be under the written orders of the competent administrative official. No native may be employed in forced labour for more than 90 days in any given twelve months. Forced labour shall not be exacted from women or from children below the age of puberty beyond 15 kilometres of their homes. Forced labour for private persons, whether native or otherwise, is prohibited. Labour to be preformed for public purposes in virtue of native or tribal custom is exempt from the provisions of this article. In the case of persons legally condemned for crime, as well as of soldiers drafted to penal or labour company for analogous reasons, compulsory labour shall not be considered forced labour within the meaning of this article.44

While these two proposals were not included in the Convention, the notions that forced labour should only be resorted to if voluntary labour was not available and that adequate remuneration should be provided in regard to public forced labour were not totally abandoned by the Sixth Committee, as Viscount Cecil moved to have the Assembly adopt the following Resolution based on proposals “by the German delegation”:45 While recognising that forced labour for public purposes is sometimes necessary; Is of opinion that, as a general rule, it should not be resorted to unless it is impossible to obtain voluntary labour and that it should receive adequate remuneration.46

Two further observations by States should be noted; as they would lead to amendments of the provisions of Article 5(3). The India Representative stated the following in its Reply: With reference to the last sentence of Article 6, I am to say that the Government of India desires to make it clear that by ‘Central Authorities’ they understand not the Government of India themselves (except in relations to

44

45

46

League of Nations, Draft Convention on Slavery, Replies of Governments, Reply from the Government of Germany, A.10(a).1926.VI, 22 July 1926, p. 5; as found in Publications of the League of Nations, VI.B.Slavery, 1926.VI.B.3. League of Nations, Slavery Convention: Report presented to the Assembly by the Sixth Committee, A.104.1926.VI, (VI.B.Slavery, 1926.VI.B.5) 24 September 1926, p. 3. League of Nations, Slavery Convention, Resolutions adopted by the Assembly at its meeting held on September 25th, 1926, A.123.1926.VI, 25 September 1926; as found in Publications of the League of Nations, VI.B.Slavery, 1926.

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territories under their own direct administration) but the Central Authorities of the Provincial Governments, which under the present constitution of India are alone competent to deal with the matters referred to. They further suggest that, in order to avoid possible confusion, it would be well to substitute the word ‘territory’ for ‘territories’ in the sentence.47

Very much in line with the thinking of its colony (or perhaps vice versa), the British Government made the following submission: In regard to Article 6, His Majesty’s Government note that the territories referred to in this final paragraph of the article would appear to be other than the territories mentioned in the last line of the article. To avoid confusion His Majesty’s Government suggests that the word ‘territories’ in the last line of the article should be amended to ‘territory’. They also attach importance, in order to cover all possible cases, to the substitution of the words ‘competent central authorities’ for the words ‘central authorities’ in the last line of the article.48

This led to the modification of the Draft Article, so that the provisions of sub-paragraph 3 now read: “In all cases, the responsibility for any recourse to compulsory or forced labour shall rest with the central authorities of the territories concerned”. As regards the modifications made to the provisions of Article 5 of the 1925 Draft Convention, Viscount Cecil was quite right in stating in his oral report to the Assembly that “the terms of that article are almost exactly the same as last year. It provides, as you probably remember, that forced labour for private purposes is, in principle, to be abolished, and that forced labour for public purposes is declared only to be permissible if it does not in any way resemble slavery”. He then goes on to say: In addition, we have made one change. We said last year that, in principle, forced labour may be exacted only for public services, that provision has been somewhat strengthened, and we now say that, subject to the transitional provisions laid down in paragraph 2, forced labour shall only be exacted for public purposes. In other words, we make clear what we always meant,

47

48

League of Nations, “Draft Convention on Slavery, Replies of Governments, Reply from the Government of India, A.10.1926.VI, 21 July 1926, p. 6; as found in League of Nations, Publications of the League of Nations, VI.B.Slavery, 1926.VI.B.2. League of Nations, “Draft Convention on Slavery, Replies of Governments, Reply from the British Government, A.10.1926.VI, 21 July 1926, p. 4; as found in League of Nations, Publications of the League of Nations, VI.B.Slavery, 1926, VI.B.2.

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namely, that forced labour for private purposes ought to come to an end as soon as possible.

Viscount Cecil, then enumerated principles found within the transitional provisions of Article 5(2) related to forced labour for private purposes – which he considered one of the most important of all the Convention: Meanwhile, in the same way as last year, we lay down certain principles which in no case must be evaded, even in connection with forced labour of a transitional character for private purposes. Even during the transitional period these principles must be observed. They are as follows: the labour shall only be exacted for exceptional reasons. It shall always receive adequate remuneration and – most important of all – it shall not involve the removal of the labourers from their usual place of residence. That, to my mind, is almost the most important provision in the whole Convention. This is as far as we have attempted to go in regulating forced labour. We thought that to do more would be to go beyond our province.49

iv. Commentary on Article 5 of the 1926 Slavery Convention Viscount Cecil of Chelwood, in presenting his Report on behalf of the Sixth Committee to the Assembly of the League of Nations noted that the proposed Convention “represents a definite attempt to deal with the question of forced labour in a general international agreement. This alone marks progress of considerable importance”.50 What would emerge from the drafting process, however, was rather limited in scope. The drafting of what would become Article 5 of the 1926 Slavery Convention, was the most discussed and contentious of the drafting process of the overall Convention. During both drafting periods – between the 1925 British Draft Protocol and the 1925 Draft Convention, and between the 1925 Draft Convention and the 1926 Convention to Suppress the Slave Trade and Slavery, delegates to the League of Nations took an active and

49

50

League of Nations, Slavery Convention: Report of the Sixth Committee: Resolution, League of Nations Official Journal (Special Supplement 44) Records of the Seventh Ordinary Assembly: Text of Debates, Seventeenth Plenary Meeting, 25 September 1926, p. 132. Emphasis added. League of Nations, Slavery Convention: Report presented to the Assembly by the Sixth Committee, A.104.1926.VI, (VI.B.Slavery 1926, VI.B.5) 24 September 1926, p. 3.

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involved interest in the drafting of this provision. Whereas League Members understood that slavery and the slave trade took place elsewhere – on the territory of non-Member States of the League and thus were willing to confront the issues with vigour; with regard to forced labour they could not be so virtuous. As Viscount Cecil noted in 1925: “I do not think that there is any nation, civilised or uncivilised, which does not possess powers enabling the Government, for certain purposes and under certain restrictions, to require forced or compulsory labour on the part of its citizens”.51 While the 1925 Draft Protocol did not make a distinction between forced labour for public or private ends, the dichotomy would be introduced during the drafting of the 1925 Draft Convention and be retained in the 1926 Convention. Thus, States Members of the League of Nations sought to ensure that forced labour was only dealt with where it was used for private ends and did not touch their prerogative to use such labour for public purposes, or as the Portuguese Delegation put it, to develop “in the interests of humanity, the riches and resources of those African countries placed under their sovereignty”.52 Viscount Cecil made this distinction between forced labour for public purposes – which was not dealt with in the 1926 Convention; other than to ensure that it did not result in conditions analogous to slavery – and forced labour for private ends which was. In his Report on the 1926 Convention, he noted: “we make clear what we always meant, namely, that forced labour for private purposes ought to come to an end as soon as possible”.53 Although Germany proposed the regulation of forced labour for public ends, Viscount Cecil and the Sixth Committee were able to deflect these draft amendments to the 1925 Draft Convention by having the Assembly deal with

51

52

53

League of Nations, Question of Slavery: Report of the Sixth Committee: Resolution, League of Nations Official Journal (Special Supplement 33) Records of the Sixth Assembly: Text of Debates, Nineteenth Plenary Meeting, 26 September 1925, pp. 156–157. League of Nations, Note Submitted to the First Sub-Committee of the Sixth Committee by the Portuguese Delegate, General Freire d’Andrade, A.VI/S.C.1/2.1925, 11 September 1925, as found in Folder R.67.D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925, p. 3. League of Nations, Slavery Convention: Report of the Sixth Committee: Resolution, League of Nations Official Journal (Special Supplement 44) Records of the Seventh Ordinary Assembly: Text of Debates, Seventeenth Plenary Meeting, 25 September 1926, p. 132.

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the matter, not within the confines of the 1926 Convention, but by passing the following Resolution which recognised that “forced labour for public purposes is sometimes necessary”, but that as “as a general rule, it should not be resorted to unless it is impossible to obtain voluntary labour and that it should receive adequate remuneration”.54 In such a manner, colonial States retained their unfettered right to use forced labour for public purposes. Viscount Cecil had recourse to requesting the Assembly – and the Assembly obliging – once more to pass a Resolution,55 this time requesting the International Labour Office to take over the issue of forced labour generally, and specially where it might develop conditions analogous to slavery. Viscount Cecil noted that an “institution exists – the International Labour Office – whose business it is to deal with the conditions of labour, and to make enquiries, studies and recommendations with regard to labour conditions all over the world, whether free labour or forced labour. [. . .] We thought it right, therefore, in order to remove any possible doubt or ambiguity on the subject, to recommend the Assembly to pass the following resolution: Taking note of the work undertaken by the International Labour Office in conformity with the mission entrusted to it and within the limits of its constitution; Considering that these studies naturally include the problem of forced labour; Requests the Council to inform the Governing Body of the International Labour Office of the adoption of the Slavery Convention, and to draw its attention to the importance of the work undertaken by the Office with a view to studying the best means of preventing forced or compulsory labour from developing into conditions analogous to slavery.56

54

55 56

League of Nations, Slavery Convention, Resolutions adopted by the Assembly at its meeting held on September 25th, 1926, A.123.1926.VI, 25 September 1926, as found in Publications of the League of Nations, VI.B.Slavery, 1926. See id. League of Nations, Slavery Convention: Report of the Sixth Committee: Resolution, League of Nations Official Journal (Special Supplement 44) Records of the Seventh Ordinary Assembly: Text of Debates, Seventeenth Plenary Meeting, 25 September 1926, p. 132.

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In passing these two resolutions Viscount Cecil both acknowledged the wishes of the German Delegation to address the issue of forced labour for public purposes; but also accepted the will of the Sixth Committee that the issue not be dealt with within a legal instrument creating obligations on States which, for many, the utilisation of forced labour in their colonies was common. As originally conceived, the issue of forced labour was simply meant to be addressed so as to ensure it did not result in conditions analogous to slavery; yet it would emerge, during the drafting process as a third item, along with slavery and the slave trade requiring State action to suppress it. Always with the proviso that what was being discussed was forced labour for private purposes; the obligations flowing from forced labour were not the same as for the slave trade “to prevent and suppress”, but where, as Viscount Cecil noted “treated in the Convention on exactly the same lines as slavery, namely it is provided that this form of labour should be discontinued as soon as possible”.57 Thus the obligation with regard to slavery was to “bring about, progressively and as soon as possible, the complete abolition of slavery in all its forms”; while that of the forced labour was to “endeavour progressively and as soon as possible to put an end to the practice”. As such, it appears that forced labour for private ends was raised to the same level as slavery and the slave trade and thus should have been provided with a definition in Article 1 and made plain the obligations flowing from that definition in Article 2. However, the drafters were keen not to open a proposed instrument to the wider issue of the total suppression of forced labour; recognising as the Temporary Slavery Commission had – and as the 1925 Portuguese Note pointed out – that such competence laid with the International Labour Organisation. Such recognition was made by the passing of the Resolution of the Assembly aimed at the International Labour Office.

57

League of Nations, Question of Slavery: Report of the Sixth Committee: Resolution, League of Nations Official Journal (Special Supplement 33) Records of the Sixth Assembly: Text of Debates, Nineteenth Plenary Meeting, 26 September 1925, p. 156.

Article 6 (Penalties) Those of the High Contracting Parties whose laws do not at present make adequate provision for the punishment of infractions of laws and regulations enacted with a view to giving effect to the purposes of the present Convention undertake to adopt the necessary measures in order that severe penalties may be imposed in respect of such infractions.

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i. 1925 British Draft Protocol ARTICLE 4 The signatory States undertake to enact legislation, if not already existing, whereby persons subject to their jurisdiction who reduce any person to the state of slavery, or engage in the slave trade, shall be liable to substantial penalties.1

When, in mid-September 1925, Viscount Cecil of Chelwood introduced the 1925 British Draft Protocol, he did not see fit to comment on the provisions of its Article 4 which called on States, if they had not yet done so, to enact legislation to hold individuals responsible for enslaving or participating in the slave trade. Note that, as this provision followed that of the proposed Article 3 of the 1925 British Draft Protocol related to forced labour, the absence of mention of the penalties for those procuring economic gain from forced labour is noteworthy by its omission.

ii. 1925 Draft Convention ARTICLE 5 Those of the High Contracting Parties whose laws do not at present make adequate provision for the punishment of infractions of laws and regulations enacted with a view to giving effect to the purposes of the present Convention undertake to adopt or to propose for adoption by their respective legislatures the necessary measures in order that severe penalties may be imposed in respect of such infractions.2

1

2

League of Nations, Annex I: Slavery: Draft Resolution and Protocol, Official Journal: Record of the Sixth Assembly, Meetings of the Committees, Minutes of the Sixth Committee (Political Questions) Special Supplement No. 39, 14 September 1925, p. 41. League of Nations, Annex: Draft Convention, League of Nations Official Journal (Special Supplement 33) Records of the Sixth Assembly: Text of Debates, 26 September 1925, p. 439.

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The lack of comment on the provisions regarding the sanctioning of involvement in slavery and the slaver trade found in the 1925 British Draft Protocol was formalised by Viscount Cecil in late-September 1925, in his Report to the Assembly of the League of Nations on 26 September 1925, introducing the League of Nations’ 1925 Draft Convention. In introducing what was now Article 5, Cecil noted that the “desirability of attaching severe penalties to the legislation against the slave trade is too evident to need comment”.3 Yet, this statement is somewhat misleading as what was at issue here was not simply passing legislation in regard to the ‘slave trade’; but to violations of the various provisions of the 1926 Convention, including those of slavery, the slave trade and force labour. While there is no record as to the motivation of the drafters as to why the 1925 Draft Convention sought to rework the provisions of what was Article 4 of the British Draft Protocol; a further fundamental change which did transpire was that States no longer had to pass legislation penalising infractions of the Convention, but simply to “propose for adoption” such legislation.4 Yet, as we shall see, it was precisely this provision which would be excluded from the 1926 Convention, as States were prepared to agree that they had an obligation to pass legislation penalising violations of the Convention. One final note: the 1925 Draft Convention had mandated a higher threshold of penalty than the 1925 British Draft Protocol, as the former spokes of ‘severe penalties’, while the latter mandated the imposition of ‘substantial penalties’.

iii. 1926 Slavery Convention ARTICLE 6 Those of the High Contracting Parties whose laws do not at present make adequate provision for the punishment of infractions of laws and regulations enacted with a view to giving effect to the purposes of the present

3

4

League of Nations, Appendix, Draft Convention, League of Nations Official Journal (Special Supplement 33) Records of the Sixth Assembly: Text of Debates, Nineteenth Plenary Meeting, 26 September 1925, p. 436. League of Nations, Sixth Committee, Sub Committee 1, Drafting Committee, “Slavery, Synopsis of the Convention”, A.VI/S.C.1/Drafting Committee/12(1), 22 September 1925, p. 5.

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Convention undertake to adopt the necessary measures in order that severe penalties may be imposed in respect of such infractions.5

The Assembly of the League of Nations having requested that States make observations on the 1925 Draft Convention received only one reply in regard to the provisions dealing with penalties. The United Kingdom noted that it “appears to His Majesty’s Government that the wording of Article 5 is somewhat defective”. While not outlining precisely what that defect was, it ventured “to suggest in place of it the following article taken mainly from Article 28 of the Second Opium Convention:6 Each of the High Contracting Parties agrees that breaches of the laws and regulations by which the provisions of the present Convention are enforced shall be punishable by an adequate penalty. They undertake to enact any laws or regulations that may be necessary to enforce the provisions of the present Convention.7

While the Drafting Committee did not see fit to incorporate the provisions of the British proposal, the essence of the suggestion: that States be required to enact legislation to penalise violations of the Convention did find its way into what became Article 6 of the 1926 Convention to Suppress the Slave Trade and Slavery. In reporting to the Assembly in 1926, Viscount Cecil explained the movement which had transpired: The draft article as adopted last year only obliged the contracting parties to adopt or proposed for adoption by their respective legislatures the necessary measures in this respect, but the final text has been strengthened by the omission of the words “or to proposed for adoption by their respective legislatures”, making the adoption of the necessary measures an obligation

5

6 7

League of Nations, Slavery Convention, Geneva, September 25th, 1926, C.586. M.223.1926.VI, 16 October 1926; as found in Publications of the League of Nations, VI.B.Slavery.1926, VI.B.7. See Article 28, 1925 International Opium Convention, 19 February 1925. League of Nations, “Draft Convention on Slavery, Replies of Governments, Reply from the British Government, A.10.1926.VI, 21 July 1926, p. 4; as found in Publications of the League of Nations, VI.B.Slavery.1926, VI.B.2.

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resulting automatically from the ratification and coming into force of the Convention.8

iv. Commentary on Article 6 of the 1926 Slavery Convention The drafting of Article 6 of the 1926 Slavery Convention indicated that the drafters within the League of Nations were too cautious in seeking to gain acceptance of provisions regarding penalising violations of the proposed Convention. While the 1925 Draft Convention went further than the 1925 British Draft Protocol by seeking to penalise infractions of the provisions of the Convention not only those related to slavery and the slave trade; it did remove the obligation to penalise infractions of the Convention by simply requiring that States “propose for adoption by their respective legislatures” such penalties. Yet, as Viscount Cecil rightly notes, the provisions of the 1926 Convention were further strengthened by the removal of that phrase; thus placing State Parties under a positive obligation to have in place legislation penalising breaches of the Convention. Finally, while Article 6 sought, in essence, to criminalise acts related to slavery, the slave trade and forced labour (for private purposes), it did so at the domestic level and thus did not create obligations which would be considered as falling within the realm of what is today, international criminal law.

8

See League of Nations, Slavery Convention: Report of the Sixth Committee to the Assembly, A.104.1926.VI, 25 September 1926, p. 3; as found in Publications of the League of Nations, VI.B.Slavery.1926.5.

Article 7 (Exchange of Laws and Regulations) The High Contracting Parties undertake to communicate to each other and to the Secretary-General of the League of Nations any laws and regulations which they may enact with a view to the application of the provisions of the present Convention.

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i. 1925 British Draft Protocol No provision regarding the exchange of information flowing from the obligations which States were to undertake under the 1925 British Draft Protocol where included in that draft. Thus, no article appeared in the 1925 Draft Protocol which obliged States to inform each other of the laws or regulations which their legislatures might pass in attempting to assist in the suppression of slavery, the slave trade and forced labour. This, however, was rectified by the 1925 Draft Convention which would emerge from the Assembly of the League of Nations on 26 September 1925.

ii. 1925 Draft Convention ARTICLE 7 The High Contracting Parties undertake to communicate to each other and to the Secretary-General of the League of Nations any laws and regulations which they may enact with a view to the application of the provisions of the present Convention.1

As originally considered by the Drafting Committee of the Sub-Committee of the Sixth Committee of the League of Nations, Article 7 was meant to allow for the exchange of communications between the State Parties to the Convention, but not for communication to the Secretary-General of the League of Nations. The provision as drafted originally read: “The High Contracting parties undertake to communicate to each other any laws and regulations which they may enact with a view to the application of the provisions of the present Convention”.2 In preparing the Report

1

2

League of Nations, Annex: Draft Convention, League of Nations Official Journal (Special Supplement 33) Records of the Sixth Assembly: Text of Debates, 26 September 1925, p. 440. League of Nations, Draft Report of the Sixth Commission [sic] on the question of Slavery by the Sixth Committee (handwritten title on mimeograph)”, A.VI/SC1/ Drafting Committee/13, 23 September 1925, p. 8; as found in Folder R.67.D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925.

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which Viscount Cecil of Chelwood would present to the Assembly of the League of Nations on behalf of the Sixth Committee, the original draft proposed that copies of the laws and regulations be forwarded to the Secretary-General of the League: The Committee was of the opinion that when the Protocol comes up for final approval the Assembly might ask the Contracting Parties to forward copies of such laws and regulations as are mentioned in this article to the Secretary-General, so that a progress report for the year with regard to the measures taken to carry out the convention might be included as a separate chapter in the general report which is submitted by the Council to the Assembly each year, and the Secretary-General would, I know, be glad to facilitate the exchange of these laws and regulations between the High Contracting parties if they should so desire.3

By inserting “and to the Secretary-General of the League of Nations” into the provision of the Article 7 as a subordinate clause, allowing Viscount Cecil’s Report to be edited rather easily to exclude such mention by simply reading: “The Assembly might ask the Contracting Parties to forward copies of such laws and regulations in order to facilitate the exchange of these laws and regulations between the High Contracting parties if they should so desire”.4 While the Secretary-General of the League of Nations was brought into the fold with regard to receiving a copy of the exchanges of laws and regulations which States Parties were to undertake in regard to Article 7; a formal proposal that a report be made annually to the League concerning the actual execution of the Convention by the State Parties was neither accepted or rejected; instead it was deferred for further consideration. During the drafting process between the 1925 British Draft Protocol and the 1925 Draft Convention (re: 8 September to 26 September), the Norwegian Delegate, – and noted Arctic explorer – Dr. Fridtjof Nansen, proposed that reports “be made annually to the League concerning the execution of the convention”.5 The proposed Article read:

3 4

5

Id. League of Nations, Question of Slavery: Draft Report Presented to the Sixth Assembly by the Sixth Committee, A.VI/6.1925, 23 September 1925, p. 8; as found in Folder R.67. D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925. League of Nations, “Question of Slavery: Report of the Sixth Committee to the Assembly”, League of Nations Official Journal (Special Supplement 33), Annex 29, A.130.1925.VI, 26 September 1925, pp. 437–438.

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The signatory States undertake to communicate annually to the SecretaryGeneral of the League of Nations a report on the working of the measures which they have taken to carry out the purpose of the Protocol. The Secretary-General shall present to the annual Assembly of the League of Nations a summary of the reports so communicated.6

Yet, this proposed article (as well as another related to Article 8 of the 1926 Convention) was not considered by the Drafting Committee. As Viscount Cecil noted the Drafting Committee had received the proposal but had “not found itself able to make any comments [. . .] as they considered that it dealt with a matter of principle which should be decided by the full [Sixth] Committee”.7 Thus, this provision was considered at the level of the Sixth Committee, where the Portuguese Delegate, General Freire D’Andrade, was unwilling to accept the essence of Nansen’s proposal as he considered that it was, in fact, “the mandates system applied to all colonies as regard a part of their administration”.8 As a result, the Sixth Committee did not include the proposal in the 1925 Draft Convention, but did not discount it entirely. Instead, as the Report of the Sixth Committee to the Assembly of the League of Nations noted, that no solution could be reached “mainly owing to the late period of the sitting of the Committee”, and, as a result, it was agreed that reference to this proposal be made in the Report, so that States would have an opportunity to express their views on it and that it be “considered again at the next Assembly”.9 For its part, the Report of Viscount Cecil on behalf of the Sixth Committee simply stated that “Article 7 (Exchange of Laws and Regulations) [. . . does] not require any particular comment”.10

6

7

8 9

10

League of Nations, Draft Proposed by Dr. Nansen, Doc. A.VI/S.C.1/Drafting Committee/2, 19 September 1925; as found in Folder R.67.D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925. League of Nations, Draft Convention on Slavery: Reference to the Governments of Three Proposals by Dr. Nansen, Official Journal, Record of the Sixth Assembly, Meetings of the Committees, Minutes of the Sixth Committee (Political Questions), Special Supplement No. 39, 25 September 1925, p. 35. Id., p. 38. League of Nations, Question of Slavery: Report of the Sixth Committee to the Assembly, League of Nations Official Journal (Special Supplement 33), Annex 29, A.130.1925. VI, 26 September 1925, pp. 437–438. Id., p. 437.

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iii. 1926 Slavery Convention ARTICLE 7 The High Contracting Parties undertake to communicate to each other and to the Secretary-General of the League of Nations any laws and regulations which they may enact with a view to the application of the provisions of the present Convention.11

While no changes were made to the provisions of Article 7 of the 1925 Draft Convention when it was incorporated into the 1926 Slavery Convention, the Article – and more specifically the Nansen Proposal – did elicit comment from two States. The United Kingdom was in favour of incorporating the Nansen Proposal into the provisions of Article 7 and made a proposal to that end. That proposal sought also to rectify what the British Government saw as a flaw in the provision, as it provided only communication on future laws and regulations: The High Contracting Parties undertake to communicate to the SecretaryGeneral of the League of Nations any laws or regulations which have been or may be enacted with a view to the control or suppression of the slave trade, slavery or forced labour, or which may be enacted with a view to the application of the provisions of the present Convention, and any agreements or arrangements which they might conclude with the above or similar objects. A summary of these laws, regulations, agreements and arrangements shall be included regularly, together with periodical accounts of their working, in the report to the Assembly by the Council of the League of Nations.12

For its part, however, the Belgium Government was opposed to any move to incorporate the Nansen Proposal:

11

12

League of Nations, Slavery Convention, Geneva, September 25th, 1926, C.586. M.223.1926.VI, 16 October 1926; as found in Publications of the League of Nations, VI.B.Slavery.1926. VI.B.7. League of Nations, Draft Convention on Slavery, Replies of Governments, Reply from the British Government, A.10.1926.VI, 21 July 1926, p. 4; as found in Publications of the League of Nations, VI.B.Slavery.1926, VI. B. 2.

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[. . .] the Belgian Government see very serious objections to the amendment regarding the report to be addressed annually to the League of Nations on the application of the Convention. It considers that, in this connection, Article 7 of the draft lays down the only practical and rational rule, i.e., that the parties undertake to communicate to each other and the Secretary-General of the League of Nations any laws and regulations which they may enact with a view to the application or the provisions of the Convention. The obligation to make an annual report, as proposed by the Norwegian delegate, would be liable to create regrettable confusion between the mandates system and that of the colonies, which must remain entirely distinct. In practice, moreover, apart from the information as regards laws and regulations provided for in Article 7 of the draft, it is difficult to see what information could be furnished annually to the League of Nations in relation to colonies in which the slave trade has for a long time past been extinct and in which slavery no longer is, or has never been, a recognised institution. If traces of slavery subsist in native institutions, they are in the process of natural and gradual disappearance under the influence of European penetration, and it would manifestly be impossible to determine with any exactitude the state reached by this evolution each year.13

Ultimately no changes were made to the provisions of Article 7. Viscount Cecil, in his Report of 1926, noted that the “Commission considers that the Governments concerned will be glad of the opportunity to inform their co-Members of the League of the measures taken to this end and of the success achieved”. He went on to say that: No attempt has been made to lay down any definite methods as regards the use of the documentation in question, as it was considered that the Council, in the light of experience and of the information received, would be in a better position to instruct the Secretary-General as to the methods appropriate to achieve the desired end without undue expense.14

As regards the Nansen Proposal, it did not completely disappear. Instead, as Viscount Cecil noted, in regard to Article 7: “The article remains as in the draft Convention, but it is supplemented by a resolution which the Commission desires to propose to the Assembly for adoption”. “This resolution” Cecil noted “is proposed to enable the Assembly to continue

13

14

League of Nations, Draft Convention on Slavery, Replies of Governments, Reply from the Government of Belgium, A.10(a).1926.VI, 22 July 1926, p. 2; as found in Publications of the League of Nations, VI.B.Slavery, 1926.VI.B.3. See League of Nations, Slavery Convention: Report of the Sixth Committee to the Assembly, A.104.1926.VI, 25 September 1926, p. 3; as found in Publications of the League of Nations, VI.B.Slavery.1926.5.

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to follows further developments in the tasks of removing from the world the scourge of slavery and the conditions analogous thereto”.15 That Resolution, which was adopted by the Assembly, reads: The Assembly: Desires that the League of Nations should continue to interest itself in securing the progressive abolition of slavery and conditions analogous thereto and therefore begs that the Council will prepare and communicate to the Assembly every year a document mentioning the laws and regulations which the parties to the Convention on Slavery, in accordance with Article 7, will have communicated to the Secretary-General, and that the Council will include therein any supplementary information which the Members of the League may be disposed spontaneously to furnish with regard to the measures taken by them to this end.16

iv. Commentary on Article 7 of the Slavery Convention The provisions of Article 7 of the 1926 Slavery Convention remained those first put forward by the Drafting Committee in 1925. Originally conceived as an obligation erga the States Party to the Convention, the provision was modified to allow the Secretary-General to also receive a copy of such exchanges of laws and regulations. As the Sixth Committee conceived the provisions of Article 7, it was hoped that the SecretaryGeneral would act as a central clearing house: receiving the laws and regulations from State Parties and disseminating them to the other Parties to the 1926 Convention to Suppress the Slave Trade and Slavery. Belgium and Portugal were rather hostile to the inclusion of this article in an international instrument as they believed that the unfettered rights in their colonies would be challenged. The fear was that with regard to slavery, the slave trade, but most importantly, forced labour, that the League of Nations would establish what was, in essence, a virtual-mandate system for monitoring their colonial administration. While States were unwilling to accept Dr. Nansen’s Proposal regarding reporting to the League with respect to the execution of the Convention, the delegations of the various States to the League were willing to propose that the

15 16

Id. Id., p. 4.

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Council of the League prepare a Report of the action which States had undertaken as a result of Article 7 and forward it to the Assembly for consideration. These Reports made from 1926 until 1938 provide much insight into the practice of both the States Party to 1926 Slavery Convention; but also, because of the final clause of the Assembly Resolution (re: “supplementary information which the Members of the League may be disposed spontaneously to furnish with regard to the measures taken by them to this end”), to the practice of all Member States during the League of Nations era, post-1926.

Article 8 (Compromissory Clause) The High Contracting Parties agree that disputes arising between them relating to the interpretation or application of this Convention shall, if they cannot be settled by direct negotiation, be referred for decision to the Permanent Court of International Justice. In case either or both of the States Parties to such a dispute should not be parties to the Protocol of December 16th, 1920 relating to the Permanent Court of International Justice, the dispute shall be referred, at the choice of the Parties and in accordance with the constitutional procedure of each State either to the Permanent Court of International Justice or to a court of arbitration constituted in accordance with the Convention of October 18th, 1907, for the Pacific Settlement of International Disputes, or to some other court of arbitration.

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i. 1925 British Draft Protocol Article 8, the compromissory clause meant to settle disputes over the application or interpretation of the provisions of the 1926 Slavery Convention did not appear in either the 1925 British Draft Protocol or the 1925 Draft Convention, though some consideration was given to the issue during the drafting process of 1925.

ii. 1925 Draft Convention When the 1925 Draft Convention was considered by the Sixth Committee of the Assembly of the League of Nations, having been previously adopted by a Drafting Committee and the Sub-Committee, no provisions for dispute settlement were included. Within the Sixth Committee, however, the Norwegian Delegate, Dr. Fridtjof Nansen, proposed the inclusion of a compromissory clause. As the Minutes relate: Dr. Nansen (Norway) said he wished to see included in the draft Convention a clause referring to the Permanent Court of International Justice. A clause in regard to the reference of disputes to this body had been inserted in the St. German Convention and also in almost all general Conventions concluded under the auspices of the League of Nations, such as the Customs Formalities Convention, the Second Opium Convention, the Convention on the International Trade in Arms, the Convention on the Freedom of Transit, Navigable Waterways, Railways, Maritime Ports, etc., and he thought it would look a little strange if the same clause were not inserted in the present Convention. The text of Article 35 of the Convention for the Supervision of the International Trade in Arms and Ammunition and in Implements of War would perhaps be most suitable. It reads as follows: The High Contracting Parties agree that disputes arising between them relating to the interpretation or application of this Convention shall, if they cannot be settled by direct negotiation, be referred for decision to the Permanent Court of International Justice. In case either or both of the States to such a dispute should not be parties to the Protocol of December 16th, 1920, relating to the Permanent Court of International Justice, the dispute shall be referred, at the choice of the Parties and in accordance with the constitutional procedures of each State, either to the Permanent Court of International Justice or to a court of arbitration

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constituted in accordance with the Hague Convention of October 18th, 1907, or to some other court of arbitration.1

This proposal was, however, not accepted as the Portuguese Delegate, for one, considered that the Permanent Court of International Justice might interfere with the execution of the proposed convention and give, for instance, a different interpretation to the notion of “forced labour may only be exacted for public purposes” than the States Party and thus interfere in their internal affairs. The Portuguese Delegate, General Freire D’Andrade, also noted that the proposal “had been submitted to the Committee at the last moment, and it was not easy to give it consideration”.2 While Nansen pointed to the fact that Portugal had already accepted the optional clause system of Article 36 of the Permanent Court of International Justice3 and would thus not be taking on any obligation it had not already agreed to; he also addressed the second Portuguese objection, noting that “his suggestion had not been made at the last moment. It was in fact proposed some time ago and handed over to the Drafting

1

2 3

League of Nations, Draft Convention on Slavery: Reference to the Governments of Three Proposals by Dr. Nansen, Official Journal, Record of the Sixth Assembly, Meetings of the Committees, Minutes of the Sixth Committee (Political Questions), Special Supplement No. 39, 25 September 1925, p. 34. Id. p. 35. Article 36 of the Permanent Court of International Justice reads: The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in treaties and conventions in force. The Members of the League of Nations and the States mentioned in the Annex to the Covenant may, either when signing or ratifying the Protocol to which the present Statute is adjoined, or at a later moment, declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other Member or State accepting the same obligation, the jurisdiction of the Court in all or any of the classes of legal disputes concerning: (a) the interpretation of a treaty; (b) any question of international law; (c) the existence of any fact which, if established, would constitute a breach of an international obligation; (d) the nature or extent of the reparation to be made for the breach of an international obligation. The declaration referred to above may be made unconditionally or on condition of reciprocity on the part of several or certain Members or States, or for a certain time. In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court.

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Committee, of which he was not a member, so that this really was the only opportunity he had had of defending it”. For his part, Viscount Cecil noted that the Drafting Committee had received the proposal but had “not found itself able to make any comments” as they believed that it, like the proposal regarding the exchange of laws and regulations also “dealt with a matter of principle” which should be dealt with by Sixth Committee.4 After further comments by delegates from various States, it became clear that the proposal for the inclusion of a compromissory clause would not be accepted unanimously as most delegations had not had an opportunity to consider the proposal in detail. As a result, Nansen agreed with a proposal by the French Delegate, Louis Aubert, that no vote be taken on the proposal, but that in the report to the Assembly it be stated “that Dr. Nansen had moved this proposal, that it was discussed by the Committee, which sent the minutes of discussion to the Governments for their consideration and observations”.5

iii. 1926 Slavery Convention ARTICLE 8 The High Contracting Parties agree that disputes arising between them relating to the interpretation or application of this Convention shall, if they cannot be settled by direct negotiation, be referred for decision to the Permanent Court of International Justice. In case either or both of the States

4

5

Id. p. 35. Note that Nansen had also made a previous proposal in regard to a compromissory clause which read: Each signatory State agrees that, if any dispute whatever should arise between it and another Member of the League of Nations relating to the interpretation or the application of the provisions of the present Protocol, such dispute, if it cannot be settled by negotiation, shall be submitted to the Permanent Court of International Justice provided for by Article 14 of the Covenant of the League of Nations. See League of Nations, Draft Proposal by Dr. Nansen, Doc. A.VI/S.C.1/Drafting Committee/1, 19 September 1925; as found in Folder R.67.D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925. League of Nations, Draft Convention on Slavery: Reference to the Governments of Three Proposals by Dr. Nansen, Official Journal, Record of the Sixth Assembly, Meetings of the Committees, Minutes of the Sixth Committee (Political Questions), Special Supplement No. 39, 25 September 1925, p. 37.

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Parties to such a dispute should not be parties to the Protocol of December 16th, 1920 relating to the Permanent Court of International Justice, the dispute shall be referred, at the choice of the Parties and in accordance with the constitutional procedure of each State either to the Permanent Court of International Justice or to a court of arbitration constituted in accordance with the Convention of October 18th, 1907, for the Pacific Settlement of International Disputes, or to some other court of arbitration.6

The Nansen proposal that a compromissory clause be inserted into the 1926 Slavery Convention was accepted, as it received generally favourable comments by States in their observations on the 1925 Draft Convention. The British reply to the League’s request to comment simply noted that it welcomed “the inclusion in the Convention of the [. . .] article suggested by Dr. Nansen.7 Belgium, for its part, noted: Being already a signatory of the Protocol providing for compulsory jurisdiction of the Permanent Court of International Justice with regard to the interpretation of every treaty, it views with favour the insertion in the Convention of a clause stipulating that all disputes which may arise between the contracting powers with regard to the interpretation or application of the present Convention should be submitted to the Permanent Court of International Justice or to arbitration if they cannot be settled by direct negotiation.8

By comparison, the Portuguese reply held out certain reservations. Although a party to the optional clause system of Article 36 of the Permanent Court, “it is anxious that any obligations it may undertake in this matter should be clearly defined”, as it was fearful that by so accepting the Nansen Proposal it might be opening up for adjudication “questions

6

7

8

League of Nations, Slavery Convention, Geneva, September 25th, 1926, C.586. M.223.1926.VI, 16 October 1926; as found in Publications of the League of Nations, VI.B.Slavery.1926. VI.B.7. League of Nations, Draft Convention on Slavery, Replies of Governments, Reply from the British Government, A.10.1926.VI, 21 July 1926, p. 5; as found in Publications of the League of Nations, VI.B.Slavery.1926, VI. B. 2. League of Nations, Draft Convention on Slavery, Replies of Governments, Reply from the Government of Belgium, A.10(a).1926.VI, 22 July 1926, p 2; as found in League of Nations, Publications of the League of Nations, VI.B.Slavery, 1926.VI.B.3.

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of colonial administration affecting natives”. The Portuguese reply then went on to say: The Permanent Court gives its opinion on questions of law and questions of fact but not on theories or systems of administration. To attempt to give it the latter duty is to offer it functions which it will not always be competent to perform. It would be called upon to act in the stead of those who have the right to govern, as accepted in any treaty or convention. Provided undertakings given are respected, the territory concerned must be free to fulfil them by whatever means it may judge best and easiest. Accordingly, while the Portuguese Government approves of Dr. Nansen’s proposal. It does not do so unreservedly.9

For his part, when Viscount Cecil of Chelwood introduced the provision in his 1926 Report of the Sixth Committee to the Assembly of the League of Nations he noted that the “article is substantially identical with articles of the same nature which have been inserted in several international conventions negotiated during the recent years under the auspices of the League of Nations”.

iv. Commentary on Article 8 of the 1926 Slavery Convention Dr. Nansen was right to say, in reference to what would become Article 8 of the 1926 Slavery Convention, that “it would look a little strange if the same clause were not inserted in the present Convention”, as the 1920s were the golden era of dispute settlement.10 Although the Permanent Court of International Justice was not an organ of the League, Article 14 of the Covenant of the League of Nations had made provisions for its establishment. The Court’s jurisdiction, like that of its successor the International Court of Justice, was established at Article 36 of its Statute, which granted it power to adjudicate disputes between States under three circumstances. First, if the parties agree; second, if a compromissory clause in a treaty such as the one found at Article 8 of the 1926 Slavery Convention mandates it; or third; if a State made a declaration accepting

9

10

League of Nations, Draft Convention on Slavery, Replies of Governments, Reply from the Portuguese Government, A.10(b).1926.VI, 22 July 1926, p. 6; as found in Publications of the League of Nations, VI.B.Slavery, 1926.VI.B.4. See Jean Allain, A Century of International Adjudication: The Rule of Law and its Limits, 2000, pp. 36–65.

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the so-called ‘optional clause’ system. The optional clause allows States to make a declaration stating that it accepts, for States making the same type of declaration, to have recourse to the Court to settle future disputes between the parties With regard to the provisions of the compromissory clause found at Article 8 of the 1926 Convention, it should be noted that it does not bestow jurisdiction on the Permanent Court of International Justice, short of a State already having become party to its Protocol. As Viscount Cecil noted in his 1926 Report to the Assembly, the provisions of Article 8 “imposes no new obligations on the Members of the League of Nations which have signed the optional clause of the Statute of the Permanent Court of International Justice”.11 Article 8 requires parties in dispute to first seek to settle their differences by negotiations, it then calls on them to turn towards the Permanent Court to settle their dispute only if both States are party to the Court’s Protocol. If that is not the case, then States may – upon agreement by both parties – turn to either the Permanent Court of International Justice, the Permanent Court of Arbitration (re: ‘a court of arbitration constituted in accordance with the Convention of October 18th, 1907, for the Pacific Settlement of International Disputes’), or an ad hoc court of arbitration established by the parties. In essence, the provisions of Article 8 of the 1926 Convention require State Parties to settle their disputes over the interpretation or application of the Convention. Whether this is by recourse to the Permanent Court of International Justice or to a court of arbitration depends not on the provisions of Article 8 but on possible previous obligations undertaken with reference to the Protocol of the Permanent Court. As far as a compromissory clause goes, therefore, the one found at Article 8 is rather weak as it ultimately does not require settlement of a dispute, as there is no remedial provisions which requires the parties, in case of disagreement over the establishment of a compromise to arbitrate, to have a third party step in to ensure that adjudication actually transpires.

11

See League of Nations, Slavery Convention: Report of the Sixth Committee to the Assembly, A.104.1926.VI, 25 September 1926, p. 3; as found in Publications of the League of Nations, VI.B.Slavery.1926.5.

Article 9 (Overseas Territories) At the time of signature or of ratification or of accession, any High Contracting Party may declare that its acceptance of the present Convention does not bind some or all of the territories placed under its sovereignty, jurisdiction, protection, suzerainty or tutelage in respect of all or any provisions of the Convention; it may subsequently accede separately on behalf of any one of them or in respect of any provision to which any one of them is not a party.

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i. 1925 British Draft Protocol ARTICLE 7 Any State signing or acceding to the present Protocol may declare, at the moment either of its signature, ratification, or accession, that its acceptance of Articles 2 and 3 of the present Protocol does not include any or all of its colonies, overseas possessions, protectorates, areas not under direct administration, or overseas territories under its sovereignty or authority, or in respect of which it has accepted a mandate on behalf of the League of Nations, and may subsequently accede on behalf of any such colony, overseas possession, protectorate or territory excluded by such declaration.1

Viscount Cecil of Chelwood, when presenting the 1925 Draft Protocol proposed by the British Government, said very little regarding what would become Article 9 of the 1926 Slavery Convention, but noted that such a provision “was now practically common form in Protocols and Conventions drawn up by the League of Nations”2. What would become Article 9 of the 1926 Convention was meant to allow European Powers to exclude their colonial possessions from the obligations of some (re: Articles 2 – abolition – and 3 – slave trade at sea as piracy – in the 1925 British Draft Protocol) or all of the provisions being negotiated.

ii. 1925 Draft Convention ARTICLE 9 Any of the High Contracting Parties may declare that its signature, ratification or adhesion shall not be binding as regard enforcement of the provisions

1

2

League of Nations, Annex I: Slavery: Draft Resolution and Protocol, Official Journal: Record of the Sixth Assembly, Meetings of the Committees, Minutes of the Sixth Committee (Political Questions) Special Supplement No. 39, 14 September 1925, p. 41. League of Nations, Slavery: Draft Resolution and Protocol proposed by the British Government (continuation): Statement by Viscount Cecil, Official Journal, Record of the Sixth Assembly, Meetings of the Committees, Minutes of the Sixth Committee (Political Questions), Special Supplement No. 39, 14 September 1925, p. 15.

Article 9 (Overseas Territories)

147

of certain Articles of this Convention either upon the whole or upon any of the territories place under its sovereignty, jurisdiction or protection. Any High Contracting Party which has made such a declaration may subsequently and in conformity with the provisions of Article 10 adhere unreservedly to the present Convention in respect of any of the excluded territories; it shall endeavour to ensure such adhesion with the least possible delay in respect of all the excluded territories.3

In presenting the Report on the 1925 Draft Convention on behalf of the Sixth Committee to the Assembly of the League of Nations, Viscount Cecil noted that Article 9 “has been inserted primarily for formal reasons in most of the recent international conventions. The Committee was of the opinion that there would probably be little occasion for the interested States to use it in the case of the present Convention.”4 He then went on to state that this was done “to avoid possible difficulties” and that it was “understood that neither this Article nor any other could in any way affect the provisions of the Mandates.”5 Although Lord Cecil did not elaborate in his Report on what ‘possible difficulties’ the Sixth Committee had envisioned, early drafts of the Report did, as they indicated that colonial powers accepted that they did not have effective control over the totality of their colonial possession. The earliest draft of Viscount Cecil’s Report had a sentence that noted that “there are certain areas not clearly defined which are not under very effective jurisdiction of the States responsible for them”.6 This sentence was later excluded from the Report.

3

4

5 6

League of Nations, Annex: Draft Convention, League of Nations Official Journal (Special Supplement 33) Records of the Sixth Assembly: Text of Debates, 26 September 1925, p. 440. League of Nations, Annex 29, Question of Slavery, Report of the Sixth Committee to the Assembly, League of Nations Official Journal (Special Supplement 33) Records of the Sixth Assembly: Text of Debates, A.130.1925.VI, 26 September 1925, p. 437. Id. League of Nations, Draft Report of the Sixth Commission [sic] on the question of Slavery by the Sixth Committee (handwritten title on mimeograph)”, A.VI/SC1/ Drafting Committee/13, 23 September 1925, p. 7; as found in Folder R.67.D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925.

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As to the actual provisions of Article 9 of the 1925 Draft Convention, they would have allowed a State Party to exclude its colonial possessions from the provisions of the treaty. The inclusion of Article 10 in the Draft Convention, however seems to contradict this possibility, as it states that: The High Contracting Parties shall make every effort to induce other States to adhere to the present Convention. Such adhesion shall be notified to the Secretary-General of the League of Nations and through him to all the signatory or adherent States.7

This is why the second paragraph was included in the provisions of Article 9 of the 1925 Draft Convention.

iii. 1926 Slavery Convention ARTICLE 9 At the time of signature or of ratification or of accession, any High Contracting Party may declare that its acceptance of the present Convention does not bind some or all of the territories placed under its sovereignty, jurisdiction, protection, suzerainty or tutelage in respect of all or any provisions of the Convention; it may subsequently accede separately on behalf of any one of them or in respect of any provision to which any one of them is not a party.8

Article 9 of the 1925 Draft Convention elicited two comments from States; India noted that it would be taking advantage of the provisions of Article 9 to make such a declaration excluding jurisdiction ratione loci “in respect to (1) certain unadministered tracks on the frontiers of India

7

8

League of Nations, Annex: Draft Convention, League of Nations Official Journal (Special Supplement 33) Records of the Sixth Assembly: Text of Debates, 26 September 1925, p. 440. League of Nations, Slavery Convention, Geneva, September 25th, 1926, C.586. M.223.1926.VI, 16 October 1926; as found in Publications of the League of Nations, VI.B.Slavery.1926. VI.B.7.

Article 9 (Overseas Territories)

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and (2) certain other territories not included in British India”.9 For its part, the British Government called for a redrafting of the provisions of Article 9 along with those of Articles 10 and 11 of the 1925 Draft Convention after “further consideration at Geneva by a drafting committee with a view to assimilating them to the usual shape adopted for such articles at Geneva.10 Acting on this British comment, the Legal Section prepared draft articles, one of which included a declaration excluding the provisions of the Convention, ratione loci, and allowing for denunciation. That proposed article reads: At the time of signature or of ratification of accession, a State may declare that its acceptance of the present Convention does not bind some or all of its colonies, possessions, protectorates or overseas territories under its sovereignty, suzerainty or authority; and it may subsequently accede separately on behalf of any one thereof. Denunciation may also be made separately in respect to any colony, possession, protectorate, or overseas territory; the provision of Article 9 shall apply to such a denunciation.11

It was this provision that was the basis of what would become Article 9 of the 1926 Slavery Convention which emerged from a Drafting Committee in 1926, which originally read: At the time of signature or of ratification or of accession, a State may declare that its acceptance of the present Convention does not bind some or all of its colonies, possessions, protectorates or overseas territories, or any territories under its sovereignty, suzerainty or authority in respect of all or any provisions of the Convention; it may subsequently accede separately on behalf of any one of them or in respect of any provision to which any one of them is not a party.12

9

10

11

12

League of Nations, Draft Convention on Slavery, Replies of Governments, Reply from the Government of India, A.10.1926.VI, 21 July 1926, p. 6; as found in Publications of the League of Nations, VI.B.Slavery.1926, VI.B.2. League of Nations, Draft Convention on Slavery, Replies of Governments, Reply from the British Government, A.10.1926.VI, 21 July 1926, p. 5; as found in Publications of the League of Nations, VI.B.Slavery.1926, VI.B.2. League of Nations, Observations relatives aux Clause Finale du Project de Convention sur l’Esclavage, 2 August 1926, 1/46214x/23252; as found in Folder R.77.D.46781 entitled Draft Convention on Slavery: Discussion at the 7th Assembly; 1926. League of Nations, Seventh Ordinary Session of the Assembly, Sub-Committee of the Sixth Committee, Articles 9, 10 and 11 of the Draft Slavery Convention, (A.VI./S.C.1/10); as found League of Nations, Draft Convention relating to Slavery,

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iv. Commentary on Article 9 of the Slavery Convention The provisions regarding the ability of State Parties to make reservations ratione loci to the 1926 Slavery Convention emerges from a realisation that the European Powers did not have effective control over the totality of their colonies and thus did not want to undertake the obligation of ensuring that the Convention applied throughout their possessions. This was the type of ‘difficulties’ which Viscount Cecil alluded to in his Report and which were made evident in the drafting of that Report. It is also made plain by the comments of India – under colonial rule of the United Kingdom until its independence in 1947 – that it intended to invoke the so-called ‘colonial clause’ to exclude territories at its peripheries from the purview of the 1926 Convention.

25 September 1926, A.VI/8/1926, p. 6; in Folder R.77.D.46781 entitled Draft Convention on Slavery: Discussion at the 7th Assembly; 1926.

Article 10 (Denunciation) In the event of a High Contracting Party wishing to denounce the present Convention, the denunciation shall be notified in writing to the SecretaryGeneral of the League of Nations, who will at once communicate a certified true copy of the notification to all the other High Contracting Parties, informing them of the date on which it was received. The denunciation shall only have effect in regard to the notifying State, and one year after the notification has reached the Secretary-General of the League of Nations. Denunciation may also be made separately in respect of any territory placed under its sovereignty, jurisdiction, protection, suzerainty or tutelage.

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i. 1925 British Draft Protocol ii. 1925 Draft Convention The provisions on denunciation which appear in the 1926 Slavery Convention only appear late in the negotiation process. No such provision was incorporated in either the 1925 British Draft Protocol or the 1925 Draft Convention.

iii. 1926 Slavery Convention ARTICLE 10 In the event of a High Contracting Party wishing to denounce the present Convention, the denunciation shall be notified in writing to the SecretaryGeneral of the League of Nations, who will at once communicate a certified true copy of the notification to all the other High Contracting Parties, informing them of the date on which it was received. The denunciation shall only have effect in regard to the notifying State, and one year after the notification has reached the Secretary-General of the League of Nations. Denunciation may also be made separately in respect of any territory placed under its sovereignty, jurisdiction, protection, suzerainty or tutelage.1

The provisions of what would become Article 10 of the 1926 Slavery Convention were introduced so late in September 1926 that they did not even appear in Viscount Cecil of Chelwood’s Report of the Sixth Committee to the Assembly dated 24 September 1926, that is: two days before the 1926 Convention was opened for signature. The provisions which were included in the 1926 Convention had no analogous provisions in the 1925 British Draft Protocol or the 1925 Draft Convention,

1

League of Nations, Slavery Convention, Geneva, September 25th, 1926, C.586. M.223.1926.VI, 16 October 1926; as found in Publications of the League of Nations, VI.B.Slavery.1926. VI.B.7.

Article 10 (Denunciation)

153

but only emerged at the prompting of the Legal Section of the League of Nations in the second half of 1926. The move to introduce into the 1926 Convention a clause dealing with denunciation results from an observation made by the British Government in response to the Resolution by the Assembly of the League of Nations, requesting States to comment on the 1925 Draft Convention. Although a denunciation clause was not included in the 1925 Draft, the suggestion by the British Government that the final provisions of the Draft be given “further consideration at Geneva by a drafting committee with a view to assimilating them to the usual shape adopted for such articles”,2 led to the establishment of Article 10. The Legal Section of the League of Nations, having been requested by (it would appear) the Mandates Section to draft such articles, commented that there was lacking “an article regarding the denunciation of the Convention”, which it said “should maybe be introduced in the text, as it must be envisaged that one day or the next, that modification will transpire”.3 As such, the Legal Section proposed an article which included both provisions regarding the possibility of making a declaration excluding the provisions of the Convention, ratione loci, and provisions regarding denunciation in such situations. That draft article reads: At the time of signature or of ratification or accession, a State may declare that its acceptance of the present Convention does not bind some or all of its colonies, possessions, protectorates or overseas territories under its sovereignty, suzerainty or authority; and it may subsequently accede separately on behalf of any one thereof. Denunciation may also be made separately in respect to any colony, possession, protectorate, or overseas territory; the provision of Article 9 shall apply to such a denunciation.4

As will be noted, the final sentence of this draft is reflected in substance, in the final sentence of Article 10 of the 1926 Convention.

2

3

4

League of Nations, Draft Convention on Slavery, Replies of Governments, Reply from the British Government, A.10.1926.VI, 21 July 1926, p. 5; as found in Publications of the League of Nations, VI.B.Slavery.1926, VI.B.2. League of Nations, Observations relatives aux clause finale du Project de Convention sur l’esclavage2 August 1926, 1/46214x/23252, 2 August 1926; as found in Folder R.77. D.46781 entitled Draft Convention on Slavery: Discussion at the 7th Assembly; 1926. Id.

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iv. Commentary on Article 10 of the 1926 Slavery Convention The records of the Archives of the League of Nations do not reveal the manner by which Article 10 was modified from the version prepared by the Legal Section of the League in early September 1926 and that which appears in the 1926 Slavery Convention on 26 September. In fact, further final provisions drafted by the Legal Section and dated 24 September 19265 do not include provisions regarding denunciation. It is simply left to be said that this Article includes provisions which, like those of Articles 8, 9, 11 and 12, were typically inserted in international instruments which emerged during the League of Nations era.

5

See League of Nations, Final Dispositions which could be applicable to the Draft Slavery Convention, no League of Nations Document Number, 24 September 1926; as found in Folder R.77.D.46781 entitled Draft Convention on Slavery: Discussion at the 7th Assembly; 1926.

Article 11 (Accession) The present Convention, which will bear this day’s date and of which the French and English texts are both authentic, will remain open for signature by the States Members of the League of Nations until April 1st, 1927. The Secretary-General of the League of Nations will subsequently bring the present Convention to the notice of States which have not signed it, including States which are not Members of the League of Nations, and invite them to accede thereto. A State desiring to accede to the Convention shall notify its intention in writing to the Secretary-General of the League of Nations and transmit to him the instrument of accession, which shall be deposited in the archives of the League. The Secretary-General shall immediately transmit to all the other High Contracting Parties a certified true copy of the notification and of the instrument of accession, informing them of the date on which he received them.

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i. 1925 British Draft Protocol ARTICLE 6 The signatory States engage to use their best endeavours to induce all other States to conform to and adopt the principles of this Protocol.1

As originally conceived, the provisions regarding accession to the treaty being drafted sought to induce non-Parties to join or even to conform to its principles despite not being a Party to the proposed instrument. Despite this, Viscount Cecil of Chelwood, in introducing the 1925 British Draft Protocol, in his Report on behalf of the Sixth Committee to the Assembly of the League of Nations stated that “he did not think that the matter was of first importance.2

ii. 1925 Draft Convention ARTICLE 10 The High Contracting Parties shall make every effort to induce other States to adhere to the present Convention. Such adhesion shall be notified to the Secretary-General of the League of Nations and through him to all the signatory or adherent States.3

1

2

3

League of Nations, Annex I: Slavery: Draft Resolution and Protocol, Official Journal: Record of the Sixth Assembly, Meetings of the Committees, Minutes of the Sixth Committee (Political Questions) Special Supplement No. 39, 14 September 1925, p. 41. League of Nations, “Slavery: Draft Resolution and Protocol proposed by the British Government (continuation): Statement by Viscount Cecil”, Official Journal, Record of the Sixth Assembly, Meetings of the Committees, Minutes of the Sixth Committee (Political Questions), Special Supplement No. 39, 14 September 1925, p. 15. League of Nations, Annex: Draft Convention, League of Nations Official Journal (Special Supplement 33) Records of the Sixth Assembly: Text of Debates, 26 September 1925, p. 440.

Article 11 (Accession)

157

Viscount Cecil’s remark with regard to the 1925 British Draft Protocol were prophetic as he simply stated in his Report introducing the 1925 Draft Convention, which included mention of notification to the Secretary-General of the League of Nations and to the other States Party, that the proposed article on accession did “not appear to call for any remarks”.4

iii. 1926 Slavery Convention ARTICLE 11 The present Convention, which will bear this day’s date and of which the French and English texts are both authentic, will remain open for signature by the States Members of the League of Nations until April 1st, 1927. The Secretary-General of the League of Nations will subsequently bring the present Convention to the notice of States which have not signed it, including States which are not Members of the League of Nations, and invite them to accede thereto. A State desiring to accede to the Convention shall notify its intention in writing to the Secretary-General of the League of Nations and transmit to him the instrument of accession, which shall be deposited in the archives of the League. The Secretary-General shall immediately transmit to all the other High Contracting Parties a certified true copy of the notification and of the instrument of accession, informing them of the date on which he received them.5

When, in 1926, the Slavery Convention was put to the Assembly and adopted, its provisions for accession were rather elaborate in comparison

4

5

League of Nations, Annex 29, Question of Slavery, Report of the Sixth Committee to the Assembly, League of Nations Official Journal (Special Supplement 33) Records of the Sixth Assembly: Text of Debates, A.130.1925.VI, 26 September 1925, p. 437. League of Nations, Slavery Convention, Geneva, September 25th, 1926, C.586. M.223.1926.VI, 16 October 1926; as found in Publications of the League of Nations, VI.B.Slavery.1926. VI.B.7.

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to those drafted in 1925. This resulted from a suggestion by the British Government that the final provisions of the 1925 Draft Convention be reconsidered by “a drafting committee with a view to assimilating them to the usual shape”.6 To that end, the Legal Section of the League of Nations prepared a memorandum (the French copy being the only one to have survived in the League of Nations Archives) which explained the basis for the draft articles it proposed. In that Memorandum, it noted that the articles mention signature, ratification and adherence; but that as the Slavery Convention is to be indefinitely opened to signature”, as a result “the ability to adhere to it need not be foreseen”. It thus proposed that “if the Convention is to be closed for signature on a specific date there will have to be provisions established for those Powers wishing to adhere”.7 The Legal Section then proposed the following draft Article: The Secretary-General of the League of Nations will bring the present Convention to the knowledge of the States which have not signed it and invite them to accede thereto. A State desiring to accede to the Convention shall notify its intentions to the Secretary-General of the League of Nations and transmit to him the instrument of accession which shall be deposited in the archives of the League. The Secretary-General shall immediately transmit to all the other States a certified true copy of the notifications and with instrument of accession informing them of the date on which he received them.8

The Legal Section of the League of Nations, later drafted more thorough provisions in regard to accession, which read as follows: Article A The present convention, of which the French and English texts are both authentic, shall bear this day’s date and shall be open for signature until ___ by any member of the League of Nations and by States to which the Council of the League of Nations shall have communicated a copy of the convention for this purpose.

6

7

8

League of Nations, Draft Convention on Slavery, Replies of Governments, Reply from the British Government, A.10.1926.VI, 21 July 1926, p. 5; as found in Publications of the League of Nations, VI.B.Slavery.1926, VI.B.2. League of Nations, Observations relatives aux Clause Finale du Project de Convention sur l’Esclavage, 1/46214x/23252, 2 August 1926; as found in Folder R.77.D.46781 entitled Draft Convention on Slavery: Discussion at the 7th Assembly; 1926. Id.

Article 11 (Accession)

159

[…] Article C ___ After ___ the present convention may be accede to by any State referred to in Article A which has not signed the convention. Such accession shall be effected by an instrument communicated to the Secretary-General of the League of Nations to be deposited in the archives of the Secretariat. The Secretary-General shall at once notify such deposit to all members of the League of Nations signatories of the convention and to the other signatory States.9

On the basis of this, the Sub-Committee charged with drafting the 1926 Convention moved the following provision which would, in essence, come to be included as Article 11, in the Slavery Convention: The present Convention, which will bear this day’s date and of which the French and English texts are both authentic, will remain open for signature by the States Members of the League of Nations until April 1st, 1927. The Secretary-General of the League of Nations will subsequently bring the present Convention to the notice of States which have not signed it, including States which are not Members of the League of Nations, and invite them to accede thereto. A State desiring to accede to the Convention shall notify its intention in writing to the Secretary-General of the League of Nations and transmit to him the instrument of accession, which shall be deposited in the archives of the League. The Secretary-General shall immediately transmit to all the other High Contracting Parties a certified true copy of the notification and of the instrument of accession, informing them of the date on which he received them.10

While Viscount Cecil would make no mention of Article 11 in his 1926 Report of the Sixth Committee to the Assembly of the League of Nations introducing the 1926 Convention to Suppress the Slave Trade and Slavery,

9

10

League of Nations, Final Dispositons which could be applicable to the Draft Slavery Convention, no LofN Doc Number, 24 September 1926; as found in Folder R.77. D.46781 entitled Draft Convention on Slavery: Discussion at the 7th Assembly; 1926. League of Nations, Seventh Ordinary Session of the Assembly, Sub-Committee of the Sixth Committee, Articles 9, 10 and 11 of the Draft Slavery Convention, (A.VI./ S.C.1/10); as found in League of Nations, Draft Convention relating to Slavery, A.VI/8/1926, 25 September 1926, p. 7; in Folder R.77.D.46781 entitled Draft Convention on Slavery: Discussion at the 7th Assembly; 1926.

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1926 Slavery Convention

the Assembly did pass a Resolution which required the Secretary-General of the League of Nations to bring the Convention to the attention of States with an aim to have them become party. That Resolution reads: I.

The Assembly

[. . .] Instructs the Secretary-General to take the necessary steps to bring the Convention officially to the knowledge of all States Members or nonMembers of the League of Nations which may not have signed it before the end of the present session of the Assembly, to the end that they may sign or adhere to it in accordance with the provisions of Article 11 of the Convention.11

iv. Commentary on Article 11 of the Slavery Convention As originally conceived, the proposed provisions regarding accession to a convention meant to suppress slavery and the slave trade implied pressure to be placed on non-State Parties. Although the provisions of Article 11 would ultimately exclude any reference to inducing States to consent to the Convention, the Assembly did adopt a Resolution calling on non-Parties to provide details to the League “to enable the Assembly to continue to follow further developments in the tasks of removing from the world the scourge of slavery and the conditions analogous thereto”.12 That Resolution reads: The Assembly: Desires that the League of Nations should continue to interest itself in securing the progressive abolition of slavery and conditions analogous thereto and therefore begs that the Council will prepare and communicate to the Assembly every year a document mentioning the laws and regulations which the parties to the Convention on Slavery, in accordance with Article 7, will have communicated to the Secretary-General, and that the Council will include therein any supplementary information which the Members of the League may be disposed.13

11

12 13

League of Nations, Slavery Convention, Resolutions adopted by the Assembly at its meeting held on September 25th, 1926, A.123.1926.VI, 25 September 1926, as found in Publications of the League of Nations, VI.B.Slavery.1926. Id. See League of Nations, Slavery Convention: Report of the Sixth Committee to the

Article 11 (Accession)

161

The drafting of the provisions Article 11 of the Slavery Convention were initiated by a comment of the British Government that the final provisions should conform with other instruments drafted by the League of Nations; as such, the Legal Section of the League put forward draft provisions regarding accession which were used in substance by the Sub-Committee of the Sixth Committee to draft the provisions which appear in Article 11 of the 1926 Slavery Convention.

Assembly, A.104.1926.VI, 25 September 1926, p. 4; as found in Publications of the League of Nations, VI.B.Slavery.1926.5. Emphasis added.

Article 12 (Entry into Force) The present Convention will be ratified and the instruments of ratification shall be deposited in the office of the Secretary-General of the League of Nations. The Secretary-General will inform all the High Contracting Parties of such deposit. The Convention will come into operation for each State on the date of the deposit of its ratification or of its accession. In faith whereof the Plenipotentiaries have signed the present Convention. DONE at Geneva the twenty-fifth day of September, one thousand nine hundred and twenty-six, in one copy, which will be deposited in the archives of the League of Nations. A certified copy shall be forwarded to each signatory State.

Article 12 (Entry into Force)

163

i. 1925 British Draft Protocol ARTICLE 8 The present Protocol, which shall remain open for signature by all States, shall be ratified. The ratification shall be deposited with the SecretaryGeneral of the League of Nations, who shall notify such ratifications and such accessions as may be made under Article 7 to the signatory States and to the Members of the League. It shall come into force for each State three months after the date on which its ratification is deposited with the Secretary-General of the League of Nations.1

The provisions regarding the entry into force of the 1926 Slavery Convention were originally conceived to allow for ratification and accession, though Viscount Cecil of Chelwood, in introducing the 1925 British Draft Protocol to the Assembly of the League of Nations noted that it was “merely the ordinary ratification clause”.2

ii. 1925 Draft Convention ARTICLE 11 The present Convention, the French and English texts of which shall both be deemed authentic, shall be ratified. It shall bear this day’s date. The instruments of ratification shall be deposited at the office of the Secretary-General of the League of Nations, who shall immediately notify the signatory or adherent Powers of such deposit.

1

2

League of Nations, Annex I: Slavery: Draft Resolution and Protocol, Official Journal: Record of the Sixth Assembly, Meetings of the Committees, Minutes of the Sixth Committee (Political Questions) Special Supplement No. 39, 14 September 1925, p. 41. League of Nations, Slavery: Draft Resolution and Protocol proposed by the British Government (continuation): Statement by Viscount Cecil, Official Journal, Record of the Sixth Assembly, Meetings of the Committees, Minutes of the Sixth Committee (Political Questions), Special Supplement No. 39, 14 September 1925, p. 15.

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The Convention shall come into force in respect to each signatory Powers three months after the date on which such Power has deposited its ratification.3

Viscount Cecil, less than a fortnight later, in introducing the Draft Convention to the Assembly of the League of Nations on 26 September 1925, did not acknowledge the fact that the provisions of the proposed Article 11 no longer dealt with accession but instead with ratification and the coming into force of the instrument; simply noting that Article 11 does “not appear to call for any remarks”.4

iii. 1926 Slavery Convention ARTICLE 12 The present Convention will be ratified and the instruments of ratification shall be deposited in the office of the Secretary-General of the League of Nations. The Secretary-General will inform all the High Contracting Parties of such deposit. The Convention will come into operation for each State on the date of the deposit of its ratification or of its accession. In faith whereof the Plenipotentiaries have signed the present Convention. DONE at Geneva the twenty-fifth day of September, one thousand nine hundred and twenty-six, in one copy, which will be deposited in the archives of the League of Nations. A certified copy shall be forwarded to each signatory State.5

3

4

5

League of Nations, Annex: Draft Convention, League of Nations Official Journal (Special Supplement 33) Records of the Sixth Assembly: Text of Debates, 26 September 1925, p. 440. League of Nations, Annex 29, Question of Slavery, Report of the Sixth Committee to the Assembly, League of Nations Official Journal (Special Supplement 33) Records of the Sixth Assembly: Text of Debates, A.130.1925.VI, 26 September 1925, p. 437. League of Nations, Slavery Convention, Geneva, September 25th, 1926, C.586. M.223.1926.VI, 16 October 1926; as found in Publications of the League of Nations, VI.B.Slavery.1926. VI.B.7.

Article 12 (Entry into Force)

165

As a result of the British suggestion that the final provisions of the proposed instrument dealing with slavery and the slave trade be given “consideration at Geneva by a drafting committee with a view to assimilating them to the usual shape adopted for such articles”,6 the Legal Section prepared a memorandum setting out its thoughts on the issue. It noted that it thought that “the fact that the Convention will be deposited with the Secretary-General of the League of Nations, it might be worthwhile that it be registered in conformity with Article 18 of the Covenant, the day of its entry into force” and that the “entry into force might be determined by the ratification of two Powers, all other Powers ratifying afterwards would be party to the Convention three months after their date of deposit”.7 While the suggestion regarding Article 18 of the Covenant was not included in the final provisions of Article 12, the recommendation regarding coming into force was mooted through the following proposal made by the Legal Section: The present convention will not come into force until it has been ratified by two Powers. The date of its coming into force shall be the 90th day after the receipt by the Secretary-General of the League of Nations of the second ratification. Thereafter the present convention will take effect in the case of each party 90 days after the receipt of its ratification or of the notification of its accession.8

This suggestion, however, was not taken up by the Sub-Committee of the Sixth Committee which drafted the 1926 Convention to Suppress the Slave Trade and Slavery. Instead the following draft was put forward which, in substance, became the final version of Article 12: The present Convention will be ratified and the instruments of ratification shall be deposited in the Office of the Secretary-General of the League of

6

7

8

League of Nations, “Draft Convention on Slavery, Replies of Governments, Reply from the British Government, A.10.1926.VI, 21 July 1926, p. 5; as found in Publications of the League of Nations, VI.B.Slavery.1926, VI.B.2. League of Nations, Observations relatives aux Clause Finale du Project de Convention sur l’Esclavage, 1/46214x/23252, 2 August 1926; as found in Folder R.77.D.46781 entitled Draft Convention on Slavery: Discussion at the 7th Assembly; 1926. League of Nations, Final Dispositons which could be applicable to the Draft Slavery Convention, no LofN Doc Number, 24 September 1926; as found in Folder R.77. D.46781 entitled Draft Convention on Slavery: Discussion at the 7th Assembly; 1926.

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Nations. The Secretary-General will inform all the signatory or acceding States of such deposit. The Convention will come into operation for each State on the date of the deposit of its ratification or of its accession. In faith whereof the Plenipotentiaries have signed the present Convention. Done at Geneva the ___, 1926, in one copy, which will be deposited in the archives of the League of Nations. A certified copy shall be forwarded to each signatory State.9

In introducing the provisions of the 1926 Convention, Viscount Cecil repeated his comments in regard to what was now Article 12: that the provisions regarding “Ratification and Coming into force of the Convention” do “not appear to call for any remarks”.10 Despite this, Viscount Cecil did move, and the Assembly did adopt, a Resolution which noted, inter alia, that the Assembly: Approves the Slavery Convention drafted by its Sixth Committee and earnestly trusts that it will be signed and ratified as soon as possible by all the Members of the League of Nations. Instructs the Secretary-General to take the necessary steps to bring the Convention officially to the knowledge of all States Members or nonMembers of the League of Nations which may not have signed it before the end of the present session of the Assembly, to the end that they may sign or adhere to it in accordance with the provisions of Article 11 of the Convention.11

iv. Commentary on Article 12 of the Slavery Convention Article 12 of the 1926 Slavery Convention was drafted by the Sub-Committee of the Sixth Committee of the Assembly of the League of Nations

9

10

11

League of Nations, Seventh Ordinary Session of the Assembly, Sub-Committee of the Sixth Committee, Articles 9, 10 and 11 of the Draft Slavery Convention, (A.VI./S.C.1/10); as found League of Nations, Draft Convention relating to Slavery, A.VI/8/1926, 25 September 1926, p. 8; in Folder R.77.D.46781 entitled Draft Convention on Slavery: Discussion at the 7th Assembly; 1926. League of Nations, Slavery Convention: Report presented to the Assembly by the Sixth Committee, A.104.1926.VI, (VI.B. Slavery 1926, VI.B.5) 24 September 1926, p. 3. League of Nations, Slavery Convention, Resolutions adopted by the Assembly at its meeting held on September 25th, 1926, A.123.1926.VI, 25 September 1926, as found in Publications of the League of Nations, VI.B.Slavery.1926.

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which did not take the advice of the Legal Section of the League with regard to the coming into force of the Convention (re: on the basis of two ratifications) or with regard to the coming into force for Parties once their consent had been given with regard to accepting the provisions of the Convention. Instead, the Sub-Committee opted for less technical and simple means of becoming party to the 1926 Convention and for its coming into force, those spelled out in Article 12.

1953 Protocol Amending the 1926 Slavery Convention

Protocol Amending The Slavery Convention Signed at Geneva on 25 September 1926; December 7, 1953 The States Parties to the present Protocol, Considering that under the Slavery Convention signed at Geneva on 25 September 1926 (hereinafter called “the Convention”) the League of Nations was invested with certain duties and functions, and Considering that it is expedient that these duties and functions should be continued by the United Nations, Have agreed as follows: Article I The States Parties to the present Protocol undertake that as between them selves they will, in accordance with the provisions of the Protocol, attribute full legal force and effect to and duly apply the amendments to the Convention set forth in the annex to the Protocol. Article II 1. The present Protocol shall be open for signature or acceptance by any of the States Parties to the Convention to which the Secretary-General has communicated for this purpose a copy of the Protocol. 2. States may become Parties to the present Protocol by: (a) Signature without reservation as to acceptance; (b) Signature with reservation as to acceptance, followed by acceptance; (c) Acceptance. 3. Acceptance shall be effected by the deposit of a formal instrument with the Secretary-General of the United Nations. Article III 1. The present Protocol shall come into force on the date on which two States shall have become Parties thereto, and shall thereafter come into force in respect of each State upon the date on which it becomes a Party to the Protocol.

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2. The amendments set forth in the annex to the present Protocol shall come into force when twenty-three States shall have become Parties to the Protocol, and consequently any State becoming a Party to the Convention, after the amendments thereto have come into force, shall become a Party to the Convention as so amended. Article IV In accordance with paragraph 1 of Article 102 of the Charter of the United Nations and the regulations pursuant thereto adopted by the General Assembly, the Secretary-General of the United Nations is authorized to effect registration of the present Protocol and of the amendments made in the Convention by the Protocol on the respective dates of their entry into force and to publish the Protocol and the amended text of the Convention as soon as possible after registration. Article V The present Protocol, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations Secretariat. The texts of the Convention to be amended in accordance with the annex being authentic in the English and French languages only, the English and French texts of the annex shall be equally authentic, and the Chinese, Russian and Spanish texts shall be translations. The Secretary-General shall prepare certified copies of the Protocol, including the annex, for communication to States Parties to the Convention, as well as to all other States Members of the United Nations. He shall likewise prepare for communication to States, including States not Members of the United Nations, upon the entry into force of the amendments as provided in article III, certified copies of the Convention as so amended. IN WITNESS WHEREOF the undersigned, being duly authorized thereto by their respective Governments, signed the present Protocol on the date appearing opposite their respective signatures. DONE at the Headquarters of the United Nations, New York, this seventh day of December one thousand nine hundred and fifty-three. ANNEX TO THE PROTOCOL AMENDING THE SLAVERY CONVENTION SIGNED AT GENEVA ON 25 SEPTEMBER 1926 In article 7 “the Secretary-General of the United Nations” shall be substituted for “the Secretary-General of the League of Nations”. In article 8 “the International Court of Justice” shall be substituted for “the Permanent Court of International Justice”, and “the Statute of the International Court of Justice” shall be substituted for “the Protocol of December 16th, 1920, relating to the Permanent Court of International Justice”.

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In the first and second paragraphs of article 10 “the United Nations” shall be substituted for “the League of Nations”. The last three paragraphs of article 11 shall be deleted and the following substituted: The present Convention shall be open to accession by all States, including States which are not Members of the United Nations, to which the Secretary-General of the United Nations shall have communicated a certified copy of the Convention. Accession shall be effected by the deposit of a formal instrument with the Secretary-General of the United Nations, who shall give notice thereof to all States Parties to the Convention and to all other States contemplated in the present article, informing them of the date on which each such instrument of accession was received in deposit. In article 12 “the United Nations” shall be substituted for “the League of Nations”.1

i. 1951 Draft Protocol of the Ad Hoc Committee on Slavery In 1949, the Economic and Social Council of the United Nations passed Resolution 278 in which it instructed the UN Secretary-General to appoint a “small ad hoc committee of no more than five experts” to consider the issue of slavery and inter alia, to “suggest methods of attacking” the problem.2 In setting out the terms of reference of the Ad Hoc Committee on Slavery, the Secretary-General, emphasising the mandate of the Economic and Social Council, and thus considered the means of attacking the problem of slavery within the context of economic and social cooperation noting that: The Committee may wish to consider the possibility and desirability of the exercise by the United Nations of the functions and powers formally entrusted to the League of Nations under the Slavery Convention of 1926,

1

2

See United Nations General Assembly, Resolution 794 (VIII), ‘Transfer to the United Nations of functions and powers exercised by the League of Nations under the Slavery Convention of 25 September 1926’, 23 October 1953. Economic and Social Council, Resolution 238(IX), 20 July 1949.

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particularly in connexion with Article 7 of the Convention, in which the Contracting parties undertake to communicate to the Secretary-General of the League of Nations any laws and regulations which they may enact with a view to the application of the provisions of the Convention.3

In its Report of its first session, the Ad Hoc Committee on Slavery noted that “certain difficulties might arise concerning the present application of the Convention in view of the fact that certain of its provisions referred to officials or organs no longer in existence”; and, as such, “certain modifications of the International Slavery Convention of 1926 appear to be necessary and that it might prove desirable to draft a new convention broader in scope, or, alternatively to draw up an instrument supplementary to the existing Convention.4 During discussions of the Ad Hoc Committee, it was noted that there had been general agreement that secretariat functions would be transferred from the League of Nations to the United Nations, but that where secretariat functions were established by treaty, it had proved necessary to “conclude special protocols to regularize the situation”.5 While this remained true for the secretariat functions of the 1926 Convention, a member of the United Nations Secretariat pointed out to the Committee that with regard to Article 8 of the Convention – the compromissory clause –, such a transfer was not necessary, as Article 37 of the Statute of the International Court of Justice had taken care to transfer the jurisdiction of the Permanent Court of International Justice to United Nation’s principle judicial organ.6

3

4

5

6

Economic and Social Council, Notes on the Terms of Reference of the Ad Hoc Committee on Slavery (Memorandum submitted by the Secretary-General), UN Doc. E/AC.33/4, 3 February 1950, pp. 5–6. United Nations Economic and Social Council, Report of the First Session of the Ad Hoc Committee on Slavery to the Economic and Social Council, UN Doc E/AC.33/9, 27 March 1950, p. 11. United Nations Economic and Social Council, Ad Hoc Committee on Slavery, First Session: Summary Record of the Twenty-Seventh Meeting, UN Doc. E/AC.33/SR.27, 21 March 1950, p. 3. Article 37 of the Statute of the International Court of Justice reads: Whenever a treaty or convention in force provides for reference of a matter to a tribunal to have been instituted by the League of Nations, or to the Permanent Court of International Justice, the matter shall, as between the parties to the present Statute, be referred to the International Court of Justice.

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During it second session in 1951, the Ad Hoc Committee on Slavery reiterated that the 1926 Convention referred to “action by persons or by institutions no longer in existence”; and stated that it had reached the conclusion that the Convention should be “brought as soon as possible within the framework of the United Nations”. Noting that other instruments had been regularised by means of a protocol, but that this “had not as yet been done in the case of the Slavery Convention”, it “recommend that the Economic and Social Council take the necessary steps to do so”.7 In fact the Committee on Slavery prepared a detailed set of recommendations for the Economic and Social Council which included the following: That the United Nations should assume the functions and powers exercised by the League of Nations under the International Slavery Convention of 1926, by preparing a protocol to give effect to that decision and by inviting all States to adhere to the protocol or to the International Slavery Convention of 1926 as amended thereby.8

In making this recommendation, the Ad Hoc Committee on Slavery put forward a Draft Resolution to the Economic and Social Council which would, in turn, recommend a resolution of the General Assembly calling on Member States to approve an attached protocol transferring to “the United Nations the functions and powers exercised by the League of Nations under the International Slavery Convention of 25 September 1926”.9 The Draft Resolution also recommended “that, pending the entry into force of the aforesaid Protocol, effect [. . .] be given to its provisions by the Parties of the Convention” and instructed the “Secretary-General to perform the functions conferred upon him by the aforesaid Protocol upon its entry into force”. The following is the draft Protocol which the Ad Hoc Committee on Slavery had prepared for the Economic and Social Committee:

7

8 9

United Nations Economic and Social Council, Report of the Ad Hoc Committee on Slavery (Second Session), UN Doc E/AC.33/13, 4 May 1951, p. 16. Id., p. 19. Id., p. 28.

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The General Assembly of the United Nations, Desirous of the continuing international co-operation relating to the elimination of slavery, Approves the Protocol which accompanies this resolution; Urges that it shall be signed without delay by all the States who are Parties to the International Slavery Convention of 25 September 1926; Recommends that, pending the entry into force of the aforesaid Protocol, effect to be given to its provisions by the Parties to Convention; Instructs the Secretary-General to perform the functions conferred upon him by the aforesaid Protocol upon its entry into force. Draft Protocol amending the International Slavery Convention Signed at Geneva on 25 September 1926. The Parties to the present Protocol, considering that under the International Slavery Convention of 25 September 1926, the League of Nations was invested with certain duties and functions for whose continued performance it is necessary to make provision in consequence of the dissolution of the League of Nations, and considering that it is expedient that these duties and functions should be performed henceforth by the United Nations, hereby agree as follows: Article I The Parties to the present Protocol undertake that as between themselves they will, in accordance with the provisions of the present Protocol, attribute full legal force and effect to, and duly apply the amendments to that instrument as they are set forth in the annex to the present Protocol. Article II The Secretary-General shall prepare a text of the Convention as revised in accordance with the present Protocol, and shall send copies, for their information, to the Governments of every Member of the United Nations and every State non-Member of the United Nations to which this Protocol is open for signature and acceptance. He shall also invite Parties to the aforesaid Convention to apply the amended text of this instrument as soon as the amendments are in force, even if they have not yet been able to become Parties to the present Protocol.

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Article III The present Protocol shall be open for signature or acceptance by any of the Parties to the International Slavery Convention of 25 September 1926 to which the Secretary-General has communicated for this purpose a copy of the present Protocol. Article IV States may become Parties to the present Protocol by: (a) Signature without reservation as to acceptance; (b) Signature with reservation as to acceptance, followed by acceptance; (c) Acceptance. Acceptance shall be effected by the deposit of a formal instrument with the Secretary-General of the United Nations. Article V The present Protocol shall come into force on the date on which two or more States shall have become Parties thereto. The amendments set forth in the annex to the present Protocol shall come into force when twenty States have become Parties to the present Protocol and consequently any State becoming a Party to the Convention, after the amendments thereto have come into force, shall become a Party to the Convention as so amended. Article VI In accordance with paragraph 1 of Article 102 of the Charter of the United Nations and the regulations pursuant thereto adopted by the General Assembly, the Secretary-General of the United Nations is authorised to effect registration of the present Protocol and of the amendments made in the Convention by the present Protocol on the respective dates of their entry into force and to publish the Protocol and the revised text of the International Slavery Convention of 25 September 1926 as soon as possible after registration. Article VII The present Protocol, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations Secretariat. The Convention to be amended in accordance with the annex being in the English and French language only, the English and French texts of the annex shall equally be authentic texts and the Chinese,

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Russian and Spanish texts shall be translated. A certified copy of the Protocol, including the annex, shall be sent by the Secretary-General to each of the States Parties to the International Slavery Convention of 25 September 1926, as well as to all other States Members of the United Nations. In faith whereof the undersigned being duly authorized thereto by their respective Governments signed the present Protocol on the date appearing opposite to their respective signatures. Done at ………………………. This …… day of ……… 195…… Annex A International Slavery Convention of 25 September 1926 In Article 7 “the Secretary-General of the United Nations” shall be substituted for “the Secretary-General of the League of Nations”. In Article 8 “the International Court of Justice” shall be substituted for “The Permanent Court of International Justice” and “the statute of the International Court of Justice” shall be substituted for “the Protocol of 16 December 1920 relating to the Permanent Court of International Justice”. In Article 10 “the United Nations” shall be substituted for “the League of Nations” in paragraphs 1 and 2. In Article 11 “the United Nations” shall be substituted for “the League of Nations” in paragraphs 2 and 3. In paragraph 2 the word “subsequently” shall be deleted and the word “to which he will have transmitted a certified copy of the Convention” shall be inserted after the words “including States which are not Members of the United Nations”. In Article 12 “the United Nations” shall be substituted for “the League of Nations”.10

Yet, this Draft Protocol would not be forwarded to the General Assembly as the Ad Hoc Committee on Slavery had hoped. As a result of the Report of the second session of the Ad Hoc Committee on Slavery and discussions within the Economic and Social Council, the Council decided

10

Id., pp. 28–30.

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instead to call on the Secretary-General to give the various issues more thought and report back to it in regard to the recommendations which had been made by the Ad Hoc Committee.11 As the Secretary-General, in his 1953 Report, was recommending that a revised convention on slavery be prepared, he noted that the “problem of transfer would of course not arise”. Yet, the “problem would have to be considered, however, if the International Slavery Convention of 1926 remains in force, either alone or as supplemented by one or more separate and additional conventions”.12 The Secretary-General then came out against the establishment of a protocol transferring the powers of the League of Nations found within the 1926 Convention to the United Nations, stating that “the question may be raised as to whether the preparation of such a protocol is essential to achieve the purpose of the recommendation”.13 Making reference to other instruments of the League of Nations having been transferred to the competence of the United Nations via a protocol, the Secretary-General noted that not all parties had become party to such a protocol, thus creating two separate regimes covering the same subject matter and, in essence, defeating “to a large extent, the very purpose of the protocol”.14 Instead the Secretary-General was of the opinion, that were he to be authorised by the Economic and Social Council, he could perform the secretariat duties set out the 1926 Convention. In concluding his Report, the Secretary-General sought to recapitulate the problems arising from the Report of the Ad Hoc Committee on Slavery and make suggestions to try to overcome them. The Secretary-General asked “is the preparation of a protocol necessary in order to transfer to the United Nations the function and powers exercised by the League of Nations under the 1926 Convention, or could the necessary arrangements be effected by the Council (or the General Assembly): (a) by authorizing the Secretary-General, under the terms of resolution 24(I) of the General Assembly, to perform the secretarial duties set forth in Articles 10, 11, and 12 of the 196 Convention, as well as any which

11 12

13 14

See Economic and Social Council, Resolution 388(XIII), 10 September 1951. United Nations Economic and Social Council, Slavery, the Slave Trade, and other forms of Servitude (Report of the Secretary-General), UN Doc. E/2357, 27 January 1953, p. 41. Id. Id., p. 42.

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may arise in connexion with the circulation of information or documents between the parties to the 1926 Convention under its Article 7? (b) by inviting States parties to the 1926 Convention to submit to the United Nations the information which they undertook, under its Article 7, to submit to the Secretary-General of the League of Nations? (c) by extending a general invitation to all States not yet parties to the 1926 Convention, including States which have achieved independent status in recent years, to take the necessary steps to become parties to that Convention?15

ii. 1953 Draft Protocol of the Secretary-General Despite these questions being raised and the general tenor of the Secretary-General’s Report on this issue, the Economic and Social Council was not of the same opinion as, by way of a resolution of 27 April 1953, it recommended to the General Assembly that it invite States Party to the 1926 Convention to transfer League functions to the Untied Nations; and, to that end, requested the Secretary-General prepare a draft protocol.16 The Secretary-General submitted his draft protocol on 10 August 1953, which reads: The Parties to the present Protocol, considering that under the Slavery Convention signed at Geneva on 25 September 1926 (hereinafter called ‘the Convention’) the League of Nations was invested with certain duties and functions, and considering that it is expedient that these duties and functions should be continued by the United Nations, hereby agree as follows: Article I The Parties to the present Protocol undertake that as between themselves they will attribute full legal force and effect to the Convention as amended in the manner set forth in the Annex to the present Protocol. Article II 1. The present Protocol shall be open for accession by any of the Parties to the Convention to which the Secretary-General shall have communicated for this purpose a certified copy of the present Protocol.

15 16

Id., p. 71. Economic and Social Council, Resolution 475(XV), 27 April 1953.

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2. Accession shall be effected by the deposit of a formal instrument with the Secretary-General of the United Nations, who shall give notice thereof to all States Members of the United Nations and to every other State contemplated in paragraph 1 of this Article. Article III 1. The present Protocol shall come into force on the date on which two States shall have acceded thereto, and shall thereafter come into force in respect of each State upon the date of the deposit of its instrument of accession. 2. The amendments set forth in the Annex to the present Protocol shall come into force when twenty-three States shall have become Parties to the present Protocol, and consequently any State becoming a Party to the Convention, after the amendments thereto come into force, shall become a party to the Convention as amended. Article IV In accordance with paragraph 1 of Article 102 of the Charter of the United Nations and the regulations pursuant thereto adopted by the General Assembly, the Secretary-General of the United Nations is authorized to effect registration of the present Protocol and of the amendments made in the Convention by the present Protocol on the respective dates of their entry into force and to publish the Protocol and the amended text of the Convention as soon as possible after registration. Article V The present Protocol, of which the Chinese, English, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations Secretariat. The Convention to be amended in accordance with the Annex being in the English and French languages only, the English and French texts of the Annex shall be equally authentic and the Chinese, Russian and Spanish texts shall be translations. The Secretary-General shall prepare a certified copy of the Protocol, including the Annex, for communication to States Parties to the Convention, as well as to all States Members of the United Nations. He shall likewise prepare for communication to States, including States not members of the United Nations, upon the entry into force of the amendments as provided in Article III, a certified copy of the Convention as so amended. Done at United Nations, New York, this ………day of ……………1953.

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ANNEX TO THE PROTOCOL AMENDING THE SLAVERY CONVENTION SIGNED AT GENEVA ON 25 SEPTEMBER 1926 In Article 7 “the Secretary-General of the United Nations” shall be substituted for “the Secretary-General of the League of Nations”. In Article 8 “the International Court of Justice” shall be substituted for “the Permanent Court of International Justice”, and “the Statute of the International Court of Justice” shall be substituted for “the Protocol of December 16th, 1920, relating to the Permanent Court of International Justice”. In the first and second paragraphs of Article 10 “the United Nations” shall be substituted for “the League of Nations”. The last three paragraphs of Article 11 shall be deleted and the following substituted: The present Convention shall be open to accession by all States, including States which are not members of the United Nations, to which the Secretary-General of the United Nations shall have communicated a certified copy of the Convention. Accession shall be effected by the deposit of a formal instrument with the Secretary-General of the United Nations, who shall give notice thereof to all States Parties to the Convention and to all other States contemplated in this Article, informing them of the date on which each such instrument of accession was received in deposit. In Article 12 “the United Nations” shall be substituted for “the League of Nations”.17

In submitting the draft Protocol, the Secretary-General also noted he had “communicated the draft protocol to the States Parties to the Convention for their observations”. The Governments of Canada and Monaco indicated that they had no comments on the draft while Greece noted that it agreed “in principle both with the idea of the transfer and with

17

General Assembly, Transfer to the United Nations of the Functions undertaken by the League of Nations under the International Slavery Convention of 1926: Draft Protocol prepared by the Secretary-General (Memorandum of the Secretary-General), UN Doc A/2435, 10 August 1953, pp. 4–6.

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the text of the draft protocol and the amendments to the articles of the Convention therein proposed”.18 For their part, the Federal Republic of Germany and Switzerland indicated that they had no objections to the Protocol.19 Haiti was more hesitant: while making no objections to the draft Protocol, it stated that “the question of the contemplated transfer could be linked with that of the advisability and possible content of a supplementary convention to the Convention of 1926”. The Secretary of State for Foreign Affairs of Haiti continued on behalf of his Government: In its opinion the results of the consultation carried out by the SecretaryGeneral, in accordance with paragraph 4 of the operative part of resolution 475 (XV) should be awaited before the projected transfer is carried through.20 If, in line with the possibilities envisaged in the report the Ad Hoc Committee on Slavery, and as is to be desired, a majority of States is in favour of the adoption of a revised convention on slavery, the slave trade and other forms of servitude, consideration might well be given to the possibility of arranging the transfer by obtaining parliamentary action to the whole question of slavery at one time. If, on the other hand, it were agreed to adopt a supplementary convention to the Convention of 1926, the Government of Haiti is of the opinion that it would be advisable to do no more at this time than arrange for transfer to the United Nations of the functions and powers exercised by the League of Nations.21

18

19

20

21

General Assembly, Transfer to the United Nations of the Functions undertaken by the League of Nations under the International Slavery Convention of 1926: Draft Protocol prepared by the Secretary-General (Note by the Secretary-General), UN Doc A/2435/Add.1, 22 September 1953, p. 1. See General Assembly, Transfer to the United Nations of the Functions undertaken by the League of Nations under the International Slavery Convention of 1926: Draft Protocol prepared by the Secretary-General (Note by the Secretary-General), UN Doc A/2435/Add.3, 2 October 1953, p. 2 for the Federal Republic of Germany; and UN Doc A/2435/Add.1, 22 September 1953, p. 3 for Switzerland. Operative Paragraph 4 of Economic and Social Council Resolution 475 (XV) reads in part: Requests the Secretary-General to consult the governments of all States, both Members and non-members of the United Nations, concerning the desirability of a supplementary convention and its possible contents [. . .] General Assembly, Transfer to the United Nations of the Functions undertaken by the League of Nations under the International Slavery Convention of 1926: Draft Protocol prepared by the Secretary-General (Note by the Secretary-General), UN Doc A/2435/Add.1, 22 September 1953, p. 2.

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Belgium on the other hand sought to reserve its position, as it believed that the best way forward was for an diplomatic conference; as it believed that the “General Assembly cannot work out the necessary solutions by itself ”.22 The United Kingdom, in contrast to other States, provided a memorandum which contained detailed observations of the Secretary-General’s draft Protocol, which reads: 1. It is suggested that the full title of the 1926 Convention should be given in the title and preamble of the Protocol and that the wording and presentation should be slightly amended, so that they would read as follows: ‘PROTOCOL AMENDING THE INTERNATIONAL CONVENTION WITH THE OBJECT OF SECURING THE ABOLITION OF SLAVERY AND THE SLAVE TRADE SIGNED AT GENEVA ON 15 SEPTEMBER 1926 The Parties to the present Protocol, Considering that under the International Convention with the object of securing the Abolition of Slavery and the slave trade signed at Geneva on 15 September 1926 (hereinafter referred to as the ‘Convention’) the League of Nations was invested with certain duties and functions; Considering that it is expedient that these duties and functions should be continued by the United Nations; Have agreed as follows:’ 2. Article I It is suggested that it would be more appropriate if this article were to read as follows: The Parties to the present Protocol undertake that as between themselves they will attribute full legal force and effect to the Convention and duly apply the amendments thereto set forth in the Annex to the present Protocol.

22

General Assembly, Transfer to the United Nations of the Functions undertaken by the League of Nations under the International Slavery Convention of 1926: Draft Protocol prepared by the Secretary-General (Note by the Secretary-General), UN Doc A/2435/Add.2, 26 September 1953, p. 3.

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3. Article II (a) It is noted that the draft Protocol had no provisions for signature, and that the testimonium is incomplete (see paragraph 6 below). It is suggested that there should be an article on the lines of article IV of the draft Protocol contained in Economic and Social Council document E/1988 of 4 May 1951. Alternatively, it could be provided that the Protocol should be signed subject to ratification, with a further provision for accession by governments which do not sign. (b) It is noted that the draft Protocol is restricted in this article to States to which copies are sent. It is necessary to include all Parties to the Convention whether or not Members of the United Nations. But it is considered necessary also to permit acceptance of the Protocol by any State, whether or not Members of the United Nations, which is not at present a Party to the Convention but may become so in the future, and it should be stated in terms of this article that the Protocol is open for signature or acceptance by States which accede to the Convention. This could be done by adding at the end of paragraph 1 of the article the following: . . . and by any State which accedes to the Convention under the provision of Article IX thereof. It is suggested that in the last line ‘referred to’ be substituted for ‘contemplated in’. 4. Article III, first paragraph It is suggested that this paragraph is not necessary and might be omitted. The operative part of the Protocol is in the Annex and this is covered in the second paragraph. 5. Article III, second paragraph The intention of this paragraph would appear to be that, once the Protocol has come into force between the twenty-three States, any State which becomes a Party to the Protocol will be deemed to have become a Party to the Convention as amended by the Protocol. It is not clear how this conclusion has been reached and, in particular, it would appear to be inconsistent with article I which provides that the amendments effected by the Protocol would only affect the relations inter se of the Parties thereto. It is realized that there is a difficulty in regard to accession to the Convention, in that article XI provides that it is effected by notification to the Secretary-General of the League of Nations, an office which no longer exists. It is suggested that a solution would be to provide in the Protocol that a State not a Party to the Convention may become

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a Party simultaneously to the Protocol and to the Convention. This could be done by adding another article after the present article II as follows: Any State not a Party to the Convention may become a Party thereto by simultaneously signing or accepting the present Protocol and acceding to the Convention. Such accession and acceptance shall be effected by the deposit of a formal instrument with the Secretary-General of the United Nations. If this proposal is accepted the last three lines of the second paragraph of article III should be deleted and the subsequent articles renumbered. 6. It is suggested that the usual formula should appear in the testimonium as follows: In witness whereof the under-signed, being duly authorized thereto by their respective Governments, have signed the present Protocol. 7. It is suggested that it will be sufficient in regard to article XI of the Convention to amend it as follows: ‘The United Nations’ shall be substituted for ‘the League of Nations’ in paragraphs 2 and 3. In paragraph 2 the word ‘subsequently’ shall be deleted and the words ‘to which he will have transmitted a certified copy of the Convention’ shall be inserted after the words ‘including States which are not Members of the United Nations’.23

iii. 1953 Draft Resolution of the United Kingdom On the heels of its comments on the Secretary-General’s Draft Protocol, the United Kingdom proposed its own a draft resolution to the Sixth Committee of the General Assembly that was a “slightly amended version of the draft Protocol submitted by the Secretary-General”.24 23

24

See General Assembly, Transfer to the United Nations of the Functions undertaken by the League of Nations under the International Slavery Convention of 1926: Draft Protocol prepared by the Secretary-General (Note by the Secretary-General), UN Doc A/2435/Add.3, 2 October 1953, pp. 4–6. United Nations, Yearbook of the United Nations, 1953, 1953, p. 410.

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The General Assembly, Considering resolution 475(XV) of the Economic and Social Council, adopted on 27 April 1953, concerning the transfer to the United Nations of the functions undertaken by the League of Nations under the Slavery Convention of 1926, Desirous of continuing international co-operation relating to the elimination of slavery, 1. Approves the Protocol which accompanies this resolution; 2. Urges all States Parties to the Slavery Convention to sign or accept this Protocol; and 3. Recommends all other States to accede at their earliest opportunity to the Slavery Convention as amended by the present Protocol. DRAFT PROTOCOL AMENDING THE SLAVERY CONVENTION SINGED IN GENEVA ON 25 SEPTEMBER 1926 The Parties to the present Protocol, considering that under the Slavery Convention singed in Geneva on 25 September 1926 (hereinafter referred to as the ‘Convention’) the League of Nations was invested with certain duties and functions, and Considering that it is expedient that these duties and functions should be continued by the United Nations, Have agreed as follows: Article I The Parties to the present Protocol undertake that as between themselves they will, in accordance with the provisions of the Protocol, attribute full legal force and effect to and duly apply the amendments to the Convention set forth in the Annex to the present Protocol. Article II 1. The present Protocol shall be open for signature or accession by any of the Parties to the Convention to which the Secretary-General has communicated for this purpose a copy of the Protocol.

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2. States may become Parties to the present Protocol by: (a) Signature without reservation as to acceptance; (b) Signature with reservation as to acceptance, followed by acceptance; (c) Acceptance. 3. Acceptance shall be effected by the deposit of a formal instrument with the Secretary-General of the United Nations. Article III 1. The present Protocol shall come into force on the date on which two States shall have acceded thereto, and shall thereafter come into force in respect of each State upon the date on which it becomes Party to the Protocol. 2. The amendments set forth in Annex to the present Protocol shall come into force when twenty-three States shall have become Parties to the Protocol, and consequently any State becoming a Party to the Convention, after the amendments thereto have come into force, shall become a party to the Convention as so amended. Article IV In accordance with paragraph 1 of Article 102 of the Charter of the United Nations and the regulations pursuant thereto adopted by the General Assembly, the Secretary-General of the United Nations is authorized to effect registration of the present Protocol and of the amendments made in the Convention by the present Protocol on the respective dates of their entry into force and to publish the Protocol and the amended text of the Convention as soon as possible after registration. Article V The present Protocol, of which the Chinese, English, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations Secretariat. The Convention to be amended in accordance with the Annex being in the English and French languages only, the English and French texts of the Annex shall be equally authentic and the Chinese, Russian and Spanish texts shall be translations. The Secretary-General shall prepare a certified copy of the Protocol, including the Annex, for communication to States Parties to the Convention, as well as to all States Members of the United Nations. He shall likewise prepare for communication to States, including States not members of the United Nations, upon the entry into force of the amendments as provided in Article III, a certified copy of the Convention as so amended. In witness whereof the undersigned, being duly authorized thereto by their respective Governments, have signed the present Protocol on the date appearing opposite their respective signatures.

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Done at the Headquarters of United Nations, New York, this …………day of ………1953. ANNEX TO THE PROTOCOL AMENDING THE SLAVERY CONVENTION SIGNED AT GENEVA ON 25 SEPTEMBER 1926 In Article 7 “the Secretary-General of the United Nations” shall be substituted for “the Secretary-General of the League of Nations”. In Article 8 “the International Court of Justice” shall be substituted for “the Permanent Court of International Justice”, and “the Statute of the International Court of Justice” shall be substituted for “the Protocol of December 16th, 1920, relating to the Permanent Court of International Justice”. In the first and second paragraphs of Article 10 “the United Nations” shall be substituted for “the League of Nations”. The last three paragraphs of Article 11 shall be deleted and the following substituted: “The present Convention shall be open to accession by all States, including States which are not members of the United Nations, to which the SecretaryGeneral of the United Nations shall have communicated a certified copy of the Convention. Accession shall be effected by the deposit of a formal instrument with the Secretary-General of the United Nations, who shall give notice thereof to all States Parties to the Convention and to all other States contemplated in this Article, informing them of the date on which each such instrument of accession was received in deposit.” In Article 12 “the United Nations” shall be substituted for “the League of Nations”.25

In introducing this draft resolution, Mr. Vallat of the United Kingdom stated that the Sixth Committee should decide “whether the General

25

General Assembly, Transfer to the United Nations of the Functions undertaken by the League of Nations under the International Slavery Convention of 1926: Draft Protocol prepared by the Secretary-General (Memorandum of the Secretary-General), UN Doc A/2435, United Kingdom of Great Britain and Northern Ireland: Draft Resolution, 10 October 1953, UN Doc A/C.6/L.304, pp. 1–3.

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Assembly should invite States which were or might become parties to the Convention to agree to the transfer to the United Nations of the functions undertaken by the League of Nations under the 1926 Slavery Convention – in other words, whether there should be a protocol at all”. Mr. Vallat went on to say that as the Economic and Social Council had already agreed to the transfer, “he saw no reason why the Committee should reopen” such a debate. That being said, the Israeli Representative, Mr. Robinson did bringing into question the need for such a protocol: The question the Committee had to consider was whether it was the United Nations policy to adjust each particular treaty concluded under the auspices of the United Nations and, if so, what method should be employed to effect adjustment. In the case of the Slavery Convention the method proposed – implied in paragraph 3 of Council resolution 475(XV) and stated explicitly in article IV of draft protocol contained in the United Kingdom resolution – was for the United Nations to amend the original convention and produce a consolidated text. That was technically cumbrous, costly and likely to lead to confusion concerning the Convention and its application. If the Secretary-General’s draft was adopted, the amended convention would retain its original preamble, list of participants and concluding phrase, all of which would be inconsistent with the new text. The effect of similar attempts on the part of the United Nations to adjust and consolidate international conventions had been to produce a host of inconsistencies, legal uncertainties and ambiguities.26

Mr. Robinson then considered a number of League of Nations instruments which had been brought into the fold of the United Nations system. Based on this experience, he stated that “some better method of adjustment had to be devised”. He then spelled out three problems – administrative, institutional, and that of ‘partnership’ – he saw in the current method being used: The first problem was the administrative one of custody. That had been solved finally, with respect to all conventions concluded under the League’s auspices, by General Assembly resolution 24(I) whereby the United Nations offered to assume the League’s depository functions and by the League of Nations resolution of 18 April 1946 by which the League accepted the offer. According to those resolutions the Secretary-General of the United Nations was not only to preserve the appropriate documents but to assume

26

General Assembly, Official Records of the General Assembly, Eighth Session, Sixth Committee: Legal Questions, 370th Meeting, 15 October 1953, p. 49.

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the administrative functions formerly performed by the League secretariat, functions described in detail in the General Assembly resolution: and that applied not only to treaties specifically assigned to him under special protocols, but to several others, some of which were listed in the statement. (E/AC.7/L.142) of the representative of the Legal Department dated 17 April 1953. Thus the Secretary-General, and he alone, had the custody of the League conventions and had authority to receive accessions, ratifications and denunciations as well as communications relating to the extension or restriction of their territorial application, and to notify the parties of such changes. To deprive him of that authority would produce a standstill in treaty development, which no Member of the United Nations would welcome. Secondly, there was the institutional problem. The dissolution of the League had made it necessary to indicate which organs of the United Nations were to exercise the functions conferred by international conventions upon organs of the League. That could easily have been done simply by the addition of a short protocol to each individual convention indicating the articles in which certain organs were mentioned, and naming the organs which were to take their place. In the case of the Convention relating to Economic Statistics, for example the protocol could have provided that the International Institute of Agriculture would everywhere be replaced by the Food and Agriculture Organization and so on. The method of multiplying instruments that had in fact been adopted, which led to extra expenditure for printing and publishing in addition to the disadvantages already mentioned, could be considered a failure. The third problem was that of partnership. All conventions concluded under the League’s auspices had specified that all Members of the League were eligible to become parties, while in the case of conventions that had been initiated by the League and drafted at diplomatic conferences the principle of automatic eligibility had also been extended to the non-member States participating or invited to participate in the conference. In addition copies of the convention had been communicated by the Secretary-General of the League, under instructions of the Council, to other non-member States without formal invitation, the idea being that it would have been inconsistent with the League’s dignity and embarrassing to the States for the League’s invitations to have been ignored or rejected; a diplomatic nicety belonging to a more polite age than that which had followed the League’s dissolution. The reason for the listing by the Council of the League of States eligible to accede to an international convention had been the necessity for determining which political unit were States under international law. The Members of the League had been sovereign States by definition, under Article 1 of the Covenant: in the case of other political units some organ, namely the Council, had had to decide if they were such States, possessing the jus contractus. But agreements concluded under the League’s auspices had been, as a matter of general policy, open to all States regarded as having the jus contractus. If the same principle were applied to the Members of the United

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Nations there would be no need to verify the State character of any of the members of the United Nations, since under Article 4 of the Charter all Members possessed that character. Thus all Members of the United Nations, for the purpose of joining the League conventions, were to be considered as eligible en plein droit.27

Mr. Robinson concluded by saying that what flowed from these considerations was that “the triple method of General Assembly resolution, protocol and amendment proposed by the Secretary-General’s memorandum (A/2435) was inadvisable in general and for the Slavery Convention in particular”. The Israeli Representative also noted that “amending the Slavery Convention would entail a long procedure of communication, notifications, ratifications, etc. which ought if possible to be avoided. In this regard, Mr. Robinson had added that: to make it possible to invite more States to become parties to the slavery convention through the cumbersome machinery of a protocol and an annex amending the convention would merely contribute to an undesirable proliferation and overlapping treaties and lead to a situation known as the imbroglio of treaties, a constant source of friction and misunderstanding.

One such imbroglio had already transpired, Mr. Robinson said, pointing to the Conventions on the Traffic in Women and Obscene Publications.28 He then raised a broader question: The one remaining question was whether the convention was in fact worth reactivating. The following considerations suggested that is was not. The substantive provisions of the convention (articles 2 and 3) were few in number and meagre in content, its definitions (article 1) were obsolete, and its approach to forced labour was timid. There was no evidence that the convention had helped to reduce slavery. At adoption in 1926, the convention had already been considered antiquated; the Norwegian representative had desired an article to be included providing for its revisions in 1932 and had only withdrawn his request on the understanding that such a revision was imminent. Lastly, the convention was dead letter; for eighteen years nothing had happened either to it or under it. It would be more effective to prepare a revised convention, in the spirit of the supplementary proposals of the Ad Hoc Committee on Slavery, than to undertake the hopeless task of reactivating the existing instrument.

27 28

Id., p. 50. See id., p. 51.

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Since the Slavery Convention was not an effective instrument to combat slavery there was no need to adjust it to the new era of the United Nations. As it stood, however, it could still be acceded to by any States that had not yet done so if the General Assembly simply adopted a resolution inviting States to accede and, at the same time, encouraging the Economic and Social Council to act on the other suggestions made by the Ad Hoc Committee.29

Despite this, Mr. Robinson noted that “he had no formal proposals to make. He merely wished to open the question for discussion, as one upon which the United Nations would eventually have to take a decision”.30 For his part, the Belgium Representative, Mr. Bihin said “that the Slavery Convention of 1926, though a great advance when concluded, had become insufficient to meet modern conditions and modern humanitarian ideas”. He stated that: The Ad Hoc Committee on Slavery had recognized in its report (E/1988) that slavery and forms of servitude existed to varying degrees in different parts of the world and were, in fact, on the increase in some. The Economic and Social Council had repeatedly dealt with forms of servitude which were not slavery in the strict sense of the term. The 1926 Convention, which defined slavery solely in terms of ownership rights exercisable by one person with respect to another, could hardly apply to servitude, which had become a more serious problem than slavery in its classic form. In that respect the draft protocol prepared by the Secretary-General provided only a partial solution to the modern problem of slavery, for the amendments to the convention, as contained in the draft protocol, were of a purely technical nature and by adopting them the Assembly would be accomplishing only a small part of its broader task.31

The Representative of the United States of America, Mr. Maktos sought to counter these statements, saying that whatever the objections might exist to the “protocol method, it had become a standing practice in the General Assembly”. Further more, from a legal point of view, it was preferable that the transfer of functions from the League of Nations to the United Nations should be effected by the original parties to the convention rather than by General Assembly resolution. The words ‘as between themselves’ in article I of the

29 30 31

Id., p. 51. Id., pp. 50 and 51. Id., p. 51.

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United Kingdom draft and the Secretariat’s text made the situation perfectly clear. If the States parties to the 1926 Convention accepted the protocol and it was duly registered, there would be no difficulty in bringing out a consolidated text.32

As the discussion focused on the requirement of such a protocol, the Swedish Representative, Mr. Holmback asked the Secretariat whether “the draft protocol was necessary for the transfer to the United Nations of the League’s functions with regard to the Slavery Convention”. The following is the response which he received: Mr. COX (Secretariat) replied that the Secretary-General had always considered himself bound by the terms of General Assembly resolution 24(I) which made it very clear that the functions conferred upon him were purely administrative and applied to all convention concluded under the auspices of the League of Nations. On the other hand, on a number of previous occasions the General Assembly had found it desirable to draw up special protocols to regulate the transfer of functions with regard to specific conventions, even though there was presumably no legal necessity for doing so. The Secretary-General did not hold the view that a mere resolution of the General Assembly operated to amend any basic convention. He had carried out the administrative functions assigned to him under resolution 24(I) with regard to conventions to which there had been no protocols, and no State had ever raised any objection. Since there were precedents for either course of action, the Secretary-General felt that whether or not there should be a protocol in the present case was a matter of policy to be decided by the General Assembly.33

For his part, the British Delegate, Mr. Vallat, in response to the observations of the Belgian and Israeli representatives, stated that “the protocol was merely a formality for the clarification of certain technical points which even the Israel representative had agreed was necessary”. He continued: While it might be true, as the Belgian and Israeli representatives had pointed out, that the convention itself had a number of shortcomings, it would nevertheless serve some useful purpose once the technical situation had been settled. The Israel representative’s remark that the 1926 Convention had been accepted by most States was only an argument in favour of a protocol through which the convention might be made universally applicable. The provisions for signature in article II were designed to facilitate adherence to the protocol. Consequently he felt that a protocol was the best method in

32 33

Id., p. 52. Id.

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existence. If it was only a partial solution, as the Belgium representative had said, that was the only solution the Committee was concerned with”.34

Turning now to the substance of the draft resolution, Mr. Vallat, the British Representative, noted that “the Committee need not examine his Government’s comments on the subject (A/2435/Add.3) in detail”. He went on to say that the “only material addition which his delegation proposed in the draft resolution was the first paragraph of the preamble which referred to Council resolution 475(XV). Beyond this, using the Secretary-General’s draft proposal as a basis, stylistic changes had been introduced and the text “adhered closely to the form of similar protocols adopted by the General Assembly in the past”. Mr. Vallat continued saying the “main difference between the two drafts was the provision for signature made in article II; the clause as drafted by his delegation was in keeping with precedents and would give governments an opportunity of showing their approval of the protocol and their continued support of the Slavery Convention”. While adding that he hoped the draft protocol would not be considered in detail, the British Representative felt compelled to speak about the third article: Although the United Kingdom note (A/2435/Add.3) had suggested, in connexion with article III, that it would be more satisfactory if States subsequently acceding to the Convention were required also to accede to the protocol, the United Kingdom draft of the article failed to contain the corresponding alteration because it would, apparently, involve a departure from precedent. If the representative of the Secretariat would confirm that it was the Secretary-General’s practice in such cases to invite States to adhere to both instruments, at least until the amendment came into force as a result of a sufficient number of accessions to the protocol, he would not press the point raised in the note.35

When considerations of the substance of the British draft resolution was opened to the Members of the Sixth Committee of the General Assembly, the Cuban Representative, Mr. Garcia Amador, stated that while most of the changes introduced in the British Draft touched on the form of the Secretary-General’s proposal, “the changes in article II of the draft protocol related to substance”. He continued, saying that the “Secretary-

34 35

Id., p. 53. General Assembly, Official Records of the General Assembly, Eighth Session, Sixth Committee: Legal Questions, 369th Meeting, 12 October 1953, p. 48.

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General’s draft spoke of accession, whereas the United Kingdom proposal provided for three methods whereby States could become parties to the Convention: signature, signature followed by acceptance, and acceptance. That formula was simpler and involved fewer formalities than accession”, and thus provided for “flexibility” and “would expedite the approval and entry into force of the draft protocol”.36 Next to be recognised was the Israeli Delegation, as Mr. Robinson took the floor to comment on the substance of the draft resolution: The proposed amendment to article 8 of the convention would hardly improve the existing legal position since under Article 37 of the Statute of the International Court of Justice the Court already had the jurisdiction in connexion with the Slavery Convention formerly possessed by the Permanent Court of International Justice as far as the parties to the Statute of the International Court of Justice were concerned. The procedure suggested in the second sentence of article 8 would remain in force in regard to States not covered by the first sentence. The other four articles of the convention to which amendments were proposed concerned the transfer to the Secretary-General of the United Nations the functions originally attributed to the Secretary-General of the League of Nations. Under the first, article 7, the parties undertook to communicate laws or regulations enacted by them in application of the convention’s provisions, not only to the Secretary-General of the League but to each other. Even if the duty of a State to communicate such texts to the Secretary-General were regarded as having lapsed with the League’s dissolution, so the Secretary-General of the United Nations was not entitled to request their communication to himself, the result would not be serious; the article as a whole had not worked well, there were many other methods by which legal texts might be obtained, and the parties would presumably be willing to submit such material to the Secretary-General whether he were formally entitled to ask for them or not. In any case, non-amendment of article 7 would have no effect whatever in combating the social evil of slavery. Article 10, dealing with denunciation, was covered by the resolution of the United Nations. The third and fourth paragraphs of article 11, dealing with notification of intention to accede and transmission of the notifications to other contracting parties, were covered by the definition of custodianship. Only the second paragraph of article 11, dealing with the power of the Secretary-General of the League to bring the convention to the notice of States which had not signed, and to invite their accession, was not covered by the resolution. But

36

General Assembly, Official Records of the General Assembly, Eighth Session, Sixth Committee: Legal Questions, 370th Meeting, 15 October 1953, p. 49.

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if the Secretary-General of the United Nations did not possess the power of invitation under the existing text of the paragraph, the situation would not be very serious. All the Members of the United Nations, except five, had become parties to the convention or been invited to sign, and in four of those States slavery did not exist, so that their accession was immaterial; and sixteen non-member States having become parties under the League, only seven non-member States were outstanding. Lastly, the function referred to in article 12, namely, the deposit of instruments of ratification, undoubtedly fell under the definition of custodianship.37

The Israeli Representative then stated that the text proposed had two disadvantages: first, if the States did not feel bound to inform the Secretary-General of their enactments concerning the convention’s application he would have to obtain them from the United Nations library; and second, there was no organ to invite five Member States and seven non-member States to accede to the convention. The first was not a serious disadvantage and, in view of his earlier comments on the subject of partnership, he felt that the second might be overcome by an Assembly resolution inviting the States in question to accede to the convention. It was unlikely that any objections would be raised if those States accepted the invitation.38

The Belgium Representative, Mr. Bihin, also spoke to the substance of the proposed draft protocol, specifically with regard to Article III: The protocol would enter into force upon accession by two States, and the amendments to the convention when twenty-three States had become parties to the protocol. That meant that the amendments would not become binding on any of the forty-five States parties to the 1926 Convention which failed to accept the protocol. The result would be that after twenty-three States accepted the protocol, two international conventions would be in force – the original 1926 Convention, which could no longer be enforced for lack of an enforcement organ, and the new convention, which could be enforced and which alone would be fully binding. Hence that provision would lead to inequality between States. Such an inequality had not existed at the time of the League of Nations, as Members of the League which had not ratified the 1926 Convention had still been bound, under Article 23(b) of the Covenant of the League of Nations, to secure just treatment of native inhabitants of territories under their control, who were most vulnerable to forms of servitude. Yet, through a restrictive interpretation of the Charter,

37 38

Id., p. 51. Id.

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to which Belgium had repeatedly objected, many Members of the United Nations had deprived their indigenous populations of such international guarantees, which were now as necessary as ever.39

The Salvadorian Representative, Mr Serrano Garcia, stated that he could not accept article I of the British draft protocol, saying that “he preferred article 1 of the Secretariat draft”. This was so, as the United Kingdom text “might give rise to conflicting interpretations”: Indeed, some might take the view that under the United Kingdom draft provision, States were to give effect solely to the amendments to the convention, the binding force of the convention itself being left in doubt, while others might feel that to give effect to the amendments implied giving effect to the convention as a whole. Furthermore, the words ‘and duly apply’ in the United Kingdom text were superfluous, since in accepting a convention a State automatically undertook to apply it. Lastly, from the point of view of style, the Secretariat text was better.40

The Uruguayan Representative, Mr. Alfonsin agreed, “especially as regards the undertaking duly to apply the amendments”. He believed that the “inclusion of the phrase, while unnecessary for the purpose of the protocol, might some day be interpreted to mean that where an obligation was not specifically mentioned it did not exist. For that reason he preferred the standard formula used by the Secretariat”. Mr. Alfonsin noted that he found it “inadvisable” that Article II, paragraph 1 of the British proposal allowed the Secretary-General to choose the States to which he would transmit certified copies of the protocol. Finally, the Uruguayan Representative suggested the following: “that in paragraph 2(c) the word ‘acceptance’, which implied prior signature, should be replaced by the word ‘adherence’ and that the beginning of paragraph 3 should accordingly be changed to read “Adherence and acceptance shall be effected”.41 As to this final suggestion, Mr. Cox of the Secretariat stated that: The term ‘acceptance’ had been used in article II of the United Kingdom draft protocol because the Sixth Committee at a previous session had expressed a preference for it on the grounds that it offered governments the choice of a variety of methods; it had been used throughout the article

39 40 41

Id., p. 52. Id. Id.

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because the Committee itself had felt in the past that the language used in such articles should be uniform.42

As for Mr. Vallat, speaking about his “his own delegation’s draft in particular, he agreed with the representatives of El Salvador and Uruguay that he words ‘duly apply the amendments . . .’ in article I might be unnecessary; however, the text of the article as a whole followed that of similar protocols adopted by the General Assembly in the past, and he would be reluctant to change it. The same applied to the use of the words ‘acceptance’ in article II of his delegation’s draft”.43 This reply by the British Delegate, however, did not change the opinion of the Salvadorian Representative who formally moved that Article I of the British draft protocol be replaced by that of the Secretary-General’s draft. This proposal was rejected by the Sixth Committee by a vote of thirteen against, seven in favour, with twenty-four abstentions. The Chairman, Mr. Katz-Suchy of Poland, then put the British proposal, including the draft resolution and protocol with annex, to a vote. The proposal was adopted unopposed, with thirty-eight votes in favour, and nine abstentions.44 A Report of the Sixth Committee provided a history of the move to establish a protocol to the 1926 Convention, from Economic and Social Council Resolution 475 (XV) of 27 April 1953 until the adoption of the British Draft Resolution on 15 October 1953, was sent to the United Nations General Assembly for consideration. On 23 October 1953, the President of the General Assembly, Mrs. Pandit of India, invited the Rapporteur of the Sixth Committee, Mr. Spiropoulos of Greece, to present the Report on the transfer to the United Nations of functions and powers exercised by the League of Nations under the Slavery Convention of 25 September 1926. While no discussion was recorded as to the substance of the Report, a separate vote was requested with regard to the various elements of the draft resolution. The following is what transpired: The first paragraph of the preamble was adopted by 50 votes to none, with 5 abstentions. The second paragraph of the preamble was adopted by 49 votes to none, with one abstention.

42 43 44

Id., pp. 52 and 53. Id., p. 53. Id.

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Paragraph 1 of the operative part was adopted by 49 votes to none, with 6 abstentions. Paragraph 2 of the operative part was adopted by 47 votes to none, with 6 abstentions. Paragraph 3 of the operative part was adopted by 52 votes to none, with one abstention. The draft resolution as a whole was adopted by 50 votes to none, with 6 abstentions.45

Two Delegations felt compelled to explain their vote to the General Assembly. The Guatemalan Representative, Mr. Gomez Padilla, noted that his delegation had voted in favour of the draft resolution and summarised his country’s position in the following manner: The Guatemalan delegation, as I have already stated, voted on the assumption that the resolution adopted today was required as a mere administrative formality; consequently, it maintains that, instead of the resolution being considered sufficient or final, it will chiefly act as yet another inducement to closer international co-operation aimed at abolishing slavery, the slave trade and forced labour, unconditionally, and energetically, from the fact of the earth forever.46

The last word will be given to the Belgium Representative, Mr. Van Langenhove, who noted that the 1951 Ad Hoc Committee had made a distinction between slavery and servitude, the latter falling outside the provisions of the 1926 Slavery Convention and therefore: the Belgium delegation would consider the adoption of this resolution as an illusory form of progress unless it were followed very shortly by a convention designed to suppress the grave abuses denounced by the Ad Hoc Committee on Slavery. The Belgium delegation will continue to devote its efforts to this aim, and that is the meaning to be attached to its affirmative vote.47

The United Nations General Assembly then, on 23 October 1953, passed Resolution 794 (VIII) entitled ‘Transfer to the United Nations of functions and powers exercised by the League of Nations under the Slavery Convention of 25 September 1926’, which reads in part:

45

46 47

General Assembly, Official Records of the General Assembly, Eight Session, Plenary Meetings, 453rd Meeting, 23 October 1953, p. 250. Id., p. 251. Id.

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The General Assembly, Considering Economic and Social Council resolution 475(XV), adopted on 27 April 1953, concerning the transfer to the United Nations of functions and powers exercised by the League of Nations under the Slavery Convention of 25 September 1926’, Desirous of the continuing international co-operation relating to the elimination of slavery, 1. Approves the Protocol which accompanies this resolution; 2. Urges that it shall be signed without delay by all the States who are Parties to the International Slavery Convention of 25 September 1926; 3. Recommends that, pending the entry into force of the aforesaid Protocol, effect to be given to its provisions by the Parties to Convention; 453rd plenary meeting, 23 October 1953.

What followed after this part of the Resolution was the Protocol amending the Slavery Convention signed at Geneva on 25 September 1926. The Protocol is reproduced at the beginning of this Section.

iv. Commentary on the 1953 Protocol amending the Slavery Convention The United Nations Secretary-General, in suggesting to the Economic and Social Council’s Ad Hoc Committee on Slavery in 1950 that a possible method of attacking the problem of slavery would be for the United Nations to take over the “function and power entrusted” to the League of Nations with regard to the 1926 Slavery Convention. He did so by pointing to the reference in Article 7 of that Convention, which provides that: The High Contracting Parties undertake to communicate to each other and to the Secretary-General of the League of Nations any laws and regulations which they may enact with a view to the application of the provisions of the present Convention.

The Ad Hoc Committee on Slavery for its part noted that “certain difficulties might arise concerning the present application of the Convention

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in view of the fact that certain of its provisions referred to officials or organs no longer in existence”. As such, it recommended that “the United Nations should assume the functions and powers exercised by the League of Nations under the International Slavery Convention of 1926” and that ultimately the United Nations should pass a “protocol to give effect to that decision and [invite] all States to adhere to the protocol or to the International Slavery Convention of 1926 as amended thereby”. To that end, the Ad Hoc Committee on Slavery had prepared a draft protocol. The Economic and Social Council referred the overall recommendations made by the Ad Hoc Committee on Slavery in 1951 to the SecretaryGeneral who originally was against the move to establish a protocol, saying “the question may be raised as to whether the preparation of such a protocol is essential to achieve the purpose of the recommendation”. He noted that on previous occasions the use of such a protocol had lead to the establishment of two separate regimes covering the same subject matter. Instead, the Secretary-General proposed that he simply be authorised by the Economic and Social Council to perform the secretariat duties of the 1926 Slavery Convention. The Economic and Social Council disagreed with the Secretary-General, inviting instead States party to the 1926 Slavery Convention to transfer the League of Nations functions to the United Nations and requesting that the Secretary-General prepare a draft protocol to this end. In the lead up to consideration of the Secretary-General’s Draft Protocol, States were invited to comment. The United Kingdom, the only State to provide in depth comments and propose amendments, later submitted its own Draft Resolution incorporating a proposed protocol for consideration by the United Nations General Assembly. Within that context, the Israeli Representative to the Sixth Committee (Legal) of the General Assembly, Mr. Robinson provided a vigorous critique of the proposal. While saying that he had no formal proposal to make, he stated that what was being proposed: an annex attached to a protocol, attached to a resolution; “was technically cumbrous, costly and likely to lead to confusion concerning the Convention and its application”. He noted that previous attempts to bring League of Nations instruments into the United Nations system had produced “a host of inconsistencies, legal uncertainties and ambiguities”. He then broken down his critique into three areas: administrative, institutional, and issues of ‘partnership’, and concluded that what was being proposed “would merely contribute to an undesirable proliferation and overlapping treaties and lead to a

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situation known as the imbroglio of treaties, a constant source of friction and misunderstanding”. He pointed to the experience of the Conventions on the Traffic in Women and Obscene Publications as an example of one such imbroglio. Mr. Robinson went on to consider the various provisions of the protocol to show that the various articles were either not needed, for instance, Article 8 was unnecessary in light of Article 37 of Statute of the International Court of Justice the Court which already transferred jurisdiction of the compromissory clause of the 1926 Convention from Permanent Court of International Justice to International Court of Justice; or other provision of the proposed protocol could be addressed by different means, such as the custodianship function which the Secretary-General of the United Nations already possessed. In light of these comments, the Representative of Sweden asked the United Nations Secretariat whether such a draft protocol was necessary. The response of the Secretariat was in essence, that precedents went both ways and that ultimately it was a policy decision of the General Assembly to decide whether a protocol was need or not. For the Representative of the United States of America, Mr. Maktos, the draft protocol should be forwarded to the General Assembly as, whatever objections there might be to it, the method proposed “had become a standing practice in the General Assembly”. Mr. Maktos continued, saying that “from a legal point of view, it was preferable that the transfer of functions from the League of Nations to the United Nations should be affected by the original parties to the convention rather than by General Assembly resolution. The words ‘as between themselves’ in article I of the United Kingdom draft and the Secretariat’s text made the situation perfectly clear. If the States parties to the 1926 Convention accepted the protocol and it was duly registered, there would be no difficulty in bringing out a consolidated text”. In response to critiques of the proposed Protocol, the British Representative, Mr. Vallat, stated: “the protocol was merely a formality for the clarification of certain technical points which even the Israel representative had agreed was necessary”. The 1953 Draft Resolution proposed by the United Kingdom was adopted unopposed by the Sixth Committee and ultimately by the General Assembly by a vote of fifty-four, none against and six abstentions.

1956 United Nations Supplementary Convention

Introduction The move towards establishing a Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery commenced by means of a 1949 request by the United Nations General Assembly to the Economic and Social Council to study the problem of slavery.1 As a result, the Economic and Social Council instructed the UN Secretary-General to appoint an ad hoc committee of no more than five members and to have it report back, twelve months after its appointment, on its work: 1. To survey the field of slavery and other institutions or customs resembling slavery; 2. To assess the nature and extent of these several problems at the present time; 3. To suggest methods of attacking these problems; 4. Having regard to the recognized fields of competence of the various bodies within the framework of the United Nations, to suggest an appropriate division of responsibilities among these bodies; [. . .].2

The Secretary-General appointed Moises Poblete Troncoso (Chile), Charles Greenidge (United Kingdom), Bruno Lasker (United States of America), and Jane Vialle (France) and provided for their consideration, in February 1950, a rather compressive memorandum which he termed a “working paper or a frame of reference”.3 With regard to point three of the Economic and Social Council Resolution, relating to suggested methods of attacking the problem of slavery and institutions resembling slavery, the Secretary-General suggested that the newly established Ad Hoc Committee on Slavery might propose a new convention:

1 2 3

General Assembly, Resolution 278 (III), 13 May 1949. Economic and Social Council, Resolution 238(IX), 20 July 1949. Economic and Social Council, Notes on the Terms of Reference of the Ad Hoc Committee on Slavery (Memorandum submitted by the Secretary-General), UN Doc. E/AC.33/4, 3 February 1950, p. 2.

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Should the Committee find that the substantive provisions of the Slavery Convention of 1926 are no longer adequate in the light of the present situation, it might consider the possibility and desirability of proposing a new convention on slavery. Several questions may be raised and studied with respect to the substantive provisions of the 1926 Convention. For instance; (a) Is the definition of slavery in Article 1 of the Convention satisfactory?4 (b) Should institutions and customs resembling slavery be included? (c) Should the slave trade be considered as piracy in international law? (d) Under Article 2 of the Convention,5 the contracting parties undertake to “bring about, progressively and as soon as possible, the complete abolition of slavery in all its forms”. Is the clause “progressively and as soon as possible” satisfactory – especially in light of Article 1, 55, and 56 of the Charter of the United Nations,6 Article 1, 4, 5 and 6 of the

4 5 6

For Article 1, 1926 Slavery Convention, see the Appendices, p. 754. For Article 2, 1926 Slavery Convention, see id. Articles 1, 55 and 56 of the Charter of the United Nations read: ARTICLE 1: The Purposes of the United Nations are: 1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace; 2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace; 3. To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and 4. To be a centre for harmonizing the actions of nations in the attainment of these common ends. ARTICLE 55: With a view to the creation of conditions of stability and well being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote: a. higher standards of living, full employment, and conditions of economic and social progress and development;

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Universal Declaration of Human Rights,7 and Articles 8 and 15 of the draft International Covenant on Human Rights?8

7

8

b. solutions of international economic, social, health, and related problems; and international cultural and educational co-operation; and c. universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion. ARTICLE 56: All Members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55. Articles 1, 4, 5, and 6 of the Universal Declaration read: ARTICLE 1: All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. ARTICLE 4: No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms. ARTICLE 5: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. ARTICLE 6: Everyone has the right to recognition everywhere as a person before the law. Article 8 and 15 of the 1954 Draft Covenant on Civil and Political Rights reads: ARTICLE 8: 1. No one shall be held in slavery; slavery and the slave trade in all their forms shall be prohibited. 2. No one shall be held in servitude. 3 (a) No one shall be required to perform forced or compulsory labour; (b) The preceding sub-paragraph shall not be held to preclude, in countries where imprisonment with hard labour may be imposed as a punishment for a crime, the performance of hard labour in pursuance of a sentence to such punishment by a competent court. (c) For the purpose of this paragraph the term “forced or compulsory labour” shall not include: (i) Any work or service, not referred to in sub-paragraph (b), normally required of a person who is under detention in consequence of a lawful order of a court; (ii) Any service of a military character and, in countries where conscientious objection is recognized, any national service required by law of conscientious objectors; (iii) Any service exacted in cases of emergency or calamity threatening the life or well-being of the community; (iv) Any work or service which forms part of normal civil obligations. ARTICLE 15: 1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than

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(e) Under Article 3 of the Convention,9 the contracting parties undertake to negotiate a general convention with regard to the slave trade. A quarter of a century has elapsed, and no such general convention has been negotiated. Is this provision still useful? Should a general convention be negotiated? (f ) Article 5 of the Convention10 contains certain provisions concerning forced labour. Are these provisions adequate or satisfactory in the light of the International Labour Convention concerning Forced or Compulsory Labour of 1930, and particularly in the light of Article 8, paragraph 3 and 4, of the draft International Covenant on Human Rights? These and other questions will certainly occur to the members of the Committee as they examine the Slavery Convention. Should the Committee find that some of the substantive provision should be amended or some new provisions added, it might propose a new draft convention or it might formulate certain principles to be embodied in a new convention.11

Using the Secretary-General’s 1950 Memorandum as a basis, and having considered two important studies by the Secretary-General – the first regarding the work of the League of Nations for the Suppression of Slavery, the second, on the suppression of slavery and the slave trade by means of international agreement12 –, the Ad Hoc Committee on Slavery, expressed the view in its first Report of 1950, that:

9 10 11

12

the one that was applicable at the time when the criminal offence was committed. If, subsequently to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby. 2. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of Nations. See Commission on Human Rights, Report of Tenth Session 23 February – 16 April 1954, Economic and Social Council, Official Record: Eighteenth Session, Supplement No. 7, pp. 66–68. For Article 3, 1926 Slavery Convention, see the appendix, pp. 754–755. For Article 5, 1926 Slavery Convention, see id., pp. 755–756. Economic and Social Council, Notes on the Terms of Reference of the Ad Hoc Committee on Slavery (Memorandum submitted by the Secretary-General), UN Doc. E/AC.33/4, 3 February 1950, pp. 3–4. Both items were subsequently published as a booklet entitled: The Suppression of Slavery (Memorandum submitted by the Secretary General), UN Doc. ST/SOA/4, 11 July 1951. As separate documents they are: UN Doc. E/AC.33/1, 30 November 1949 and E/AC.33/3, 2 February 1950.

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certain modifications of the International Slavery Convention of 1926 appeared to be necessary and that it might prove desirable to draft a new convention broader in scope, or alternatively, to draw up an instrument supplementary to the existing Convention.13

With regard to whether a new treaty should be drafted or a supplementary convention proposed, a consideration of the discussion of the Ad Hoc Committee on Slavery indicates that there was good reason why a supplementary convention might win the day over the drafting of a new convention meant to override the 1926 Convention. Mr. Lasker remarked that “the 1926 Convention did not seem to have come in for any drastic criticism and that no one had showed conclusively why it should be replaced by a new convention”; and went on to say that the Ad Hoc Committee “should confine itself to drafting a further instrument to supplement the 1926 Convention” as he feared that a new convention would raise more problems than an addition, supplementing the League of Nations instrument.14 It was left to Mr. Greenidge to express, through the Minutes, the fundamental problem with the development of a new convention: “He feared, however, that the abrogation of that convention as a result of the ratification of a new convention might entail certain dangers. In the light of diplomatic experiences, it seemed preferable to profit by the fact that forty-two States had signed the old convention. Consequently, he was in favour of a supplementing the 1926 Convention by an instrument which would take into consideration the possible recommendations of the Committee in connexion with the new forms of slavery and servitude it would define during its work”.15 By the time the Ad Hoc Committee on Slavery produced it second Report in 1951, it called for “the preparation and adoption of an international convention supplementary to the Slavery Convention of 1926”, stating that:

13

14

15

United Nations Economic and Social Council, Report of the First Session of the Ad Hoc Committee on Slavery to the Economic and Social Council, UN Doc E/AC.33/9, 27 March 1950, p. 11. United Nations Economic and Social Council, Ad Hoc Committee on Slavery, First Session: Summary Record of the Twenty-Seventh Meeting, UN Doc. E/AC.33/SR.27, 21 March 1950, p. 5. Id., p. 6.

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Such a supplementary convention, in its view, should affirm the Slavery Convention of 1926 as a whole, and should be more precise than that instrument in defining the exact forms of servitude dealt with. It should provide for the transmission of annual reports on the application of its provisions to the Secretary-General of the United Nations, and should enlist the cooperation of signatory States with the United Nations for the purpose of bring about the abolition of slavery and other forms of servitude.

The Committee noted that it believed that States should be called upon: (a) to end such remnants of slave-raiding and slave-trading as might still exist; (b) to end the mutilation, branding, or tattooing of persons of servile status; (c) to punish as criminals any individual engaged in conspiracy to enslave, incitement to enslave, or enticement to part with the liberty of oneself or a dependent person; and (d) to encourage civil marriages and their registration as a means of eliminating certain forms of servitude.16

In its second, and what would be its last, Report, the Ad Hoc Committee on Slavery recommended the following principles be embodied within a supplementary convention and that States should endeavour to “undertake to abolish, at the earliest possible date, the following institutions and practices analogous to slavery or resembling slavery in some of their effects, in so far as they are not already covered by the Article 1 of the International Slavery Convention of 1926”: debt bondage, serfdom, interminable labour pledges, forced marriage, and transferring of children to exploitation.17 The Ad Hoc Committee recommended that the 1926 Convention be reaffirmed in its entirety; that the slave trade on the high seas be declared piracy; that States should criminalise ancillary elements of enslavement such as conspiracy or incitement to enslave as well as the branding of persons; that marriages should be civil and registered and minimum ages of marriage should be established; and that States should work with the United Nations to bring to an end slavery and other forms of servitude, and provide it with annual reports regarding the laws passed and issues arising from the application of the proposed convention.18 Finally, the

16

17 18

United Nations Economic and Social Council, Report of the Ad Hoc Committee on Slavery (Second Session), UN Doc E/1998, E/AC.33/13, 4 May 1951, pp. 16–17. Id., p. 19. Id., pp. 20–21.

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Ad Hoc Committee prepared a draft Resolution for the Economic and Social Council which embodied these, and other, recommendations and proposed that a drafting committee be established to “prepare the draft of a supplementary international convention on slavery and other forms of servitude”.19 The Economic and Social Council, for its part, having considered the Draft Resolution prepared by the Ad Hoc Committee on Slavery noted that it was unable to deal with the Recommendations as “the material is not at present in such a form as to allow the Council to act upon” it, and called upon the Secretary-General to report back “indicating what action the United Nations and specialized agencies could most appropriately take in order to achieve the elimination of slavery, the slave trade and forms of servitude resembling slavery in their effects”.20 The Secretary-General, reported back to the Economic and Social Council in 1953, stating that the Ad Hoc Committee had envisioned an instrument which covered the subject-matter of the 1926 Convention and “certain other institutions and practices” and would “be in operation side by side with that Convention”. He then noted that the “simultaneous operation of two separate conventions with so large a common scope of application may be considered undesirable by the Council”.21 This apparently pessimistic note was followed by the presentation of alternatives: Should the Council decide that a new instrument relating to slavery, the slave trade, and other forms of servitude should be prepared, it may wish to consider two alternative solutions: (a) that, while retaining in force the International Slavery Convention of 1926, one or more separate and additional conventions be prepared which would aim at the elimination of such institutions or practices resembling slavery in their effects as are not already covered by the International Slavery Convention of 1926; or (b) that a revised convention on slavery, the slave trade and other forms of servitude be prepared; such a revised convention would supersede, as between the parties thereto, the International Convention of 1926.

19 20 21

Id., p. 31. Economic and Social Council, Resolution 388(XIII), 10 September 1951. United Nations Economic and Social Council, Slavery, the Slave Trade, and other forms of Servitude (Report of the Secretary-General), UN Doc. E/2357, 27 January 1953, p. 40.

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The Secretary-General went on to say that preference might be given to the first option, as “certain States may be reluctant to become parties to a broad convention but may be prepared to become parties to a more limited separate convention or conventions, covering only particular institutions or practices”.22 Acting on the Economic and Social Council request that the Secretary-General indicate what action might be taken to eliminate slavery, the slave trade and various servitudes resembling slavery in their effect, the Secretary-General suggested the “preparation of drafts of separate and additional conventions aimed at the elimination of such institutions”.23 He further suggested that the Council request that he prepare preliminary drafts of instruments dealing institutions and practices not covered by the 1926 Convention, as well as issues of marriage, debt bondage, servile adoptions and the transition of persons from servile to free status.24 Finally, as a means of ending his Report, the Secretary-General provided a final section entitled “Recapitulation of the Problems for Consideration of the Council” in which he raised the following questions: If the provisions of the International Slavery Convention of 1926 are to be supplemented, by what procedure should this be accomplished: 1. by the drafting of a supplementary international convention, to come into force alongside the 1926 Convention, as recommended by the ad hoc Committee on Slavery? 2. by the preparation of one or more separate and additional conventions aiming at the elimination of such institutions or practices resembling slavery in their effects as are not already covered by this 1926 Convention, this Convention remaining also in force? 3. by the preparation of a revised convention on slavery, the slave trade and other forms of servitude which would supersede as between the parties thereto the 1926 Convention? 4. if one or more separate and additional conventions are to be prepared, should the Council request the Secretary-General to prepare preliminary drafts of instruments aiming at the elimination of certain specified forms of servitude which the Council considers not covered by the International Slavery Convention of 1926, based upon principles which the Council

22 23 24

Id., p. 40. Emphasis in the original. Id., p. 61. Id., pp. 61–62.

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would lay down, and to circulate these preliminary drafts to governments for comment?25

As a result of the Report of the Secretary-General, the Economic and Social Council passed Resolution 475(XV) in 1953, requesting the Secretary-General “consult the governments of all States, both Members and non-members of the United Nations, concerning the desirability of a supplementary convention and its possible contents”.26 The following year, the Economic and Social Council passed Resolution 525 (XVII) in which it appointed a Rapporteur to prepare a “concise summary of the information” received by States as a result of a questionnaire prepared by the Ad Hoc Committee and noted both the Report of the Secretary-General regarding his consultations with States and that the “Government of the United Kingdom of Great Britain and Northern Ireland has submitted a draft of a supplementary convention”.27 In April 1955, the Economic and Social Council considered that “in light of the situation as revealed by the report of the Rapporteur28 and earlier reports on the subject, it is desirable to prepare a text of a draft supplementary convention which will deal with those practices resembling slavery not covered by the International Slavery Convention of 1926”. As a result it decided: To appoint a committee consisting of representatives of the Governments of Australia, Ecuador, Egypt, France, India, the Netherlands, Turkey, the Union of Soviet Republics, the United Kingdom of Great Britain and Northern Ireland and Yugoslavia for the purpose of preparing a text of a draft supplementary convention for submission to the Council.

25

26 27

28

United Nations Economic and Social Council, Slavery, the Slave Trade, and other forms of Servitude (Report of the Secretary-General), UN Doc. E/2357, 27 January 1953, p. 71. Emphasis added and a parenthesis indicating the relevant paragraph of the Secretary-General Report has been omitted. See Economic and Social Council, Resolution 475 (XV), 27 April 1953. Economic and Social Council, Resolution 525 (XVII), 29 April 1954. The Draft is found at: Economic and Social Council, Slavery: Consultations Concerning the Desirability of a Supplementary Convention on Slavery and its Possible Contents, UN Doc E/2540/Add.4, 12 April 1954. A copy of the British letter is available at FO 371/117579 US 2181/26, National Archives of the United Kingdom. The Rapporteur was Mr. Hans Engen, his Report is cited as follows: Economic and Social Council, Report of the Rapporteur appointed under Council Resolution 525A(XVII), UN Doc. E/2673, 9 February 1955.

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The Council further transmitted the British Draft Supplementary Convention to the newly established committee as well as comments received on that Draft, and requested the Secretary-General to convene the Committee so that it might consider a new draft at its first session of 1956.29 For the convenience of the newly established Ad Hoc Committee, the Secretary-General prepared a memorandum which recapitulated United Nations action to date on the issue of slavery and provided “a summary of the comments received on the draft convention”.30 The 1956 Committee on the Drafting of a Supplementary Convention on Slavery and Servitude met in New York from 16 January until 6 February 1956 and considered the British Draft Supplementary Convention and the comments provided by twenty-seven States and the International Labour Organisation.31 On the basis of an article-by-article consideration of the British Draft Supplementary Convention, the 1956 Ad Hoc Committee – made up of the representatives of ten Economic and Social Council members – submitted its Report along with a new draft Convention. Having examined both the Report and draft of the Ad Hoc Committee, the Economic and Social Council passed Resolution 608 (XXI) stating that it considered it “desirable that the drafting of the convention should be completed by a conference of plenipotentiaries and that the convention should be opened for signatures as soon as possible” and, as such, the Council decided that such a conference should be convened and requested that the United Nations Secretary-General make the necessary arrangements.32 The Secretary-General convened the United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery

29 30

31

32

Economic and Social Council, Resolution 564 (XIX), 7 April 1955. Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude Submitted by the Government of the United Kingdom and Comments Thereon (Memorandum by the Secretary-General), UN Doc E/AC.43/L.1, 2 December 1955, p. 4. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, The Draft Supplementary Convention on Slavery and Servitude submitted by the Government of the United Kingdom and Comments Thereon (Memorandum by the Secretary-General) Corrigendum, UN Doc E/AC.43/ L.1/ Corr.1, 25 January 1956. Economic and Social Council, Resolution 608 (XXI), 30 April 1956.

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in Geneva on 13 August 1956.33 The Conference, under the Presidency of Mr. Calderón Puig of Mexico, met from 13 August until 4 September 1956 and included the participation of fifty-one States Members of the United Nations, eight observer States, the International Labour Organisation and eleven non-governmental organisations. Beyond the drafting of the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, the Conference also adopted the following two Resolutions by the same vote of thirty-seven in favour, none opposed, with six abstentions. The Conference Recommends that States which are able to become parties to the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, should accede to the Slavery Convention of 25 September 1926, as amended by the Protocol of 1953, if they had not already done so. The Conference Having regard to article 2 of the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, Recommends to the Economic and Social Council to consider the appropriateness of initiating a study of the question of marriage which the object of drawing attention to the desirability of free consent of both parties to a marriage and of the establishment of a minimum age for marriage, preferably of not less than fourteen years.34

The travaux préparatoires of the 1956 Supplementary Convention which follow thus considers the negotiation process which sees the provisions of each article of the Convention evolve from a 1954 British Draft Convention, through a 1956 Draft Convention developed by the ten member Economic and Social Council ad hoc Committee on the Drafting of a

33

34

See Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Preparation of the Convention: Note by the Secretary-General, UN Doc. CONF.24/3, 8 June 1956, p. 2. United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Final Act and Supplementary Convention, UN Doc. CONF.24/23, 7 September 1956, p. 6.

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Supplementary Convention on Slavery and Servitude to their end point: inclusion in the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery as a result of diplomatic negotiation which transpired at the United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery.

Title of the Convention i. 1954 British Draft Convention THE DRAFT SUPPLEMENTARY CONVENTION ON SLAVERY AND SERVITUDE1

In 1954, the United Kingdom, in the context of a request by the United Nations Economic and Social Council for the Secretary-General to consult Member States as to the desirability of drafting a supplementary convention dealing with slavery, put forward a draft convention which was titled the Draft Supplementary Convention on Slavery and Servitude.2 During the period of April 1954 to April 1955 the Economic and Social Council had requested comments on this British Draft Convention; where the title is concerned, no comments were forthcoming.

ii. 1956 Draft Supplementary Convention on Slavery and Servitude DRAFT SUPPLEMENTARY CONVENTION ON THE ABOLITION OF SLAVERY, THE SLAVE TRADE AND INSTITUTIONS AND PRACTICES SIMILAR TO SLAVERY3

1

2 3

Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude Submitted by the Government of the United Kingdom and Comments Thereon (Memorandum by the Secretary-General), UN Doc. E/AC.43/L.1, 2 December 1955, p. 1. See id. Economic and Social Council, Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, UN Doc. 2824, Annex I, 15 February 1956. See also Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions

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During discussions of the Committee on the Drafting of a Supplementary Convention on Slavery and Servitude of 17 January 1956, the Representative of the Union of Soviet Socialist Republics (USSR), Mr. Nikolaev, stated that the title of the Convention “presented a linguistic difficulty” as slavery and servitude were covered by the same word in Russian. A linguistic difficulty also arose in Arabic where ‘servitude’ corresponded to ‘serfdom’ as found in Article 1(b) of the Draft Supplementary Convention. As a result, the French Representative, Mr. Giraud, proposed that the title might be changed to: SUPPLEMENTARY CONVENTION ON THE ABOLITION OF SLAVERY AND SIMILAR PRACTICES4

The Chairman, while noting that the proposed title was “lacking the expressing ring of the original, did not change its meaning” and asked whether the change might be acceptable to the United Kingdom. Mr. Scott-Fox, the United Kingdom Representative, “agreed that if the original title raised real difficulties the French proposal would be satisfactory”.5 For his part, the USSR Representative noted that he would consider the proposal, and thus a decision was postponed until the following meeting. At the next meeting, Mr. Nikolaev noted that as slavery and servitude were identical in Russian, two alternatives were possible. The first would be to delete ‘and Servitude’ from the title of the Convention; while the second – which he favoured – would be “to give the convention the following title:

4

5

and Practices Similar to Slavery, Title and Preamble as adopted in the ninth meeting of the Committee on 23 January 1956, Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, UN Doc. E/AC.43/L.30, 24 January 1956. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Eighth Meeting, 20 January 1956 UN Doc. E/AC.43/SR.8, 17 February 1956, p. 3. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Eighth Meeting, 20 January 1956 UN Doc. E/AC.43/SR.8, 17 February 1956, p. 4.

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SUPPLEMENTARY CONVENTION ON THE ABOLITION OF SLAVERY, THE SLAVE TRADE AND INSTITUTIONS AND PRACTICES SIMILAR TO SLAVERY6

Mr. Nikolaev noted that all the matters included in the Convention were covered by this title and that the same wording had appeared in a French amendment which had been proposed.7 The French Delegate, Mr. Giraud, “said that the wording of the title was relatively unimportant”, though he preferred the second proposal put forward by the Representative of the USSR. This was also the case for the Representatives of Yugoslavia, Mr. Bozovic, and the United Kingdom, though Mr. Scott-Fox did ask “for the sake of brevity”, whether it might be agreed that either ‘practices’ or ‘institutions’ be deleted. To this, the Soviet Delegate responded, saying that he believed both ‘practices’ and ‘institutions’ should be retained as they appeared in Article 1 of the Draft Supplementary Convention on Slavery and Servitude, and that: institutions and practices meant two different things in law; the former denoted a set of legal rules, whereas the latter denoted social customs. The deletion of either of those words would therefore restrict the scope of the convention.8

The Summary Records of the ninth meeting indicate that the title of the Draft Convention, “as amended by the USSR, was adopted unanimously”.9

6

7

8

9

Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Ninth Meeting, 23 January 1956 UN Doc. E/AC.43/SR.9, 17 February 1956, p. 3. See Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, France: Proposal to Change the Order of Certain Articles of the Draft Convention on the Abolition of Slavery and servitude (E/2540/ Add.4), UN Doc. E/AC.43/L.14, 18 January 1956. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Ninth Meeting, 23 January 1956 UN Doc. E/AC.43/SR.9, 17 February 1956, p. 4. Id., p. 4.

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iii. 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery SUPPLEMENTARY CONVENTION ON THE ABOLITION OF SLAVERY, THE SLAVE TRADE, AND INSTITUTIONS AND PRACTICES SIMILAR TO SLAVERY

Consideration of the title of the Convention transpired at the 1956 Conference of Plenipotentiaries in the context of the relationship between the proposed Convention and the 1926 Convention, with the following proposal for the inclusion of a new article by the Representative of Israel (Mr. Kahany): Every State Party to this Convention which is not a Party to the Slavery Convention of 1926 as amended by the Protocol of 7 December 1953, will be regarded as having acceded to that Convention as from the date on which it ratifies or accedes to the present Convention.10

Mr. Kahany, argued that: “Logically, a supplement to a convention presupposed the existence of a previous convention” and that a State which consented to the Supplementary Convention “ought ipso facto to become a party to the Convention of 1926, particularly since a number of the provisions of the new convention could only be applied if the State concerned had acceded to the 1926 Convention”.11 Mr. Giraud, the French Representative, agreed with the Israeli Representative, but stated that one “should not, however, try to be too logical in a matter of that sort. After all, it would be better that a State should be a party only to the 1956

10

11

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Israel: Proposal for a New Article concerning the Slavery Convention, UN Doc E/CONF.24/L.27, 27 August 1956. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Eighteenth Meeting, 29 August 1956, UN Doc E/CONF.24/SR.18, 19 November 1958, p. 7.

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Convention than that it should be party neither to that of the 1956 or that of the 1926”.12 For his part, the Pakistani Representative, Mr. Jafri, feared that the Israeli proposal (though a “well-meant attempt to obtain accession of as many States as possible to the 1926 Convention”) “might deter some States from signing the supplementary convention”, as there were reasons why some States had not consented to the 1926 Convention, and thus would “encounter difficulties” in consenting the Supplementary Convention. Mr. Jafri also noted that the Draft Convention “was entitled ‘supplementary’”, however, it was “supplementary only in name and was in effect a selfcontained instrument”.13 The United Kingdom Representative, Mr. ScottFox, noted that he “had been impressed by the Pakistani representative’s argument” of seeking to avoid deterring States that had not consented to the 1926 Convention from possibly agreeing to the 1956 Convention. He went on to say that the “United Kingdom delegation had always held the view that, although the present convention had been entitled a supplementary convention, it was in fact a separate instrument”.14 The Paraguayan and Chilean Representatives indicated that they would be forced to abstain from voting on the Israeli proposal because they lacked instructions from their Governments. The Representative of Chile, Mr. Kracht, for his part, noted that while he too lacked instructions, that the proposal also “conflicted with the Chilean constitutional procedure”.15 This, coupled with the Pakistani and British statements, moved the French Representative, Mr. Giraud, to propose “a recommendation inviting States which were not parties thereto to accede to the Convention of 1926 be included in the Final Act of the Conference”, as an alternative to the proposed inclusion of an additional article put forward by the Israeli Delegation. This proposal was accepted by Mr. Kahany later that day, as he withdrew the Israeli proposed article in favour of the recommendation put forward by Mr. Giraud.16 This then ended the discussions regarding the title of the Draft Supplementary Convention at first reading. 12 13 14 15 16

Id., p. 8. Id. Id., p. 9. Id., p. 8. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Nineteenth Meeting, 29 August 1956, UN Doc E/CONF.24/SR.19, 19 November 1958, p. 21.

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At second reading, an apparent procedural irregularity took place as, after the vote adopting the preamble which, incidentally, also included the title of the Convention, had taken place, the Representative of the Philippines, Mr. Lopez, sought the floor to ask whether before turning to Article 1, consideration should be given to the title of the Convention. As he noted, “the convention was referred to as “supplementary” in the last paragraph of the preamble; accordingly, if the title were to be changed, as some representatives had suggested, the decision should be taken in connexion with the preamble”.17 This, as the British Representative, Mr. Scott-Fox, noted “raised several difficulties”, one of which was procedural: that the “final vote had already been taken on the preamble and no amendment to it would be in order”.18 Mr. Jafri, the Pakistani Representative, agreed with Mr. Scott-Fox, saying that the “suggestion should have been made before the preamble [. . .] had been adopted. Nevertheless, it should be possible to change the title without altering the preamble”.19 A substantive discussion having ensued, the Philippine and Egyptian Representatives, having “both introduced ideas for a new title”, were called upon by the President of the Conference to consider the possibility of submitting a joint proposal. The President then stated that there “was no question of reversing the vote that had been taken on the preamble”.20 The Philippines Representative welcomed the President’s suggestion and “agreed that there would be no need to delete the words “supplementary from the preamble if a new title were adopted. The word was used as a simple adjective and did not refer to the title”.21 Turning to the substance of that discussion, Representative of the Philippines, Mr. Lopez, noted that as a draft of the Convention had now been prepared, “it seemed obvious that, although the instrument served

17

18 19

20 21

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Twenty-First Meeting, 31 August 1956, UN Doc E/CONF.24/SR.21, 20 November 1958, p. 2. Id., p. 3. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Twenty-First Meeting, 31 August 1956, UN Doc E/CONF.24/SR.21, 20 November 1958, p. 4. Id., p. 6. Id.

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to re-affirm and strengthen the 1926 Convention, it was self-contained and could be put into effect without reference to the latter”, yet he “could imagine that the attitude of the foreign department of a State which was not a party to the 1926 Convention might be affected by the fact that the new convention was a supplementary instrument and that such governments would have to give close attention to the 1926 Convention to see whether it agreed with the provisions thereof ”.22 With this in mind, Mr. Lopez proposed that the word ‘supplementary’ be deleted from the title. He went on to say: “It is customary to refer to the Geneva Convention as the 1926 Convention and matters might be simplified by calling the new instrument the ‘Convention of 1956 on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery’. The two conventions would thus in practice be referred to by the year of their entry into force”.23 As previously noted, the British Representative saw in the proposal a number of difficulties. From a substantive point of view, Mr. Scott-Fox thought it important that mention be made of the instrument being supplementary as it “would give the lay reader a good idea of [the 1956 Convention] vis-à-vis the 1926 Convention”. The “term ‘supplementary’ ”, the Representative of the United Kingdom noted, “in no way meant that the new convention was legally dependent on the earlier instrument, that it supplanted that text or that it obliged States acceding to it to become parties thereto”. Mr. Scott-Fox noted his surprise at the Philippine argument regarding governments needing to study the 1926 Convention to ascertain their obligations under the proposed 1956 Convention, and recalled that there was a French proposal to adopt a resolution recommending that States become party to the 1956 Convention should also accede to the 1926 Convention.24 The Sudanese Representative thought the Philippines’ query a valid one, the Representative of Sudan, Mr. Abdalla, noting that Mr. Lopez’s statement raised the legal question of great interest to States not party to the 1926 Convention, and that was “whether a supplementary convention

22 23 24

Id., p. 3. Id. Id. For the French Resolution see: Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, France; Draft Resolution, UN Doc E/CONF.24/L.41, 30 August 1956.

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constituted a part of the earlier instrument”. He asked that the General Legal Division of the United Nations be asked for its opinion. The Representative of Pakistan, Mr. Jafri, for his part, believed that the issue “did not require legal analysis”, as it was, from a “legal point of view” the right of any State to “accede to the new convention irrespective of whether it was a party to the 1926 Convention or not”, but that nevertheless, it might cause “formal difficulties” for States not party to the 1926 Convention to consent to the 1956 Convention.25 This view was echoed by the French and Belgian Representatives, the former saying that he “thought that the word ‘supplementary’ should be retained in the title of the convention”26 as it would allow the reader to appreciate that the convention “formed part of a system” and recalled that the Economic and Social Council “had rejected the suggestion that the 1926 Convention be replaced by a new convention”.27 Mr. Sommerhausen, the Belgium Representative, noted that the issue had already been settled at the eighteenth meeting, alluding to the failed Israeli proposal, stating that the “Conference had decided that States parties to the 1956 convention would not be bound to accede to the 1926 Convention”.28 It was at this point that the Representative of Canada, Mr. Jay, took the floor and made an observation (which the Israeli Representative associated himself with) that is of direct relevance to the assembling of these travaux préparatoires, as he stated that at this: late stage it was dangerous to begin a discussion of the relations between the two conventions. Anything that we said on the subject in the Conference would provide international lawyers with material for questioning the validity of both conventions in the future. It must be borne in mind that nothing done at the Conference could affect the validity of the 1926 Convention and that any State could sign the new instrument, whether or not it was a party to the 1926 Convention. The title as it stood gave a perfectly clear idea of the instructions from the United Nations organs on which the Conference was acting; further debate could only create confusion.29

25

26 27 28 29

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Twenty-First Meeting, 31 August 1956, UN Doc E/CONF.24/SR.21, 20 November 1958, p. 4. Id. Id., p. 5. Id., p. 4. Id., p. 5.

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Yet, this Canadian advice was not heeded, as the Egyptian Representative suggested the renaming of the Convention as the: UNITED NATIONS CONVENTION ON THE ABOLITION OF SLAVERY, THE SLAVE TRADE AND INSTITUTIONS AND PRACTICES SIMILAR TO SLAVERY

This proposal, it was explained, was meant to reflect the fact that the United Nations was meant to complete the work of the League of Nations and the lending of the UN Organisation’s name to the Convention might provide it prestige, thus facilitate the accession of many States. Mr. AbdelGhani of Egypt concluded by saying in practice “the two instruments would come to be known as the League of Nations Convention and the United Nations Convention”.30 It was at this point that the President of the Conference asked the Egyptian and Philippine Representatives if they would consider the issue and possibly propose a new title. At the twenty-second meeting, the Representative of the Philippines, Mr. Lopez, introduced the following proposed title for the 1956 Convention, noting that he had integrated the Egyptian suggestion regarding the mentioning of the United Nations Organisation, and had removed the word ‘supplementary’ from the beginning of the title, thus removing a possible “psychological difficulty for States which were not parties to the 1926 Convention”:31 UNITED NATIONS CONVENTION ON THE ABOLITION OF SLAVERY, THE SLAVE TRADE AND INSTITUTIONS AND PRACTICES SIMILAR TO SLAVERY, SUPPLEMENTING THE CONVENTION OF 192632

30 31

32

Id. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Twenty-Second Meeting, 31 August 1956, UN Doc E/CONF.24/SR.22, 20 November 1958, p. 12. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Philippines: Amendment to the Title of the Convention, UN Doc E/CONF.24/L.43, 31 August 1956.

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This proposal met with little support. The Belgium Representative noted that the Convention “contained no provision for the abolition of slavery proper” and thus he could not accept that element of the proposal, the French and Israeli Representatives for their part, thought it unnecessary that the Convention specify that it was a “United Nations” convention. The Israeli and Turkish Delegation then both proposed amendments to the Philippine proposal, the former calling for mention of the 1953 Protocol, the latter asking that the final clause be deleted and the original title be retained with the word ‘supplementary’ being replaced by the words ‘United Nations’.33 The Representative of the United Kingdom noted that the sub-amendments proposed by Turkey were “eminently acceptable” and that he was surprised by the new wording of the proposed title, as it was his understanding that the objection had been to the word ‘supplementary’ giving the impression that the conventions were not self-contained and independent instruments”. Mr. Scott-Fox went on to say: “The title as it had originally stood, however, had left room for no possibility of confusion, while the new title might have the opposite effect, because it included the expression ‘supplementing the Convention of 1926’”.34 These two British suggestions were adopted: to replace the term ‘United Nations’ by ‘Supplementary’ and the deletion of the ‘supplementing the Convention of 1926’. Thus the official title of the 1956 Supplementary Convention reads: SUPPLEMENTARY CONVENTION ON THE ABOLITION OF SLAVERY, THE SLAVE TRADE, AND INSTITUTIONS AND PRACTICES SIMILAR TO SLAVERY

iv. Commentary on the Title of the 1956 Supplementary Convention The evolution of the title of the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices 33

34

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Twenty-Second Meeting, 31 August 1956, UN Doc E/CONF.24/SR.22, 20 November 1958, p. 13. Id., p. 13.

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Similar to Slavery should be read in conjunction with discussions regarding the relationship between the 1956 Convention and the 1926 League of Nations Slavery Convention, as they manifest themselves regarding the preamble and Articles 1 and 7. What is most relevant is that the 1956 Conference moves to omit mention of the term ‘servitude’ from the Convention, as it adopts a definition not of ‘servitude’, which has been included in Article 4 of the 1948 Universal Declaration and mandates that “no one shall be held in slavery or servitude”, but instead of ‘person of servile status’. The Conference, it should be noted, was not entirely successful in expunging the term ‘servitude’ from the text as the preamble repeats the words of Article 4 of the Universal Declaration. Beyond this, the Conference does not truly engage with the term ‘Institutions and Practices Similar to Slavery’ nor adopt it as a means of expressing the types of servitudes it moves to abolish in Article 1. Though mention is made in the preamble of the need for a “supplementary convention designed to intensify national as well as international efforts toward the abolition of slavery, the slave trade and institutions and practices similar to slavery”; when the Convention shifts to its operative provisions, mention is not made anywhere of the phrase ‘institutions and practices similar to slavery’. The only mention of this phrase is to be found in the opening paragraph of Article 1, where it appears in truncated form, as it notes that States Parties are to “take all practicable and necessary legislative and other measures to bring about progressively and as soon as possible the complete abolition or abandonment of the following institutions and practices”. Thus dropping the final element: ‘similar to slavery’. In essence then, though often mentioned in diplomatic discussions, the term ‘institutions and practices similar to slavery’ is a term of art not of law. Any possible definition in law of ‘institutions and practices similar to slavery’, or for that matter of ‘servitude’, disappears during the negotiation process of the 1956 Convention. This notion of ‘institutions and practices similar to slavery’ evolves as a result of ‘linguistic difficulties’ manifest in Russian, where “slavery and servitude were identical in Russian”. Thus, the title proposed in the 1954 British Draft Convention – The Draft Supplementary Convention on Slavery and Servitude – could not hold. Mr. Nikolaev proposed the replacement of the term ‘servitude’ which ‘similar practices’, though Mr. Cutts, the Chairman of the 1956 Drafting Committee, thought it lacked the “expressing ring of the original”. While there was discussion as to whether the term ‘supplementary’ should be used as this might indicate a

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formal link between the 1956 convention and the 1926 Slavery Convention, Mr. Jafri, the Representative of Pakistan, stated that from a “legal point of view”, any State could “accede to the new convention irrespective of whether it was a party to the 1926 Convention or not”.35 Despite an attempt by the Philippines and Egypt to introduce new elements into the title (re: ‘United Nations’ and ‘supplementing the Convention of 1926’), both were countered by British amendments which carried the day.

35

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Twenty-First Meeting, 31 August 1956, UN Doc E/CONF.24/SR.21, 20 November 1958, p. 4.

The Preamble The States Parties to the present Convention, Considering that freedom is the birthright of every human being; Mindful that the peoples of the United Nations reaffirmed in the Charter their faith in the dignity and worth of the human person; Considering that the Universal Declaration of Human Rights, proclaimed by the General Assembly of the United Nations as a common standard of achievement for all peoples and all nations, states that no one shall be held in slavery or servitude and that slavery and the slave trade shall be prohibited in all their forms; Recognizing that, since the conclusion of the Slavery Convention signed at Geneva on 25 September 1926, which was designed to secure the abolition of slavery and of the slave trade, further progress has been made towards this end; Having regard to the Forced Labour Convention of 1930 and to subsequent action by the International Labour Organisation in regard to forced or compulsory labour; Being aware, however, that slavery, the slave trade and institutions and practices similar to slavery have not yet been eliminated in all parts of the world; Having decided, therefore, that the Convention of 1926, which remains operative, should now be augmented by the conclusion of a supplementary convention designed to intensify national as well as international efforts towards the abolition of slavery, the slave trade and institutions and practices similar to slavery; Have agreed as follows:

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i. 1954 British Draft Convention The States signatories of the present Convention, Considering that article 4 of the Universal Declaration of Human Rights proclaims as one of the aims of the United Nations that no one shall be held in slavery or servitude, Recognizing that the International Convention with the Object of Securing the Abolition of Slavery and the Slave Trade signed in Geneva on September 25, 1926 represented the widest undertaking upon which agreement could be reached at that time, Considering that further progress has been made towards elimination of slavery and practices of a similar nature from the world, Believing that the provisions of the aforementioned Convention of 1926, which remains fully operative and the custody of which by the SecretaryGeneral of the United Nations has been confirmed in a Protocol dated December 7, 1953, can now appropriately be augmented by the conclusions of a supplementary convention, Have agreed as follows:1

In his Memorandum meant to assist the Committee on the Drafting of a Supplementary Convention on Slavery and Servitude established by the Economic and Social Council in 1955, the Secretary-General of the United Nations turned to consider the first paragraph of the preamble of the 1954 British Draft Convention, suggesting that the provision “as one of the aims of the United Nations” could be omitted as it was not found within the Universal Declaration of Human Rights and might give the impression that the Universal Declaration only contained aims. The Secretary-General further noted that Article 4 of the Universal Declaration of Human Rights had not been reproduced in its entirety in paragraph one and suggested that it might be included so that, together with his previous suggestions, the paragraph might now read:

1

See Economic and Social Council, Slavery: Consultations Concerning the Desirability of a Supplementary Convention on Slavery and its Possible Contents, UN Doc E/2540/ Add.4, 12 April 1954.

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Considering that Article 4 of the Universal Declaration of Human Rights proclaims that no one shall be held in slavery or servitude and that slavery and the slave trade shall be prohibited in all their forms,2

With regard to the second preambular paragraph, The Secretary-General drew the attention of the drafting Committee to “the fact that the official title of the 1926 Convention is: ‘Slavery Convention, Geneva, September 25th, 1926’ ”, and as a result recommend that the paragraph be reworded so as to read: Recognizing that the Slavery Convention, signed at Geneva, on September 25th, 1926 represents the widest undertaking upon which agreement could be reached at the time,3

Making no comment on paragraph three, the Secretary-General turned to preambular paragraph four of the 1954 British Draft Convention and, picking up on a suggestion by the Anti-Slavery Society regarding the possible mention of the transferring of functions and duties of the 1926 Convention to the United Nations by way of the 1953 Protocol, proposed the following draft paragraphs: Noting that the duties and functions which, under the aforementioned Convention of 1926, were vested in the League of Nations have, by a Protocol dated 7 December 1953, been transferred to the United Nations, Believing that the provisions of the Convention of 1926, which remains fully operative, can now appropriately be augmented by the conclusion of a supplementary convention,4

Finally, the Secretary-General noting that the Anti-Slavery Society had proposed an additional paragraph be included in the preamble which 2

3

4

Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude Submitted by the Government of the United Kingdom and Comments Thereon (Memorandum by the Secretary-General), UN Doc E/AC.43/L.1, 2 December 1955, p. 19. Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude Submitted by the Government of the United Kingdom and Comments Thereon (Memorandum by the Secretary-General), UN Doc E/AC.43/L.1, 2 December 1955, p. 19. Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude Submitted by the Government of the United Kingdom and Comments Thereon (Memorandum by the Secretary-General), UN Doc E/AC.43/L.1, 2 December 1955, p. 20.

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referred to the 1950–51 Ad Hoc Committee of Slavery, much as the 1926 Convention had made reference to the 1924–25 Temporary Slavery Commission, reproduced its proposal: Taking into consideration the recommendations of the ad hoc Committee on Slavery, appointed under the authority of the Economic and Social Council of the United Nations in 1949.5

ii. 1956 Draft Supplementary Convention on Slavery and Servitude The States Parties to the present Convention, Mindful that the peoples of the United Nations reaffirmed in the Charter their faith in the dignity and worth of the human person; Considering that the Universal Declaration of Human Rights, proclaimed by the General Assembly of the United Nations as a common standard of achievement for all peoples and all nations, states that no one shall be held in slavery or servitude and that slavery and the slave trade shall be prohibited in all their forms; Recognizing that, since the conclusion of the Slavery Convention signed at Geneva on the 25th of September 1926, which was designed to secure the abolition of slavery and of the slave trade, further progress has been made towards this end; Being aware, however, that slavery, the slave trade and institutions and practices similar to slavery have not yet been eliminated in all parts of the world; Having decided, therefore, that the Convention of 1926, which remains operative should now be augmented by the conclusion of a supplementary convention designed to intensify national as well as international efforts toward the abolition of slavery, the slave trade end institutions and practices similar to slavery; Have agreed as follows:6

5

6

Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude Submitted by the Government of the United Kingdom and Comments Thereon (Memorandum by the Secretary-General), UN Doc E/AC.43/L.1, 2 December 1955, p. 20. Economic and Social Council, Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, UN Doc. 2824, Annex I, 15 February 1956. See also Economic and Social Council, Committee

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The Committee on the Drafting of a Supplementary Convention on Slavery and Servitude which was established by the United Nations Secretary-General at the request of the Economic and Social Council to draft a supplementary convention, having decided to use the Memorandum of the Secretary-General “as its basic working document”,7 turned to consider the various provisions of the 1954 British Draft Convention starting with its preamble. During its meetings, amendments were proposed by three delegations. The Netherlands proposed that the first and second paragraphs be amalgamated so as to read: Considering that the Universal Declaration of Human Rights proclaimed by the General Assembly as a common standard of achievement for all peoples and all nations, states in Article 4 that no one shall be held in slavery or servitude and that slavery and the slave trade shall be prohibited in all their forms.8

The French Representative, Mr. Giraud, proposed that the second paragraph read: Recognizing that the Slavery Convention signed at Geneva on 25 September 1926, which was designed to abolish slavery and the slave trade, represented the widest undertaking upon which agreement could be reached at that time.9

7

8

9

on the Drafting of a Supplementary Convention on Slavery and Servitude, Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Title and Preamble as adopted in the ninth meeting of the Committee on 23 January 1956, “Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, UN Doc. E/AC.43/L.30, 24 January 1956. Economic and Social Council, Slavery: Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery: Report of the Committee appointed by Resolution 564 (XIX), 7 April 1955, UN Doc E/2824, 15 February 1956, p. 8. Id., p. 11; also found in Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, The Netherlands: Amendment to paragraph 1 of the Preamble to the Draft Convention on the Abolition of Slavery and Servitude (E/2540/Add.4), UN Doc. E/AC.43/L.3, 16 January 1956. Id.; also found in Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, France: Amendment to the second paragraph of the preamble to the draft supplementary convention on slavery and servitude (E/2540/Add.4), UN Doc. E/AC.43/L.4, 17 January 1956.

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For its part, the Union of Soviet Socialist Republics (USSR) proposed that the words “represented the widest undertaking upon which agreement could be reached at that time” found in the second paragraph should be deleted and that the following paragraph be considered as the final paragraph of the preamble: Recognizing that the conclusion of a new supplementary convention on slavery and servitude is essential in order to intensify the struggle against slavery and servitude and the institutions and practices associated therewith.10

As a result of these proposals and preliminary discussions, the British Representative on the Committee, Mr. Scott-Fox, submitted a revised text of the preamble which reads: The States signatories of the present Convention, Mindful that the peoples of the United Nations in the Charter reaffirmed their faith in the dignity and worth of the human person; Considering that the Universal Declaration of Human Rights, proclaimed by the General Assembly of the United Nations as a common standard of achievement for all peoples and all nations, states in Article 4 that no one shall be held in slavery or servitude and that slavery and the slave trade shall be prohibited in all their forms; Recognizing that, since the conclusion of the slavery Convention signed at Geneva on 25 September 1926, which was designed to secure the abolition of slavery and the slave trade, further progress has been made towards this end; Being aware slavery has not yet been eliminated in all parts of the world and that other forms of servitude of a similar nature still exist; Having decided, therefore, that the provisions of the Convention of 1926, which remains fully operative, should now be augmented by the conclusion of a supplementary convention designed to intensify efforts towards the abolition of these practices; Have agreed as follows:11

10

11

Id.; also found in Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Union of Soviet Socialist Republics: amendment to the preamble and article 1 of the draft supplementary convention on the abolition of slavery and servitude (E/2540/Add.4), UN Doc. E/AC.43/L.5, 17 January 1956. Id., p. 12; also found in Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, United Kingdom: Proposed

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That revised text of the preamble was then considered, paragraph by paragraph, by the drafting Committee. While the first paragraph did not raise any issues and thus was adopted unanimously, the second paragraph raised “a difference of opinion” in regard to the phrase “as a common standard of achievement for all peoples and all nations”, as “some members pointed out that the inclusion of the phrase might suggest that the abolition of slavery was a mere ideal, while others considered the phrase unnecessary since it merely restated what was already in the Universal Declaration of Human Rights”. “There was however”, as the Report of the Committee noted, “no formal proposal to delete the phrase”12 and thus it remained. Further questions were raised about the inclusion of Article 4 in the text of the second paragraph as it was felt that other provisions of the Universal Declaration also had “a bearing on the draft convention”. As a result, the Netherlands formally proposed the deletion of ‘in Article 4’;13 that proposal was adopted by the Committee by a vote of nine in favour, none against, with one abstention. For its part, the third paragraph engendered no discussion and was passed unanimously; the fourth paragraph, by contrast, was considered by some members of the Committee as lacking precision with the representatives of France, the Netherlands, and the USSR proposing that “reference should be made to the slave trade and to institutions and practices similar to slavery”. The representative of the United Kingdom – having put forward a revised preamble – amended the paragraph providing the

12 13

title and preamble of the Draft Convention on the Abolition of Slavery and Servitude (E/2540/Add.4), UN Doc. E/AC.43/L.18, 19 January 1956. Id., p. 13. Id.; also found in Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Netherlands: Amendment to the draft preamble by the United Kingdom (E/AC.43/L.18) to the Draft Convention on the Abolition of Slavery and Servitude, UN Doc. E/AC.43/L.26, 20 January 1956. Note also a request (at UN Doc. E/AC.43/SR.8, 20 January 1956) by the drafting Committee to the UN Secretary-General to provide references to the inclusion of mention of the Universal Declaration in international instruments. Those references are found at: Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Consideration of the draft preamble by the United Kingdom (E/AC.43/L.18) to the Draft Convention on the Abolition of Slavery and Servitude, References in international conventions and draft conventions to the Universal Declaration of Human Rights, UN Doc. E/AC.43/L.25, 20 January 1956.

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following revision, which was subsequently adopted by the Committee unanimously: Being aware, however, that slavery, the slave trade, and institutions and practices similar to slavery have not yet been eliminated in all parts of the world;14

As proposed by the United Kingdom in its revised text, the draft fifth paragraph of the preamble reads: Having decided, therefore, that the provisions of the Convention of 1926, which remains fully operative, should now be augmented by the conclusion of a supplementary convention designed to intensify efforts towards the abolition of these practices;

The representative of France suggested the deletion of the words “the provision of ” and “fully”; while the Yugoslav representative suggested that the words “national as well as international” should be inserted and the expression “slavery, the slave trade, and institutions and practices similar to slavery” should replace the words “these practices”. These proposals were accepted by the Representative of the United Kingdom and adopted unanimously by the Committee.15 Finally, a proposal for an additional paragraph was ultimately not adopted, as it split evenly the ten representatives voting. A further paragraph, originally proposed by Ecuador and submitted by Egypt and India, was put forward, which reads: Recognizing further that progress on the elimination of ’ slavery and similar forms of servitude depends not only on international conventions but also, to a great extent, on concerted measures for economic, social and cultural advancement and on international co-operation towards this end.16

14

15 16

Economic and Social Council, Slavery: Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery: Report of the Committee appointed by Resolution 564 (XIX), 7 April 1955, UN Doc E/2824, 15 February 1956, p. 14. Id. Id.; also found in Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Ecuador, Egypt and India: Amendment to the title and preamble of the Draft Convention on the Abolition of Slavery and Servitude proposed by the United Kingdom (E/AC.43/L.18), UN Doc. E/AC.43/L.22, 19 January 1956.

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239

France voiced its opposition to the paragraph saying that “the question of concerted action was not within the Committee’s terms of reference”. Other members believed the paragraph unnecessary, beyond the scope of the draft convention, and that it might “provide contracting States with a pretext for not applying the convention as long as the measures referred to had not been taken”.17 During the discussions, a redrafting of the proposed paragraph took place which reads as follows; however, it should be noted this proposal was not adopted, receiving an equal number of votes, five for and five against: Recognizing further that progress in the elimination of slavery, the slave trade and similar institutions and practices depends not only on legislative measures adopted by States pursuant to international conventions but also, to a great extent, on concerted measures for economic, social and cultural advancement and on international co-operation towards this end.

On the basis of the amendments and modification made by the drafting Committee to the preamble of the 1954 British Draft Supplementary Convention, its unanimous adoption provided the first element of the 1956 Draft Supplementary Convention on Slavery and Servitude ready for consideration at the conference of plenipotentiaries meant to draft the Convention.

iii. 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery The States Parties to the present Convention, Considering that freedom is the birthright of every human being; Mindful that the peoples of the United Nations reaffirmed in the Charter their faith in the dignity and worth of the human person; Considering that the Universal Declaration of Human Rights, proclaimed by the General Assembly of the United Nations as a common standard of achievement for all peoples and all nations, states that no one shall be held in slavery or servitude and that slavery and the slave trade shall be prohibited in all their forms;

17

Id., p. 15.

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Recognizing that, since the conclusion of the Slavery Convention signed at Geneva on 25 September 1926 , which was designed to secure the abolition of slavery and of the slave trade, further progress has been made towards this end; Having regard to the Forced Labour Convention of 1930 and to subsequent action by the International Labour Organisation in regard to forced or compulsory labour; Being aware, however, that slavery, the slave trade and institutions and practices similar to slavery have not yet been eliminated in all parts of the world; Having decided, therefore, that the Convention of 1926, which remains operative, should now be augmented by the conclusion of a supplementary convention designed to intensify national as well as international efforts towards the abolition of slavery, the slave trade and institutions and practices similar to slavery; Have agreed as follows:

The discussions at the Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery regarding the provisions of the 1956 Draft Supplementary Convention started in a rather inauspicious manner as the first person to take the floor, the Representative of El Salvador, Mr. Amy, stated that after having considered the overall Draft Convention “he was of the opinion that the main difficulties arose from the preamble”. Mr. Amy would later elaborate on this statement. The Representative of France, Mr. Giraud, for his part, noted that the preamble had been “subject to long and difficult discussions in New York”, at the hands of the 1956 drafting Committee, and as such, while delegations should take this into account, if they were “not satisfied with the present text, [they] should put forward specific proposals”.18 The Representative of Turkey, Mr. Tuncel, said that while discussions regarding the Preamble were important, and that it was natural that reference should be made 18

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Third Meeting, 15 August 1956, UN Doc E/CONF.24/SR.3, 10 November 1958, p. 5.

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to various articles during the debate, he made plain that he thought that “no immediate decision should be taken on the preamble before the fate of each article in the draft be known”.19 The Representative of the Byelorussian Soviet Socialist Republic, Mr. Abushkevitch, echoed the Turkish intervention, saying that as “the preamble was closely connected with the articles of the convention, it [his Delegation] supported the view that a final decision on it should not be taken until certain of the articles, especially article 3, had been considered”.20 This proposal was taken up by the President, with the Conference only coming to consider the preamble, once more, towards the end of it meetings, when all the articles of the Draft Supplementary Convention had in fact been adopted after first reading. The first of two formal proposals to amend the preamble considered by the Conference a fortnight later, at the twentieth meeting of the Conference on 30 August 1956, was put forward by El Salvador. Having opened the Conference by saying that the main difficulty of the Draft Supplementary Convention lay with the preamble, the Representative of El Salvador, Mr. Amy, went on to explain during the third meeting, that while the Draft “seemed to have sufficient legal justification through its references to the United Nations Charter and the Universal Declaration of Human Rights, [it] was lacking in moral justification”.21 He pointed to the second paragraph of the Draft Supplementary Convention which read in part ‘the peoples of the United Nations in the Charter reaffirmed their faith in the dignity and worth of the human person’, and stated that this raised the “whole problem of freedom” which Mr. Amy said should be referred to in the preamble and should “dominate the Conference’s discussions”. He then put forward three “main assumptions” which led him to call for the amending of the preamble: First, freedom was based in law on the independence of the age in the being;

19

20 21

Id. With regard to the substance of the preamble, Mr. Tuncel believed that it “did not express forcefully enough the pledges given by the governments who had signed the United Nations Charter, under which among other things the States undertook to consult each other and to take international action”. Id., p. 10. Id., p. 2.

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Secondly, freedom was the prerogative of every rational being and any attack on the freedom of others was a crime against the human person and human nature. Kant had formulated the law that every human being should be regarded as an end in himself and not as a means; Thirdly, it seemed inadmissible for a human being to renounce his freedom voluntarily without losing his state as a thinking man, unless he had lost his reason.

For these reasons, the Salvadorian Representative proposed the addition of a paragraph to the preamble which read: Mindful that the need for freedom is inherent in every being endowed with reason.22

That proposal was modified first by Mr. Amy’s own hand, to read: “Considering that the need for freedom is inherent in the state of a being endowed with reason”;23 then by way of a proposed amendment put forward by the Pakistani Representative, Mr. Jafri, during the twentieth meeting of the Conference. During that session, Mr. Jafri agreed that a “clause should be incorporated in the preamble giving the Convention a firmer moral basis”. Yet he believed that the proposed phrase was “rather cumbersome and complex”; and that emphasis should be placed on the element of freedom. As such, he proposed a re-drafting which would read: Considering that freedom is the birthright of every human being.24

While the Egyptian Representative, Mr. Abdel-Ghani, thanked the Salvadorian Representative for introducing this “philosophical note” into the Convention and remarked that the Committee which had drafted the Preamble of the United Nations Charter had noted in their report that, “as a general principle, preambles to conventions should be couched in inspiring language”; the Belgium Representative, Mr. Sommerhausen,

22 23

24

Id., p. 3. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, El Salvador: Amendment to the Preamble (E/2824, Annex1), UN Doc E/CONF.24/L.1(Corr.1), 16 August 1956. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Twentieth Meeting, 30 August 1956, UN Doc E/CONF.24/SR.20, 20 November 1958, p. 2.

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“said that a lyrical note would be out of place” in the present Convention. Alluding to the fact that the discussion regarding the preamble was taking place after the adoption at first reading of all articles, Mr. Sommerhausen stated such agreement had been reached as a “result of compromise” and “while the results obtained were satisfactory they still did not justify any great enthusiasm”. He continued: The Conference had adopted a text which could be described as reasonable and useful, but the preamble to the convention was not the proper context for moral and philosophical considerations which belong strictly to literature.25

After the Representative of Turkey supported the El Salvadorian proposal; Mr. Amy, the Salvadorian Representative, accepted the proposed amendment put forward by the Representative of Pakistan, which was then put to a vote. The vote on the Salvadorian amendment to the preamble, “as amended by the Pakistan delegation, was adopted by 37 votes to none, with 2 abstentions”.26 The second proposal was a joint amendment put forward by delegations of Australia, Belgium, Chile, China, Cuba, Turkey, and the United Kingdom and reads: Insert between the third and fourth paragraphs of the preamble the following paragraph; Having regard to the Forced Labour Convention of 1930 and subsequent action by the International Labour Organisation in regard to forced or compulsory labour.27

The joint amendment was introduced in the following manner: Miss Gutteridge (United Kingdom), introducing the joint amendment, explained that its purpose was a simple one. Article 5 of the 1926 Convention had dealt with forced labour. There was reference to the 1926 Convention in the preamble of the draft supplementary convention. It had been agreed

25 26 27

Id., p. 3. Id., p. 4. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Amendment to the preamble of the Draft Supplementary Convention, UN Doc E/CONF.24/L.23, 23 August 1956.

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in the United Nations that forced labour should be treated separately from slavery, and the International Labour Organisation had been asked to accept the chief responsibility for devising practical steps in the campaign against it. As the present draft convention was an attempt to fill the gaps left by the 1926 Convention, nothing should be left unaccounted for. The joint amendment (E/CONF.24/L.23) was adopted by 35 votes to none, with 4 abstentions.28

Having considered and adopted the two amendments put forward by delegates at the twentieth meeting, the President of the Conference moved to a vote with the preamble being adopted at first reading by twenty-seven votes to none, with one abstention. Thus, at first reading, the preamble reads: The States Parties to the present Convention, Considering that freedom is the birthright of every human being; Mindful that the peoples of the United Nations reaffirmed in the Charter their faith in the dignity and worth of the human person; Considering that the Universal Declaration of Human Rights, proclaimed by the General Assembly of the United Nations as a common standard of achievement for all peoples and all nations, states that no one shall be held in slavery or servitude and that slavery and the slave trade shall be prohibited in all their forms; Recognizing that, since the conclusion of the Slavery Convention signed at Geneva on 25 September 1926, which was designed to secure the abolition of slavery and of the slave trade, further progress has been made towards this end; Having regard to the Forced Labour Convention of 1930 and to subsequent action by the International Labour Organisation in regard to forced or compulsory labour; Being aware, however, that slavery, the slave trade and intuitions and practices similar to slavery have not yet been eliminated in all parts of the world; Having decided, therefore, that the Convention of 1926, which remains operative, should now be augmented by the conclusion of a supplementary

28

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Twentieth Meeting, 30 August 1956, UN Doc E/CONF.24/SR.20, 20 November 1958, p. 4.

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convention designed to intensify national as well as international efforts towards the abolition of slavery, the slave trade and institutions and practices similar to slavery: Have agreed as follows:29

The following day, on 31 August 1956, the preamble was considered at second reading. The only comment made at this time was by the Representative of Pakistan, Mr. Jafri, who recalled that towards the end of first reading, the Belgian Representative had commented on his mention of the need to define ‘servitude’ as found in the preamble. That exchange during first reading went as follows. Mr. Jafri had suggested that ‘servitude’ “in the second paragraph of the preamble had apparently been overlooked by the Drafting Committee on Definitions [see Article 7], which had omitted the definition of servitude”; and as such the definition’s clause found at Article 7 might be “revisited at the second reading”.30 This prompted Mr. Sommerhausen, the Representative of Belgium, to say that he did not “think it advisable to include in the convention a special clause serving as a glossary of all the terms appearing in the preamble”. He went on to say: The legal terms used in the articles should be clear so that they would not give rise to controversy; but the expressions used in the preamble were used in their ordinary meaning, and hence did not have to be defined. If the word ‘servitude’ was thought to require definition, he would propose that it be deleted rather than a new definition be inserted in Article [7].31

During second reading, Mr. Jafri reconsidered his earlier statement calling for a definition of ‘servitude’ in the preamble, saying that “there was no hard and fast rule for defining words which appeared only in the preamble”, but that he did “not think that a separate definition was necessary in the case at issue as the paragraph was in essence a quotation from the

29

30

31

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Text of Articles of the Supplementary Convention adopted on First Reading, UN Doc E/CONF.24/14, 30 August 1956. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Twentieth Meeting, 30 August 1956, UN Doc E/CONF.24/SR.20, 20 November 1958, p. 3. Id.

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Universal Declaration of Human Rights and the word ‘servitude’ was used in that same sense as it was in the Declaration”.32 With this the only comment made at second reading with regard to the preamble, its provisions were put to a vote. Unaltered from the provisions accepted at first reading, the preamble was adopted at second reading by a vote of forty-one to none with one abstention, with no further changes taking place after further considerations by the Style Committee.33

iv. Commentary on the Preamble of the 1956 Supplementary Convention The drafting history of the preamble of the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery is taken up in large part with amending the text as put forward by the United Kingdom in 1954 and adding elements, of which the most important during the work of the 1956 Draft Committee was a British proposal that it be noted in the preamble that the 1926 Slavery Convention “remains fully operative” and the 1956 Convention was meant to augment it. During the 1956 Conference, discussion of the preamble was deferred until all the articles of the draft Convention had been considered at first reading. When consideration of the preamble did take place at the twentieth meeting, the Representative of El Salvador, Mr. Amy, noted that the Convention being considered “seemed to have sufficient legal justification” but “was lacking in moral justification”.34 While other delegations thought it right that a “philosophical note” be introduced into the text and that “as a general principle, preambles to conventions should be couched in inspiring language”, the Belgium Representative, Mr. Sommerhausen, was of another view, as he considered that the “Conference had adopted a text which could be described as reasonable and useful, but the preamble to

32

33 34

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Twentieth Meeting, 31 August 1956, UN Doc E/CONF.24/SR.21, 20 November 1958, p. 2. Id. Id.

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the convention was not the proper context for moral and philosophical considerations which belong strictly to literature”.35 Despite this, a provision in the preamble was included which reads “Considering that freedom is the birthright of every human being”.

35

Id., p. 3.

Article 1 (Servitudes) Each of the States Parties to this Convention shall take all practicable and necessary legislative and other measures to bring about progressively and as soon as possible the complete abolition or abandonment of the following institutions and practices, where they still exist and whether or not they are covered by the definition of slavery contained in article 1 of the Slavery Convention signed at Geneva on 25 September 1926: (a) Debt bondage, that is to say, the status or condition arising from a pledge by a debtor of his personal services or of those of a person under his control as security for a debt, if the value of those services as reasonably assessed is not applied towards the liquidation of the debt or the length and nature of those services are not respectively limited and defined; (b) Serfdom, that is to say, the condition or status of a tenant who is by law, custom or agreement bound to live and labour on land belonging to another person and to render some determinate service to such other person, whether for reward or not, and is not free to change his status; (c) Any institution or practice whereby: (i) A woman, without the right to refuse, is promised or given in marriage on payment of a consideration in money or in kind to her parents, guardian, family or any other person or group; or (ii) The husband of a woman, his family, or his clan, has the right to transfer her to another person for value received or otherwise; or (iii) A woman on the death of her husband is liable to be inherited by another person; (d) Any institution or practice whereby a child or young person under the age of 18 years is delivered by either or both of his natural parents or by his guardian to another person, whether for reward or not, with a view to the exploitation of the child or young person or of his labour.

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Introductory Paragraph i. 1954 British Draft Convention ARTICLE 1 All practicable and necessary measures, including legislation where appropriate, shall be taken to bring about, progressively and as soon as possible, the complete abolition or abandonment of the following institutions and practices, where they still exist:1

In 1954, in the context of a call by the United Nations Economic and Social Council for the UN Secretary-General to undertake consultations with Member States as to the desirability of drafting a supplementary convention dealing with slavery, the United Kingdom put forward a draft convention.2 The 1954 British Draft Convention was based on recommendations which had emerged from the 1950–51 Ad Hoc Committee on Slavery of the Economic and Social Council.3 Where the introductory paragraph of what would become Article 1 of the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery was concerned, its drafting history has its genesis in the following recommendation of the 1950–51 Ad Hoc Committee on Slavery:

1

2 3

Economic and Social Council, Slavery: Consultations Concerning the Desirability of a Supplementary Convention on Slavery and its Possible Contents, UN Doc. E/2540/ Add.4, 12 April 1954, p. 2. See id. Economic and Social Council, Report of the Ad Hoc Committee on Slavery (Second Session), UN Doc. E/1988, E/AC.33/13, 4 May 1951, p. 20, para. 2.

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Each contracting State should undertake not only to abolish the legal status of slavery, as defined in Article 1 of the International Slavery Convention of 1926, but also should undertake to abolish, at the earliest possible date, the following institutions and practices analogous to slavery or resembling slavery in some of their effects, in so far as they are not already covered by Article 1 of the International Slavery Convention of 1926.4

The 1950–51 Ad Hoc Committee on Slavery then went on to consider the various institutions and practices analogous to slavery, which will be considered in turn shortly. Here what is of interest is that the Committee considerated the definition of slavery and felt the need to propose the establishment of a supplementary convention meant to deal with various servitudes. While the definitions of slavery and servile status are considered in depth in Article 7 of these Travaux Préparatoires, the Ad Hoc Committee justified it move to consider various servitudes beyond slavery because of “the fact that the nature of the institution, the condition which surrounded it and the public attitudes towards it, are undergoing constant change”. While the Committee considered that there was not sufficient reason to discard either the definition of slavery or the slave trade as found in the 1926 Slavery Convention, it believed that: it was questionable whether these definitions embraced all the types of servile status the abolition of which, in its opinion, should be promoted by the United Nations. It took note of information received from many sources which indicated that other forms of servitude, in addition to slavery and the slave trade, existed to a considerable extent in many portions of the world. When it attempted to define these forms of servitude, it discovered that a great deal of confusion had arisen because different names were applied to these practices in different regions of the world, and even in different countries. It therefore discarded the existing nomenclature for the time being, and instead attempted to describe these forms of servitude by reference to their particular characteristics.5

The 1950–51 Ad Hoc Committee on Slavery went on to say: Some members of the Committee expressed the opinion that the three forms of servitude described above [re: debt bondage, forced marriage and child exploitation] fall within the definition of slavery contained in Article 1 of the International Slavery Convention of 1926. Others pointed out that these forms of servile status could not have been present in the minds of all the

4 5

Id., p. 19. Id., p. 8.

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governments that signed the Slavery Convention of 1926, and that therefore it would be more reasonable, both on legal and practical grounds, to consider these forms of servitude as involving a ‘status analogous to slavery’.6

The United Nations’ Secretary-General, in his Memorandum meant to assist the 1956 Ad Hoc Committee of the Economic and Social Council tasked with drafting a text of the supplementary convention, noted with regard to the introductory paragraph of Article 1 of the 1954 British Draft Supplementary Convention, that while the non-governmental Liaison Committee of the Women’s International Organization expressed its wish “that the words ‘practicable’, ‘where appropriate’, and ‘progressively’ ” be deleted from the introductory paragraph; the Anti-Slavery Society was in favour of maintaining the words “progressively and as soon as possible”. The Anti-Slavery Society justified its stance, saying that in one region of the world where chattel slavery still existed, the rulers were “sympathetic to the abolition of the legal status of slavery but that they are in advance of public opinion”.7 By way of an Addendum to his Memorandum, which was tabled on 4 January 1956, the Secretary-General noted that the International Abolitionist Federation was of the view that the words ‘practicable’ and ‘progressively and’ should be deleted as they “unduly weaken the force of the article”. The International Abolitionist Federation, the Secretary-General wrote, “considered that the phrase “as soon as possible” makes it sufficiently clear that there is no question of imposing obligations on Contracting States which they would be unable to discharge”.8 Beyond these comments regarding words of the introductory paragraph, the Anti-Slavery Society suggested that the following be added to the end of that paragraph:

6 7

8

Id., p. 13. Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude Submitted by the Government of the United Kingdom and Comments Thereon (Memorandum by the Secretary-General), UN Doc. E/AC.43/L.1, 2 December 1955, p. 21. Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude Submitted by the Government of the United Kingdom and Comments Thereon (Memorandum by the Secretary-General) Addendum, UN Doc. E/AC.43/L.1/Add.1, 4 January 1956, p. 1.

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and whether or not they are embraced by the definitions of slavery and slave trade contained in the Slavery Convention of 1926.9

This was being put forward, as the Secretary-General explained, as the “possibility of differing opinions as to the precise scope of these definitions would thus be recognized”.10

ii. 1956 Draft Supplementary Convention on Slavery and Servitude ARTICLE 1 Each of the States Parties to this Convention shall take all practicable and necessary legislative and other measures to bring about progressively and as soon as possible the complete abolition or abandonment of the following institutions and practices, where they still exist and whether or not they are covered by the definition of slavery contained in article 1 of the Slavery Convention signed at Geneva on 25 September 1926:

Before considering the manner in which the Committee on the Drafting of a Supplementary Convention on Slavery and Servitude approached the introductory paragraph of Article 1 of the 1956 Draft Convention, mention should be made of the distinction made between ‘institutions’ and ‘practices’ noted by the Soviet Representative, Mr. Nikolaev, during discussions of the title of the draft Convention. In response to a suggestion by the British Representative, Mr. Scott-Fox, that “for the sake of brevity”, either ‘practices’ or ‘institutions’ be deleted from a paragraph of the preamble; Mr. Nikolaev said that he believed both ‘practices’ and ‘institutions’ should be retained as they appeared in Article 1 of the Draft Supplementary Convention on Slavery and Servitude, and that: “institutions and practices meant two different things in law; the former

9

10

Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude Submitted by the Government of the United Kingdom and Comments Thereon (Memorandum by the Secretary-General), UN Doc. E/AC.43/L.1, 2 December 1955, pp. 21–22. Id., p. 22.

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denoted a set of legal rules, whereas the latter denoted social customs. The deletion of either of those words would therefore restrict the scope of the convention”.11 Turing now to the actual consideration of the introductory paragraph of Article 1 by the drafting Committee, their Report on the Drafting of the Supplementary Convention noted that the Committee’s discussions “related principally to a) the nature of the measures to be taken, b) the question whether the institutions and practices dealt with in the draft convention should be abolished immediately or progressively, and c) the relationship of the institutions and practices covered by the draft convention to those dealt with in the Slavery Convention of 1926”.12 Following this format, the Report stated: a) The Nature of the Measures to be Taken The representative of France proposed deletion of the phrase “including legislation where appropriate”, which he considered to be superfluous. The representatives of the USSR and Yugoslavia, while agreeing that the words “where appropriate” might be unnecessary, considered reference to legislation to be indispensable.13 Speaking against the French amendment, the representative of the USSR stated that in his view it was directed towards worsening and weakening the draft convention. The representatives of Australia and France, on the other hand, stated that in their view elimination of the phrase would strengthen, rather than weaken the text. At the 10th meeting the words “where appropriate” and “including legislation” were put to separate votes. These words were not retained, the vote in each case being 5 in favour and 5 against. At the 11th meeting the representative of Yugoslavia proposed that the expression “all practicable and necessary measures” should be replaced by

11

12

13

Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Ninth Meeting, 23 January 1956 UN Doc. E/AC.43/SR.9, 17 February 1956, p. 4. Economic and Social Council, Slavery: Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery: Report of the Committee appointed by Resolution 564 (XIX), 7 April 1955, UN Doc. E/2824, 15 February 1956, pp. 17–18. See Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, France: Amendment to the first paragraph of the Draft Convention on the Abolition of Slavery and Servitude (E/2540/Add.4), UN Doc. E/AC.43/L.28, 23 January 1956.

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the expression “all practicable and necessary legislative and other measures”. On the suggestion of the representative of Ecuador he extended his amendment to read: “Each of the Contracting Parties shall take all practicable and necessary legislative and other measures . . .”. The amendment was adopted by the Committee at the 11th meeting by 9 votes to none, with 1 abstention.14

b) Whether the Institutions and Practices in the Draft Convention should be Abolished Immediately or Progressively The representative of the USSR proposed15 deletion of the words “progressively and” as he considered these words to weaken the scope of the article and to be contrary to the principles and purposes of the United Nations as set forth in the Charter. The representative of Egypt proposed16 deletion of the “progressively and as soon as possible” but withdrew the proposal at the 10th meeting after consultation with the representative of the USSR, in favour of USSR proposal. Several members of the Committee opposed the USSR proposal. The Representative of the United Kingdom pointed out that practice similar to slavery were deeply rooted in the traditions of many centuries in some parts of the world, and that their immediate abolition would ensure considerable disorganization. The representative of the Netherlands recalled that reasoning which had led the League of Nations to include the words “progressively and as soon as possible” in the Slavery Convention of 1926, and expressed the view that the same reason applied with even greater force to the practices similarly to slavery which would be covered by the supplementary convention. The representative of the USSR could not agree with the argument which had been adduced by the representatives of the Netherlands and the United Kingdom.

14

15

16

Economic and Social Council, Slavery: Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery: Report of the Committee appointed by Resolution 564 (XIX), 7 April 1955, UN Doc. E/2824, 15 February 1956, p. 18. See Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Union of Soviet Socialist Republics: Amendment to the preamble and article 1 of the Draft Convention on the Abolition of Slavery and Servitude (E/2540/Add.4), UN Doc. E/AC.43/L.5, 17 January 1956. See Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Egypt: Amendment to Article 1 of the Draft Convention on the Abolition of Slavery and Servitude (E/2540/Add.4), UN Doc. E/AC.43/L.10, 17 January 1956.

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The USSR amendment was not adopted when put to the vote at the 10th meeting, receiving 5 votes in favour and 5 against. At the 11th meeting, at the request of the representative of the USSR, a separate vote was taken on the words “progressively and as soon as possible” which appeared in the text of the draft convention. The Committee decided to retain the words by 5 votes in favour and 4 against, with 1 abstention.17

The explanation of the Member of the Netherlands of the reasoning behind the League of Nations inclusion of the wording ‘progressively and as soon as possible’ was on the basis of the 1925 Report of the Temporary Slavery Commission which had stated: The situation is such that sudden abolition would almost certainly result in social and economic disturbances which would be more prejudicial to the development and well-being of the peoples than the provisional continuation of the present state of affairs.18

Continuing with the drafting Committee’s Report: c) The Relationship of the Institutions and Practices covered by the Draft Convention to those dealt with in the Slavery Convention of 1926 The representative of the United Kingdom proposed19 to insert at the end of the introductory paragraph the phrase, “and whether or not they are covered by the definition of slavery contained in Article 1 of the Slavery Convention of 25 September 1926”. He explained that the proposal was in line with the suggestion of The Anti-Slavery Society.20

17

18

19

20

Economic and Social Council, Slavery: Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery: Report of the Committee appointed by Resolution 564 (XIX), 7 April 1955, UN Doc. E/2824, 15 February 1956, pp. 18–19. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Tenth Meeting, 23 January 1956 UN Doc. E/AC.43/SR.10, 17 February 1956, p. 5. See League of Nations, Temporary Slavery Commission, Report of the Temporary Slavery Commission adopted in the Course of its Second Session, July 13th–25th July, 1925, LofN Doc. A.19.1925. VI, 25 July 1925, p. 11. See Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, United Kingdom: Amendment to Article 1 of the Draft Convention on the Abolition of Slavery and Servitude (E/2540/Add.4), UN Doc. E/AC.43/L.2, 16 January 1956. See Economic and Social Council, Committee on the Drafting of a Supplementary

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The representative of India and Australia agreed that the amendment was necessary and that it would help to clarify the text. The Committee unanimously adopted the amendment at the 11th meeting.21

With regard to this proposal, the French Member, Mr. Giraud, stated that the provision “would perhaps not be necessary if the articles of the draft convention were rearranged”, so that if the draft Articles 2, 3 and 4 that all dealt with practices analogous to slavery were placed before Article 1, that “would make it clear that the existing article 1 concerned practices which were not covered by the 1926 Convention, and so remove the need for the proviso suggested by the United Kingdom”.22 The Summary Records do not indicate any response to the French proposal. With no further consideration of the introductory paragraph of Article 1 by the 1956 drafting Committee; at its “the 11th meeting the Committee adopted the introductory paragraph, as amended, by nine votes in favour and one against; which reads as follows: Each of the Contracting Parties to the present Convention shall take all practicable and necessary legislative and other measures to bring about progressively and as soon as possible the complete abolition or abandonment of the following institutions and practices, where they still exist and whether or not they are covered by the definition of slavery contained in Article 1 of the Slavery Convention of 25 September 1926. The representative of the USSR explained that he had been unable to vote for the paragraph because his proposal for deletion of the word ‘progressively’

21

22

Convention on Slavery and Servitude, United Kingdom: Amendment to Article 1 of the Draft Convention on the Abolition of Slavery and Servitude (E/2540/Add.4), UN Doc. E/AC.43/L.10, 17 January 1956. See the proposal of The Anti-Slavery Society at Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude Submitted by the Government of the United Kingdom and Comments Thereon (Memorandum by the Secretary-General), UN Doc. E/AC.43/L.1, 2 December 1955, pp. 21–22. Economic and Social Council, Slavery: Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery: Report of the Committee appointed by Resolution 564 (XIX), 7 April 1955, UN Doc. E/2824, 15 February 1956, p. 20. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Third Meeting, 17 January 1956, UN Doc. E/AC.43/SR.3, 9 February 1956, p. 7.

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had not been adopted; he considered that slavery should not be abolished progressively but as quickly as possible.23

iii. 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery ARTICLE 1 Each of the States Parties to this Convention shall take all practicable and necessary legislative and other measures to bring about progressively and as soon as possible the complete abolition or abandonment of the following institutions and practices, where they still exist and whether or not they are covered by the definition of slavery contained in article 1 of the Slavery Convention signed at Geneva on 25 September 1926:24

Mr. Lopez, the Representative of the Philippines, took the floor during the 1956 Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, to say that he “reserved the right to request a separate vote on the words ‘progressively and’ in the third line of the introduction to article 1 at the time of the final vote on that article”.25 The Representative from the Ukrainian Soviet Socialist Republic, Mr.

23

24

25

Economic and Social Council, Slavery: Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery: Report of the Committee appointed by Resolution 564 (XIX), 7 April 1955, UN Doc. E/2824, 15 February 1956, p. 20. United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Final Act and Supplementary Convention, 4 September 1956, UN Doc. E/CONF.24/23. United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Fourth Meeting, 15 August 1956, UN Doc. E/CONF.24/SR.4, 11 November 1958, p. 2.

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Mikhailenko, stated that although he supported Article 1, “he felt that is should clearly state that the practices it covered should be abolished in the shortest possible time, and he would second any amendment to that effect”.26 The Representative of Czechoslovakia, Mr. Pavlik, for his part, noted that: the phrase ‘practicable and necessary measures . . . to bring about, progressively and as soon as possible, the complete abolition’, at the beginning of the first paragraph, also appeared in article 2 of the 1926 Convention. But the wording of that Convention had apparently not been very felicitous since, after thirty years, slavery still existed in certain countries. He therefore approved the Ukrainian representative’s suggestion that the word ‘progressively’ be deleted, the better to ensure the application of the measures concerned.27

The Australian Representative, Mr. Jockel, stated that in isolated areas in the “Territories of Papua and New Guinea, for which the Australian Government was responsible, a system of bride price existed although in most native communities a women had the right to refuse marriage”. The Administration of the Territories concerned was examining the problem, but the Australian Government, did not, for the time being, contemplate enacting any special legislation, as it considered that a rapid change brought about by such legislation would affect customary marriage arrangements, the stability of marriage and family organization. He would therefore prefer to see the present text of article 1 retained.28

The Representative of the Philippines called for a separate vote to be taken on “the phrase ‘progressively and’ [. . .] as in his opinion the word ‘progressively’ implied that any government which wished to take action to abolish slavery immediately would be barred from doing so”.29 He noted the example given by the Australian Representative, saying that “the phrase ‘as soon as possible’ would cover any notion which the Australian Government might consider it prudent to take, whether such action was taken one year or five years hence. He emphasized that contracting parties to the convention should not be asked to do the impossible”.30 The Australian Representative, Mr. Jockel, later stated that Mr. Lopez,

26 27 28 29 30

Id. Id., p. 3. Id. Id., p. 4. Id.

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the Representative of the Philippines, “seemed to have attributed to him more strength of feeling than in fact he actually had, on the subject of the words ‘progressively and’. His main point was that they should be discussed at the present stage of the proceeding”.31 The French Representative, Mr. Giraud, “said that the limited results obtained from the 1926 Convention were due to its failure to win the acceptance of certain States whose co-operation would have been specially advantageous. Over-rigid terms should therefore be avoided in the new Convention, in order to obtain the largest possible number of acceptances. It was for that reason that the words ‘progressively and as soon as possible’ had been included in article 1 and that they should continue to appear there”.32 Mr. Kahany, the Representative of Israel: felt that the word ‘progressively’ implied a start in applying the measures referred to in article 1 and that the words ‘as soon as possible’ indicated a possible time limit for applying them. True, the 1926 Convention which called in the same terms as article 1 of the present convention for the adoption of measures to abolish slavery had not yielded very satisfactory results, but that was due, as pointed out by the French representative, to the fact that several countries where slavery was a legal institution had not acceded to it. However, some of them had become Members of the United Nations and had thereby undertaken to respect the principles set forth in the Charter. It was essential, therefore, to frame the present convention in such a way as to make it possible for them in practice to accede to and observe it. The words ‘progressively and as soon as possible’ seemed to him to be well chosen for that purpose.33

The Representative from the United Kingdom, Mr. Scott-Fox, referring to the statements of previous speakers with regard to the word ‘progressively’, stated that: he could not agree that there was any contradiction between it and the phrase ‘as soon as possible’. The situation faced by a government in trying to eradicate the practices mentioned in the draft supplementary convention would require it to move step by step, as it would be dealing with long-established customs which could not be abolished overnight. He drew attention, in that connexion, to the communication submitted by the Anti-Slavery Society of the United Kingdom to the Drafting Committee (E/AC.43/L.1). The

31 32 33

Id., p. 11. Id., pp. 3–4. Id., p. 4.

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Society’s zeal for abolishing slavery in all its forms was well-known, and it had informed the Drafting Committee that, in its opinion the words ‘progressively’ and ‘as soon as possible’ should be retained as they had been used in the 1926 Slavery Convention. In support of its opinion the Society had quoted a passage from an article entitled ‘Slavery in all its forms’ by Lord Lugard, member of the League of Nations Temporary Slavery Commission, which had been published in January 1933. In that article Lord Lugard had emphasized that in countries where from time immemorial slavery had existed as an integral part of the structure of society it was obvious that a decree of compulsory emancipation would result in social chaos. He had further stated that masters who had acquired their slaves under the preexisting secular law and religious sanction could not without injustice be suddenly deprived of their legal property and be reduced to poverty. Slaves unaccustomed to fend for themselves would starve or turn to theft and the women to prostitution. The aged and sick would perish. The United Kingdom delegation could therefore not support any move to delete the word ‘progressively’ and would vote for its retention if the Philippines representative maintained his suggestion that it be voted on separately.34

Miss Lunsingh-Meijer, the Representative of the Netherlands, felt that the phrase ‘progressively and’ should remain, “since any sudden abolition of the practices referred to, which had both historical and a sociological background, might disrupt the social and economic life of the country concerned”.35 The Representative of Turkey, Mr. Tuncel, thought the word ‘progressively’ should be put to a vote. “In his view, there was some confusion in the interpretations given by the previous speakers. Article 1 did not deal with slavery proper, and could therefore not be compared with the text of the covenant on human rights, which in fact aimed at its complete abolition. The measures recommended in article 1 applied to national institutions and practices which should be abolished, although without upsetting the social structure of the countries concerned. That question had already been repeatedly examined by various United Nations bodies, and most countries had supported the principle that abolition should be achieved progressively. Furthermore, the purpose of the present Convention was to obtain practical results, which meant that it should be so framed as

34 35

Id., pp. 5–6. Id., p. 6.

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to be acceptable to States which had not acceded to the 1926 Convention. In his submission the word ‘progressively’ could be interpreted in many ways, and he would therefore prefer the passage be reworded to read ‘to bring about the complete abolition’ ”.36 The Representative of Canada, Mr. Jay, noting that his Government had not been part of the Committee which had drafted the text under consideration, “presumed that the phrase ‘take all practicable and necessary legislative measures’ meant that the government of a country where no such practices existed would not have to enact any new legislation”.37 He also noted that the introductory paragraph would be clearer “if the word ‘progressively’ was replaced by the phrase ‘with the least hardship to the person concerned’ ”.38 The Representative of China, Mr. Cheng Paonan, said that if it was put to a vote, he would vote against including the phrase ‘progressively and’ in the article. He explained that in “the first place, the scope of the necessary legislative action was already sufficiently limited by the use of the word ‘practicable’. In the second place, ‘progressively’ had also been used in the 1926 Convention. If slavery had not been abolished in the thirty years since that Convention had been drafted it was time that concern for the masters of slave labourers were shifted to the slaves themselves”.39 Mr. Scott-Fox, the Representative from the United Kingdom, considered the question of whether ‘progressively and’ should be retained or deleted an important one.40 He pointed out that: article 1 did not refer to slavery as such and hence it did not refer to the categories covered by the 1926 Convention. Consequently, it was illogical to argue that because it had been used in the 1926 Convention it should not be used in the supplementary convention. The institutions and practices referred to in article 1 of the supplementary draft were a more venial form of abuse. They were often rooted in social circumstances and customs and hence it was particularly difficult to get rid of them all at once. Furthermore, the words ‘progressively and’ were used only in article 1, and not in article 3, which related to the slave trade. The substances of article 3 had been only partly covered by the 1926 Convention, and the supplementary convention was intended to remedy that defect.41

36 37 38 39 40 41

Id., Id., Id., Id., Id., Id.,

pp. 6–7. p. 7. p. 7. p. 7. p. 9. p. 8.

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Mr. Giraud, the Representative of France, noted that there had been long discussions by the drafting Committee in regard to the phrase ‘progressively and as soon as possible’; and that it should be considered in a positive light. The word ‘progressively’ “had not been chosen with a view to leaving States more latitude, but, on the contrary, in order to oblige them to make a start with the application of article 1 without delay”.42 The Representative of China, Mr. Cheng Paonan, “pointed out that under article 1 the practices referred to therein were to be abolished progressively whether or not they were covered by the definition of slavery in article 1 of the 1926 Convention”.43 The Representative of the United Kingdom, Mr. Scott-Fox, “said that the reference to article 1 of the 1926 Convention was not in any way intended to imply that the supplementary convention should deal with matters covered by the 1926 Convention”.44 The Representative of the Philippines, Mr. Lopez, taking issue with the position taken by Western States, noting: that while he appreciated the humanitarian motives which had prompted the delegations of the United Kingdom, Australia, Netherlands and France to insist on the retention of the word ‘progressively’, he must point out that, as those who know the relationship of ruler and ruled from the other side were aware, the argument that reforms should be introduced slowly and gradually had sometimes been used in the past to retard progress, perhaps even against the will of the administrating authorities concerned. Slowness to act in destroying backward tribal practices had in fact prolonged those practices and maintained the rule of ignorance and superstition. Insistence on the need for progressive action must not operate against the interests of the backward peoples themselves. An administering authority might conceivably base its refusal to put an end to such institutions as serfdom on the grounds that it must act progressively. Furthermore, it was difficult to see the precise meaning of ‘progressively’, as applied to particular practice. For example, he wondered whether the progressive abolition of debt bondage would mean that the law should apply first to only half the population, then to two thirds or it, and so on. Or perhaps it meant that the indebtedness itself should first be reduced by only half. If a Government abolished debt bondage by law the effort to suppress the practice should begin on the date on which the law came into effect, not later. Similar consideration might be applied to the use of ‘progressively’, in connexion with the institutions of serfdom and bride price.

42 43 44

Id., p. 9. Id. Id.

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The exercise of due prudence by every State party to the convention was, furthermore, fully guaranteed by the use of the words ‘practicable and necessary’. All imprecise qualifications should be eliminated.45

The Australian Representative, Mr. Jockel, said that ‘progressively’ “might mean area by area, or community by community: it was an appropriate word, and he would vote for its retention. In his opinion, the deletion of ‘as soon as possible’ would be even more serious than the deletion of ‘progressively and’ ”.46 The Representative of France, Mr. Giraud, sought to explain that a measure could be progressively implemented in two ways. “The first, as the Australian representative had pointed out, could be to introduce the measures first of all in certain areas and then in others. Alternatively, it would be possible to begin by adopting certain measures in a chosen area and subsequently adopting others in the same area. Thus, the government of a country could the first year abolish debt bondage and a few years later abolish serfdom.”47 Mr. Giraud continued, noting that with regard to the Covenants, it “was of course legitimate to hope that they would be brought into force one day, but it must be recognized that for the time being they were in abeyance. A convention prescribing radical measures would be merely so much literature. It would be unlikely to receive wide acceptance and would have no practical significance. It would be preferable to keep to measures which would be acceptable to the largest possible number of States, and, more particularly, to those which had not acceded to the 1926 Convention”.48 The Representative of Poland, Mr. Jurkiewicz, “pointed out that article 1 contained three expressions implying delay”. These were ‘practicable and necessary’, ‘progressively’, and ‘as soon as possible’. “Since the aim of the convention”, Mr. Jurkiewicz noted, “was to abolish, not preserve, practices similar to slavery, only one such expression should be retained, for otherwise the negative aspect would be over-emphasized. If the word ‘progressively’ was vote on separately, he would vote for its deletion”.49 The Egyptian Representative, Mr. Abdel-Ghani, thought that the phrase ‘progressively and as soon as possible’ should be deleted, “since the necessary

45 46 47 48 49

Id., Id., Id. Id., Id.,

pp. 9–10. p. 11. p. 12. p. 10.

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limitations on legislative action were already expressed by the use of the words ‘practicable and necessary’.50 Mrs. Challoner of the St. Joan’s International Social and Political Alliance, having been invited by the President to take the floor, said that her organization was in favour of: the deletion from the draft convention of all expressions which might give cause for evasion and delay. For example, in article 1, the expression ‘practicable and’ and ‘progressively and’ should be deleted, because the words ‘as soon as possible’ constituted a sufficient safeguard against rash or precipitate action. In such matters, the views of her organization were somewhat different from those of the Anti-Slavery Society. Times had changed, and it was necessary to take action more promptly. The great weight of inertia itself tended to delay reforms, and any excuse to leave things as they were was seized upon in the name of ‘stability’, especially perhaps where customs affecting women were concerned. The full weight of the Conference should be asserted on the side of action, and of legislation to which appeal could be made. While it was idle to expect the early cessation in backward areas of such customs as child marriage and other primitive practices affecting women, it was gratifying to know that in may cases, for instance in East Nigeria and the Sudanese Republic, they were being tackled by the peoples themselves, and for those peoples the support of such a convention as the one under discussion, if strengthened in the way the organization suggested, would prove invaluable.”51

Mrs. Prince of the Liaison Committee of Women’s International Organizations, states that, for its part, the Organization “approved and warmly supported” the recommendations made by St. Joan’s International Social and Political Alliance.52 At the fifth meeting, the President of the Conference noted that the Philippine Representative had asked for a separate vote on the words ‘progressively and’. However, the Egyptian Representative, Mr. AbdelGhani, moved to amend the proposal by asking that the phrase ‘progressively and as soon as possible’ be deleted. This was put to a vote, whereby the Egyptian amendment was rejected by fifteen votes to eleven with thirteen abstentions. The President then put to a vote the Philippine proposal, which garnered fourteen votes for, fourteen votes against, and nine abstentions. The Summary Record notes that in “accordance with 50 51 52

Id. Id., pp. 12–13. Id., p. 13.

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rule 31 of the rules of procedure of the Conference” and in opposition to the rule used by the 1956 drafting Committee, “it was decided to take a second vote the following meeting”.53 The Chinese Representative Mr. Tsao, explained that his delegation first had misgivings about the phrase ‘progressively and’, “but they had been allayed by the statements made at the previous meeting by the United Kingdom representative and the representative of the Anti-Slavery Society”.54 At the sixth meeting the President asked the delegations to once again vote on the Philippine request to consider the words ‘progressively and’. The vote, this time, was in favour of retaining the words, the vote being eighteen votes to eleven with seven abstentions.55 One final item should be mentioned, though it did not come to a vote. Earlier, during the discussion of the introductory paragraph of Article 1, the Egyptian Representative, Mr. Abdel-Ghani, stated that he was of the opinion that article 1 conflicted with the article 8 of the draft covenant on political and civil rights and suggested that this conflict should be remedied.56 Mr. Abdel-Ghani pointed out: that the practices covered by the Convention were condemned by the Universal Declaration on Human Rights, article 4 of which required the prohibition of slavery and the slave trade in all their forms. Since, however the Declaration was not binding, but represented a standard to be applied by all States, he would refer to the draft covenants on human rights. The main difference between the two draft covenants – the draft covenant on political and civil rights and the draft covenant on economic, social, and cultural rights – was that the former was to come into force immediately with the aims of the latter were to be achieved gradually. The article of the covenant relating to slavery had been placed in the covenant on political

53

54 55

56

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Fifth Meeting, 16 August 1956, UN Doc. E/CONF.24/SR.5, 11 November 1958, p. 2. Id. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Fifth Meeting, 16 August 1956, UN Doc. E/CONF.24/SR.6, 11 November 1958, p. 2. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Fourth Meeting, 15 August 1956, UN Doc. E/CONF.24/SR.4, 11 November 1958, p. 4.

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and civil rights, and the supplementary draft convention should convey the same need for urgency. The covenants on human rights were of course still in the drafting stage, but so was the supplementary convention on slavery. Consequently, they were all on the same basis, and as far as slavery was concerned it would be better to adopt the treatment advocated in the covenants.57

Mr. Giraud, the Representative of France, disagreed with the position put forward by the Egyptian Representative saying that: Conference had not been called in order to define an ideal or recommend general objectives; that had been done with the Universal Declaration of Human Rights. Its purpose was to conclude a convention and do everything possible for its acceptance by a large number of States and after that for its effective application. The covenants on human rights, which the Egyptian representative had mentioned as a model, were still merely drafts, on which there was apparently no intention of taking further action. The Conference desired a better fate for the convention which it was preparing, and for that reason it should eschew rigid formulae which would preclude the accession of many States.58

Paragraph (a) i. 1954 British Draft Convention ARTICLE 1 [. . .] (a) debt bondage, i.e., the status or condition arising from a pledge by a debtor of his personal services or those of a third person under his control as a security for a debt where the value of those services rendered is not applied towards the liquidation of the debt and the person pledged has to serve the creditor until the debt is repaid.59

57 58 59

Id., pp. 10–11. Id., p. 9. Economic and Social Council, Slavery: Consultations Concerning the Desirability of a Supplementary Convention on Slavery and its Possible Contents, UN Doc. E/2540/ Add.4, 12 April 1954, p. 2.

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The United Nations Economic and Social Council, in 1954, requested the Secretary-General to undertake consultations with Member States as to the desirability of drafting a supplementary convention to the 1926 Slavery Convention.60 The United Kingdom, for its part, put forward a draft convention based on recommendations of the 1950–51 Ad Hoc Committee on Slavery.61 Where the provisions on debt bondage are concerned, the 1950–51 Ad Hoc Committee on Slavery had recommended the abolition of a number of “institutions and practices analogous to slavery or resembling slavery in some of their effects”, the first of which was: the practice of debt bondage, which is the status or condition arising from a pledge by a debt of his personal services, or those of a third person under his control, where those services do not count towards payment of the debt, or are undefined as regards the nature and length of the services to be performed, or force the person pledged to submit to conditions that do not allow such person to exercise the rights normally enjoyed by ordinary individuals within the framework of local custom.62

In recommending that debt bondage be abolished, the 1950–51 Ad Hoc Committee on Slavery had stated that: It decided that this term should properly be defined, as slavery had been defined by the League of Nations, in terms of a status or condition in which an individual found himself. On the basis of the information which was available to it, the Committee agreed that the status or condition in question might arise in one of two ways: either an individual, owing a debt to another individual, pledges his personal services in payment of the debt; or he pledges the services of a third person under his control. However, the Committee did not feel that the resulting status or condition alone constituted a form of servitude; it agreed that there must also be present a general denial or disregard of the principle that an individual should be treated as a person rather than as a thing, and considered as an end in himself and not only as a means to the purpose of someone else. It therefore agreed that the presence of one or more of the following conditions was necessary to bring debt bondage within the Committee’s concept of servitude;

60 61

62

See id. Economic and Social Council, Report of the Ad Hoc Committee on Slavery (Second Session), UN Doc. E/1988, E/AC.33/13, 4 May 1951, p. 20, para. 2. Id., p. 19.

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(a) if the service rendered by the bondsman or the pawn do not count toward the payment of the debt; (b) if the nature and length of the services to be performed by the bondsman or the pawn are not defined; or (c) if the bondsman or the pawn submits to conditions that do not allow the person pledged to exercise the rights enjoyed by ordinary individuals with the framework of local social customs. The Committee took note of the opinion expressed by the Committee of Experts on Slavery of the League of Nations in 1932 (C/189(1) M.145) that ‘it is possible that there is more human misery as a result of debt slavery than there is anywhere as the result of domestic slavery’. Members endorsed this opinion as being equally true at the present time.63

The United Kingdom in presenting its 1954 Draft Convention simply noted that it thought that provisions regarding debt bondage should be a subject for a supplementary convention.64 The sole comment regarding paragraph (a) of Article 1 of the 1954 British Draft Convention was provided by the International Abolitionist Federation which suggested that the “words ‘or in repayment of ’ be inserted after ‘security for’ and that the passage ‘where the value of those services rendered is not applied towards the liquidation of the debt and the person pledged has to serve the creditor until debt is repaid” be deleted as it “would have the effect of compelling a debtor not merely to provide security for his debt, but also to apply the value of services rendered to the repayment of the debt”. This was put forward, the International Abolitionist Federation added, as “the retention of the passage would permit such debt bondage to evade the prohibition”.65

63 64

65

Id., pp. 8–9. Economic and Social Council, Slavery: Consultations concerning the Desirability of a Supplementary Convention on Slavery and its Possible Contents, UN Doc. E/2540/ Add.1, 3 March 1954, p. 2. Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude Submitted by the Government of the United Kingdom and Comments Thereon (Memorandum by the Secretary-General) Addendum, UN Doc. E/AC.43/ L.1/Add.1, 4 January 1956, pp. 1–2.

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ii. 1956 Draft Supplementary Convention on Slavery and Servitude ARTICLE 1 [. . .] (a) Debt bondage, i.e. the status or condition, arising from a pledge by a debtor of his personal services or those of a third person under his control as a security for a debt, where the value reasonably assessed of those services rendered is not applied towards the liquidation of the debt or the length and nature of those services are not respectively limited and defined;

The Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, in considering paragraph (a) of Article 1 of the British Draft Supplementary Convention relating to debt bondage, reported that: The representative of the United Kingdom proposed to delete from the words “where the value” to the end of the paragraph and substitute the following: Where the value of those services rendered is not applied towards the liquidation of the debt or the length and nature of those services are not respectively limited and defined.66 In submitting the amendment he explained that it had been prompted by suggestions made in the report of the Ad Hoc Committee on Slavery (E/1988, paragraph 14). At the 11th meeting the representative of Yugoslavia suggested that the words “reasonably assessed” should be added after the word “value” in the amendment; he felt that the debtor was in no strong position to negotiate with the creditor and that the State therefore had the right and the duty to intervene in order to determine whether the value was reasonable. The representative of the United Kingdom accepted the suggestion and revised his amendment accordingly.67

66

67

See Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, United Kingdom: Amendment to Article 1 of the Draft Convention on the Abolition of Slavery and Servitude (E/2540/Add.4), UN Doc. E/AC.43/L.2, 16 January 1956. See Economic and Social Council, Slavery: Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery:

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The Member of Yugoslavia, Mr. Bozovic had originally thought that: it was necessary to qualify the value of services which might be applied towards the liquidation of debt by some word such as ‘adequate’. The State parties to the convention would then be under an obligation to see that the amount so applied represented adequate payment for the services rendered.68

He then asked for the opinion of the Representative of the International Labour Organisation. Before the International Labour Organisation Representative was given the floor, the Chairman, Mr. Cutts, the Member from Australia, noted that “the question of adequacy of payment for services rendered was governed by the domestic law of the country concerned. If the Committee were to embark on a discussion of that question, it would extend its task to cover matters outside the scope of the proposed convention”.69 The Representative of the International Labour Organisation, Mr. Metall, in response to the question by Mr. Bozovic, noted that except for seafarers, the International Labour Organisation had not attempted to fix internationally a level of minimum wages”.70 The Chairman of the 1956 drafting Committee then observed that “if a State was not party to a convention which provided for specific levels of remuneration it would presumably not be under any obligation to see that the debtor concerned was adequately paid”.71 Mr. Bozovic followed, by saying that the purpose of drafting a convention was to create new obligations upon States and “his proposal was that one such obligation should be to ensure that the amount calculated towards the liquidation of a debt represented adequate remuneration for the services rendered”.72 The United Kingdom Member, Mr. Scott-Fox, intoned that the “point raised by the Yugoslav representative might be met by the inclusion of the words ‘assessed in accordance with

68

69 70 71 72

Report of the Committee appointed by Resolution 564 (XIX), 7 April 1955, UN Doc. E/2824, 15 February 1956, p. 20. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Third Meeting, 17 January 1956, UN Doc. E/AC.43/SR.3, 9 February 1956, p. 7. Id. Id. Id. Id., p. 8.

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local standards’ to qualify the value of the services rendered”.73 When discussion resumed with regard to paragraph (a), on 20 February 1956, the Yugoslav Member “wondered who would determine ‘the value of . . . services rendered’ ”: If it was the creditor, the value might be over-estimated to the detriment of the debtor, who was in no position to negotiate. The State had the right and duty to intervene in order to determine whether the value was reasonable. He therefore proposed that the words “reasonably assessed” should be included.74

Mr. Scott-Fox, having accepted the suggestion of the Chairman that the Yugoslav proposal be inserted after the word ‘value’; amended his proposal. The Egyptian member of the drafting Committee, Mr. Abdel-Ghani, suggested the deletion of the final portion of paragraph (a) from the words ‘where the value of those services rendered . . .’ so that “[a]ll forms of debt bondage, without any qualification, would thus be covered by the article”. Mr. Scott-Fox responded to this suggestion by saying that this “would result in a definition of debt bondage which would not correspond to the usually accepted sense of the term”. He continued: Working out the amount of one’s debt on the basis of a reasonable remuneration did not constitute debt bondage. The term implied that the value of the services rendered was not applied towards the liquidation of a debt and that the person pledged had to serve the creditor until the debt was repaid in some other manner.75

This issue was again taken up as the Egyptian Member, Mr. Abdel-Ghani, asked whether his interpretation of that paragraph whereby “the first part (up to and including the words [re: debt bondage, i.e., the status or condition arising from a pledge by a debtor of his personal services or those of a third person under his control] ‘as a security for a debt’) was a definition of debt bondage; the second part [re: where the value of those services rendered is not applied towards the liquidation of the debt and the person pledged has to serve the creditor until the debt is repaid] was a qualification of that definition” was correct. The Chairman, Mr. Cutts, the Member from Australia, “thought that the whole paragraph was a

73 74 75

Id., p. 8. Id., p. 9. Id., p. 8.

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definition of debt bondage. Where the conditions specified in the second part were not fulfilled, the situation was perfectly legitimate”.76 The United Kingdom Member, Mr. Scott-Fox “speaking as the sponsor of the text, confirmed that the Chairman’s interpretation was correct”.77 As a result of these discussions, the Committee unanimously adopted the following version of paragraph (a): debt bondage, i.e., the status or condition arising from a pledge by a debtor of his personal services or those of a third person under his control as a security for a debt where the value, reasonably assessed, of those services rendered is not applied towards the liquidation of the debt or the length and nature of those services are not respectively limited and defined.78

iii. 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery ARTICLE 1 [. . .] (a) Debt bondage, that is to say, the status or condition arising from a pledge by a debtor of his personal services or of those of a person under his control as security for a debt, if the value of those services as reasonably assessed is not applied towards the liquidation of the debt or the length and nature of those services are not respectively limited and defined;79

76

77 78

79

Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Eleventh Meeting, 20 January 1956, UN Doc. E/AC.43/SR.11, 24 February 1956, p. 6. Id., p. 7. Economic and Social Council, Slavery: Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery: Report of the Committee appointed by Resolution 564 (XIX), 7 April 1955, UN Doc. E/2824, 15 February 1956, p. 21. United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Final Act and Supplementary Convention, 4 September 1956, UN Doc. E/CONF.24/23.

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During the 1956 Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, no substantive discussion transpired with regard to Article 1(a). As to style, at the fifth meeting, the President asked that the following amendment be “adopted without further ado”, as it related only to the English text and would bring it into “concordance with the French and Spanish texts”.80 The following amendment was therefore agreed to: “In paragraph (a), change ‘i.e.’ to read ‘that is to say’ ”.81 The provisions of Article 1(a) were later adopted as part of a vote called to consider Article 1 as a whole which was adopted on second reading by thirty-seven votes for, none against, and one abstention. The Style Committee then made minor changes to Article 1, which was then adopted by the Conference as the first article of the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery.

Paragraph (b) i. 1954 British Draft Convention ARTICLE 1 [. . .] (b) serfdom, i.e., the servile hereditary tenure of land whereby the tenant is by law, custom and agreement bound to live and labour on land belonging to another person and render some determinate service to his landlord whether for reward or not and is not free to change his status.82

80

81

82

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Sixth Meeting, 16 August 1956, UN Doc. E/CONF.24/SR.5, 11 November 1958, p. 2. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, United Kingdom: Amendments to Article 1 (E/2824, Annex 1), UN Doc. E/CONF.24/L.2, 15 August 1956. Economic and Social Council, Slavery: Consultations Concerning the Desirability of

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With regard to the provisions touching on serfdom, which would remain those of Article 1(b) throughout the drafting process of the 1956 Convention, their genesis is to be found in the recommendations of the 1950–51 Ad Hoc Committee on Slavery, which the United Kingdom would use as the basis of its 1954 British Draft Convention. In April 1953, the United Nations Economic and Social Council had requested the Secretary-General “to consult the Governments of all States, both Members and non-members of the United Nations, concerning the desirability of a supplementary convention and its possible contents”.83 Within the context of those consultations, in March 1954, the United Kingdom put forward its comments as well its Draft Convention.84 Where serfdom was concerned, the 1950–51 Ad Hoc Committee on Slavery had recommended that: the legal status of serfdom, and the practice whereby an individual is by law (including customary law), custom, or agreement, attached to agricultural or pastoral land and cannot change his status or freely dispose of the produce of his labour, whether or not he may be required to perform, without compensation, duties for the landowner.85

The Committee explained its inclusion of provisions on serfdom in the following manner: After examining the information at its disposal on this subject it came to the conclusion that there still existed in some countries a condition, sometimes legally recognized, whereby an individual is attached to agricultural or pastoral land and cannot change his status or freely dispose of the produce of his labour. The attachment might be effected either by law (including customary law), custom, or agreement. In some cases the individual may be required to perform duties for the landowner without compensation. The Committee felt that such a condition constitutes a form of servitude that should be abolished.86

83 84

85

86

a Supplementary Convention on Slavery and its Possible Contents, UN Doc. E/2540/ Add.4, 12 April 1954, p. 3. See Economic and Social Council, Resolution 475 (XV), 27 April 1953. See Economic and Social Council, Slavery: Consultations Concerning the Desirability of a Supplementary Convention on Slavery and its Possible Contents, UN Doc. E/2540/Add.4, 12 April 1954. Economic and Social Council, Report of the Ad Hoc Committee on Slavery (Second Session), UN Doc. E/1988, E/AC.33/13, 4 May 1951, p. 20. Id., p. 11.

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In including provisions touching on serfdom in its 1954 Draft Convention, the United Kingdom had explained that like debt bondage, serfdom should be a subject included in a supplementary convention.87 The International Organization Committee of the International Labour Office, having been duly authorised by its Governing Body, provided comments on paragraph (b) of which the following were reproduced by the Secretary-General, in his 1955 Memorandum which summarised comments received on the 1954 British Draft Convention so as to assist the 1956 drafting Committee: As regards paragraph (b) (serfdom), the Office had pointed out that, while the proposed definition would seem to meet an evil which still existed, though usually formally contrary to the law, it was for consideration whether the limitation to servile hereditary forms of land tenure was not unduly restrictive. Abuses might occur even when the land had come into occupancy otherwise than by inheritance, the occupant being expected to perform customary services, normally unpaid and not directly associated with obligations dealing with working of the proprietor’s land. The United Kingdom Government representative stated that he had not been aware of types of serfdom other than the hereditary forms, and that if the United Kingdom Government had been aware of such other forms, they would have been taken into consideration in the proposed convention. In view of this statement the Committee decided to recommend that the Governing Body inform the United Nations that, if the facts showed that abuses of this kind feared by the Office existed, the word ‘hereditary’ should be deleted from the definition.88

Likewise, the Anti-Slavery Society suggested the deletion of the word “hereditary”; it further called for the deletion of the words “whether for reward or not” and proposed that at the end of the paragraph (b) the following phrase be added: “Or freely disposed of the produce of his labour without the consent of his landlord”. For his part, the Secretary-General considered whether the word “service” within paragraph (b) was necessary. Later, in considering mutilation or branding of a person in Article 3 of

87

88

See Economic and Social Council, Slavery: Consultations concerning the Desirability of a Supplementary Convention on Slavery and its Possible Contents, UN Doc. E/2540/Add.1, 3 March 1954, p. 2. Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude Submitted by the Government of the United Kingdom and Comments Thereon (Memorandum by the Secretary-General), UN Doc. E/AC.43/L.1, 2 December 1955, p. 23.

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the British Draft Convention, the UN Secretary-General raised the question, “whether the term ‘servile status’ may be interpreted as equivalent to ‘serfdom’, as defined in Article 1(b) of the draft convention, or whether it covers slavery as defined in the 1926 Convention, or both”?89 It may be said that this question was not addressed either by the 1956 drafting Committee, or during the United Nations Conference.

ii. 1956 Draft Supplementary Convention on Slavery and Servitude ARTICLE 1 [. . .] (b) Serfdom, i.e., the tenure of land whereby the tenant is by law, custom or agreement bound to live and labour on land belonging to another person and render some determinate service to his landlord, whether for reward or not, and is not free to change his status;

With regard to paragraph (b), the Report of the Drafting Committee reads: The representatives of the Netherlands and the United Kingdom jointly proposed90 deletion of the word ‘hereditary’ and replacement of the words ‘custom and agreement’ by the words ‘custom or agreement’. The amendment was accepted without vote by the Committee at the 11th meeting. The representative of Ecuador orally suggested deletion of the word ‘servile’, as he felt that the meaning was implicit in the word ‘serfdom’. The representative of Yugoslavia supported the suggestion. The representative of the United Kingdom agreed that the word ‘servile’, although useful, was not absolutely indispensable, because the status of the person concerned was fully described in the following part of the paragraph. He agreed, therefore, with its deletion.

89 90

Id., p. 32. See Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Netherlands and the United Kingdom: Amendments to Article 1 of the Draft Convention on the Abolition of Slavery and servitude (E/2540/Add.4), UN Doc. E/AC.43/L.9, 17 February 1956.

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The proposal put forward jointly by the Members from the Netherlands and the United Kingdom originate in the initial discussions of paragraph (b) during the drafting Committee’s third meeting, wherein the Dutch Member, Mr. Schiff, had originally proposed two amendments,91 the first dealing with the “apparent typographical error” of “custom and agreement” as opposed to “custom or agreement”; the second with the proposed deletion of the word “hereditary”, as suggested by the International Labour Organisation and the Anti-Slavery Society. For his part, the Representative of India, Mr. Rajan, “asked whether types of serfdom other than the hereditary form in fact existed, or whether the deletion of the word ‘hereditary’ was proposed merely for safety’s sake”. Mr Scott-Fox, the British Representative, said that although “his delegation was not aware of the existence of the forms of serfdom other than hereditary, it was possible that other forms did exist; the deletion of the word ‘hereditary’ might therefore provide a safeguard against a potential danger”.92 At the eleventh meeting of 20 February 1956, paragraph (b) was once again considered, this time, the Chairman recalled the substance of the Netherlands-United Kingdom joint proposal. The Ecuadorian Member, Mr. Apunte, for his part “failed to see how land could be described as ‘servile’, as the Spanish text seemed to suggest”, and thus proposed the deletion of word “y character servile”. Mr. Scott-Fox, responded that: he had considered the possibility of deleting that word ‘servile’ but felt that it should be retained, particularly if the word ‘hereditary’ was to be deleted; otherwise the text might be unduly weakened.93

At the following meeting, the President reminded the Committee that the proposal of the Ecuadorian Member was still to be addressed. The British Representative then stated that “although he would have preferred to see the word retained, he would not oppose the Ecuadorian suggestion, which had been prompted by linguistic difficulties”.94

91

92 93

94

Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Third Meeting, 17 January 1956, UN Doc. E/AC.43/SR.3, 9 February 1956, p. 8. Id., p. 9. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Eleventh Meeting, 20 January 1956, UN Doc. E/AC.43/SR.11, 24 February 1956, p. 7. Economic and Social Council, Committee on the Drafting of a Supplementary Conven-

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Having discussed the matter, the Netherlands-United Kingdom joint amendment was adopted unanimously at the twelfth meeting, the Ecuadorian proposal was also adopted in the manner at the twelfth meeting, so that the 1956 drafting Committee “unanimously adopted the amended paragraph, as follows”: (b) Serfdom, i.e., the tenure of land whereby the tenant to by law, custom or agreement bound to live and labour on land belonging to another person and render some determinate service to his landlord whether for reward or not and is not free to change his status.95

iii. 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery ARTICLE 1 [. . .] (b) Serfdom, that is to say, the condition or status of a tenant who is by law, custom or agreement bound to live and labour on land belonging to another person and to render some determinate service to such other person, whether for reward or not, and is not free to change his status;96

At the United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, the Representative from the United Kingdom, Mr. Scott-Fox, suggested that the “phrase ‘to such other person’ should be substituted for the phrase ‘to his landlord’. That amendment would rectify the impression given by the wording of sub-paragraph (b)

95 96

tion on Slavery and Servitude, Summary Record of the Twelfth Meeting, 24 January 1956, UN Doc. E/AC.43/SR.12, 20 February 1956, p. 3. Id., p. 3. United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Final Act and Supplementary Convention, 4 September 1956, UN Doc. E/CONF.24/23.

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that there was some difference between the person on whose land the tenant was ‘by law, custom or agreement bound to live and labour’ and the landlord. The term ‘landlord’ was not a happy one to use in an international convention of the type before the Conference”.97 The Representative of China, Mr. Cheng Paonan, agreed with the suggestion of the United Kingdom Representative, “provided it was understood that the word ‘person’ ” in the phrase ‘such other person’, included ‘legal persons’ ”.98 The Representative from the United Kingdom, Mr. Scott-Fox stated that “he would like to reflect further on the question whether ‘person’ should be understood to include legal persons”.99 The issue, however, did not arise once more. As with Paragraph (a), the President asked that the following amendments be “adopted without further ado” at the fifth meeting, so as to bring the English text into “concordance with the French and Spanish texts”.100 The following amendment was agreed to: “In paragraph (b), change ‘i.e.’ to read ‘that is to say’ ”.101 At the sixth meeting, the President called on the Representative of Pakistan to make a statement in regard to his proposed amendment, which called for the addition of the words “or to dispose of the produce of his labour”102 at the end of Paragraph (b). Mr. Jafri stated that “the present wording might leave a loophole for depriving the tenant of freedom to

97

98 99 100

101

102

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Fourth Meeting, 15 August 1956, UN Doc. E/CONF.24/SR.4, 11 November 1958, p. 5. Id., p. 7. Id., p. 8. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Fifth Meeting, 16 August 1956, UN Doc. E/CONF.24/SR.5, 11 November 1958, p. 2. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, United Kingdom: Amendments to Article 1 (E/2824, Annex 1), UN Doc. E/CONF.24/L.2, 15 August 1956. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Pakistan: Amendments to Article 1, UN Doc. E/CONF.24/L.8, 16 August 1956.

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dispose of his produce. It was a fact that in some parts of the world tenants were obliged by custom or law to part with half, and in some cases even the whole, of their produce to the landlord. That was a form of serfdom within the meaning of article (b). The intention of this amendment was merely to close the loophole, if it existed”.103 The Canadian Representative, Mr. Jay, asked “whether the amendment would mean that if a person was unable to change his status but free to dispose of his produce he would not be covered by the article. If so, the amendment, instead of closing an existing loophole, might actually open a new one”.104 Mr. Giraud, the Representative of France, pointed out that: the Pakistan amendment concerning remuneration introduced a new concept unconnected with serfdom, which was the state of a person who could not change his condition – a limitation of personal freedom. Economic exploitation of a person was not serfdom. The Pakistan representative’s intention was doubtless excellent, but the question he raised should not be examined by the Conference but by those institutions whose aim was to improve the conditions of the workers.105

The Philippine Representative, Mr. Lopez, “asked the representative of Pakistan to explain what he meant by ‘dispose of the produce of his labour’. He would have thought that the freedom in question was limited to the tenant’s just share of the produce of the land”.106 In a general response to the questions which were raised with regard to the proposal made by Pakistan, Mr. Jafri said: his amendment was not intended to expand the scope of the paragraph. It would merely bring out the implication that a tenant should not have to enter into an agreement to render a determinate service in conditions in which he was not free to change his status. There could be conditions in which the rent might take the shape of the entire produce of the land. It was a fact that the exploitation of tenants’ labour did occur in some parts of the world, and all progressive movements concerned with the improvement of tenant-landlord relations had tried to eliminate or progressively reduce that

103

104 105 106

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Sixth Meeting, 16 August 1956, UN Doc. E/CONF.24/SR.6, 11 November 1958, p. 2. Id., p. 2. Id. Id., pp. 2–3.

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kind of relationship. Since, however, the view had been expressed that his amendment went beyond the scope of the notion of serfdom as expressed in article 1(b), he would withdraw it.107

Yet, at second reading, the Representative of Pakistan, Mr. Jafri, introduced what was, in essence, the same amendment he had withdrawn shortly before Article 1 had been agreed to at first reading. Mr. Jafri stated that the amendment now being put forward, which read “or is not free to dispose of the produce of his labour”:108 had not received full consideration at that stage, and he had withdrawn it since article 1 in its provisional form had already been adopted. The intention was simply to complete the definition of serfdom and to lay stress on one particular aspect. The ad hoc Committee of Experts on Slavery appointed by the Economic and Social Council had defined a practice analogous to slavery (E/AC.43/L.1, page 4) which had not been covered in the United Kingdom draft, the basis of the present text. He was not sure whether it had been overlooked or had been rejected after due deliberation. The condition in which a tenant was bound to labour on the land and to give the produce of his labour to a landlord or other person without any choice in the matter did appropriately fall within the meaning of the term serfdom. According to the present, somewhat loose, definition of serfdom, the condition in which A entered into an agreement with B to live and labour on the latter’s land and to render him service for wages was serfdom provided only that A was not free to change his status. Serfdom started where in the case of tenant and a landlord the former was not free to change his status. If that conception was enlarged, a condition where a tenant was bound to work on the landlord’s land having no freedom to dispose of a crop which had been cultivated by him was akin to the condition of serfdom contemplated in the convention.”109

Mr. Giraud, the French Representative, was then given the floor and explained that:

107 108

109

Id., p. 3. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Pakistan: Amendments to Article 1, UN Doc. E/CONF.24/L.36, 30 August 1956. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Twenty-First Meeting, 31 August 1956, UN Doc. E/CONF.24/SR.21, 20 November 1958, pp. 6–7.

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serfdom was the state of an individual who was bound to the land and who could not change his status. Apart from that, the serf could dispose of his person and of the produce of his labour, which was not so in the case of the slave. The representative of Pakistan had spoken of the relationship between tenant and farmers and landlords. In some countries there was a distinction between tenant farmers and métayers; both categories enjoyed the produce of their labour, but, while the former merely had to pay rent to the landowner, the latter had to give him part of the crops. It might be that both were exploited by the landlord, but such exploitation could not be regarded as a form of slavery, since – apart from contractual obligations of limited duration – both were free to change their status. Wage-earners, like métayers and individuals in other categories were sometimes described as slaves; that was, however, merely a figure of speech. The Conference was concerned solely with slavery and institutions and practices similar to slavery and not with the question of a fair reward for land workers who were not landlords. That issue was within the jurisdiction of other international bodies.110

Mr. Lopez of the Philippines stated that the Pakistani amendment appeared to “involve the institution of share-cropping”, and asked whether the Representative of the International Labour Organisation “could be asked to throw light on the scope of that amendment in relation to a practice that might not be serfdom at all”.111 Mr. Jenks of the ILO said: “if such wording as that in the Pakistan amendment were adopted the whole system of share-cropping might be involved. The ILO would regard such a system as an aspect of abnormally low standards of labour rather than of slavery”.112 The following discussion ensued: Mr. SCOTT-FOX (United Kingdom) pointed out that the Drafting Committee had discussed the point very thoroughly and had taken the view of the ad hoc Committee on Slavery into consideration. There were many countries in which tenants were under a type of contract to the landlord to dispose of the produce in a certain manner. The adoption of the Pakistan amendment might deter certain countries from signing the supplementary convention. Mr. ABDALLA (Sudan) said that his country, for one, might well be so deterred. In Sudan there were pump schemes on government-owned land

110 111 112

Id., p. 7. Id. Id.

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under tenancy regulations. The owner of the pump scheme actually sold his produce and the Government audited the transaction to ensure that the tenant obtained a fair deal. Mr. JAFRI (Pakistan) said that he had already made it clear that his delegation was trying to broaden the scope of serfdom, but had not suggested that share-cropping should come under that heading. The emphasis was on ‘bound to live and labour on land’ and the Pakistan amendment should be considered in the light of that factor. Mr. JURKIEWICZ (Poland) suggested that the meaning of the Pakistan amendment would be clearer if the wording were inserted before the phrase ‘is not free to change his status’ rather than after it. Mr. GIRAUD (France), replying to the point raised by the representative of Pakistan, explained that the fact of not being ‘free to dispose of the produce of his labour’ was not a mark of serfdom. An agricultural labourer, who receiving board and lodging, was not paid any remuneration could not be regarded as a serf since he could change his place or his employer. Mr. JAFRI (Pakistan) withdrew his amendment (E/CONF.24/L.36). The Conference seemed to agree that the draft convention should not cover the aspect of serfdom suggested in that amendment. The ILO might well take note of the comments and arrange for a further study of the point so that it would not be lost sight of and might lead to international consideration of a condition derogatory to human labour.113

This completed the discussion regarding paragraph (b) of Article 1 of the Supplementary Convention as negotiated in 1956, which reads: (b) Serfdom, that is to say, the condition or status of a tenant who is by law, custom or agreement bound to live and labour on land belonging to another person and to render some determinate service to such other person, whether for reward or not, and is not free to change his status;

Paragraph (c) Turning to paragraph (c), while the provisions on forced marriage would be separated into three sub-paragraphs throughout the negotiation process, the United Kingdom, in putting forward its 1954 Draft Convention, considered the issue globally. The United Kingdom, it will be recalled,

113

Id., p. 8.

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had proposed its draft convention within the context of consultation undertaken by the Secretary-General of the United Nations at the behest of the Economic and Social Council as to “the desirability of a supplementary convention and its possible contents”.114 The United Kingdom had based its draft convention on recommendations which had been made in 1951 by the Ad Hoc Committee on Slavery. Where forced marriage was concerned, the Ad Hoc Committee on Slavery had recommended that the following should be abolished: the practice whereby a woman is given in marriage, without the right to refuse, at a price and under conditions which give to the husband, to his clan or his family, a right of disposition over herself and over her children and permit her exploitation for the advantage of others.115

It made this recommendation on the following basis, noting that: a social custom exists in many parts of the world whereby a man cannot obtain a wife for himself without offering money or services to the family of his prospective wife. If the custom did not go beyond this practice, often of a token or ritual nature, the Committee would not have considered that it fell within its terms of reference. It was pointed out to the Committee that in certain societies the payment of bride-price did not entail the cession of any rights of ownership, either in respect of the women involved or of her children. It was also pointed out that the position of a woman in some societies was such that she always remained dependent upon some male person. The Committee did not feel that the explanations given could justify any practice which placed a woman in a servile status. It found ample evidence that in certain parts of the world the bride-to-be is regarded as the property of her father, or that at least his right is recognized to dispose of her in marriage; and that as a widow she is regarded as part of the heritable property of her husband and as such passes to the person who inherits the property on his death. Children of the marriage in such cases are also often at the disposal of their late father’s heir. It was the presence of one or more of these elements which in the opinion of the Committee brought the practice of payments of bride-price within the scope of its study. The fact that the bride is sometimes married without her consent – and often when too young to consent even if she were asked – adds to the deleterious practical effects of these rights of disposal on the persons who are the victims. The Committee decided, therefore, that it would consider as a form of servitude

114 115

See Economic and Social Council, Resolution 475 (XV), 27 April 1953. Economic and Social Council, Report of the Ad Hoc Committee on Slavery (Second Session), UN Doc. E/1988, E/AC.33/13, 4 May 1951, p. 20.

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the practice whereby a women is given in marriage, without the right to refuse, at a price or under conditions which gives to the husband, to his clan or family, a right of disposal over her or over her children and permit her exploitation for the advantage of others.116

In including provisions on forced marriage in its 1954 Draft Convention, the United Kingdom had made the following comments which it noted, also held for the provisions of Article 1(d) on child exploitation: Her Majesty’s Government are firmly convinced of the necessity of abolishing as early as possible the practices whereby the persons of women and children are disposed of without their consent. It is however their view, based on experience, that attempts to abolish long established customs and practices of any kind, including such practices as these, can only lead to the disintegration of the local social structures unless they are carried out gradually, with extensive educational preparations and with full regard to the wishes and feelings of the local inhabitants. They therefore believe that the proposed convention should provide that the contracting parties should undertake all practical measures, including legislation where appropriate, to bring the institutions or practices defined to an end progressively and as soon as possible.117

The Report of Committee on the Drafting of a Supplementary Convention on Slavery and Servitude established to draft a supplementary convention using as its basis the 1954 British Draft Convention considered paragraph (c) in a general manner before examining each of its sub-paragraphs in turn. In general terms, Mr. Bozovic, the Yugoslavian Member, raised a question in regard to failure of the British Draft Convention to include the original paragraph (c) of the 1950–51 Ad Hoc Committee on Slavery which was reproduced in the Secretary-General’s 1955 Memorandum as: The practice whereby a woman is given in marriage, without the right to refuse, at a price and under conditions which give to the husband, to his clan or his family, a right of disposition over herself and over her children and permit her exploitation for the advantage of others.118

116 117

118

Id., pp. 9–10. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Third Meeting, 17 January 1956, UN Doc. E/AC.43/SR.3, 9 February 1956, p. 3. See Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude Submitted by the Government of the United Kingdom and Comments Thereon (Memorandum by the Secretary-General), UN Doc. E/AC.43/L.1, 2 December 1955, p. 5.

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The Yugoslav Member, alluding to a 1954 communication between the United Kingdom and the United Nations Secretary-General regarding consultations on the desirability of establishing a supplementary convention,119 stated that: The United Kingdom Government had not included that paragraph in its draft, on the grounds that the practices it described were not, strictly speaking, slavery but forms of forced labour, which were within the purview of the ILO or kinds of civic obligations which were generally accepted. The Yugoslav delegation nevertheless felt that those practices sufficiently resemble slavery for the Ad Hoc Committee’s recommendation to be included, subject to certain explicit exceptions. He would reserve the right to submit an appropriate amendment to the draft convention at a later stage. The Committee should, in any case, decide whether the practices were essentially more akin to slavery or to forced labour.120

While the Ecuadorian Member shared the view of Mr. Bozovic; the Indian Member, Mr. Rajan, said that the 1950–51 Ad Hoc Committee on Slavery’s paragraph (c) “was open to the construction that a person serving a sentence of hard labour, duly imposed by a court of law, was in a position analogous to slavery” – to which Mr. Bozovic replied that any amendments he might put forward “would expressly state that the provisions did not apply to prisoners of that type”.121 The French Member, Mr. Giraud, felt that paragraph “fell within the competence of the ILO” and that the Committee “did not have to specify all the practices whereby one individual could exploit another. An example might be feudal rights but those rights, as such, were not within the Committee’s competence, except when it was a question of slavery”.122 Beyond these general comments, it should be noted that the Federal Republic of Germany proposed that an additional paragraph be added to Article 1, based on Recommendation B.1.I (c) made by the 1950–51 Ad Hoc Committee on Slavery: (e) Any institution or practice whereby individuals or groups of individuals who, being obliged by customary or other law, to perform services for

119

120

121 122

See Economic and Social Council, Slavery: Consultations concerning the Desirability of a Supplementary Convention on Slavery and its Possible Contents, UN Doc. E/2540/Add.1, 3 March 1954, pp. 2–3. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Third Meeting, 17 January 1956, UN Doc. E/AC.43/SR.3, 9 February 1956, p. 9. Id., p. 9. Id., pp. 9–10.

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another individual, or for the collective, whether for financial consideration or otherwise, cannot terminate those services of their own free will; this means, in particular, cases in which the services are to be preformed pursuant to contracts which were entered into by individuals or groups of individuals under duress, through trickery or under threat or which involved excessive exploitation of labour of individuals.

The Anti-Slavery Society was against this proposal, stating that “the substance of the Recommendation [. . .] was properly omitted from the draft convention”;123 and to buttress that opinion it quoted the following passage from the 1910 monograph by H. J. Nieboer entitled Slavery as an Industrial System: We shall meet with instances of tribes the members of which are bound to perform some kind of labour for other tribes or for members of the latter. This is not slavery; for slavery is subjection of one individual to another, and a subjection that absorbs the whole personality of the subjected. . . .124

This proposed paragraph was not accepted at the Conference.

Paragraph (c) (i) i. 1954 British Draft Convention ARTICLE 1 [. . .] (c) any institution or practice whereby: (i) a women, without the right to refuse, is given in marriage on payment or a consideration in money or in kind to her parents, guardian, family or clan; or125

123

124

125

Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude Submitted by the Government of the United Kingdom and Comments Thereon (Memorandum by the Secretary-General), UN Doc. E/AC.43/L.1, 2 December 1955, p. 26. Id., p. 27. The reference is to: H. J. Nieboer Slavery as an Industrial System: Ethnological Researches, 1910, p. 33. Economic and Social Council, Slavery: Consultations Concerning the Desirability of

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As for paragraph (c) of Article 1, related to issues of marriage, the SecretaryGeneral’s Memorandum summarising comments received with regard to the 1954 British Draft Convention notes that both the Anti-Slavery Society and the Liaison Committee of Women’s International Organizations asked that consideration be given to adding the words “promised or” before the words “given in marriage”. The Secretary-General, for his part, suggested that the words “by the heirs-at-law” be replaced by “by another person”.126

ii. 1956 Draft Supplementary Convention on Slavery and Servitude ARTICLE 1 [. . .] (c) Any institution or practice whereby: (i) A woman, without the right to refuse, is promised or given in marriage on payment of a consideration in money or in kind to her parents, guardian, family or to any other person or group;

During discussions of the Committee on the Drafting of a Supplementary Convention on Slavery and Servitude established by the United Nations Economic and Social Council to draft a supplementary convention, the representatives of the Netherlands and the United Kingdom proposed that the words “promised or” be inserted before the words “given in marriage”.127 An amendment along these lines had been suggested

126

127

a Supplementary Convention on Slavery and its Possible Contents, UN Doc. E/2540/ Add.4, 12 April 1954, p. 3. Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude Submitted by the Government of the United Kingdom and Comments Thereon (Memorandum by the Secretary-General), UN Doc. E/AC.43/L.1, 2 December 1955, p. 24. See Economic and Social Council, Committee on the Drafting of a Supplementary

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by the Anti-Slavery Society and the Liaison Committee of Women’s International Organizations.128 “The amendment was adopted without vote at the 11th meeting”. This was followed by a further proposal: The representative of France proposed (E/AC.43/L.7)129 substitution of the words “to the persons having authority over her” for the words “to her parents, guardian, family or clan”. As there was some objection to omitting the original enumerative formulation altogether, the representatives of France and the United Kingdom jointly proposed (E/AC.43/L.7/Rev.1)130 that the words “or clan” be deleted from the article as originally drafted, and that the words “or by any other person or group having authority over her” be inserted in their stead. The use of the word “authority” in the proposal led to some disagreement, as members felt that it should either be precisely defined or eliminated. The representative of the USSR opposed use of the phrase, “having authority over her”, as he considered that the inclusion of such a phrase in the convention would mean in substance the recognition of a right of authority over a woman. The representative of France modified the amendment, proposing that the words “or clan” be replaced by the phrase “or by any other person or group”. This proposal was adopted unanimously at the 11th meeting. The sub-paragraph thus amended, was adopted unanimously at the 12th meeting.131

128

129

130

131

Convention on Slavery and Servitude, Netherlands and the United Kingdom: Amendments to Article 1 of the Draft Convention on the Abolition of Slavery and Servitude (E/2540/Add.4), UN Doc. E/AC.43/L.9, 17 February 1956. See Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude Submitted by the Government of the United Kingdom and Comments Thereon (Memorandum by the Secretary-General), UN Doc. E/AC.43/L.1, 2 December 1955, p. 24. See Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, France: Amendments to Article 1, paragraph (c) (i) of the Draft Convention on the Abolition of Slavery and Servitude (E/2540/Add.4), UN Doc. E/AC.43/L.7, 17 January 1956. See Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, France and the United Kingdom of Great Britain and Northern Ireland: Amendments to Article 1, paragraph (c) (i) of the Draft Convention on the Abolition of Slavery and Servitude (E/2540/Add.4), UN Docs. E/AC.43/L.7, 17 January 1956; and E/AC.43/L.7/Rev.1, 20 January 1956. Economic and Social Council, Slavery: Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery: Report of the Committee appointed by Resolution 564 (XIX), 7 April 1955, UN Doc. E/2824, 15 February 1956, p. 22.

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During the first consideration of sub-paragraph (i) by the Drafting Committee of the Economic and Social Council, the Representative from the Netherlands said that he would formally propose the insertion of the words “promised or” before “given in marriage” as suggested by the Anti-Slavery Society and the Liaison Committee of Women’s International Organizations in the paragraphs 50 and 51 of the Secretary-General’s Memorandum. Mr. Giraud, the French Member of the Committee, proposed on a provisional basis, that the “enumeration at the end of paragraph (c)(i) should be replaced by “to any person having authority over her”; to which the Indian Member, Mr. Rajan, stated that this suggestion: recalled the dilemma which had confronted the Commission on Human Rights. It had to be decided at a reasonably early stage, as a guiding principle, whether the Committee favoured a general formulation or an enumerative one. Specific provisions had the advantage of drawing attention to situations which actually existed; consequently, the enumerative formulation might be adopted whenever it was certain that it left no loopholes.132

At the eleventh meeting of the drafting Committee, the French Representative joined with his British counterpart to propose the deletion of the words “or clan” and replacing it with “or by any other person or group having authority over her”.133 This proposal raised the concerns of the Representative of the Union of Soviet Socialist Republics, Mr. Nikolaev, who “feared that the latter amendment implicitly confirmed the fact that women were subject to the authority in question. While the word ‘authority’ was ambiguous, the amendment clearly acknowledged its existence”.134 The following is the discussion which ensued:

132

133

134

Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Third Meeting, 17 January 1956, UN Doc. E/AC.43/SR.3, 9 February 1956, p. 10. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Eleventh Meeting, 20 January 1956, UN Doc. E/AC.43/SR.11, 24 February 1956, p. 8. The proposed amendment can be found at: See Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, France and the United Kingdom of Great Britain and Northern Ireland: Amendments to Article 1, paragraph (c)(i) of the Draft Convention on the Abolition of Slavery and servitude (E/2540/Add.4), UN Doc. E/AC.43/L.7/Rev.1, 20 January 1956. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Eleventh Meeting, 20 January 1956, UN Doc. E/AC.43/SR.11, 24 February 1956, p. 8.

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The CHAIRMAN pointed out that the purpose of the convention was precisely to abolish such authority, whether sanctioned by law or custom, wherever it existed. If the authority did not exist, paragraph (c)(i) would have no meaning. Mr. NIKOLAEV (Union of Soviet Socialist Republics) pointed out that the introductory paragraph of article 1 spoke of the abolition of “institutions and practices”. If it were only a matter of institutions, the problem would be simple, because institutions were subject to legal rules; practices, on the other hand, were not and there might be instances of individuals having de facto authority not recognized by law, even by customary law. The CHAIRMAN felt that the USSR representative’s objection would be met by substituting the words “asserting authority” for the words “having authority”. Mr. SCHIFF (Netherlands) said that the word “other” in the amendment in question would then have to be deleted, because the parents, guardian and family undeniably had authority and did not merely assert it. Mr. SCOTT-FOX (United Kingdom) said that it would be better to replace the words “having authority” by the words “exercising authority” rather than “asserting authority”. Mr. BOZOVIC (Yugoslavia) stated that in the absence of a distinction between de facto and de jure authority the words “having authority over her” should be deleted. Mr. NIKOLAEV (Union of Soviet Socialist Republics) supported the Yugoslav representative’s suggestion; he did not think it advisable to retain the word “authority”, the exact meaning of which was not clear. Mr. GIRAUD (France) pointed out that the convention did not aim at the reorganisation of social systems, which it accepted as they were. In the present case, its purpose was to protect women from the authority which might be exercised over them, whatever the nature or basis of that authority. Mr. NIKOLAEV (Union of Soviet Socialist Republics) said that he still thought that the word “authority” should be eliminated, unless it was to be more precisely defined. He would prefer a phrase such as “any person or group of persons upon whom she is dependent”. Mr. GIRAUD (France) said the idea of dependence was even wider than that of authority and was moreover not definable by law. The purpose of the convention was, however, to secure changes in the law. Mr. BENLER (Turkey) point out that it was the right of transfer which the Committee was seeking to abolish. Mr. BOZOVIC (Yugoslavia) noted that the original text which did not contain the word “authority” had been generally acceptable to the Committee. The proposal to introduce the idea of “authority”, made in the

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interest of clarity had resulted in disagreement. He wondered whether, the Committee would not do well to drop the contentious term and return to the original text. Mr. GIRAUD (France) said he did not wish to attach more importance to the question than it deserved or to pursue perfection if it led to a blind alley. He was willing to modify his amendment and to replace the words “or clan” by the phrase “or by any other person or group”.135

The joint proposal by France and the United Kingdom, thus amended was then adopted unanimously. At the following meeting, the Chairman read out the final, amended, text of paragraph (c)(i): A woman, without the right to refuse, is promised or given in marriage on payment of a consideration in money or in kind to her parents, guardian, family or any other person or group.136

iii. 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery ARTICLE 1 [. . .] (c) Any institution or practice whereby: (i) A woman, without the right to refuse, is promised or given in marriage on payment of a consideration in money or in kind to her parents, guardian, family or any other person or group; or137

135 136

137

Id. Emphasis in the original. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Twelfth Meeting, 24 February 1956, UN Doc. E/AC.43/SR.12, 20 February 1956, p. 5. United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Final Act and Supplementary Convention, 4 September 1956, UN Doc. E/CONF.24/23.

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At the 1956 United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, the Australian Representative, Mr. Jockel, noted that in isolated areas in the “Territories of Papua and New Guinea, for which the Australian Government was responsible, a system of bride price existed although in most native communities a women had the right to refuse marriage”. The Administration of the Territories concerned was examining the problem, but the Australian Government, did not, for the time being, contemplate enacting any special legislation, as it considered that a rapid change brought about by such legislation would affect customary marriage arrangements, the stability of marriage and family organization. He would therefore prefer to see the present text of article 1 retained.138

The Sudanese Representative, Mr. Adeel, “pointed out that the wording of article (c)(i) conflicted with Islamic law”, and while he had no objection to the provision, he “felt that certain countries might have difficulty in accepting it as under Islamic law a marriage contract was invalid unless a payment of kind mentioned in article (c)(i) was made”.139 In response to the Sudanese Representative’s notice that sub-paragraph (i) conflicted with Islamic law, the Representative of Belgium, Mr Somerhausen, “observed that not all the members of the Drafting Committee were unacquainted with Islamic Law. However, if it was thought that the proposed text failed to take account of it and an amendment was therefore necessary, the proposal should be submitted forthwith, as it could only be accepted at first reading”.140 The Representative from the United Kingdom, Mr. Scott-Fox, agreed with Mr. Somerhausen’s observation, stating that he thought that the Sudanese Representative had “perhaps not attached sufficient importance to the essential qualifying phrase of that sub-paragraph, namely ‘without the rights to refuse’. That phrase should remove any objection to the paragraph from the point of view of family or customary law”.141

138

139 140 141

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Fourth Meeting, 15 August 1956, UN Doc. E/CONF.24/SR.4, 11 November 1958, p. 3. Id., p. 2. Id., p. 5. Id.

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The Sudanese Representative, Mr. Adeel, noted that under Islamic Law, women had two rights with regard to marriage: “the right to express their wishes on the subject of a proposed marriage and the right to payment of a consideration. The only qualification expression used in the clause, however, was ‘without the right to refuse’. It was not clear whether that phrase would be applicable if there was no question of a consideration in money or in kind.142 The Representative of Iraq, Mr. Daghistani, “pointed out that under Islamic law a woman could never be taken in marriage unless she expressed consent. Hence the inclusion of a phrase expressing her right to refuse was very important. Payment of a consideration was not a condition of marriage at all”.143 Towards the end of the fourth meeting Mr. Adeel stated that he understood this sub-paragraph was meant to abolish two practices: “the marriage of women against their will and bride price”, and thought its current wording confusing, thus he submitted the following amendment: Change the following in sub-paragraph (c)(i) of article 1: A woman, without the right to refuse, is promised or given in marriage on payment of a consideration in money . . . to read: A woman is given in marriage (a) without her consent, or (b) for a consideration in money . . .144

For his part, the Representative of the Philippines, Mr. Lopez, asked whether any representative who had been on the drafting Committee might “explain why the words ‘without her consent’ had not been used instead of the words ‘without the right to refuse’. ‘Consent’ was the usual legal term and would definitely refer to the marriage and not the bride price”.145 While Mrs. Challoner of the St. Joan’s International Social and

142 143 144

145

Id., p. 11. Id. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Sudan: Amendments to Article 1, UN Doc. E/CONF.24/L.7, 16 August 1956. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions

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Political Alliance, having been invited by the President to speak, stated that she supported the suggestion of the delegations of Australia, France and the United Kingdom, with regard to the insertion of the words ‘promise or’ before the words ‘given in marriage’; as her “organization had set its heart on that amendment, because it brought to the notice of the world the evil of child betrothal”.146 At the sixth meeting, the President invited comments on the Sudanese amendment, wherein the Representative of the United Kingdom, Mr. Scott-Fox, sought the floor and stated that: the abuse to which article 1(c)(i) related was the institution of bride price. The qualifying phrase (‘without the right to refuse’) referred, not to the act of marriage, but to the payment of a consideration in money. By suggesting that the article should be re-drafted so as to prevent a women from being given in marriage without her consent, the Sudanese representative had therefore introduced a new notion which, in the opinion of the 1926 ad hoc Committee, was really covered by article 2, relating to the minimum age of marriage. Article 1 related to specific abuses including the bride price.147

As a result of this intervention, the Summary Records note: “Mr. Adeel (Sudan) withdrew his amendment”.148 At second reading, the Representative of Pakistan, Mr. Jafri, stated that: The Sudanese delegation might have been wrongly reported or might have been referring to some other aspect in the discussion of article 1 paragraph (c) sub-paragraph (i) when he had coupled bride-price with dowry under the Islamic religion. In Islam, dowry was entirely distinct from bride-price and meant that responsibility for a gift given freely to the bride by the husband at the time of marriage contract as an admission of the wife’s independence. That had nothing whatever to do with a price to be paid to the bride’s father or brother, which would be contrary to the tenets of Islam.149

146 147

148 149

and Practices Similar to Slavery, Summary Record of the Fourth Meeting, 15 August 1956, UN Doc. E/CONF.24/SR.4, 11 November 1958, p. 11. Id., p. 12. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Sixth Meeting, 16 August 1956, UN Doc. E/CONF.24/SR.6, 11 November 1958, p. 3. Id. Economic and Social Council, United Nations Conference of Plenipotentiaries on a

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Also at second reading, the President asked that the Conference consider the following amendment put forward by Viet-nam: Substitute the following for sub-paragraph (c)(i): (i) A women, without the right to refuse, is promised or given in marriage by her parents, guardian or other person or group;

Mr. Phan-Duy-Kheim, in introducing his proposal, said that this provision dealt with the “abolition of forced marriage – a degrading practice in which women were treated like chattels”; and continued, saying: that the practice in question undoubtedly presented a greater infringement of the liberty and dignity of the human person than any other practice akin to slavery. The representatives of Sudan and Pakistan had said that the payment of a sum of money by the bride-groom to the bride’s parents was not reprehensible practice. In their opinion, it was the actual disposal of the woman without her consent which constituted a form of slavery. Under some totalitarian regimes, however, there was a practice whereby girls were forced to take as husbands men who they would never have accepted freely. Those husbands were war-disabled persons or political advisors. A list of the girls in a particular village was drawn up and then lots were drawn. The girl whose name was drawn did not have the right to refuse. The practice gave rise to frightful conflicts, especially when the girl so chosen was already betrothed. Without expatiating on the consequences of such an inhuman practice, he would merely say that forced marriage for political reasons was just as much a form of slavery as forced marriage for financial reasons, and that was his motive in proposing the amendment.[. . .]150

Mr. Jafri, the Representative of Pakistan, for his part: appreciated the motives actuating the Viet-Namese delegation in submitting its amendment. The Viet-Namese representative had clearly explained this intention that the scope of the paragraph should be broadened to cover the cases of marriage without the consent of the woman, irrespective of payment. Such conditions did exist among certain religious groups where the woman’s consent was given, not by her, but by her parents or guardians. Islam enjoined on women the right to refuse a marriage if they were unwilling to consummate it, but there were other religious groups in Pakistan where

150

Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Twenty-First Meeting, 31 August 1956, UN Doc. E/CONF.24/SR.21, 20 November 1958, p. 7. Id., p. 9.

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that was not precisely so. An attempt to reform the institution of marriage would, however, lead the Conference on to dangerous ground and it did not really fall within the scope of the Conference’s work to consider a possible reform of that institution. The original text seemed to cover all that the Conference intended to do. The Islamic Republic of Pakistan would have no difficulty in accepting the Viet-Namese amendment so far as the Moslem population was concerned. The phrase in article 1 “progressively and as soon as possible” might possibly cover exceptions, but no State should have mental reservations and shelter behind that phrase. The Viet-Namese delegation might well raise it proposal in some other and more appropriate international organ, possibly the Commission on the Status of Women, where it had been discussed on previous occasions. The text of article 1 should be left as it stood.151

Mr. Scott-Fox, the Representative of the United Kingdom, said that: the Pakistan representative’s contention reinforced the view expressed by the United Kingdom delegation with regard to a similar suggestion by the Sudanese delegation during the first reading. The United Kingdom delegation had then contended that the paragraph was aimed at the specific abuse of bride price, whereas questions of marriage were in fact dealt with in article 2 which went far as it could in the present circumstances. The Viet-Namese delegation should, therefore, reconsider its proposal in the light of the Pakistan representative’s remarks and realize that the Conference would be extending the scope of the paragraph too far and venturing on very difficult ground if it adopted the Viet-Namese amendment.

Mr. Phan-Duy-Kheim, the Representative of Viet-Nam noted that “he would not press his amendment to a vote”, after having heard the observations of Pakistan and the United Kingdom.152 The provisions of Article 1(c)(i) were later adopted, not on the basis of a specific vote, but on a vote for Article 1 as a whole.

151 152

Id. Id., p. 10.

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Paragraph (c)(ii) i. 1954 British Draft Convention ARTICLE 1 [. . .] (c) any institution or practice whereby: [. . .] (ii) the husband of a woman, his family or his clan has the right to transfer her in his lifetime to another person for value received; or153

No comments specific to Article 1(c)(ii) were made by the United Kingdom in bringing forward its 1954 British Draft Convention, nor were any comments received from States specific to this provisions.

ii. 1956 Draft Supplementary Convention on Slavery and Servitude ARTICLE 1 [. . .] (c) Any institutions or practice whereby: [. . .] (ii) The husband of a woman, his family, or his clan, has the right to transfer her to another person for value received or otherwise; or

While there were no comments made with regard to sub-paragraph (c)(ii) in the lead up to the meeting of the Economic and Social Council’s 153

Economic and Social Council, Slavery: Consultations Concerning the Desirability of a Supplementary Convention on Slavery and its Possible Contents, UN Doc. E/2540/ Add.4, 12 April 1954, p. 3.

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Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, the final Report of that Committee stated: The representative of the United Kingdom agreed to the deletion of the words “in his lifetime”. The representative of the USSR suggested that the words “for value received” should be changed to read “whether for reward or not”. In view of the doubts expressed by the representative of the United Kingdom about the latter amendment, the representative of India suggested as an alternative the words “whether for value received or otherwise”. The Indian suggestion, which was acceptable to the representative of the USSR, was adopted unanimously by the Committee at the 12th meeting. The sub-paragraph, thus amended, was adopted unanimously at the same meeting.154

The Member from Yugoslavia, Mr, Bozovic, was concerned that the provisions of sub-paragraph (ii) would allow for women to be transferred after the death of their husband where there was no question of inheritance (thus being covered by sub-paragraph (iii)) and proposed that the words “in his lifetime” be deleted. While the United Kingdom Representative voiced misgivings about accepting this proposed amendment, the Chairman thought that the deletion would not weaken the text, but “on the contrary, it might even be useful”.155 This, coupled with the support for the deletion by the Indian Member, led to the acquiescence of Mr. ScottFox of the United Kingdom. This was followed by an intervention by the French Member, Mr. Giraud, who said that the sub-paragraph “raised another question of the same nature namely, whether transfer ceased to be reprehensible if no payment was involved”. To which the Chairman answered, that he “thought that such was the case and that there was no reason to forbid the practice in such instances”.156 Mr. Nikolaev, the Representative of the Union of Soviet Socialist Republics, took the opposite view, “considering that, on the contrary, the practice should be condemned in such instances”. It was as a result of this that the proposal

154

155

156

Economic and Social Council, Slavery: Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery: Report of the Committee appointed by Resolution 564 (XIX), 7 April 1955, UN Doc. E/2824, 15 February 1956, p. 22. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Eleventh Meeting, 20 January 1956, UN Doc. E/AC.43/SR.11, 24 February 1956, p. 11. Id., p. 12.

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was made to include the words “whether for reward or not”.157 At the following meeting, the United Kingdom Member expressed doubt about Mr. Nikolaev’s suggestion, stating that “the rewording might broaden the scope of the provision beyond the limits implied in the relevant Economic and Social Council Resolution”. Having indicated that he would not oppose the amendment, and with support coming from the Indian Representative, though in the guise of suggesting the following alternative phrase: “whether for value received or otherwise”;158 Mr. Scott-Fox agreed to the Soviet proposal, which was then put to a vote and adopted unanimously.

iii. 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery ARTICLE 1 [. . .] (c) Any institution or practice whereby: [. . .] (ii) The husband of a woman, his family, or his clan, has the right to transfer her to another person for value received or otherwise; or159

At the Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery no consideration was given to the provisions of Article 1(c)(ii); the provision having simply been adopted as part of a vote for Article 1 as a whole.

157 158 159

Id. Id., p. 4. United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Final Act and Supplementary Convention, 4 September 1956, UN Doc. E/CONF.24/23.

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Paragraph (c)(iii) i. 1954 British Draft Convention ARTICLE 1 [. . .] (c) any institution or practice whereby: [. . .] (iii) the woman on the death of her husband is liable to be inherited by his heir-at-law.160

Just as with Article 1(c)(ii), no comments were made by the United Kingdom with regard to Article 1(c)(iii) in proposing it 1954 British Draft Convention. Further, no States provided comments specific to these provisions during the consultation process meant to consider the feasibility of a supplementary instrument to the 1926 Slavery Convention.

ii. 1956 Draft Supplementary Convention on Slavery and Servitude ARTICLE 1 [. . .] (c) Any institutions or practice whereby: [. . .] (iii) The woman on the death of her husband is liable to be inherited by another person;

160

Economic and Social Council, Slavery: Consultations Concerning the Desirability of a Supplementary Convention on Slavery and its Possible Contents, UN Doc. E/2540/ Add.4, 12 April 1954, p. 3.

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The following is the narrative in the Report of the Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, in relation to sub-paragraph (iii), dealing with inheritance of women: The representative of Egypt proposed161 deletion of the words “by his heirat-law”. The representative of Turkey proposed162 that the words “his heirat-law” be replaced by the words “another person”, in line with a suggestion which had been made by the Secretary-General.163 The representative of Egypt withdrew his amendment. The amendment proposed by the representative of Turkey was adopted unanimously by the Committee at the 12th meeting. The sub-paragraph, as amended, was adopted unanimously at the same meeting.164

It may be recalled that with regard to sub-paragraph (i), the Representative of the Netherlands had made formal proposal based on suggestions made by the Anti-Slavery Society and the Liaison Committee of Women’s International Organizations. These suggestions had been noted in paragraphs 50 and 51 of the Secretary-General’s 1955 Memorandum; however, the Dutch Representative, Mr. Schiff, stated that he “would not present the amendment suggested in paragraph 52, although he would not oppose that suggestion if it were adopted by another delegation”.165 That paragraph read that the “Secretary-General suggests” – with regard to the sub-paragraph now being considered – “that the words ‘by his 161

162

163

164

165

See Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Egypt: Amendment to Article 1 of the Draft Convention on the Abolition of Slavery and Servitude (E/2540/Add.4), UN Doc. E/AC.43/L.10, 17 January 1956. See Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Turkey: Amendment to Article 1 of the Draft Convention on the Abolition of Slavery and Servitude (E/2540/Add.4), UN Doc. E/AC.43/L.24, 20 January 1956. See Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude Submitted by the Government of the United Kingdom and Comments Thereon (Memorandum by the Secretary-General), UN Doc. E/AC.43/L.1, 2 December 1955, p. 24. Economic and Social Council, Slavery: Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery: Report of the Committee appointed by Resolution 564 (XIX), 7 April 1955, UN Doc. E/2824, 15 February 1956, p. 23. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Third Meeting, 17 January 1956, UN Doc. E/AC.43/SR.3, 9 February 1956, p. 10.

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heir-at-law’ be replaced by the words ‘by another person’ ”.166 Mr. AbdelGhani, the Egyptian Representative of the drafting Committee suggested that “the most satisfactory solution [. . .] would be to limit paragraph (c)(iii) to the words “the woman on the death of husband is liable to be inherited”.167 When consideration of sub-paragraph (iii) resumed during the twelfth meeting the Chairman noted that there were two proposals on the table which “were in reality alternatives”.168 With the Egyptian Member withdrawing his proposed amendment, the Turkish proposal calling for the replacement of the words “his heir-at-law” with “another person” was adopted unanimously.

iii. 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery ARTICLE 1 [. . .] (c) Any institution or practice whereby: [. . .] (iii) A woman on the death of her husband is liable to be inherited by another person;169

166

167

168

169

Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude Submitted by the Government of the United Kingdom and Comments Thereon (Memorandum by the Secretary-General), UN Doc. E/AC.43/L.1, 2 December 1955, p. 24. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Third Meeting, 17 January 1956, UN Doc. E/AC.43/SR.3, 9 February 1956, p. 10. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Twelfth Meeting, 24 January 1956, UN Doc. E/AC.43/SR.12, 20 February 1956, p. 4. United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Final Act and Supplementary Convention, 4 September 1956, UN Doc. E/CONF.24/23.

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At the Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery the provisions of Article 1(c)(iii) did not draw any specific comments and were adopted as part of Article 1(c) as a whole.

Paragraph (d) i. 1954 British Draft Convention ARTICLE 1 [. . .] (d) any institution or practice whereby a child or young person is delivered by either or both his natural parents or his guardian to another person, whether for reward or not, under conditions which permit that person to exploit the child or young person or his or her labour; except that this Article shall not be construed so as to prohibit or hinder bona fide adoptions intended to promote the welfare of children or young persons.170

In 1954, the United Kingdom, in responding to the consultation process undertaken by the United Nations Secretary-General as to the desirability of a supplementary convention on slavery submitted a draft convention for consideration. The United Kingdom, provided comments as to the possible contents of such a convention, making reference to the recommendations which had been made in 1951 by the Ad Hoc Committee on Slavery. Where child exploitation was concerned, the 1951 Committee recommended the abolition of “the practice whereby a child is transferred by its parents or guardians to a third party on payment or under conditions permitting

170

Economic and Social Council, Slavery: Consultations Concerning the Desirability of a Supplementary Convention on Slavery and its Possible Contents, UN Doc. E/2540/ Add.4, 12 April 1954, p. 3.

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the exploitation of the child regardless of its welfare”.171 The Committee explained its inclusion of these provisions in the following manner: The Committee next turned to the practice, particularly prevalent in the Far East, which in some localities is now as ‘mui tsai ’. This involves the sale of a child’s working capacity and usually takes the form of the transfer of a small child, usually a girl, for employment as a domestic servant by means of an adoption procedure, sometimes fraudulent. The custom has been known to exist under other names in other regions of the world, including parts of Africa. The Committee recognized that in many cases an element of servitude may not be involved. Often the parents of the child affect such a transfer in what they believe to be the best interests of the child. The Committee therefore felt that a status or condition of servitude existed only when the conditions of the transfer were such as to permit the exploitation of the child regardless of its welfare. The Committee was aware of the fact that in many areas there has been a great deal of recent legislation on this subject, and that some of the laws have integrated these measures in such a way with other measures for the protection of children as to make them particularly effective. It expressed the hope that similar legislation might be considered favourably by the governments of those countries in whose territories the practice exists.172

With regard to child exploitation, it will be recalled that the United Kingdom, in including such provisions in its 1954 Draft Convention, provided comments which it noted applied as well it will be recalled, to the provisions on forced marriage of Article 1(c): Her Majesty’s Government are firmly convinced of the necessity of abolishing as early as possible the practices whereby the persons of women and children are disposed of without their consent. It is however their view, based on experience, that attempts to abolish long established customs and practices of any kind, including such practices as these, can only lead to the disintegration of the local social structures unless they are carried out gradually, with extensive educational preparations and with full regard to the wishes and feelings of the local inhabitants. They therefore believe that the proposed convention should provide that the contracting parties should undertake all practical measures, including legislation where appropriate, to bring the institutions or practices defined to an end progressively and as soon as possible.173

171

172 173

Economic and Social Council, Report of the Ad Hoc Committee on Slavery (Second Session), UN Doc. E/1988, E/AC.33/13, 4 May 1951, p. 20. Id., p. 10. Economic and Social Council, Committee on the Drafting of a Supplementary Con-

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With regard to paragraph (d) of Article 1, the United Nations SecretaryGeneral Memorandum collating the comments made on the 1954 British Draft Convention notes that the Government of Haiti acknowledged that such practice, by which children of “peasants” were by custom often “adopted” by “townspeople”, but noted that laws had been put in place to prevent “malpractices”. The Haitian Government concluded that, as a result of such laws, it had no objection to the adoption of the draft, “subject to drafting changes to paragraph (d)”.174 The International Organizations Committee of the International Labour Organization provided the following commentary: As regards paragraph (d) (child adoption and practices related thereto), the Office pointed out that it was for consideration whether the last phrase, ‘except that this Article shall not be construed so as to prohibit or hinder bona fide adoption intended to promote the welfare of children and young persons’ should be retained. If the phrase were retained, the effect might well be that contrary to that intended, that it might condone many adoptions, still practiced, which were contrary to the long-term interest of the child or young person. It could be argued that the adoption of children of impoverished parents who had not the means to feed them properly was in the interest of those children, even though the ultimate purpose of the adoption was to exploit their labour or their persons. During the Committee’s discussion of this point it was observed that there were two risks to be faced: that bona fide adoption might be hindered if the phrase in question were omitted, and that if the phrase were retained children or young persons might be laid open to the unfortunate consequences of adoption which were not bona fide.175 [. . .] The United Kingdom Government representative considered that the two risks mentioned above should be weighed up rather in connexion with a general consideration of the protection of children than in connexion with consideration of an international instrument on slavery, the slave trade and other forms of servitude. A suggestion was made that the competent national authorities might be made responsible for determining whether the adoption was really bona fide or not.

174

175

vention on Slavery and Servitude, Summary Record of the Third Meeting, 17 January 1956, UN Doc. E/AC.43/SR.3, 9 February 1956, p. 3. Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude Submitted by the Government of the United Kingdom and Comments Thereon (Memorandum by the Secretary-General), UN Doc. E/AC.43/L.1, 2 December 1955, pp. 24–25. Id., p. 25.

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The Committee, considering that it did not have any special experience which would enable it to express a definite view on this particular point, suggested that the attention of the United Nations should be drawn (i) to the apprehension which existed of the possibilities of abuse resulting from the wording proposed by the United Kingdom on this point; (ii) to the suggestion that the competent national authorities might be made responsible for determining whether the adoption was really bona fide or not; and (iii) to the fact that there were some countries in which adoption did not exist as an institution.176

While the International Union of Child Welfare welcomed “with particular satisfaction paragraph (d); the St. Joan’s International Social and Political Alliance thought that “the exception in the second half of the paragraph is unnecessary and would tend to weaken the force of the prohibition in the first half ”. Should that exception in the second half be retained, the Alliance suggested, the following should be added: “provided that these are under legal safeguards”. The Anti-Slavery Society provided a further suggestion with regard to Article 1(d) of the 1954 British Draft Supplementary Convention, stating that the “words ‘legal adoption’ should be replaced by ‘bona fide’ adoptions”.177 In the Addendum to the Memorandum of the Secretary-General, the International Abolitionist Federation suggested the deletion of the passage ‘except that this Article shall not be construed so as to prohibit or hinder bona fide adoptions intended to promote the welfare of children or young persons’ as “it unnecessarily weakens the text”.178 The following explanation by the Federation was provided: Considers it necessary to combat all exploitation of this type without exception, particularly as the victims are defenceless minors placed in the charge of adults. It gives as an example the case of the mui-tsai, who are exploited in this way by the persons to whom they are committed, being trained for prostitution”.179

176 177

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179

Id., pp. 25–26. Id., p. 26. Note that the International Bureau for the Suppression of Traffic in Persons fully supported these proposed amendments. See Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude Submitted by the Government of the United Kingdom and Comments Thereon (Memorandum by the Secretary-General) Addendum, UN Doc. E/AC.43/L.1/Add.1, 4 January 1956, p. 2. Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude Submitted by the Government of the United Kingdom and Comments Thereon (Memorandum by the Secretary-General) Addendum, UN Doc. E/AC.43/ L.1/Add.1, 4 January 1956, p. 2. Id.

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For its part, the Government of Pakistan, in a further Addendum to the Memorandum of the Secretary-General suggested that the phrase “or freely dispose of the produce of his labour” be added to the end of paragraph (d).180

ii. 1956 Draft Supplementary Convention on Slavery and Servitude ARTICLE 1 [. . .] (d) Any institution or practice whereby a child or young person under the age of 18 years is delivered by either or both his natural parents or his guardian to another person, whether for reward or not, for the purpose of exploiting the child or young person, or his or her labour.181

The Committee on the Drafting of a Supplementary Convention on Slavery and Servitude established by the Economic and Social to prepare a draft convention, reported on Article 1(d) in the following manner: The representative of the United Kingdom proposed that the words “under conditions which permit that person to exploit a child or young person or his or her labour” should be replaced by the words “for the purpose of exploiting, in a manner detrimental to his or her welfare, the child or young person, or his or her labour”. The representative of the United Kingdom also proposed deletion of the words “except that this article shall not be construed so as to prohibit or hinder bona fide adoptions intended to promote the welfare of children or young persons”. The latter proposal was in line with comments which had been submitted by the International Labour Organisation and by the St. Joan’s Social and Political Alliance.

180

181

Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude Submitted by the Government of the United Kingdom and Comments Thereon (Memorandum by the Secretary-General) Addendum, UN Doc. E/AC.43/ L.1/Add.2, 25 January 1956. Economic and Social Council, Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, UN Doc. 2824, Annex I, 15 February 1956.

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The representative of India proposed that the words “child or young person” and “children or young persons” be replaced by the word “minor” and “minors” respectively. The representative or the USSR supported the Indian amendment as he considered that, from a legal point of view, its phrasing was more precise. The proposal was however withdrawn after discussion in the 11th meeting. Subsequently, at the same meeting, the Committee unanimously agreed, at the suggestion of the representative of France, to use the term “child or young person under the age of eighteen years” wherever appropriate in the paragraph. The second United Kingdom amendment, deleting the phrase beginning “except that this article’ was adopted unanimously by the Committee at the 12th meeting. The first United Kingdom amendment, to substitute the phrase “under conditions which permit that person to exploit the child or young person or his or her labour”, was considered at the 12th and 13th meetings. The representative of the United Kingdom explained that it aimed at leaving the door open for the employment of child actors and musicians with the proper safeguards for their welfare and education. However, the representative of the USSR and others were opposed to the amendment on the ground that it would sanction in effect the exploitation of the labour of children. The representative of the United Kingdom agreed to delete from his amendment the phrase “in a manner detrimental to his or her welfare”. In doing so he recorded his interpretation that the article did not prohibit the employment of children when such employment was not detrimental to the child’s welfare. The representative of Australia suggested that the paragraph, as it stood, might possibly be interpreted as prohibiting corrective or penal treatment of young persons in state institutions. It was unanimously agreed that the paragraph could not properly he interpreted in that light. Paragraph (d), as amended, was adopted unanimously by the Committee at the 13th meeting.182

Taking into consideration the submissions summarised in the SecretaryGeneral’s Memorandum – more specifically, those made by the International Labour Organisation and by the St. Joan’s Social and Political Alliance – the Member of the Committee from the United Kingdom, Mr. Scott-Fox, “agreed that the exception in Paragraph (d), referring to bona fide adoptions, might lead to difficulties. If the phrase were retained,

182

Economic and Social Council, Slavery: Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery: Report of the Committee appointed by Resolution 564 (XIX), 7 April 1955, UN Doc. E/2824, 15 February 1956, pp. 23–24.

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the effect might be contrary to the one intended”.183 The Netherlands Representative supported this suggestion, stating that the “exception would tend to weaken the force of the prohibition in the first half of the paragraph”.184 That amendment was accepted at the twelfth meeting.185 The Chairman, Mr. Cutts, speaking as the Representative from Australia, raised the concern “lest paragraph (d) be held to apply to certain normal penal and corrective practices”. The French Representative said that the convention was meant to deal with the suppression or restriction” of one person’s liberty by another and that “[q]uestions of penal law and abuse of public power must be put aside”. Mr. Scott-Fox of the United Kingdom noted that the “words ‘delivered . . . to another person’ showed that the provision was not applicable to acts of the public authorities”.186 With regard to the second proposal put forward by the United Kingdom, which reads replace “the words ‘under conditions which permit that person to exploit a child or young person or his or her labour’ with the words ‘for the purpose of exploiting, in a manner detrimental to his or her welfare, the child or young person, or his or her labour’ ”,187 Mr. Scott-Fox noted that the term “to exploit” had two meanings. “In the sense in which it was used in many political textbooks it implied the inequitable treatment of workers. As used in such expressions as ‘to exploit natural resources’, it also had a favourable connotation. His amendment aimed at leaving the door open for the employment of child actors and musicians”.188 The Member from the Union of Soviet Socialist Republics

183

184 185

186

187

188

Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Third Meeting, 17 January 1956, UN Doc. E/AC.43/SR.3, 9 February 1956, p. 10. Emphasis in the original. Id., p. 11. See Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Twelfth Meeting, 24 February 1956, UN Doc. E/AC.43/SR.12, 20 February 1956, p. 6. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Third Meeting, 17 January 1956, UN Doc. E/AC.43/SR.3, 9 February 1956, p. 11. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Turkey: Amendment to Article 1 of the Draft Convention on the Abolition of Slavery and Servitude (E/2540/Add.4), UN Doc. E/AC.43/L.19, 19 January 1956. See Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Twelfth Meeting, 24 January 1956, UN Doc. E/AC.43/SR.12, 20 February 1956, p. 6.

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opposed this amendment saying its “language suggested that exploitation was permissible so long as it could be considered as not detrimental to the welfare of the child or young person concerned”. Mr. Nikolaev continued: The original United Kingdom text (E/2540/Add.4) employed the term “to exploit”, the meaning of which was perfectly clear: no one spoke of exploitation for beneficial purposes. The case of a child actor or musician working under a contract signed by his parent with a film company or other institution was very far removed from those cases which the draft supplementary convention was intended to cover, namely the exploitation of practices resembling slavery. It was concerned with a mass problem, not with isolated cases involving child actors.189

For his part, the Mr. Giraud stated “that in French the phrase ‘to exploit a person’ always had an evil connotation”, and suggested the following phrase: “to utilize the labour of the child or young person in a manner detrimental . . .”190 The Indian Representative, Mr. Kaul, “said that a stigma always attached to the exploitation of an individual. He accordingly proposed that the text should read “employing in a manner detrimental to his or her welfare”.191 At this point, the Chairman noted that there was agreement amongst Committee members that “the article was not intended to prevent legitimate employment of a child in a manner not detrimental to his or her welfare, but rather to prevent practices of actual exploitation”.192 He suggested that the original text be retained and an explanatory paragraph be included in the Report of the Ad Hoc Committee. This proposal was not immediately taken up, as the French Representative noted his support for the Indian amendment, while the Representative from the Soviet Union asked that any decision on that proposal be delayed until the next meeting “in view of the linguistic difficulties involved” in regard to the substituting of the words ‘to employ’ for ‘to exploit’.193 This was agreed to by the Committee.

189 190

191 192 193

Id., p. 7. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Twelfth Meeting, 24 January 1956, UN Doc. E/AC.43/SR.12, 20 February 1956, p. 7. Id. Id., p. 8. Id.

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At the thirteenth meeting the Member of the Union of Soviet Socialist Republics, Mr. Nikolaev, stated that he maintained his view that the amendment proposed by the United Kingdom “in effect condoned the exploitation of child labour”: While the original text had provided for the complete abolition of that practice, the amendment qualified that abolition, making it contingent upon the child, or his or her labour, being exploited in a manner detrimental to his or her welfare. No indication was given as to what would constitute detrimental exploitation. Substitution of the word “employing” for “exploiting”, as had been suggested, would not change the position in the slightest. The Soviet delegation was therefore opposed to the amendment which, in effect, legalized exploitation.194

The United Kingdom member of the drafting Committee, Mr. Scott-Fox, responded, saying that he felt that, despite appearance, there was no substantial difference between the views of the United Kingdom and the Soviet delegations. Both favoured the abolition of child labour. As a conciliatory gesture, he was prepared to delete the words “in a manner detrimental to his or her welfare” from his amendment on the understanding that the interpretation his delegation placed on the paragraph remained unchanged and that this would be made clear in the Committee’s report. Nothing would be gained by substituting the word “employing” for “exploiting” since the former, unlike the latter, failed to imply that the child worked primarily for the benefit of another person.195

While the Member from Yugoslavia sought to have the Report of the Committee “draw attention to the connexion between the paragraph under consideration and article 10, paragraph 2, of the draft covenant on economic, social and cultural rights which expressly stated that special measures of protection should be taken on behalf of children and young persons”, this was not accepted by the Chairman, who said that the “report

194

195

Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Thirteenth Meeting, 25 January 1956, UN Doc. E/AC.43/SR.13, 27 February 1956, pp. 3–4. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Thirteenth Meeting, 25 January 1956, UN Doc. E/AC.43/SR.13, 27 February 1956, p. 4.

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should record the United Kingdom’s view that child labour should not be prohibited where such labour was for the child’s own benefit”.196 While Mr. Ranjan, the Member from India, suggested that the term ‘minor’ should supersede ‘young person’, to which the French Representative, Mr. Giraud stated that the “term ‘child’ and ‘adolescent’ were physiological terms, but of a universal nature, whereas the term ‘minor’ was a legal one which varied from one country to another”.197 When Paragraph (d) was considered once more, at the twelfth meeting of the Committee, the Representative of the United Kingdom, noting the Indian suggestion, stated that “under Moslem law a minor was a child who had not attained the age of puberty. The use of the term might subsequently introduce an unwarranted limitation into the provision. He would favour the retention of ‘young person’, which, at least in English law, signified a child between the ages of fourteen and seventeen”.198 The Representative of the Soviet Union, Mr. Nikolaev, “preferred the term ‘minor’. The concept of a ‘child or young person’ was biological rather than legal and the text gave no indication of the exact meaning of the expression. The concept of minority, on the other hand, had a strict legal connotation under most systems”.199 Mr. Giraud said that “although the term ‘minor’ admittedly had a strict juridical meaning, the age-limit of legal minority varied from one country to another. The expression ‘child or young person’ might be preferable, as it gave a reasonable indication of the category of the individuals whom the provision was designed to protect”.200 The discussion continued as follows: Mr. SCOTT-FOX (United Kingdom) said that it would be difficult to find a legal term which had a uniform significance to all countries. The expression used in the draft was elastic and adequate to all circumstances. He would, however be willing to consider alternative proposals, if the expression “young person” gave rise to difficulties.

196 197

198

199 200

Id., p. 4. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Third Meeting, 17 January 1956, UN Doc. E/AC.43/SR.3, 9 February 1956, p. 11. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Twelfth Meeting, 25 January 1956, UN Doc. E/AC.43/SR.12, 20 February 1956, p. 4. Id., p. 4. Id., p. 4.

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The CHAIRMAN pointed out that the term “minor” might render the provision applicable only to children who had not attained a specific age. Such a limitation would be inconsistent with the purpose of the convention, which was intended to apply to all adolescents. Mr. NIKOLAEV (Union of Soviet Socialist Republics) said that, in supporting the Indian proposal, he had no specific age-limit in mind. The material age might vary considerably in different parts of the world, depending on climatic and physiological considerations. Mr. GIRAUD (France) felt that the problem might be solved by specifying an age, such as eighteen years. Mr. METALL (International Labour Organisation) said that international labour conventions spoke of “children and young persons”. The texts often defined the former as under fourteen and the latter under eighteen. The CHAIRMAN, speaking as the representative of Australia said that he opposed the Indian amendment, which might restrict the application of the convention. The ILO representative’s statement had also confirmed his belief that the existing expression was preferable. Mr. GIRAUD (France) pointed out that the convention to which the ILO representative had referred contains specific definition of children and young person. That example could well be followed. He would, therefore, formally propose that “a child or young person” should be changed to “a person under the age of eighteen years”. Mr. KAUL (India) withdrew his amendment (E/AC.43/L.8). Mr. SCOTT-FOX (United Kingdom) said that there might be some doubt whether a child was a “person”. The CHAIRMAN suggested the words “an individual under the age of eighteen years”. Mr. BOZOVIC (Yugoslavia) said that the use of the word “individual” would be inconsistent. Paragraphs (a) and (b), as well as paragraph (d) itself, used the word “person” and the coexistence of the two words in the same article would be inexplicable. There was, moreover, no possible doubt that a child was indeed a “person”. The CHAIRMAN felt that, in the context, the use of two different terms would be justified. The other reference to “persons” was not open to misinterpretation. Mr. BOZOVIC (Yugoslavia) proposed the wording “child or young person under the age of eighteen”. Mr. ABDEL-GHANI (Egypt) said that the word “person”, as used in the text under discussion, had no strict legal connotation. Its meaning had to be left to common sense.

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Mr. SCOTT-FOX (United Kingdom) supported the Yugoslav representative’s proposal. The words “child or young person under the age of eighteen” were adopted unanimously.201

The drafting Committee, having considered sub-paragraph (iii) in detail, adopted its new, amendment text, unanimously.

iii. 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery ARTICLE 1 [. . .] (d) Any institution or practice whereby a child or young person under the age of 18 years is delivered by either or both of his natural parents or by his guardian to another person, whether for reward or not, with a view to the exploitation of the child or young person or of his labour.202

Miss Lunsingh-Meijer, the Representative of the Netherlands, suggested during the United Nations Conference drafting the supplementary convention “that the word ‘exploiting’ should be clarified by the addition of the phrase ‘in a manner detrimental to his or her welfare’ ”.203 The Representative of China, Mr. Cheng Paonan, agreed that the term ‘exploiting’ needed clarification and agreed with the suggestion made by the Representative of the Netherlands.204 201 202

203

204

Id., pp. 5–6. Emphasis in the original. United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Final Act and Supplementary Convention, 4 September 1956, UN Doc. E/CONF.24/23. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Fourth Meeting, 15 August 1956, UN Doc. E/CONF.24/SR.4, 11 November 1958, p. 6. Id., p. 8.

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The Representative of China, Mr. Cheng Paonan, “was not altogether happy” about the phrase ‘the age of 18 years’, as he stated that different countries had different ages of majority and, “consequently expressions such as ‘minor’ and ‘of legal age’ were too imprecise. On the other hand, it was unsatisfactory to specify the age of eighteen years, because in many countries persons, whether male or female, could be legally married under that age”.205 Mr. Scott-Fox, the Representative from the United Kingdom, stated that there had been much discussion in the ad hoc drafting Committee regarding the issue of the age of the child. “Expressions such as ‘minor’, ‘young person’ and ‘adolescent’ had all been considered, and in the end it had been decided that it would be better to lay down a definite age-limit since all other expressions were susceptible of different interpretations”.206 At the fifth meeting, the President asked that the Conference consider the amendment proposed by the Netherlands: “Add the following phrase at the end of paragraph (d): “in a manner detrimental to his or her welfare”.207 The following discussion ensued: Mr. JAY (Canada) said that the term “exploiting” itself implied an act detrimental to welfare. The Netherlands amendment seemed unnecessary but might be acceptable if the word “employing” was substituted for “exploiting”. Miss LUNSINGH-MEIJER (Netherlands) explained that she had submitted the amendment merely to make it quite clear that “exploitation” was used to imply something detrimental. There should be no risk of the term being construed as simply “employing”. Mr. CAMEJO ARGUDIN (Cuba) pointed out that in Spanish the word for “exploit” was always pejorative. Mr. GIRAUD (France) said that in French the word “exploiter” had two meanings, only one of which was pejorative. He thought that the amendment proposed by Canada to the Netherlands proposal would have the advantage of obviating any possible ambiguity.

205 206 207

Id. Id. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Netherlands: Amendments to Article 1, UN Doc. E/CONF.24/L.3, 15 August 1956.

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Mr. SOMERHAUSEN (Belgium) said that the word “exploiter” in its neutral meaning could apply only to things, whereas it always had a pejorative sense when applied to persons. Hence, as applied to a child, the term could not be understood as meaning the mere use of the services of a child with no harm to the child. There was therefore no justification for the Netherlands delegation’s proposal. Mr. JOCKEL (Australia) observed that if the use of the word “employing” was substituted, there would be difficulties in the reset of the clause. “Employing the child or his labour” seemed redundant. The Netherlands amendment might be tautological, but that was not a very serious matter. Mr. NIKHAILENKO (Ukrainian Soviet Socialist Republic) could not accept any form of words implying that parents or guardians might deliver to another person (whether for reward or not), the labour of a child or adolescent, even if partly in the child’s own interest. The exploitation of persons under age, and, especially, of children, was repugnant to the civilized conscience, for it was harmful to their health. The amendment proposed by the Netherlands delegation did not improve the draft convention as it might lead to the disguisement of certain institutions that were akin to slavery. Mr. SCOTT-FOX (United Kingdom) explained that the point had been discussed at some length in the Drafting Committee. There had been differences of opinion, but all members had finally agreed on the intended purpose of the sub-paragraph. The United Kingdom and other delegations had argued that there was a shade of meaning in the term “exploiting” which was not necessarily detrimental, but in the interest of compromise had agreed to the use of the term on the ground that the commoner acceptance was the pejorative one. The Netherlands amendment was not, therefore, strictly necessary, but it made the meaning clearer and he would therefore support it. He could not support the Canadian suggestion, for the reasons given by the Philippine representative and also because the word “employing” suggested a commercial contract and would thus make the clause too restricted. Mr. JUKIEVICZ (Poland) remarked that the various shades of meaning of the term “exploiting” applied only to the English text, which should be left as it stood in order to avoid fresh difficulties with the text in other languages. Mr. JAY (Canada) withdrew his suggestion in light of what had been said, and would vote against the Netherlands amendment, since the sense was best expressed in the text as it stood, especially if due weight were given to the phrase “for the purpose of ”. Mr. CHRISTYAKOV (Union of Soviet Socialist Republics) said that the meaning of “exploiting” in the context – the exploiting of a child or young person – was quite clear, as was the meaning of the term in all the working

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languages except English. He would vote against the Netherlands amendment for that reason. Miss LUNSINGH-MEIJER (Netherlands) said that the consensus was obviously that the term “exploiting” meant in a manner detrimental to welfare. She would therefore withdraw the Netherlands amendment (E/ CONF.24/L.3).208

Overall Provisions of Article 1 On 27 February 1956, at its thirteenth meeting, the Committee on the Drafting of a Supplementary Convention on Slavery and Servitude adopted Article 1, as a whole, by a vote of nine to zero, with one abstention. The Member from the Soviet Union, Mr. Nickolaev, “said that he had abstained because the words “progressively and” in the introductory paragraph weakened the convention and prevented the abolition of slavery at the earliest practicable date, as desired by the Soviet Union”.209 In April 1956, the Report of the drafting Committee was considered by the Economic and Social Council. With that Report as its basis, the Council decided that an international conference should be held to draft the supplementary convention. At the meetings of the Economic and Social Council, the Representative of the Netherlands, Mr. Schurmann, was the only individual to mention Article 1; he noted that: The Committee’s text was admittedly not perfect; his delegation had voted for it in a spirit of compromise and at the proposed conference it would again try to effect changes which in its view would increase the effectiveness of the convention. Its main effort would be directed towards achieving an instrument acceptable to the largest possible number of States desirous of helping to eliminate practices and institutions contrary to human dignity. While slavery and the slave-trade in their crudest form could not be tolerated, many other reprehensible practices and institutions could be eliminated

208

209

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Fifth Meeting, 16 August 1956, UN Doc. E/CONF.24/SR.5, 11 November 1958, pp. 3–4. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Thirteenth Meeting, 25 January 1956, UN Doc. E/AC.43/SR.13, 27 February 1956, p. 4.

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only gradually, and the convention was designed to help the countries which were trying to affect the necessary social and economic reforms rather than to attack them. It was for that reason that the words “progressively and as soon as possible” had been included in article 1 of the draft.210

This phrase “progressively and as soon as possible”, as will have been noted, elicited much discussion during the United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery. At the sixth meeting, of the United Nations Conference, the President put Article 1, as amended, to a vote, whereby it was approved by a vote of thirty-five to none with three abstentions.211 During the twenty-first meeting, wherein Article 1 was being considered at second reading, amendments by States having been thoroughly considered, the President called for the suggestions by the Secretariat nominally dealing with style to be adopted “forthwith”.212 As a number of delegations had not had time to consider the Secretariat’s suggestions, the text not having been translated into all the official languages and some delegations raising issues of substance, the President – at the suggestions of the Pakistan and Philippine representatives – proposed (and it was agreed) that a drafting committee be established consisting of Belgium, Chile, China, France, Pakistan, Spain, the Ukrainian Soviet Socialist Republic, the United Kingdom and the Union of Soviet Socialist Republics “to consider the points of the drafting in all the official language. [. . .] The drafting committee would be empowered solely to deal with matters of style”.213 The President called for a vote on

210

211

212

213

Economic and Social Council, Agenda Item 12: Slavery, Official Records, Twenty-first Session, 916 Meeting, 27 April 1956, p. 91. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Sixth Meeting, 16 August 1956, UN Doc. E/CONF.24/SR.6, 11 November 1958, p. 3. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Twenty-First Meeting, 31 August 1956, UN Doc. E/CONF.24/SR.21, 20 November 1958, p. 10. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Twenty-First Meeting, 31 August 1956, UN Doc. E/CONF.24/SR.21, 20 November 1958, p. 11.

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Article 1 at “second reading on the understanding that the text might be subsequently revised solely on points of style”.214 Article 1, the text of which was the same as that adopted at first reading was adopted on second reading by thirty-seven votes for, none against, and 1 abstention. The text was subsequently revised by the Style Committee, which had considered the Secretariat’s suggestions which were as follows: Article 1(a) Instead of the phrase “. . . personal services or those of a third person under his control as a security for a debt, where the value reasonably assessed of those services rendered is not applied . . .” say: “. . . personal services, or of those of a [third] person under his control as [a] security for a debt if the values of those services as reasonably assessed is not applicable . . .” Article 1(b) Instead of the phrase “Serfdom, that is to say, the tenure of land whereby the tenant is by law, custom or agreement bound to live and labour on land belonging to another person and render . . .” say: “Serfdom, that is to say, the condition or status of a tenant who is by law, custom or agreement bound to live and labour on land belonging to another person and to render . . .” Article 1(c) After (i) the word “or” be added In (iii) the words “The woman” be replaced by “A woman” Article 1(d) Instead of the phrase “. . . a child or young person under the age of 18 years is delivered by either or both of his natural parents or his guardian to another person, whether for reward or not, for the purpose of exploitation the child or young person or his or her labour”. say: “. . . a child or young person under the age of 18 years is delivered by either or both of his natural parents or his guardian to another person, whether for reward or not, with a view to the exploitation of the child or young person, or of his [or her] labour.

214

Id.

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(If the words ‘or her’ are retained they should also be included in lines 2 and 3 of the paragraph).215

When the Style Committee was called upon to report at the twentyfourth meeting of the Conference, the Chairman of the Committee, Mr. Sommerhausen of Belgium, did not comment on Article 1 in particular, simply noting in general terms that “the Style Committee had followed the recommendations of the Conference and had not accepted any amendment capable of altering the substance of the articles of the convention”.216 Article 1 as adopted by the United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery reads: Each of the States Parties to this Convention shall take all practicable and necessary legislative and other measures to bring about progressively and as soon as possible the complete abolition or abandonment of the following institutions and practices, where they still exist and whether or not they are covered by the definition of slavery contained in article 1 of the Slavery Convention signed at Geneva on 25 September 1926: (a) Debt bondage, that is to say, the status or condition arising from a pledge by a debtor of his personal services or of those of a person under his control as security for a debt, if the value of those services as reasonably assessed is not applied towards the liquidation of the debt or the length and nature of those services are not respectively limited and defined; (b) Serfdom, that is to say, the condition or status of a tenant who is by law, custom or agreement bound to live and labour on land belonging to another person and to render some determinate service to such other person, whether for reward or not, and is not free to change his status;

215

216

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices similar to Slavery, Second Reading: Suggestions by the Secretariat, UN Doc. E/CONF.24/L.37, 30 August 1956, pp. 1–2. Note: the square brackets and italics are in found in the original. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Twenty-Fourth Meeting, 4 September 1956, UN Doc. E/CONF.24/SR.24, 20 November 1958, p. 3.

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(c) Any institution or practice whereby: (i) A woman, without the right to refuse, is promised or given in marriage on payment of a consideration in money or in kind to her parents, guardian, family or any other person or group; or (ii) The husband of a woman, his family, or his clan, has the right to transfer her to another person for value received or otherwise; or (iii) A woman on the death of her husband is liable to be inherited by another person; (d) Any institution or practice whereby a child or young person under the age of 18 years is delivered by either or both of his natural parents or by his guardian to another person, whether for reward or not, with a view to the exploitation of the child or young person or of his labour.

iv. Commentary on Article 1 of 1956 the Supplementary Convention Article 1 provides for four types of servile statuses for which “States Parties must take “all practical and necessary legislative and other measures to bring about progressively and a soon as possible” their “complete abolition or abandonment”. It being understood that such servitudes would have to be addressed “whether or not they are covered by the definition of slavery” of the 1926 Slavery Convention: that is, whether or not the powers attached to the right of ownership are exercised. While the discussions regarding the negotiations of these four servile statuses: debt bondage, serfdom, forced marriage, and child exploitation were technical in nature and rather limited in the scope of change, it should be mentioned that types of servitudes had not only been put forward by the 1950–51 Ad Hoc Committee on Slavery, but had been identified and considered in the League of Nations era, by both the 1924–25 Temporary Slavery Commission and, in the 1930s, by the Advisory Committee of Experts on Slavery. Where policy issues are concerned the most contested issue during the negotiations of Article 1 was the nature of the measures to be taken to abolish these servile statuses. A clear difference of opinion manifest itself throughout the negotiation process as to whether the servitudes under consideration should be abolished forthwith, or ‘progressively and as soon as possible’. From the start of the consideration of Article 1 by the 1956

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Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, it became evident that there was a cleavage which existed between Western States and Eastern and Southern States as to the approach which should be taken. The lead in opposing the term ‘progressively and’ was the Soviet Union, which called for its deletion as being against the principles and purposes of the United Nations and “weaken the scope of the article”. The Netherlands had pointed to the findings of the Temporary Slavery Commission in 1925 as justification for moving progressively towards abolition as “sudden abolition would almost certainly result in social and economic disturbances which would be more prejudicial to the development and well-being of the peoples than the provisional continuation of the present state of affairs”.217 A vote was taken on the Soviet Union’s proposal which was defeated by five in favour and five opposed. The issue was taken up once more during the United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, first by an indication by the Philippines Representative, Mr. Lopez, that he would request a separate vote on the words ‘progressively and’ as found in introductory paragraph of Article 1 of the 1956 Draft Convention. As a result, the French Representative, Mr. Giraud, stated that the failing of the 1926 Convention was to be found in its inability to “win the acceptance of certain States whose co-operation would have been specially advantageous. Over-rigid terms should therefore be avoided in the new Convention, in order to obtain the largest possible number of acceptances. It was for that reason that the words ‘progressively and as soon as possible’ had been included in article 1 and that they should continue to appear there”.218 For its part, the United Kingdom pointed to the statement of the Anti-Slavery Society which had called for the retention of the words ‘progressively’ and ‘as soon as possible’:

217

218

Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Tenth Meeting, 23 January 1956 UN Doc. E/AC.43/SR.10, 17 February 1956, p. 5. See League of Nations, Temporary Slavery Commission, Report of the Temporary Slavery Commission adopted in the Course of its Second Session, July 13th–25th July, 1925, LofN Doc. A.19.1925. VI, 25 July 1925, p. 11. Id., pp. 3–4.

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In support of its opinion the Society had quoted a passage from an article entitled ‘Slavery in all its forms’ by Lord Lugard, member of the League of Nations Temporary Slavery Commission, which had been published in January 1933. In that article Lord Lugard had emphasized that in countries where from time immemorial slavery had existed as an integral part of the structure of society it was obvious that a decree of compulsory emancipation would result in social chaos. He had further stated that masters who had acquired their slaves under the pre-existing secular law and religious sanction could not without injustice be suddenly deprived of their legal property and be reduced to poverty. Slaves unaccustomed to fend for themselves would starve or turn to theft and the woman to prostitution. The aged and sick would perish.219

The Representative of the Netherlands, for her part said that the sudden abolition of the servitudes under consideration “might disrupt the social and economic life of the country concerned”;220 while the Australian Delegate considered that abolition of forced marriages would affect the “stability of marriage and family organization”.221 These arguments were countered by a rather devastating critique by the Mr. Lopez of the Philippines, who stated; that while he appreciated the humanitarian motives which had prompted the delegations of the United Kingdom, Australia, Netherlands and France to insist on the retention of the word ‘progressively’, he must point out that, as those who know the relationship of ruler and ruled from the other side were aware, the argument that reforms should be introduced slowly and gradually had sometimes been used in the past to retard progress, perhaps even against the will of the administrating authorities concerned. Slowness to act in destroying backward tribal practices had in fact prolonged those practices and maintained the rule of ignorance and superstition. Insistence on the need for progressive action must not operate against the interests of the backward peoples themselves. An administering authority might conceivably base its refusal to put an end to such institutions as serfdom on the grounds that it must act progressively.222

219

220 221 222

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Fourth Meeting, 15 August 1956, UN Doc. E/CONF.24/SR.4, 11 November 1958, pp. 5–6. Id., p. 6. Id., p. 3. Id., pp. 9–10.

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The St. Joan’s International Social and Political Alliance, for its part agreed with the Philippines saying that “times had changed, and it was necessary to take action more promptly. The great weight of inertia itself tended to delay reforms, and any excuse to leave things as they were was seized upon in the name of ‘stability’ ”.223 When the issue was put to a vote, the outcome was once again a tie, this time fourteen votes in favour, fourteen opposed with nine abstentions. Yet, in distinction to the rules of the Drafting Committee, the Conference required another vote to take place at the following meeting. China noting that it had been “allayed by the statements [. . . of ] the United Kingdom and the Anti-Slavery Society” paved the way for the new vote to be in favour of retaining the term ‘progressively and’ and thus maintaining the same type of measure as had been included in the 1926 Slavery Convention with regard to slavery.

223

Id., p. 13.

Article 2 (Marriage) With a view to bringing to an end the institutions and practices mentioned in article 1 (c) of this Convention, the States Parties undertake to prescribe, where appropriate, suitable minimum ages of marriage, to encourage the use of facilities whereby the consent of both parties to a marriage may be freely expressed in the presence of a competent civil or religious authority, and to encourage the registration of marriages.

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i. 1954 British Draft Convention ARTICLE 5 With a view to bringing to an end the institutions and practices mentioned in article 1(c) of this Convention the Contracting Parties undertake to prescribe where appropriate a minimum age of consent in marriage and to encourage the use of facilities whereby the consent of both parties to a marriage may be freely expressed in the presence of a recognised marriage officer who shall register such marriage.1

In 1954, the United Kingdom, in response to the consultation process undertaken by the United Nations Secretary-General as to the desirability of a supplementary convention on slavery, submitted a draft of just such an instrument. The United Kingdom, provided comments as to the possible contents of such a convention, by making reference to the recommendations which had been made in 1951, by the Ad Hoc Committee on Slavery. The Ad Hoc Committee had noted the following with regard to servile status resulting from marriage: That in order to speed the abandonment of practices of involuntary servitude arising from marriage customs by which women are subject to a servile status, States adhering to the supplementary international convention should bind themselves to establishing in all their territories, civil marriage by an easily accessible marriage officer, accompanied by registration of marriages contracted in his presence, and to encourage the inhabitants of those territories to make use of that mode of contracting a valid marriage. That States adhering to the supplementary international convention should bind themselves to enact within all their territories, laws providing that the age of consent in marriage be 16 years in the case of males and 14 years in the case of females.2

1

2

Economic and Social Council, Slavery: Consultations Concerning the Desirability of a Supplementary Convention on Slavery and its Possible Contents, UN Doc E/2540/ Add.4, 12 April 1954, p. 4. Economic and Social Council, Report of the Ad Hoc Committee on Slavery (Second Session), UN Doc E/1988, E/AC.33/13, 4 May 1951, p. 21, paragraphs 6 and 7.

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The United Kingdom having noted that it had prepared a draft convention based on the recommendations of the Ad Hoc Committee, had the following comments on the provisions regarding marriage just cited: Her Majesty’s Government warmly support the principles which inspired the recommendations on marriage but adhere to the view expressed in subparagraph (iii) above, that the practices in question can only be eradicated gradually, and principally by means of education. In particular they believe that no law should be enacted unless it is enforceable, and suggest, by way of an example, that patriarchal systems in many countries cannot be abruptly changed, nor is it desirable that attempts should be made to change them suddenly by legislation, but that education and continual legislative advances should proceed together. They also consider, having regard to the documentation submitted to the Commission on the Status of Women (E/CN.6/185 and addenda) and discussion of this subject in the Commission on Human Rights (E/CN.4/SR.383 and 384) that an international convention should not lay down the age of consent in marriage but that this should be laid down in domestic legislation according to the needs of each territory.3

Three other States, the Union of Burma and Pakistan (Member States of the United Nations) and Ceylon (at this juncture a Non-Member of the Organisation) made comments with regard to the recommendations related marriage of the Ad Hoc Committee on Slavery. With regard to the first set of recommendations touching on civil marriages and access to marriage officers, Burma noted: Marriage laws are already in force which provide for contracting a valid marriage before an easily accessible marriage officer. Burmese Buddhist marriages are consensual contracts which have no hint of servile status. The Buddhists Women’s Special Marriage and Succession Act encourages registration of marriage between Burmese Buddhist women and non-Buddhist men in the interest of the women’s inheritance and property rights. Under the Act all village headmen are Registrars of Marriage.

With regard to the second recommendation, that of age of consent, Burma stated: The marriage law in force in the Union sets the age of consent higher than 16 for males and 14 for females. Under the Child Marriage Restraint Act, a male adult marrying a child, or parents concerned in a child marriage, or

3

Economic and Social Council, Slavery: Consultations concerning the Desirability of a Supplementary Convention on Slavery and its Possible Contents, UN Doc E/2540/Add.1, 3 March 1954, pp. 4–5.

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whoever solemnizes a child marriage, may be punished. A ‘child’ is defined as a male under 18 years or a female under 14 years, and a ‘child marriage’ is a marriage to which either of the contracting parties is a child.4

As a result of this and other comments, the Union of Burma noted that “adequate constitutional and statutory provisions are in force” and no new legislative measures would be called for if it accedes to the Convention”.5 Pakistan, for its part, dealt with the recommendations of the 1950–51 Ad Hoc Committee on Slavery as one, saying that: The Government of Pakistan is of the view that the problem enunciated in these recommendations may be appropriately dealt with by the Commission on the Status of Women, to which they should be referred for consideration. These recommendations should not form part of the proposed Supplementary Convention on Slavery. If the ECOSOC were to decide to adopt them, the Government of Pakistan could not be a party to them, as in Pakistan each community is governed by its personal laws is so far as marriage customs are concerned.6

As for Ceylon, its Minister of External Affairs, while stating that he had no objections to the other recommendations of the Ad Hoc Committee on Slavery, his Government was “unable to give unqualified assent to recommendation 7, regarding the age of consent in marriage”. The Minister went on to say: In Ceylon, the General Marriages Ordinance has provided for the same ages of consent (Section 14 of Chapter 95). A similar provision exits in the Kandyan Marriages Ordinance (Cap. 96). But the Muslim Marriage Act 13 of 1951 (which is not yet in operation) authorizes the marriage of a girl who has not attained the age of 12, provided the Quazi for the area in which the girl resides has, after such inquiry as he may deem necessary, authorized the registration of the marriage. For the purpose of marriage a Muslim in Ceylon attains ‘majority’ on reaching the age of puberty – 54 N 201 at 203 (Privy Council). Thus there will be a few cases of Muslim girls below 12, who have obtained the authorization of the Quazi, being able at present to contract a legal marriage, the penal provisions in Section 363 of the Penal Code notwithstanding.7

4

5 6 7

See Economic and Social Council, Slavery: Consultations concerning the Desirability of a Supplementary Convention on Slavery and its Possible Contents, UN Doc E/2540, 11 February 1954, pp. 13–14. Id., p. 14. See id., pp. 18–19. See id., p. 19.

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Turning to the 1954 British Draft Convention, the Economic and Social Council, by way of Resolution 525 B (XVII) of 29 April 1954, invited “all Governments and the International Labour Organisation to submit comments” on the draft convention. The various comments received were included in a memorandum prepared by the Secretary-General in February 1956, wherein, with regard to Article 5, he provided his considerations under two headings. The first heading related to the term ‘recognized marriage officer’. Here the Secretary-General had received comments from Syria which read: The only reservation the Government of Syria would wish to make relates to article 5 of the draft, which stipulates that ‘the Contracting Parties undertaken to prescribe . . . and to encourage the use of facilities whereby the consent of both parties to a marriage may be freely expressed in the presence of a recognised marriage officer (officier d’état civil ) who shall register such marriage’. Syrian law in no way requires the presence of a marriage officer at marriages, but simply makes it compulsory for any marriages regularly solemnized before the competent judge or the religious authorities to be subsequently registered by the marriage officer.8

For its part, India stated that: It is presumed that the intention is not to make civil marriages compulsory. In India, as in many other countries, large sections of the population are governed by special customs, social and religious, for the solemnization of marriages which cannot be interfered with or modified under existing penal law. Any provision making civil marriages compulsory would therefore not be acceptable.9

Believing that there was a misunderstanding in regard to the comments made by Syria and India, the non-governmental Anti-Slavery Society expressed the following opinion: the registration of marriages to which consent had been given by the intended husband and wife of competent age . . . would make the proof of a valid

8

9

Economic and Social Council, Slavery: Comments Received on the Draft Convention on the Abolition of Slavery and Servitude submitted by the Government of the United Kingdom, Report of the Secretary-General, UN Doc E/2679, 3 February 1955, p. 12. Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude Submitted by the Government of the United Kingdom and Comments Thereon (Memorandum by the Secretary-General), UN Doc E/AC.43/L.1, 2 December 1955, p. 34.

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marriage easier but it would not be the only way of providing the validity of a marriage. English law recognizes other ways of providing a marriage besides the production of a marriage certificate. A marriage officer may be a civil servant or a priest, as he is in most British countries.10

The Secretary-General then provided his input on the provision, saying that he: assumes that the authors of the draft convention did not intended that States parties to the convention would be under an obligation to replace religious by civil marriages and therefore suggests that in the French text of the Article words ‘en présence d’un officier d’état civil dument habilité qui enrégistrera ledit mariage’, be replaced with ‘en présence d’une personne légalement habilitée a proceder à la celebration des mariages’. The corresponding English text would read ‘in the presence of a person legally entitled to celebrate marriages’.11

The second heading under which the Secretary-General considered comments made to Article 5 of the 1954 British Draft Convention relates to the prescription of a minimum age of consent for marriage. The SecretaryGeneral received one State comment regarding the issue, the Republic of Korea stating that under its law: the minimum age of consent in marriage is 17 years for man and 15 years for women. Therefore it goes with the principles stated in the first part of Article 5 of the draft. But the same law provides that a man who has not attained 30 years of age and a woman who has not attained 25 years of age should obtain the consent of his or her parents in the same domicile as his or hers. The Government of the Republic of Korea wonders in this regard, whether or not the principles expressed by the wording ‘. . . the consent of both parties to marriage may be freely expressed . . .’ is intending to abrogate the practice of parental consent to his or her children’s marriage.12

While the International Union for Child Welfare expressed its “particular satisfaction with the draft provisions of Article 5”, the St. Joan’s International Social and Political Alliance considered, in the words of the Secretary-General, that: a minimum age of consent in marriage should be prescribed universally, and that therefore the words ‘where appropriate’ should be deleted. In its view no marriage should be permitted for boys and girls under the age

10 11 12

Id. Emphasis in the original. Id. Emphasis in the original. Id., pp. 35–36.

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of fourteen. As regards the establishment of registration of marriages, the Alliance is not adverse to the establishment of a civil register of marriages, which should be confined to monogamous marriages. It advocates that duly authorized ministers of religion should be recognized as marriage officers and be required to register the marriages solemnized by them.13

Later, the St. Joan’s Alliance would draw attention to a recommendation made by the All-Nigerian Committee on Bride Price established by the Eastern Regional Government of Nigeria: Child marriage should be abolished. No marriage should be valid which either party is below the age of sixteen years . . . Where either party is below the age of twenty-one years, consent of the parent or guardian should be required, but this consent should not be unreasonably withheld.14

ii. 1956 Draft Supplementary Convention on Slavery and Servitude ARTICLE 2 With a view to bringing to an end the institutions and practices mentioned in Article 1(c) of this Convention, the States Parties undertake to prescribe, where appropriate, suitable minimum ages of marriage, to encourage the use of facilities whereby the consent of both parties to a marriage may be freely expressed in the presence of a competent civil or religious authority, and to encourage the registration of marriages.15

By way of an Economic and Social Council resolution, a 1956 Ad Hoc Committee of ten members of the Council was appointed “for the purpose

13 14

15

Id., p. 35. Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude Submitted by the Government of the United Kingdom and Comments Thereon (Memorandum by the Secretary-General) Addendum, UN Doc E/AC.43/ L.1/Add.1, 4 January 1956, p. 2. Economic and Social Council, Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, UN Doc 2824, Annex I, 15 February 1956.

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of preparing a text of a draft supplementary convention”.16 With regard to what would become Article 2 of its draft this ad hoc committee, the Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, using as its basis the 1954 British Draft Convention and the 1956 memorandum prepared by the Secretary-General as “its basic working document”, considered the input of non-governmental organisations during its fourth meeting. Mrs. Grabinska of the St. Joan’s International Social and Political Alliance, speaking also on behalf of the International Bureau for the Suppression of Traffic in Persons, noted that a minimum age of consent in marriage should be prescribed, that “age should be fourteen years for boys and girls and the full consent of both parties should be required for the marriages, provided that, in order to encourage monogamy, only monogamous marriages were registered”. She continued: “The duly authorized ministers of the various religions should be recognized as marriage officers and should be required to register the marriages they solemnized”.17 Mr. Giroux of the Catholic International Union for Social Services: Asked the Committee, when drafting article 5, to fix a minimum age for marriage at fourteen or fifteen years, at the same time recommending contracting States to prescribe a more advanced age. The argument that the fixing of the minimum age should be a matter exclusively for the national authorities was false and appeared to be based on the physiological fact that nubility varied from region to region. If nubility was the only factor to be taken into account, it might perhaps be undesirable to fix the minimum age for marriage in an international instrument. But as it was a universal principle that a person under fourteen years of age was psychologically incapable of consenting freely to his marriage owing to his lack of judgment, the argument in question fell to the ground, since whatever the region under consideration, consent when given by a person fourteen years of age was meaningless.18

At the seventh meeting of the Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, the British representative, Mr. Scott-Fox, put forward a proposed revised text of Article 5 which read:

16 17

18

See Economic and Social Council, Resolution 564 (XIX), 7 April 1955. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Fourth Meeting, 17 January 1956, UN Doc. E/AC.43/SR.4, 9 February 1956, pp. 6–7. Id., p. 7.

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The Contracting Parties undertake to prescribe, where appropriate, suitable minimum ages for marriage and, with a view to bringing to an end the institutions and practices mentioned in Article 1(c) of this Convention, to encourage the use of facilities whereby the consent of both parties to a marriage may be freely expressed in the presence of a person legally entitled to celebrate marriages.19

When asked by the Soviet representative to indicate the differences between the amended text being proposed and the original Article 5, Mr. ScottFox explained that he had accepted the arguments put forward by the Secretary-General in his 1956 memorandum: “The words ‘recognized marriage officer’ had been replaced by ‘person legally entitled to celebrate marriages’ ”; other changes, Mr. Scott-Fox noted, had been “merely ones of form”.20 To which the Chairman added that “the requirements to register had been dropped, in deference to the views of certain Governments”. The discussion continued thus: Mr. NIKOLAEV (Union of Soviet Socialist Republics) observed that the amended draft article 5 spoke of ‘suitable minimum age’, the word ‘suitable’ being new. Furthermore, while the original text spoke of a minimum age of ‘consent’ in marriage, the amended version omitted all reference to consent. That change might be open to the construction that the practice of forcing persons into marriage, regardless of their will, was being condoned. Lastly, it had not been explained why the requirement to register had been dropped. Mr. SCOTT-FOX (United Kingdom) replied that the reason for the word ‘suitable’ was self-evident. The aim was to give the contracting parties the greatest possible latitude in prescribing the minimum age, in the light of local customs and traditions. The fact that the reference to consent had been omitted could not be construed in the manner suggested. Forced marriages would in any event be proscribed by article 1(c). As regards registration, the reason for the present omission could be found in paragraph 77 of the Secretary-General’s memorandum [i.e.: the comments made by Anti-Slavery Society]. The Indian representative had also expressed certain misgivings on that point.21

19

20

21

Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, United Kingdom: Amendment to Article 5 of the Draft Convention on the Abolition of Slavery and Servitude (E/2540/Add.4), UN Doc E/AC.43/L.11, 17 January 1956. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Seventh Meeting, 19 January 1956, UN Doc. E/AC.43/SR.7, 17 February 1956, p. 9. Id.

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At the thirteenth meeting of the drafting Committee, Mr. Schweld of the Secretariat noted that India had put forward an amendment to Article 5, but that “in point of fact, the United Kingdom delegation has already embodied the amendment in its own text” currently under consideration.22 The Chairman invited discussion on Article 5, with Egypt taking the floor first. Mr. ABDEL-GHANI (Egypt) reminded the Committee of the Syrian Government’s comments on the article (E/AC.43/L.1, paragraph 75) and said that Egypt, as an Islamic country, fully associated itself with those comments. Under Moslem law, a marriage would not be valid unless both parties had expressed their consent thereto. Coercion by anyone, even the parents, was prohibited. On the other hand, the two parties were not required freely to express their consent in the presence of a third party. Marriages were registered, but as a purely civil act which merely regulated the rights and obligations of the two parties towards each other and towards their children. He drew attention to those facts, because the Moslem religion was practised in many African and Asian countries in which some form of slavery still existed, despite the fact that that religion condemned slavery, whatever its form or source. An article should therefore be adopted which would make it possible for Moslems residing in countries where slavery still existed not to marry except with their freely expressed consent, but which would not make the validity of the marriage dependent upon the expression of consent in the presence of a third party. Registration was necessary, or at least desirable, because it regulated the status of the married couple. He proposed that the United Kingdom draft (E/AC.43/L.11) should be amended by deleting the end of the article from the word ‘marriage’ onwards and substituting the following: ‘shall be freely expressed and shall be registered by a person legally entitled to register marriages’. Mr. GIRAUD (France) said he attached great importance to article 5. Marriage might be the last refuge of slavery and did not necessarily represent its mildest form. A woman might well be united for the rest of her life to a man whom she had married under compulsion. Consent must be given freely and therefore must be expressed at a formal ceremony. Admittedly, moral pressure

22

See Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Thirteenth Meeting, 25 January 1956, UN Doc. E/AC.43/SR.13, 27 February 1956, p. 13. Note that the Indian proposal is found at Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, India: Amendment to Article 5 of the Draft Convention on the Abolition of Slavery and Servitude (E/2540/Add.4), UN Doc E/AC.43/L.32, 24 January 1956.

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could be brought to bear upon her, but an appreciable result would already have been achieved if the woman had the opportunity of refusing her consent before a qualified civil or religious witness if she had the courage to do so. Article 5 should be drafted with great caution so that free consent could be attested to without causing an upheaval in customs and usage. Mr. SCOTT-FOX (United Kingdom) agreed with the views of the representative of France. To judge by India’s comments on the original text (E/AC.43/L.11, para. 76), there was reason to fear that some countries would be unable to accept the Egyptian amendment, which virtually made civil registration obligatory. The United Kingdom text did not have that drawback, while not excluding the possibility of registration.23

At this point, the Chairman intervened noting that it seemed that “the new United Kingdom text was couched in sufficiently broad terms to cover civil and religious marriages”. He realised that the proposed Egyptian amendment would be “helpful to the Moslem countries, but he believed that the United Kingdom text would obviate those difficulties which would be raised by any attempt to make registration obligatory”.24 The Chairman, Mr. Cutts of Australia, then gave the floor to the Yugoslav representative who inquired as to “whether the Egyptian amendment applied solely to civil marriages. He thought not, as marriages could be also registered by priests, as in the case of religious marriages”.25 The Chair intervened to say that the United Kingdom amendment “applied to marriages of all types” and went on to say that he “could accept that part of the Egyptian amendment dealing with the need for the free expression of consent, but felt it would be unwise to press the idea of registration, since it seemed to him that that would amount to making civil registration compulsory”. Mr. Bozovic, the Yugoslav representative, for his part, did not agree, for he believed that the “Egyptian amendment merely referred to a person ‘legally entitled’ ”.26 The floor was then given the Egyptian delegate: Mr. ABDEL-GHANI (Egypt) pointed out that the Moslem religion did not require that parties to a marriage express their consent in the presence of any person or authority.

23

24 25 26

Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Thirteenth Meeting, 25 January 1956, UN Doc. E/AC.43/SR.13, 27 February 1956, pp 5–7. Id., p. 7. Id. Id.

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Like the representative of France, he feared that forced marriage was likely to prove the most persistent form of slavery. He thought that the best method of elimination of the practices from the Moslem countries in which it might exist was to make widely known the Moslem doctrine that a forced marriage was not valid. The registration of marriages was, however, desirable in countries where certain forms of slavery still existed. His delegation was therefore in favour of including a clause on registration, though he did not think it advisable to stipulate that a marriage was not valid unless the parties had expressed their consent in the presence of a particular person or authority. The CHAIRMAN pointed out in the first place that the purpose of article 5 was not to condemn a further category of institutions or practices, but to give effect to prohibitions expressed in other articles of the convention and in the second place that the word ‘encourage’ excluded the idea of compulsion. Mr. GIRAUD (France), while admitting that the consent of the spouse to the marriage was required in Islam, nevertheless thought it essential that there should be an official ceremony which would permit the parties to express formally their consent to the marriage and consequently to refuse consent. Such a procedure could admittedly conflict with certain existing customs, but article 5 confined itself to ‘encouraging’ its adoption; it did not impose it. That was an absolute minimum. The wording proposed was discreet and moderate; to weaken it would deprive it of all value.27

Consideration of Article 5 during the thirteenth session of the drafting Committee ended with the Chairman suggesting that the representatives of Egypt, France and the United Kingdom meet to discuss the article. At the following session, considerations of Article 5 resumed with Egypt withdrawing its earlier proposed amendment, “in view of the Indian representative’s objections” and proposing the following reading of article 5: The Contracting Parties undertake . . . to encourage the use of facilities whereby the consent of both parties to a marriage shall be freely expressed. The Contracting Parties undertake to encourage the registration of marriages in the areas where slavery and the similar practices mentioned in Article 1 exist.28

27

28

Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Thirteenth Meeting, 25 January 1956, UN Doc. E/AC.43/SR.13, 27 February 1956, p. 8. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Fourteenth Meeting, 25 January 1956, UN Doc. E/AC.43/SR.14, 29 February 1956, p. 5.

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The French Representative, for his part stated: That in the present context that actual registration of marriage, a formality designed to record the existence of the marriage, was a secondary matter: the important thing was to make sure that the parties consented to the marriage. For that reason, he preferred the text proposed by the United Kingdom delegation, which established a valuable safeguard by providing that consent to a marriage had to be freely expressed in the presence “of a person legally entitled to celebrate marriages” (E/AC.43/L.11).29

At this point, the Chairman declared the discussion with regard to Article 5 suspended to allow for further discussion and agreement; short of which if “an issue of substance was involved”, he would call for a vote. Alas, no vote was taken as it was declared, at the sixteenth session of the Committee on the Drafting of a Supplementary Convention on Slavery and Servitude that a new formulation had been put forward, and in revised form, was adopted. The new amendment was put forward jointly by the representatives of Egypt, France, India, and the United Kingdom and read as follows: The Contracting Parties undertake to prescribe, where appropriate, suitable minimum ages of marriage, with a view to bringing to an end the institutions and practices mentioned in Article 1(c) of this Convention. The Contracting Parties undertake to encourage the use of facilities whereby the consent of both parties to a marriage may be freely expressed in the presence of a competent civil or religious authority, and to encourage the registration of marriages.30

This formulation was revised to read as follows; and was adopted by the drafting Committee: With a view to bringing to an end the institutions and practices mentioned in Article 1(c) of this Convention, the Contracting Parties undertake to prescribe, where appropriate, suitable minimum ages of marriage, to encourage the use of facilities whereby the consent of both parties to a marriage may be freely expressed in the presence of a competent civil or religious authority, and to encourage the registration of marriages.31

29 30

31

Id. See Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Egypt, France, India and the United Kingdom of Great Britain and Northern Ireland: Amendment to Article 5 of the Draft Convention on the Abolition of Slavery and Servitude (E/2540/Add.4), UN Doc E/AC.43/L.35, 26 January 1956. Economic and Social Council, Committee on the Drafting of a Supplementary Convention

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At this point, on the basis of a earlier proposal put forward by the United Kingdom, the drafting Committee decided at its nineteenth meeting that Article 5 should be moved so as to become Article 2.32 The proposal reads as follows, the “United Kingdom delegation proposes that Article 5 should follow immediately after Article 1 [. . .]”.33 At third reading, the provisions of the new Article 2 were adopted without comment; though it was decided at the twentieth meeting that the words ‘Contracting Parties’ would be changed to ‘States Parties’ wherever they appeared in the text, which includes Article 5.34

iii. 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery ARTICLE 2 With a view to bringing to an end the institutions and practices mentioned in article 1 (c) of this Convention, the States Parties undertake to prescribe, where appropriate, suitable minimum ages of marriage, to encourage the use of facilities whereby the consent of both parties to a marriage may be freely expressed in the presence of a competent civil or religious authority, and to encourage the registration of marriages.35

32

33

34

35

on Slavery and Servitude, Egypt, France, India and the United Kingdom of Great Britain and Northern Ireland: Amendment to Article 5 of the Draft Convention on the Abolition of Slavery and Servitude (E/2540/Add.4), UN Doc E/AC.43/L.35/Rev.1, 27 January 1956. See Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Nineteenth Meeting, 2 February 1956, UN Doc. E/AC.43/SR.19, 9 March 1956, pp. 11–12. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, United Kingdom: Change in order of articles of the Draft Convention on the Abolition of Slavery and Servitude (E/2540/Add.4), UN Doc E/AC.43/L.23, 20 January 1956. See Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Twentieth Meeting, 6 February 1956, UN Doc. E/AC.43/SR.20, 9 March 1956, p. 5. United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Final Act and Supplementary Convention, 4 September 1956, UN Doc E/CONF.24/23.

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At first reading of the provisions of Article 2, the President, Calderon Puig of Mexico, asked the United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices similar to Slavery on 16 August 1956, to vote on it, as no amendments had been proposed. Article 2 was adopted by a vote of thirty-seven in favour, none opposed and two abstentions. The Canadian Representative, Mr. Jay, explained his abstention as a result of the difficulties of the constitutional situation in Canada where “a definite division of legislative responsibilities between the central and provincial administrations”36 existed, and any impingement of these powers would require, in light of the fact that slavery did not exist in Canada, to make a reservation. Mr. Jay, however noted that his “delegation might possibly be able to change its vote later”.37 At second reading, the following proposal was put forward by Portugal: With a view to bringing to an end the institutions and practices mentioned in article 1(c) of this Convention, the States Parties undertake to prescribe a minimum age of marriage of not less than fourteen years, to provide means whereby the consent of both parties to a marriage may be freely expressed and duly recorded in the presence of a competent civil or religious authority, and to provide for the registration of marriages.38

The President of the Conference first recognised the wish of three nongovernmental organization representatives to speak in connection with the proposed amendment. Miss Campoamor of the International Alliance of Women believed that the Portuguese amendment should be adopted, and proposed the following clause be added to Article 2:

36

37

38

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Fourth Meeting, 15 August 1956, UN Doc E/CONF.24/SR.4, 11 November 1958, p. 7. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Fifth Meeting, 16 August 1956, UN Doc E/CONF.24/SR.5, 11 November 1958, p. 5. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Portugal: Amendment to article 2 (E/CONF.24/L.29),n UN Doc E/CONF.24/L.32, 29 August 1956.

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The States Parties undertake (1) to prescribe a minimum age of marriage of not less than fourteen years of age for the woman: (2), to provide means whereby the consent of both parties to a marriage may be freely expressed in the presence of a competent civil or religious authority; and (3) to provide for the registration of marriages.39

Likewise Lady Chatterjee of the International Federation of Women Lawyers supported the Portuguese amendment, and stated that: Certain marriage customs were means of slavery, and her Federation now wished to ask the Conference to amend article 2 and prescribe a minimum age for marriage, for below a certain age consent to marriage could not be considered free, and, as shown by maternal mortality statistics, the life of the child-wife was greatly endangered through too-early child-bearing. While, as stated in article 2 as drafted, it was useful to encourage the use of facilities whereby consent of both parties to a marriage might be freely expressed in the presence of a competent civil or religious authority, her Federation felt that States parties to the convention should also undertake to provide and maintain the means for such expression, for its due recording, and for the registration of marriages.40

Mrs. Challoner of the St. Joan’s International Society and Political Alliance, first supplied her perfunctory support of the Portuguese amendment, then noted the members of the Alliance, and then went on to say that “definite measures for the application of the principles set forth in article 2 seem to be lacking”. She called on the Conference to adopt a minimum age for marriage, stating that while she “did not underestimate the difficulties which the enforcement of a minimum age might encounter it was felt that it should be possible for men and women of goodwill to overcome them”. Finally, Mrs. Challoner endorsed Lady Chatterjee’s remarks regarding the “need for free expression and recording of consent and for marriage registration”.41

39

40 41

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Twenty-Second Meeting, 31 August 1956, UN Doc E/CONF.24/SR.22, 20 November 1958, p. 2. Id. Id., p. 3.

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Mr. Nogueira of Portugal then took the floor simply to say that the provisions being put forward in his amendment were in accordance with Portuguese law which established the age of fourteen as the minimum age for marriage. The Canadian Representative Mr. Jay recalled the following two points which had been stressed throughout the Conference: namely the desirability of there being as many accessories as possible to the convention and the Conference’s agreed view that it would be wiser to advocate the progressive changing of social patterns and institutions. He therefore felt that no minimum age for marriage should be mentioned in article 2 and that no attempt should be made to force on States obligations which would make it difficult for them to sign the convention on account of the serious constitutional problems they might raise. His Government, for example, might be unable to sign the convention if that article were altered in any way.42

While the French Representative supported the essence of the proposed amendment, he thought it might be best dealt with by way of the Conference adopting a resolution on the issue of consent to marry. Mr. GIRAUD (France) approved the aim of the Portuguese amendment, but felt that it would be preferable to keep the present text of article 2. Excessively stringent provisions might prevent some countries from acceding to the Convention. The means whereby the consent of the parties to a marriage might be expressed and the guarantees safeguarding the freedom of consent lay outside the scope of the Conference. It was, he thought, for the Commission on Status of Women to study those questions and make such comment or comments as might seem necessary. He thought, however, that on that subject the Conference might adopt a resolution inviting the Economic and Social Council to request the Commission on the Status of Women to undertake a study of the conditions and forms of marriage with a view to safeguarding freedom of consent. Mr. JAFRI (Pakistan) recalling the statement he made in connexion with the Viet-Namese amendment to article 1 (E/CONF.24/L.34), supported the remarks of the Canadian representative who appreciated the difficulties which certain States would encounter if the amended article 2 was adopted. He (Mr. Jafri) wholly agreed with all the objectives of the Portuguese amendment and said that his country was doing all that it could administratively and legislatively to achieve them. The Conference, however, was not a forum for reforming marriage practices. He felt that such work should be left to the

42

Id.

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appropriate United Nations organ, namely the Commission on the Status of Women, and the representative of Pakistan on the Commission would support the suggestions that the minimum age for marriage should be no less than fourteen years. When the latter question had been discussed earlier, the French representative had rightly told his colleagues that a convention of the nature now under discussion should avoid rigidity and should not include provisions which might prevent States from acceding to it. Briefly reviewing the Portuguese amendment, he pointed out that most States might have supported it had the words ‘where appropriate’ been maintained after the phrase ‘the States parties undertake to prescribe’. Mr. JOCKEL (Australia) said that he would be unable to support the Portuguese amendment. He valued the interventions of the various nongovernmental organizations, but pointed out that the draft supplementary convention dealt with slavery and related practices and was not an instrument for writing law in relation to marriage. Article 2 commenced with the words ‘with a view to bringing to an end the institutions and practices mention in article 1(c) . . .’. It was supplementary to article 1 in that it suggested a method for dealing with some of the practices which were to be abolished according to the provisions of article 1. Australia’s main concern in article 1(c) was the question of the bride price and his Government intended in the foreseeable future to meet its obligations under that article, as he had already explained, by working with the newly-formed village councils. The Australian Government could not commit itself at present to the preparation and implementation of a territory-wide basis of marriage legislation including a specific minimum age requirement. The present customary local laws concerning marriage varied greatly among the various cultural groups in the territories administered by Australia. Such arrangements were not arbitrary; on the contrary, they were highly complex. Details were set out in the Australian Government’s Report to the United Nations for 1953–54 on the Territory of new Guinea, and on page 67 of that Report it was indicated that Australian legislation accepted tribal arrangements with regard to marriage. The relevant ordinance was: ‘Every marriage between natives which is in accordance with the custom prevailing in the tribal group of natives to which the parties to the marriage or either of them belongs or belonged shall be a valid marriage’. He would like to illustrate how far-reaching the Portuguese proposal was. If it were adopted, the Australian authorities might even be confronted with legislative obligations in respect of the Australian aborigines whose marriage practices contained many strange and primitive features which his Government had not attempted to bring within the purview of a legislative system. Professor A.P. Elkin of the University of Sydney, in a relevant work, had stated that it must be recognized that if changes in belief and custom were to be made among the aborigines without disaster they must be made through the Elders and not imposed from external authority. His Government in fact was basing its efforts on an extensive aborigine welfare policy.

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In view of the situation which he had outlined he believed that the happiest solution would be for article 2 to be adopted in its original form and for the Portuguese representative to withdraw his proposal. Mr. de la FUENTE (Peru) agreed with the representatives of Canada, France, Pakistan and Australia. Adopting the Portuguese amendment would raise constitutional difficulties for several countries which wished to accede to the convention. The French representative’s proposal should be acceptable to all the members of the Conference since it took into account both the aims of the Portuguese representative and the objections to the amendment of article 2.43

The Portuguese Representative, Mr. Nogueira, then took the floor saying he did not wish to impose Portuguese law through his amendment, yet he felt there was support for a minimum age of fourteen years for marriage and thus wished to seek agreement by means of a “compromise text for article 2”. Mr. Nogueira continued: The convention was a manifestation of the human ideal of abolishing and preventing slavery, and he suggested that, in order to allow for the largest possible number of accessions to the convention, article 2 should be retained as drafted and that the following new paragraph should be added: In case there are constitutional laws or practices or justified customs to prevent it, States parties should endeavour, wherever possible and at appropriate stages, to consider the desirability of establishing the principles of minimum age of marriage of fourteen years.44

The Portuguese proposal was not supported by Mr. Jay of Canada, as he thought it similar to the article 2 as it stood, as it “contained provisions similar to that amendment” now being put forward. For his part, Mr. Jafri of Pakistan put forward his own amendment, believing that what was being proposed by Portugal was “somewhat cumbersome”. The Pakistani proposed amendment reads: With a view to bringing to an end the institutions and practices mention in article 1(c) of this Convention, States parties undertake to prescribe, where appropriate, and where it is not otherwise contrary to the personal and religious laws of the persons concerned or the constitutional laws and practices of the territories concerned, a minimum age of marriage of no less than fourteen years. . . .45

43 44 45

Id., pp. 3–6. Id., p. 6. Id., p. 7.

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Next to take the floor was the Philippines Representative, Mr. Lopez, who noted that he could not support the first Portuguese proposal, as “valid objections had been raised to it”; but he did support the Pakistani proposal, and what is more, he was prepared to make suggestions of his own to its content. he suggested that the words ‘constitutional laws and practices’ were unnecessary in view of the phrase ‘where appropriate’ and that the last part of the amendment should read ‘States Parties undertake to prescribe where appropriate a suitable minimum age of marriage, preferably not less than fourteen years . . .’.46

At this point the President of the Conference took the floor to remind representatives that “article 2 had been adopted by a large majority in first reading” and suggested that if they were so inclined, that the representatives of Pakistan, Philippines and Portugal could get together to draft a new amendment. For his part, the French Representative, Mr. Giraud, acting on his earlier suggestion, proposed that the Conference adopt the following recommendation: “The Conference recommends that, if possible, a minimum age of marriage of not less than fourteen years of age be prescribed”.47 With this, the President moved that further discussion of article 2 should be postponed. During the twenty-third session of the Conference, Mr. Nogueira of Portugal decided to withdraw his proposed amendment; as his delegation did not “feel that the majority of the Conference would support that text”. As a result, the original article 2 was put to a vote and, at second reading, was adopted by forty votes in favour, none against with two abstentions. Yet before the vote had taken place, Mr. Nogueira had indicated that while not wishing to push his amendment he was willing to consider a recommendation regarding free consent and minimum age of marriage: However, since the Conference had discussed the establishment of a minimum age for marriage, it should adopt a recommendation along the lines set forth in the amendment, and he had accordingly submitted a draft resolution (E/CONF.24/L.45) to that effect.48

46 47 48

Id. Id. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Twenty-Third Meeting, 3 September 1956, UN Doc E/CONF.24/SR.23, 20 November 1958, p. 4.

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That draft resolution put forward by Mr. Nogueira reads: The Conference, Recommends to the Economic and Social Council that it request the Commission on the Status of Women to undertake a study of the question of a Convention on marriage, the object of which would be to ensure that free consent of both parties to a marriage and particularly that of the woman, and that establishment of a minimum age for marriage, preferably of no less than 14 years.49

With regard to this draft resolution, the Chinese Representative, Mr. Cheng Paonan, noted that it might seem curious to outsiders as to why marriage was being considered within in a convention on slavery and the slave trade and, as such, proposed the following preamble to the draft resolution: “Having regard to article 2 of the Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices similar to Slavery . . .”.50 Mr. Cheng Paonan also thought the resolution too specific in its mentioning of the United Nations organ and sub-organ, and the minimum age as fourteen. “In view of the different legislations on the matter in different countries”, the Chinese Representative stated, “it was inappropriate for the Conference to make such a categorical recommendation”. The British Representative was of the same mind. He believed the Portuguese resolution “raised certain difficulties. Mr. Scott-Fox stated that “the draft resolution seemed to go even further that the original amendment, inasmuch as it referred to a new convention [on marriage]. Such a fundamental new proposal would require profound consideration and perhaps even governmental consultations”.51 Having taken these points into consideration and those made by the Egyptian delegation regarding the fact that both the Commission on the Status of Woman and the Commission on Human Rights had already dealt with the issue of minimum age of marriage, and thus that it should

49

50

51

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Portugal: Draft resolution, UN Doc E/CONF.24/L.45, 3 September 1956. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Twenty-Third Meeting, 3 September 1956, UN Doc E/CONF.24/SR.23, 20 November 1958, p. 5. Id.

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be left to the Economic and Social Council to determine how best to proceed, the Portuguese Representative accepted the Chinese suggestion regarding the preamble and “undertook to revise the operative part of the draft resolution in accordance with the suggestions that had been made”.52 At the concluding session of the United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices similar to Slavery, Mr. Nogueria introduced his revised draft resolution which read: The Conference, Having regard to article 2 of the Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices similar to Slavery, Recommends to the Economic and Social Council to consider the appropriateness of having undertaken a study of the question of marriage, with the object of drawing attention to the desirability of free consent of both parties to a marriage and of the establishment of a minimum age for marriage, preferably of not less than 14 years.53

Having introduced the text, which Mr. Nogueira noted “differed somewhat from the text he had read out at an earlier meeting”, as “after informal consultations with certain delegations he had incorporated some of their views in the text”.54 For their part, the representatives of Pakistan, Sudan and Turkey raised objection with regard to a set minimum age of marriage with the Sudanese Representative, Mr. El Atabani suggesting that the phrase ‘preferably of no less than fourteen years’ be deleted. Mr. Nogueira could not agree to this and called for a separate vote to be taken on the matter. The President put to a vote the inclusion of the last phrase of the Portuguese draft resolution, which was carried twenty votes in favour, one against with twenty abstentions. The President then put to a vote

52 53

54

Id., p. 6. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Portugal: Draft resolution, UN Doc E/CONF.24/L.45/ Rev.1, 3 September 1956. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Twenty-Fourth Meeting, 4 September 1956, UN Doc E/CONF.24/SR.24, 20 November 1958, p. 2.

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the overall resolution, which was adopted by thirty-seven votes in favour, none against and six abstentions.55

iv. Commentary on Article 2 of the 1956 Supplementary Convention The inclusion of an article, in the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, related to marriage despite the possible pitfalls of religion and the minimum age of consent, was negotiated rather serenely. Pakistan, in providing its comments to the 1954 British Draft Convention, sought to have the provisions excluded, as being more “appropriately dealt with by the Commission on the Status of Woman”. While this was not to be; accommodation did manifest itself throughout the negotiation process of Article 2. Where States indicated that the presence of marriage officers was not required in their jurisdiction or that compulsory civil marriage was not required by some religion, and thus not acceptable; appropriate language was found to resolve the issue. Likewise when an amendment was brought forward during the second reading of the 1956 United Nations Conference negotiating the Supplementary Convention, proposing a minimum age of marriage, this too was addressed in a rather tactful manner, despite heavy input from women’s non-governmental organisations. For instance, Lady Chatterjee of the International Federation of Women Lawyers called to “prescribe a minimum age for marriage, for below a certain age consent to marriage could not be considered free, and, as shown by maternal mortality statistics, the life of the child-wife was greatly endangered through too-early child-bearing”.56 While the Conference did contemplate an amendment prescribing a minimum age, it was Mr. Jockel, the Australian Representative who noted that “the draft supplementary convention dealt with slavery and

55 56

Id., pp. 2–3. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Twenty-Second Meeting, 31 August 1956, UN Doc E/CONF.24/SR.22, 20 November 1958, p. 2.

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related practices and was not an instrument for writing law in relation to marriage”, turned the tide against such a proposal.57 Yet, a prescribed minimum age of marriage was not wholly discarded from the Conference as it moved to accept the following resolution: Recommends to the Economic and Social Council to consider the appropriateness of having undertaken a study of the question of marriage, with the object of drawing attention to the desirability of free consent of both parties to a marriage and of the establishment of a minimum age for marriage, preferably of not less than 14 years.58

57

58

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Twenty-Second Meeting, 31 August 1956, UN Doc E/CONF.24/SR.22, 20 November 1958, pp. 3–6. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Portugal: Draft resolution, UN Doc E/CONF.24/L.45/ Rev.1, 3 September 1956.

Article 3 (Slave Trade) 1. The act of conveying or attempting to convey slaves from one country to another by whatever means of transport, or of being accessory thereto, shall be a criminal offence under the laws of the States Parties to this Convention and persons convicted thereof shall be liable to very severe penalties. 2. (a) The States Parties shall take all effective measures to prevent ships and aircraft authorized to fly their flags from conveying slaves and to punish persons guilty of such acts or of using national flags for that purpose. (b) The States Parties shall take all effective measures to ensure that their ports, airfields and coasts are not used for the conveyance of slaves. 3. The States Parties to this Convention shall exchange information in order to ensure the practical co-ordination of the measures taken by them in combating the slave trade and shall inform each other of every case of the slave trade, and of every attempt to commit this criminal offence, which comes to their notice.

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i. 1954 British Draft Convention ARTICLE 2 (a) The act of conveying slaves on the high seas or slave raiding shall be deemed to be an act of piracy, and subject to appropriate penalties. (b) Public vessels under the control of parties to this Convention shall have the same rights in relation to vessels or persons engaged in such act as they have in relation to vessels and persons engaged in acts of piracy. (c) All slaves so captured shall be set at liberty.1

When, in February 1954, the United Kingdom put forward a draft supplementary convention touching on issues of slavery, it did so within the context of consultations undertaken by the United Nations SecretaryGeneral as to the desirability of just such an instrument. The United Kingdom based its draft on the recommendations of the 1950–51 Ad Hoc Committee on Slavery, of which it “was in broad agreement”. With regard to the provisions of what would become Article 3 of the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, the 1950–51 Ad Hoc Committee on Slavery recommended: That slave raiding and slave trading on the high seas should be declared to be a crime similar to piracy in international law and that States adhering to the Supplementary Convention should bind themselves to enact laws within a prescribed time declaring that all the attributes of, and penalties for, piracy shall attached to them.2

For its part, the United Kingdom, pointing to this passage of the Report of the Ad Hoc Committee, stated that “Her Majesty’s Government agree that slave raiding and trading should be declared to be a crime similar to

1

2

Economic and Social Council, Slavery: Consultations Concerning the Desirability of a Supplementary Convention on Slavery and its Possible Contents, UN Doc E/2540/ Add.4, 12 April 1954, p. 3. Economic and Social Council, Report of the Ad Hoc Committee on Slavery (Second Session), UN Doc E/1988, E/AC.33/13, 4 May 1951, p. 20, para. 2.

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piracy. As regards the requirement to enact laws, their views on responsibility for domestic legislation have been set out in paragraph 4 above”.3 Paragraph 4 of the British communication reads: Her Majesty’s Government also believes that it should be left to Governments to decide, in the light of domestic circumstances, whether and what legislative or other action is necessary in order to enable them to comply with the requirements of the Convention, and that it would be inappropriate that the Convention should contain a specific obligation to enact laws for this purpose. Any state becoming party to the Convention would automatically accept under international law the obligation to ensure that its domestic law contained such provisions as might be necessary to fulfil its purpose. But the nature of the requisite legislation would be in the opinion of Her Majesty’s Government a matter for each Party”.4

In response to the British Draft Convention Article 2, the Philippines provided the only comment, laying out its understanding of the applicable law: Since the carriage of slaves and slave raiding are to be regarded as piratical acts, the implications of the Draft Convention must be drawn from the law on piracy. It is assumed that the term ‘piracy’ here used refers to piracy jus gentium. The generally accepted rule on the matter under international law is that any state which lawfully acquires custody of pirates or persons reasonably suspected of being pirates has jurisdiction to prosecute and punish them before its courts in accordance with its penal laws, regardless of their nationality or that of the victims. The weight of authority appears to support the view that this extraordinary jurisdiction arises only were the locus of the offense is the high seas or land that is res nullius, that is in locations outside the territorial jurisdiction of any state (See Harvard, Draft Convention on Piracy, [1931] 26 Am.J.Int.L supp. 788 et seq.; 1 Hyde, International Law [2nd. Rev. ed., 1945] p. 767; Art 2[5] and 122, Revised Penal Code. But cf. People v. Lol-lo and Saraw, 43 Phil 19 at 22–23). The rights of public vessels referred to in paragraph (b) are those of visit, search and seizure of pirate ships and those reasonably suspected of being pirate ships (Hall, Inter national Law, 8th ed., Pearce Higgins, pp. 317–318). There is no question that these rights may be exercised on the high seas. It is however unsettled

3

4

See Economic and Social Council, Slavery: Consultations concerning the Desirability of a Supplementary Convention on Slavery and its Possible Contents, UN Doc E/2540/ Add.1, 3 March 1954, p. 4. See Economic and Social Council, Slavery: Consultations concerning the Desirability of a Supplementary Convention on Slavery and its Possible Contents, UN Doc E/2540/ Add.1, 3 March 1954, p. 2.

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whether, or under what conditions, a public vessel may pursue a pirate ship into and capture it within the territorial waters of another state (Harvard Research, Supra, at 834 et seq.).5

As a result of the consultations concerning the desirability of a supplementary convention on slavery, the Economic and Social Council decided to appoint a committee of ten of its members “for the purpose of preparing a text of a draft supplementary convention”.6 To that end, the UN Secretary-General prepared a Memorandum which was a “recapitulation of United Nations action relating to slavery which led to the adoption by the Council of resolution 564 (XIX), and a summary of the comments received on the draft convention”.7 With regard to the provisions of Article 2 of the British Draft Convention, the Anti-Slavery Society provided a long comment: The Temporary Slavery Commission of the League recommended that the transport of slavers by sea should be declared to be a crime similar to piracy in international law, but that provision was not included in the Slavery Convention of 1926. Instead Article 3 of that Convention provided that the Contracting Parties should conclude another convention for the prevention of the slave trade at sea. The Ad Hoc Committee on Slavery of the United Nations has repeated the recommendation that slave trading at sea be declared to be piracy. Paragraph (a) and (b) in Article 2 of the draft Convention follow closely the draft Article on this subject submitted by the British Government to the League of Nations. The words ‘or slave raiding’ have however been inserted. As slave raiding would be carried on either within territorial waters or on land it is difficult to see how this could be declared to be piracy and those words should be deleted. Paragraph (c) of Article 2 is an abbreviated form of the draft submitted by the British Government to the League of Nations, which was: ‘Vessels and slaves captured in accordance with this article shall be brought before the courts of the country whose ship affected the capture and dealt with in accordance with its laws. Persons on board such vessels who are engaged

5

6 7

Economic and Social Council, Slavery: Comments Received on the Draft Convention on the Abolition of Slavery and Servitude submitted by the Government of the United Kingdom, Report of the Secretary-General (Addendum), UN Doc E/2679/Add.1, 3 February 1955, p. 6. Economic and Social Council, Resolution 564 (XIX), 7 April 1955. Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude Submitted by the Government of the United Kingdom and Comments Thereon (Memorandum by the Secretary-General), UN Doc E/AC.43/L.1, 2 December 1955, p. 4.

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in the act of conveying slaves on the high seas shall be handed over to the authorities of their own country to be brought before its courts. The slaves shall in all cases be set at liberty’. . . . The Brussels Slavery Convention of 1890, the most complete international Convention on suppression of slave trading ever made, stated in great detail what should be done to suppress the slave trade including the disposal of ships and those on them. It is suggested that examination of that Convention would repay study. It was unfortunately abrogated by the Convention of St. Germain-en-Laye of 1919 as between the following parties to it: Belgium, France, Great Britain (including the British Dominions), Japan and Portugal; but it is believed by jurists still to be binding on other Parties to it who did not adhere to nor ratify the Convention of St. Germain (V. International Law Review Oct. 1950, p. 504). Doubts have been expressed on the wisdom of giving a right of search [of ] all ships, suspected to be carrying slaves, anywhere on the high seas.8

The Secretary-General noted that “the Anti-Slavery Society expressed the opinion that slaves are now conveyed by sea only in a certain region and in small ships, and suggests that ‘it might be more prudent to limit the right of search to a defined area and to ships under a specified size’ ”. The Secretary-General went on to note that the Anti-Slavery Society stated that if “it is decided to limit the right of search to a defined area and to ships of a maximum size, consideration should be given to Article 21 to 23 inclusive of the Brussels Slavery Convention of 1890”.9 The Memorandum of the Secretary-General then considers the AntiSlavery Society’s comments: Paragraph (a) In connexion with the Anti-Slavery Society’s statement that ‘as slave raiding would be carried on either within territorial waters or on land it is difficult to see how this could be declared to be piracy’, the Committee’s attention is drawn to the following comments of the International Law Commission on the text of one of the provisional articles concerning the regime of the high seas, which deals with piracy (Article 14) as adopted by the Commission at its seventh session:10

8

9 10

Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude Submitted by the Government of the United Kingdom and Comments Thereon (Memorandum by the Secretary-General), UN Doc E/AC.43/L.1, 2 December 1955, pp. 27–28. Id., p. 28. A footnote in the text reads: A/2934, p. 6.

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The Commission had to consider certain controversial points as to the essential features of piracy. It reached conclusion that: . . . 4. Piracy can be committed only on the high seas or in a place situated outside the territorial jurisdiction of any State, and cannot be committed within the Territory of a State or in its territorial sea. Paragraph (b) With regard to the words ‘Public vessels under control of parties to the Convention . . .’, the Committee’s attention is drawn to the following provisional article concerning the regime of the high seas, adopted by the International Law Commission at its seventh session:11 Article 20 A seizure because of piracy may be made only by warships or military aircrafts. The comment of the International Law Commission on the text of provisional Article 20 is as follows: State action against ships suspected of engaging in piracy should be exercised with great circumspection so as to avoid friction between States. Hence it is important that the right to take action should be confined to warships, since other State-owned vessels do not provided the same safeguards against abuse In connexion with the Anti-Slavery Society’s comment that as slaves are now conveyed by sea only in a certain region, ‘it might be more prudent to limit the right of search to a defined area . . .’, the Committee’s attention is drawn to the following provisional article [concerning] the regime of the high seas, adopted by the International Law Commission at its seventh session:12 Right to visit Article 21 1. Except where acts of interference derive from powers conferred by treaty, a warship which encounters a foreign merchant vessel at sea is not justified in boarding her unless there is reasonable ground for suspecting: (a) That the vessel is engaged in piracy; or (b) That while in the maritime zones regarded as suspect in international treaties for the abolition of the slave trade, the vessel is engaged in that trade; or

11 12

A footnote in the text reads: A/2934, p. 7. A footnote in the text reads: Ibid., p. 8.

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(c) That while flying a foreign flag or refusing to show its flag, the vessel is, in reality, of the same nationality as the warship. 2. In the cases provided for in sub-paragraphs (a), (b), and (c) above, the warship may proceed to verify the vessel’s title to fly its flag. To this end, it may send a boat under the command of an officer to the suspect vessel. If suspicion remains after the documents have been checked, it may proceed to a further examination on board the vessel, which must be carried out with all possible consideration. 3. If the suspicions prove to be unfounded and provided that the vessel boarded has not committed any acts to justify them, it shall be compensated for the loss sustained. The Comment by the International Law Commission on provisional Article 21 reads, in part, as follows: The principle of freedom of the seas implies that, generally speaking, a merchant vessel can only be boarded on the high seas by a warship flying the same flag. International law, however, admits certain exceptions to this rule – namely, cases where there is reasonable ground for suspecting: ... 2. That the vessel is engaged in the slave trade. Right of visit was recognized in this latter case by the treaties for the repression of slavery, especially the Brussels Act of 2 July 1890. For purposes of repression this assimilated slavery to piracy, with the proviso that the right in question could only be exercised in certain zones clearly defined in the treaties. The Commission felt that it should follow this example so as to ensure that the exercise of the right of control would not be used as a pretext for exercising the right of visit in waters where the slave trade would not normally be expected to exist; . . . The provisions of Article XIX, XXII, and XXIII of the General Act for the Suppression of African Slave Trade, to which the Anti-Slavery Society refers in its comments reproduced above [. . .], and which is also cited in the comment by the International Law Commission on its text of provisional Article 21 of the Right to visit, reads as follows: Article XXI The zone extends, on the one hand, between the coasts of the Indian Ocean (those of the Persian Gulf and of the Red Sea included) from Beloochistan to Point Tangalane (Quilliman), and, on the other a conventional line which first follows the meridian of Tangalane till it meets the 26th degree south latitude; is then merged in this parallel, then passes round the Island of Madagascar by the east, keeping 20 miles off the east and north shore, till it crosses the meridian of Cape Amber. From this point the limit of the zone is determined by an oblique line which extends to the coast of Beloochistan, passing 20 miles off Cap Ras-el-Had.

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Article XXII The Signatory Powers of the Present General Act, between whom there are special Conventions for the suppression of the Slave Trade, have agreed to restrict to the above-mentioned zone the clauses of these Conventions concerning the reciprocal right to visit, search, and detention (“droit de visite, de recherché, et de saise”) of vessels at sea. Article XXIII The same Powers have also agreed to limit the above-mentioned right to vessels of less than 500 tons burthen. This stipulation shall be revised as soon as experience shall have shown the necessity of such revision. Paragraph (c) The Committee’s attention is drawn to the following provisional article concerning the regime of the high seas, adopted by the International Law Commission at its seventh session:13 Slave Trade Article 12 Every State shall adopt effective measures to prevent and punish the transport of slaves in vessels authorized to fly its colours, and to prevent the unlawful use of its flag for that purpose. Any slave who takes refuge on board a warship or a merchant vessel shall ipso facto be free. In its comments on this provision the Commission points out that the last sentence thereof is taken from Article XXVIII of the General Act of Brussels of 2 July 1890. That provision reads: Article XXVIII Any slave who takes refuge on board a ship of war bearing the flag of one of the signatory powers, shall be immediately and definitively set free. Such freedom, however, shall not withdraw him from the competent jurisdiction if he has been guilty of any crime or offense at common law.

13

A footnote in the text reads: A/2934, p. 6.

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ii. 1956 Draft Supplementary Convention on Slavery and Servitude ARTICLE 3 (a) The act of conveying or of attempting to convey slaves on the high seas, or being accessory thereto, shall be a criminal offence under the laws of the States Parties to this Convention and persons convicted thereof shall be liable to penalties as severe as those generally applied to acts of piracy. (b) While on the high seas in the area of the Indian ocean, including the Red Sea and the Persian Gulf, bounded on the south by the twenty-sixth degree south latitude and on the east by the sixty-second degree east longitude, warships or military aircraft under the control of Parties to this Convention shall have the same right of visit, search and seizure in relation to vessels of Parties to this Convention suspected on reasonable grounds of being engaged in the act of conveying slaves as they have in relation to vessels so suspected of being engaged in acts of piracy. (c) (i) Any vessel seized in accordance with this article shall be brought in for adjudication by a court of the State which has made the seizure. This State, may, however, request any other State Party to this Convention, or to the Slavery Convention of 1926, to refer the case to one of its courts if, in its view, practical or other reasons make this advisable. (ii) Any slave who is found on board a vessel shall be immediately be at liberty. (iii) Any person found on board any vessel searched in accordance with this article who is reasonably suspected of having committed any of the offences specified in paragraph (a) of this article shall be handed over for trial to the authorities of the State of which he is a national or, if practical or other reasons make this advisable, he may be brought to trial by the authorities of the capturing State, or, subject to the consent of the State of which he is a national, by the authorities of any other State Party to this Convention or to the slavery Convention of 1926. (d) In this article “slave” means any person over whom any or all powers attaching to the right of ownership are exercised and includes any person intended to be dealt with as a slave.14

14

Economic and Social Council, Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, UN Doc. 2824, Annex I, 15 February 1956.

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The Committee on the Drafting of a Supplementary Convention on Slavery and Servitude appointed by the Economic and Social Council by virtue of Resolution 564 of April 1955 met in New York from 16 January until 6 February 1956. It considered the provisions of Article 2 in light of the 1955 Memorandum prepared by the Secretary-General, which it utilised as its working document.15 At the fourth meeting of the drafting Committee, Mr. Greenidge of the Anti-Slavery Society provided the first comments on Article 2, stating that he had “two comments to make [. . .]. In the first place, he was glad that slave trading at sea would be declared to be an act similar to piracy in international law. He did not, however, consider that the article should refer to slave raiding, as that practice was carried on by land and could not therefore be assimilated to piracy. Secondly, the article should refer not to public vessels, but also to aircraft, since helicopters, for example, were likely to play a useful part in locating small vessels engaged in the slave trade”.

Mr. Greenidge went on to recall the provisions of the Brussels Convention of 1890, which limited the right of search to a defined area and to ships under a certain size. The supplementary convention should restate that provision, instead of providing for a case which might never arise, since the slave trade was actually confined to clearly defined areas.16

At that same meeting, the Chairman, Mr. Cutts from Australia, noted a United Kingdom amendment to Article 2 which “sought to replace the existing text of that article by a longer text which differed substantially from the original”. As such, Mr. Cutts stated that in “order to enable members to study it at their leisure; he suggested that its examination should be deferred to the following meeting”.17 The United Kingdom amendment reads:

15

16

17

Economic and Social Council, Slavery: Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery: Report of the Committee appointed by Resolution 564 (XIX), 7 April 1955, UN Doc E/2824, 15 February 1956, p. 8. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Fourth Meeting, 17 January 1956 UN Doc. E/AC.43/SR.4, 9 February 1956, p. 4. Id., p. 8.

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Delete the present Article 2 and substitute the following: (a) The act of conveying or being concerned in the conveyance of slaves, or persons intended to be dealt with as slaves, on the high seas shall be a criminal offence under the laws of the Parties to this Convention, and persons convicted thereof shall be liable to be punished as for piracy. (b) While in the maritime zone indicated in international treaties for the abolition of the slave trade as being suspect, warships or military aircraft under the control of Parties to this Convention shall have the same rights of visit in relation to vessels suspected on reasonable ground of being engaged in such acts as they have in relation to vessels so suspected of being engaged in acts of piracy. (c) Vessels and slaves captured in accordance with this Article shall be brought before a competent Court for adjudication. Persons in charge of such vessels and other persons thereon who are suspected of having committed an offence specified in paragraph (a) of this Article shall, unless dealt with by the authorities of their own State or of any other State whose Courts have jurisdiction to punish them for that offence. The slave shall in all cases be set at liberty.18

At the following meeting, the British Head of Delegation, Mr. Scott-Fox introduced his amended text to the Committee, noting that “a separate convention assimilating the slave trade to piracy had been envisaged at the time of the preparation of the 1926 Convention, but that the idea had been abandoned”. He then turned to consider the amended text: The original article 2 submitted by the United Kingdom Government in 1954 (E/AC.43/L.1, para. 61) had given rise to many constructive comments from various quarters and had consequently been carefully reconsidered. The amended version had been prepared with special regard to the draft articles prepared by the International Law Commission on the regime of the high seas. Another consideration which his Government had taken into account was the desirability of minimizing the need for new domestic legislation by the contracting parties. In any discussion of the subject, it had to be remembered that the proposed convention could never, in international law, confer jurisdiction over vessels flying the flag of any State not a party to the convention and that the provisions would not apply to the nationals of such States.

18

Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude, United Kingdom: Amendment to Article 2, UN Doc E/AC.43/L.6, 17 January 1956.

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Paragraph (a) differed from its predecessor in three respects. In the first place, the offences were more fully defined. Many persons might be criminally implicated in the adventures beside those actually conveying the slaves. The amplified provision was designed to ensure that no such person should evade punishment through a technicality. Second, the original reference to slave-raiding had now been omitted. As the Anti-Slavery Society had rightly stated, slave-raiding would be carried on either in territorial waters or on land. In the present context, which referred to activities on the high seas, the reference might thus have been inappropriate. Thirdly, the United Kingdom delegation now believed that it was neither necessary nor desirable to assimilate the transport of slaves to piracy. The parties to the convention should be given maximum latitude in legislating against the slave trade, as long as they imposed sufficiently stringent penalties. Moreover, the International Law Commission had deliberately refrained from assimilating the transport of slaves to piracy by referring to the two offences in separate articles. As regards paragraph (b), the amended version took into account two main considerations. The original text would give the right to visit and search vessels suspected of engaging in the transport of slaves to all public vessels flying the flag of a party to the convention. However, as the International Law Commission had pointed out, State action against ships suspected of engaging in piracy should be exercised with great circumspection; that comment was equally applicable in the case of vessels suspected of conveying slaves. For that reason, the new draft follows the Commission’s recommendations and limited the right to take action to warships and military aircraft. Secondly, the new text accepted the Anti-Slavery Society’s suggestion that the right of search should be limited to a defined area. Such a limitation was also consistent with article 21(1)(b) of the International Law Commission’s draft. With regard to paragraph (c), the provision that slaves should be brought before a court for adjudication had been included for two reasons: firstly, a competent authority had to establish that they really were slaves and not persons in lawful custody; secondly, the right of ownership over the slaves had to be terminated in a legal manner in order to ensure that it was not reasserted. Such matters were best resolved by a court of law, where they would be duly recorded. As far as offenders were concerned, the new paragraph (c) was designed to be as flexible as possible. In some instances, it might be desirable for a contracting party to try its own nationals even if they were captured by the authorities of another State.19

19

Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Fifth Meeting, 18 January 1956 UN Doc. E/AC.43/SR.5, 10 February 1956, pp. 3–5.

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The Netherlands Representative, Mr. Schiff, noted that the amended text of Article 2 “met most of the objections which his Government had expressed to the original”; and went on to say that it “might be advisable, in view of the fact that the word ‘slave’ was not used in any earlier provision of the draft convention, to incorporate a paragraph (d) containing a definition of the term”. Next to be given the floor, was the representative of India, Mr. Rajan, who felt: that the expression ‘being concerned in’ was somewhat too wide; even witnesses would be ‘concerned’ in the matter. It might be preferable to say ‘being an accessory to’ and thus give a more adequate impression of active connivance. Secondly, it seemed somewhat surprising that the draft only spoke of the conveyance of slaves on the high seas. As the use of aircraft was envisaged for preventive action, some mention might have been made to the possibility of aircraft also being used for the actual transport of slaves. In that connexion, he would be grateful to the Office of Legal Affairs for advice whether such transport might constitute piracy. Furthermore, although the reference to slave-raiding had rightly been deleted from paragraph (a), it might be possible to include a specific provision authorizing action against those taking part in that practice. The conveyance of slaves across land frontiers might be at least as frequent as on the high seas.20

Whereas Mr. Scott-Fox “said that the term ‘being concerned in’ had been used in order to ensure that persons behind the scene could not evade the application of provision. Persons financing the slave trade or insuring the offending vessels were as guilty as those actually conveying the slaves”; Mr. Rajan differed, saying that he “felt that the words ‘accessories to’ covered such cases”.21 The Chairman, acting in his capacity as representative of Australia, stated that the “argument adduced by the Indian representative deserved serious consideration: the word ‘accessory to’ would certainly improve the form of an essentially legal document, without restricting the provisions”. Mr. Cutts went on to say that the “suggestions regarding separate provisions on slave-raiding and on the transport of slaves by air also raised very important issues, on which he would seek the advice of the Office of Legal Affairs. Mr. Giraud, the French Representative, lent his support to the Indian argument, saying that “the term ‘being

20 21

Id., p. 5. Id., pp. 5–6.

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accessory to’ would be more appropriate than the terms now appearing in the amended text”.22 Turning to another issue regarding Article 2 of the British Draft Convention, the Soviet Representative, Mr. Nikolaev asked what were the ‘international treaties’ referred to in paragraph (b). Another point requiring clarification was the precise competence of any court under paragraph (c). His delegation would require the fullest information on those two points in order to be in a position to express any final opinion on the text. Mr. SCOTT-FOX (United Kingdom) explained that the international treaty referred to was the General Act for the Suppression of the African Slave Trade, of 2 July 1980. The question of competence would depend on the domestic laws of the countries concerned. The aim of the sponsors of the amendment had been to give to the contracting parties the greatest possible latitude in the matter of jurisdiction. Mr. NIKOLAEV (Union of Soviet Socialist Republics) said that an excessively flexible provision might lead to vagueness. It was necessary to know the exact competence of specific courts. The CHAIRMAN suggested that paragraph (b) might contain a direct reference to the General Act of 1890.23

This was followed by a request for clarification by the Ecuadorian representative, Mr. Apunte, regarding the “term ‘a competent Court’ in paragraph (c). It was not clear whether the competent court intended was a court of the capturing States, the flag States or another”. The British representative “explained that the intention was that the vessels and slaves concerned should be brought before the proper court of the capturing State”. Related to this, the Chairman said that as “paragraph (c) indicated the procedure to be followed in connexion with vessels and slaves captured in accordance with article 2, it was necessary to insert the words ‘and capture’ after the words ‘right of visit’ in paragraph (b)”. Once more the British representative took the floor saying that “he would need some time to study the drafting changes suggested by the Chairman. It might well be that the right of visit, in the legal sense, included the right to capture pirate and slave vessels”.

22 23

Id., p. 6. Id.

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As a result of a question by the Turkish representative, attention turned to the term ‘high seas’. Mr. BENLER (Turkey) noted it was clear from resolution 798(VIII) and 899(IX) of the General Assembly that it had not been possible so far to define the limits between the territorial sea and the high seas. In the circumstances, the term ‘high seas’ used in paragraph (a) was not clear. The CHAIRMAN remarked that it was difficult to clarify the term ‘high seas’, because the parties adhering to the Convention might have entirely different conceptions of what constituted their territorial sea, and therefore of where the high seas began. [. . .] Mr. BENLER (Turkey) said that the term ‘high seas’ could be retained in article 2, on the understanding that each State would interpret the term in accordance with its own definition of its territorial sea. Mr. GIRAUD (France) declared that the concept of the high seas was a general one and could not be defined in a convention having the specific object of dealing with slavery or similar practices. The normal way to deal with disputes concerning the limits of the high sea would be to refer them to the International Court of Justice, in accordance with article 8 of the draft convention.24

In his Report to the Economic and Social Committee of the work of the Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Mr. Alekandar Bozovic (acting as Rapporteur), noted that at “the request of the Committee, the representative of the Legal Office of the Secretariat advised the Committee, at the 7th meeting”, on: the meaning of the expression ‘being concerned’ in paragraph (a), as compared with the expression ‘being an accessory to’; on the effects in international law of an assimilation of acts of conveyance of slaves on the high seas to acts of piracy; on the scope of the ‘right to visit’ on the high seas; on the implication of a reference to the maritime zones referred to in the Brussels Act of 1890, and on the question of the jurisdiction of courts as it would arise under the text proposed for paragraph (c).25

24 25

Id., pp. 7–8. Economic and Social Council, Slavery: Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery: Report of the Committee appointed by Resolution 564 (XIX), 7 April 1955, UN Doc E/2824, 15 February 1956, p. 29.

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The following is what Mr. Schreiber from the Secretariat had to say. ‘being concerned’ and ‘being an accessory to’: With regard to article 2, the first question which had been raised concerned the scope of meaning of the words ‘or being concerned’ which appeared in paragraph (a) as amended by the United Kingdom representative (E/AC.43/ L.6). An alternative wording, ‘being an accessory to’, had been suggested. The term ‘accessory’ had a precise technical meaning and could be found both in statutes and in court decisions of the Anglo-Saxon countries. Its meaning, however, varied in some respects from country to country. Thus English law recognized accessories before the fact and accessories after the fact; the law of the United States recognized a third category, namely accessories during the fact, a concept know to English law under another designation. In the circumstances, it might perhaps be better to use a wording of a more general character which the parties to the Convention could later interpret and apply, in a uniform manner, in accordance with the intention of the authors of the draft. The expression ‘being concerned in’ had been interpreted in certain English and United States court decisions. It had, however, more of a colloquial than technical connotation. Its general meaning was equivalent to ‘being involved or implicated in’. Here, too, it was preferable to use a more general formula if it was intended to cover those categories of persons mentioned by the United Kingdom representative, i.e. persons concerned in the financing of the slave trade or the insurance of the slave ships. A possible improvement to the general formula might be a longer expression such as ‘participating in, assisting or directly facilitating the conveyance of slaves’. United Nations bodies had dealt with similar problems of drafting in the past. In the draft code of offences against the peace and security of mankind prepared by the International Law Commission, a special provision dealt with: (i) conspiracy, (ii) direct incitement, (iii) complicity, and (iv) attempts to commit any of the offences concerned (A/2693, paragraph 50). The Convention on Genocide contained a similar provision. An additional reason for adopting language of a general character was the difficulty of translating into French and the other languages of the Convention English technical terms which had a precise legal connotation, and of finding exactly corresponding concepts in the criminal law of the countries where those languages were used.26

26

Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Seventh Meeting, 19 January 1956, UN Doc. E/AC.43/SR.7, 17 February 1956, pp. 3–4.

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With regard to piracy in international law: The representative of India had asked whether the transport of slaves by air could not be treated as an act of piracy. Piracy was defined by international law as acts of violence against persons or goods committed on the open sea by a private vessel against another vessel, or by a mutinous crew or passengers against their own vessel. International Law as generally accepted at present did not treat acts committed elsewhere than at sea as acts of piracy. Moreover, the question had lost its immediate importance for the Committee as the amendment proposed by the Indian representative (E/AC.43/L.16) made no reference to piracy and simply referred to the conveyance of slaves across international frontiers.27

As to the meaning of ‘high seas’: In reply to the Turkish representative’s question concerning the meaning of the term ‘high seas’ used in paragraph (a), he referred to the definition given by the International Law Commission in the draft articles on the regime of the high seas adopted at its seventh session (A/2934, paragraph 18), article 1 of which reads: ‘The term “high seas” means all parts of the sea which are not included in the territorial sea or internal waters of a State.’ As for the territorial sea, its breath had been subject of a provisional article adopted at the same session by the International Law Commission as article 3 of its draft articles on the regime of the territorial seas (A/2934, paragraph 24); the Commission would deal with that question at its eighth session in the light of the comments received by governments concerning the provisional article 3. For the purposes of the convention however, the term ‘high seas’ appeared to be sufficiently clear to be used in the text under reference.28

As to the maritime zones indicated in international treaties, the Secretariat had the following to say: A question had been raised with regard to the words ‘the maritime zones indicated in international treaties for the abolition of the slave trade as being suspect’ contained in article 2, paragraph (b) as amended (E/AC.43/L.6). The United Kingdom representative had indicated that they referred to such treaties as the General Act of the Suppression of African Slave Trade signed in Brussels on 2 July 1890, article XXI of which was quoted in the Secretariat memorandum (E/AC.43/L.1, paragraph 66). As that article used the expression ‘between the coasts’ it might perhaps be considered necessary to specify that the convention was intended to apply to the high seas only and not also to those parts of the territorial sea included in that article.29

27 28 29

Id., p. 4. Id. Id., p. 5.

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Finally, with regard to right to visit, Mr. Schreiber had the following to say: In connexion with the observation that article 2, paragraph (b) mentioned only the right of visit, while paragraph (c) referred to the possibility of capture, he suggested that paragraph (b) might be amended to cover the rights of visit and search, and in cases where it was applicable, seizure. Paragraph (c) could perhaps best be drafted along the following lines: ‘Vessels seized in accordance with this article, and slaves found on them . . .’.30

Turning to the issue of jurisdiction, Mr. Schreiber stated: Questions had also been raised concerning the jurisdiction of the courts referred to in article 2, paragraph (c). The reference in the first sentence was presumably to the courts of the capturing State to which the captured vessel would normally be brought. Perhaps the paragraph required amendment to make that clear. The second sentence concerned persons in charge of slavetrading vessels and, in general, persons suspected of having committed the offence defined in paragraph (a). Those persons would be tried by the courts of the capturing States as pirates were. It was provided that they might also be handed over to the authorities of their own country. Finally, provision was made for handing over such persons for trial in the courts of any other country having jurisdiction, for example the country under whose flag the slave-trading vessel had sailed, and possibly also those countries in whose territorial waters the vessel had navigated. The Convention raised extremely complex problems of jurisdiction under international law. The United Kingdom representative had declared that the draft convention was not intended to give jurisdiction over vessels of States not parties to it, or over nationals of such States. Article 2, paragraph (a) did not however expressly limit persons who might be convicted of the offence specified there, while paragraph (b) referred to suspected slave-trading vessels without express limitations by subjecting them to the same treatment as vessels suspected of being engaged in piracy. It was however recognized in international law that a pirate and his vessel were ex hypothesi not entitled to the protection of their flag whatever that flag might be. Accordingly, if it was intended to limit the text in that manner some clarification of it would be advisable. In the case of the persons whom it was proposed to cover, it could for example be amended by changing the opening words of article 2, paragraph (a) to read ‘Persons under the jurisdiction of the contracting parties who convey slaves or who participate in, assist or directly facilitate the conveyance . . .’.31

30 31

Id. Id., pp. 5–6.

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After Mr. Schreiber had finished his comments, the Chairman turned to the British representative, asking Mr. Scott-Fox to reply to previous questions asked by the Soviet representative in light of the observations made by the Secretariat. Mr. SCOTT-FOX (United Kingdom) confirmed his previous provisional statement to the effect that the maritime zones referred to in article 2, paragraph (b), were those specified in article XXI of the Brussels General Act of 1890, reproduced in the Secretariat memorandum (E/AC.43/L.1, paragraph 66). The USSR representative had proposed that specific reference be made to the maritime zones in question by repeating the 1890 formula. For his part, he preferred the more general expression used in document E/AC.43/L.6 because it was conceivable that some future international treaties might mention other zones as being suspect. With regard to the reference to ‘a competent Court’ in the first sentence of paragraph (c) of that article, he explained that such competent court would be any national court to which jurisdiction was granted by the laws of the capturing State in question. He would wish to reconsider the text of paragraph (c) in light of the suggestions made by the representatives of the Office of the Legal Affairs. The CHAIRMAN said that in view of the complexity of article 2, the most reasonable course before proceeding to the second reading would be to give the United Kingdom representative time to reconsider the text of that provision in light of the points raised. Mr NIKOLAEV (Union of Soviet Socialist Republics) asked the representative of the Office of the Legal Affairs whether the United Kingdom had taken any action under the last part of article 9 of the 1926 Convention.32 His question regarding article 2(b) had been prompted solely by a desire to see the matter clarified. That had now been done to some extent, but the provision still seemed out of place in an international instrument which would be binding on the signatories. It had still not been satisfactorily explained why reference was to treaties, in the plural, when only one treaty was in fact relevant. If the United Kingdom representative really intended to urge the retention of the provision, the wording should be radically changed.

32

Article 9 of the 1926 Convention reads: At the time of signature or of ratification or of accession, any High Contracting Party may declare that its acceptance of the present Convention does not bind some or all of the territories placed under its sovereignty, jurisdiction, protection, suzerainty or tutelage in respect of all or any provisions of the Convention; it may subsequently accede separately on behalf of any one of them or in respect of any provision to which any one of them is not a party.

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The explanations given regarding article 2(c) had not proved very helpful. The whole issue of competence was still so obscure that it was impossible to form any reasonable opinion. The CHAIRMAN said that the United Kingdom representative would doubtless consult all those who had drawn his attention to certain points which still required clarification. [. . .] Mr. APUNTE (Ecuador) wondered whether article 2(a) could not be divided into two parts, the first dealing with persons conveying slaves and the second with those concerned in such conveyance. In its existing form, the provisions might present certain difficulties: for example, a person implicated in the transport of slaves who did not leave his own country or take to the high seas could never be convicted of piracy. As to the General Act of 1890, it was difficult to understand how its provisions could be applicable under article 2(b). It was clearly stated in paragraph 62 of the Secretary-General’s memorandum that the General Act of 1890 had been abrogated, as between several Parties, by the Convention of St. Germain-en-Laye of 1919.33

At the fourteenth meeting, Mr. Scott-Fox stated that “he had redrafted article 2 to take into account the views of other members of the Committee”. The redrafted article reads as follows: Delete the present Article 2 and substitute the following: (a) The act of conveying or being concerned in the conveyance of slaves on the high seas shall be a criminal offence under the laws of the Parties to this Convention and persons convicted thereof shall be liable to severe penalties. (b) While on the high seas in the maritime zones defined in Article XXI of the General Act for the Suppression of the African Slave Trade signed in Brussels on 2nd July, 1890, warships or military aircraft under the control of Parties to this Convention shall have the same rights of visit, search and seizure in relation to vessels of Parties to this Convention suspected on reasonable grounds of being engaged in the act of conveying slaves as they have in relation to vessels so suspected of being engaged in acts of piracy. (c) (i) Any vessel seized in accordance with this Article shall be brought in for adjudication by a competent court. (ii) Any person suspected of being slaves who are found on board any vessel searched in accordance with this Article shall be brought before a competent court for adjudication. All persons adjudged to be slaves shall be set at liberty.

33

Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Seventh Meeting, 19 January 1956, UN Doc. E/AC.43/SR.7, 17 February 1956, pp. 7–8.

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(iii) Any person found on board any vessel searched in accordance with this Article who are reasonably suspected of having committed any of the offences specified in paragraph (a) of this Article shall, unless dealt with by the authorities of the capturing State be handed over to the authorities of their own State or of any other State whose courts have jurisdiction to punish them for that offence. (d) In this Article, ‘slave’ means any person over who any or all of the powers attaching to the right of ownership are exercised and includes any person intended to be dealt with as a slave.34

Mr. Scott-Fox then considered this new proposal of the provisions of Article 2: The new paragraph (a) differed from the text in document E/AC.43/L.6 in that the reference to piracy had been dropped and that last clause of the paragraph now read ‘and persons convicted thereof shall be liable for severe penalties’. That form of words appeared in article 6 of the 1926 Convention and did not give rise to the difficulties raised by the term ‘piracy’. The words ‘being concerned in’ had been maintained in preference to the suggested term ‘accessory’, in the light of the remarks made by the representative of the Office of Legal Affairs at the seventh meeting (E/AC.43/SR.7). In paragraph (b), the maritime zones concerned were described as those ‘defined in Article XXI of the General Act for the Suppression of the African Slave Trade signed at Brussels on the 2nd July, 1890’ in order to meet an objection by the USSR representative. Since, under that definition, the zones concerned extended up to the coast (E/AC.43/L.1, paragraph 66), the qualifying phrase ‘While on the high seas’ had been introduced, to exclude the territorial sea. In the same paragraph, provision had been made for the right of search and seizure in addition to the right of visit, at the suggestion of the Netherlands representative. The words ‘in relation to vessels of Parties to this Convention’ had been introduced to make it clear that the convention did not apply to vessels of non-contracting States. Paragraph (c) had been divided into three sub-paragraphs for the sake of clarity. In sub-paragraph (i) and (ii), ‘a competent court’ meant any court vested by one of the contracting parties with the necessary powers to adjudicate in the matter. It had been suggested that jurisdiction should be limited to the courts of the capturing State, but such a system would lead to practical difficulties, as the article was intended to apply only to a very limited maritime zone. If an Australian warship intercepted a slave trading

34

Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, United Kingdom of Great Britain and Northern Ireland: Amendment to Article 2 of the Draft Convention on Slavery and Servitude (E/2540/Add.4), UN Doc. E/AC.43/L.6/Rev.1, 24 January 1956.

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vessel in those waters, it was not practical to require the warship to take the captured vessel to Australia for adjudication. The expression ‘a competent court’ was intended to cover not only the courts of the country to which the captured ship belonged, but also those of any State party to the convention which might empower its courts to deal with such cases. In sub-paragraph (c) (iii), a comma had to be inserted after the word ‘State’ in the fifth line. That sub-paragraph provided for a flexible system of jurisdiction, whereby the authorities of the capturing State, and those of the national State or of any other State whose courts had jurisdiction, would all be competent. The widest possible system of jurisdiction was necessary in order to make it difficult for the criminals to escape justice. The new paragraph (d) defined a slave for the purpose of article 2 and incorporates a phrase which had originally been included in paragraph (a) of document E/AC.43/L.6. That definition was consistent with the definition of slavery in article 1(1) of the International Slavery Convention of 1926.35

Before the Chairman of the Committee suspended consideration of Article 2 until the next meeting to give delegates time to consider the revised text, the Soviet Representative, Mr. Nikolaev, had the following to say: He had no comments on the new paragraphs (a) and (b) which met his requests for clarification. But paragraph (c) still contained references to ‘a competent court’ which were no clearer than those contained in the earlier draft. The convention was meant to lay down legal obligations and it must specify which courts were competent, so that the captain of a warship would know where to take a captured slave-trading vessels. The draft which the British Government had submitted to the League of Nations in 1926 had been much clearer. It stated that ‘Vessels and slaves captured in accordance with this article shall be brought before the Courts of the country whose ship affected the capture and dealt with in accordance with its laws’ (E/AC.43/L.1, paragraph 62). On a clear text of that type, his delegation could have taken action. But in the case of the vague text now before the Committee, he could not even ask this Government for instructions, because he did not know exactly what the text implied. The United Kingdom representative should state the exact purpose of this proposal concerning paragraph (c).36

At the fifteenth meeting of the Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, discussions regarding Article 2 were once more opened to discussion:

35

36

See Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Fourteenth Meeting, 25 January 1956, UN Doc. E/AC.43/SR.14, 29 February 1956, pp. 3–4. Id., pp. 4–5.

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Mr. KAUL (India) said that his delegation had proposed the replacement of the words ‘being concerned’ in paragraph (a) by the words ‘being an accessory’. The former phrase was vague and might be variously interpreted by the parties. The latter, on the other hand, correctly conveyed what the Committee had in mind. Moreover, it had already been used in articles 3 and 4 and should therefore be used in article 2 in the interests of uniformity. For those reasons, his delegation considered that the words ‘being an accessory’ were preferable; it would not, however, submit a formal amendment on the subject and merely wished to call the matter to the Committee’s attention. Mr. BOZOVIC (Yugoslavia) asked for an explanation of two points. First, he wondered whether the words ‘being concerned’ would permit proceedings to be taken against a person who had knowledge of prohibited acts, but failed to report them to the competent authorities; in other words, he wondered whether they applied to acts of omission as well as acts of commission. Secondly, he wondered whether the words ‘or of any other State’ at the end of paragraph (c) (iii) meant that any other State was competent to punish offenders. The CHAIRMAN said that the Office of Legal Affairs would be asked to provide information on the four points raised, to which he would like to add a fifth. The words ‘their own’ State (paragraph (c) (iii)) apparently meant that State of which the person was a national; he wondered whether that was necessarily so. Mr. NIKOLAEV (Union of Soviet Socialist Republics) said that, while he did not question the theoretical interest of information provided by the Office of Legal Affairs, he was doubtful of its practical value. In the final analysis, the terms of the convention had to be approved by Governments and the Secretariat’s opinion would not necessarily influence those Governments. It was important that the provisions of the convention to be submitted to Governments should be quite unambiguous. The CHAIRMAN said that information had been requested from the Office of Legal Affairs with precisely that object in view. Mr. SCHREIBER (Secretariat) agreed that in view of the nature of the provisions proposed, the points he had been requested to elucidate were delicate and required both cautious and thorough treatment, as it was a question of prescribing the manner in which the parties would apply the convention. Turing to the respective merits of the expressions ‘being concerned’ or ‘being an accessory to’, he reminded the Committee of the observations he had made at the seventh meeting. The second expression was probably more precise but would be difficult to translate from the sphere of domestic legislation to that of international law or from a country in which it had a specific meaning to another where it was unknown; that was a drawback in a term to be used in an international convention which should, so far

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as possible, be applied everywhere in a uniform manner and the terms of which should, so far as possible, have the same meaning for all the contracting parties. As the United Kingdom representative had pointed out, the expression ‘being concerned’ was much more general and each party could use the equivalent technical term in drawing up its domestic legislation. Consideration might be given to the use of other expressions such as ‘aiding and abetting’, which are slightly more specific. The choice lay with the Committee. It should, however, be borne in mind that although the expression ‘being concerned’ might embrace acts rather different from those it was desired to repress, it had the advantage of covering activities which other expressions would exclude. As for the meaning of the words ‘competent court’, that depended on the context of the paragraph in which they were used. For example, in view of paragraph (b), which provided from the application of the rules relating to piracy, the competent court referred to in paragraphs (c) (i) and (ii) would be the court before which an accused person would be brought by the capturing warship or military aircraft, in other words the court of the State to which the capturing vessel or aircraft belonged. In paragraph (c) (iii) the position was more complicated; the competent court might be either that of the State to which the capturing warship or aircraft belonged, or that of the State of which the arrested persons were nationals. There was a third possibility – the court of the State whose flag the vessel was flying, if the capture took place on the high seas. Lastly, the United Kingdom representative had suggested that the competent court might be that of the contracting State chosen by the capturing vessel or aircraft; the parties to the convention could authorize their vessels and aircraft to make such a choice. Returning to the first point in order to reply to one of the Yugoslav representative’s questions, he repeated that the expression ‘being concerned’ was very broad; it was for the judge to determine whether or not it covered acts of omission as well as acts of commission and the judge would rule in each specific case having regard to the consequences of omission. Mr. NIKOLAEV (Union of Soviet Socialist Republics) said that the explanations given by the representative of the Secretariat had not made the United Kingdom draft any clearer. He was surprised at the attitude of the United Kingdom which had submitted an ambiguous text and persistently refused to explain its meaning. He could not reach a decision on article 2 as along as the obscurities remained and they could obviously not be removed by the explanations of the Office of Legal Affairs. The CHAIRMAN expressed surprise at the USSR representative’s insistence in requesting an explanation from the United Kingdom representative. The Committee’s task was to prepare a draft; the United Kingdom had submitted a text and if that text was not acceptable to the Soviet Union, that delegation could submit another. The two representatives might perhaps succeed in reconciling their views by means of informal consultations.

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Mr. SCOTT-FOX (United Kingdom) expressed the hope that all members would come to realize the advantages of his delegation’s text, the second it had submitted. He had already explained it and was prepared to do so again at the meeting the following day; the Office of Legal Affairs had also provided some useful explanations. However, he agreed that existing difficulties could readily be overcome in informal consultations; he would be glad to co-operate with the USSR representative and other members of the Committee with that end in view. Mr. GIRAUD (France) said that the text before the Committee was complicated and that further discussion would be necessary before a vote was taken. Even with amendments, the text would not cover every point and it would therefore be necessary to include in the report any points that could not be covered in the convention. Mr. BOZOVIC (Yugoslavia) pointed out that article 2, paragraph (b) referred to Article XXI of the General Act of Brussels, in which certain areas of the world were designated by names which could no longer be used at the present time. Since 1890, new independent States had been established in those areas and that fact should be taken into account. He asked the United Kingdom representative to reconsider that part of his text.37

Thus ended the consideration of article 2 at the fifteenth meeting, only to be resumed the following day, when the Egyptian representative on the Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Mr. Osman, stated that the British amendment “raised a difficult question”: The repressive measures which it envisaged went much further than earlier conventions: the conveyance of slaves was deemed to be an act of piracy, but it was not clear what court would have jurisdiction. Hitherto the competent court had been that of the State whose flag was being flown by the captor vessel. Until that point was clarified, Egypt could take no position. Mr. GIRAUD (France) conceded that the problem was difficult, but believed that the convention could and should resolve it. It was a matter of referring to the courts certain acts committed on the high seas. The convention could establish an order of jurisdiction: it could decide that the courts of the States parties to the convention would have jurisdiction. Thus in the first instance the competent court would be those of the State to which the captor vessel or aircraft belonged. But in some cases it would be more practical to give jurisdiction to another court, for instance

37

See Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Fifteenth Meeting, 26 January 1956, UN Doc. E/AC.43/SR.15, 27 February 1956, pp. 9–15.

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a court near the place of capture. In that case the captor State could refer the case for trial to a court of another State party to the convention. Article 6, which provided that the Parties should co-operate with each other, fully justified such delegation of power. It might be desirable, however, to grant jurisdiction to the court of a State which was not a party to the convention. In that case the general rule of international law would be applied in choosing between the court at the place where the offence had originally been committed (i.e. where the persons concerned had been reduced to slavery and the slave trade had been organized), the court of the State of which the accused were nationals, and that of the State of which the victims of the crime, i.e. the slave, were nationals. That system, which had the advantage of flexibility, would be the most readily adaptable to the variety of situations which might arise. It was difficult to establish that system in detail in a text which had to be brief, and all that was necessary was to refer to the competent court. It was sufficient to know that the court would be competent by virtue of the convention or of the general rules of international law. In the report, however, the operation of the system would have to be described in some detail. Governments had a legitimate desire to know what commitment they were undertaking and how the convention would operate in practice. Mr. NIKOLAEV (Union of Soviet Socialist Republics) did not know what he was expected to vote on, because the proposed article was much too vague. He had already said, as had other speakers, that the ‘competent court’ was not clearly defined and the report was not the place where that concept could be elaborated. Moreover, paragraph (c) (ii) implied that a slave would have to prove to the court that he was a slave before he could be set at liberty, which did not make much sense. Then paragraph (d) introduced a new definition, and a very debatable one, of the term ‘slave’ when it was surely sufficiently to abide by the universally recognized definition given in the 1926 Convention. The original draft (E/2540/Add.4) [re: the 1954 British Draft] was far better than the text now before the Committee. As the Committee had little time left, he wondered whether it would not be advisable to revert to that original draft, submitted in 1954, which Governments had had ample time to study and with which all the members of the Committee were familiar. In the circumstances, he understood even less why the United Kingdom had submitted a new text at the last moment containing important changes and so vague as to give rise to serious debate. Like the representative of Egypt, he could not vote on the text as it stood. He proposed that the Committee should go back to the draft originally submitted by the United Kingdom. The CHAIRMAN noted that the Committee had before it the original text submitted by the United Kingdom (E/2540/Add.4) and the revised text submitted by the same delegation (E/AC.43/L.6/Rev.1), which was to be considered as an amendment to the original. He would follow the normal procedure and put the two texts to a vote, the amendment first.

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Mr. BOZOVIC (Yugoslavia) recalled in what respects his delegation found the revised United Kingdom text unsatisfactory. It had been said that the competent court would be the court of the State whose flag was flown by the captor vessel or aircraft, which State would have the power in certain cases, of delegating competence to the court of another State party to the convention. The argument in support of such a flexible procedure did not hold in every case. Anyhow, the text should be made clear on that point, and the least that could be done was to stipulate that the captor State assumed responsibility for the judgment. In that connexion he could not see how the court of a State which was not signatory to the convention could be assigned competence. Surely it was unreasonable to entrust the suppression of acts prohibited by the convention to a State where slavery might still be practised. Finally, maritime zones mentioned in paragraph (b) should not be defined by reference to the General Act of 1890, because the slave trade did not necessarily or solely take place in the zones specified in that Act. The United Kingdom draft had to be improved on all those points, but he had as yet no proposal to make because that task required lengthy study. The Committee should therefore not vote on the draft before it, but should transmit them to the Economic and Social Council for decision. Admittedly, it might thereby lay itself open to the charge of failing in its work, but there was no other solution. Mr. GIRAUD (France) thought that it would be highly regrettable if the Committee failed to propose a solution to so important a problem. It might perhaps be possible to adopt a text setting forth rules on which agreement could be reached fairly easily. The text would be based on document E/ AC.43/L.6/Rev.1, but would be shorter and simpler; it would deal with the inspection and capture of vessels and would lay down that, in principle, the competent court was that of the State whose flag was flown by the capturing ship or aircraft, although it would include a permissive clause whereby that State could delegate such powers to the court of another State party to the convention. The supplementary rules would be omitted and it would be left to the Council to draft a more complete text. The Committee would thus have fulfilled at least a part of its task. Mr. NIKOLAEV (Union of Soviet Socialist Republics) considered the suggestion of the Yugoslav representative worthy of the Committee’s attention. Obviously, the present text of article 2 still needed thorough study; though the explanations given, in particular by the Office of Legal Affairs, might be useful, there were no substitute for a precise and unequivocal text capable of being submitted to Governments for signature. Although it would be possible to take a vote at the present stage, it would be unwise to do so. He therefore proposed that the Committee should adopt the original text of article 2 (E/2540/Add.4). That should present no difficulty to the United Kingdom delegation, since the text was its own; the other delegations should be able to adopt it also, since they had proposed no amendments. The new text (E/AC.43/L.6/Rev.1) would be included in the report, in

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which the Committee would explain its attitude, and would be forwarded to the Economic and Social Council together with all the relevant documents. The Council might take the same action as it took in regard to the draft convention on the recognition and enforcement of foreign arbitral awards and adopt a resolution submitting the draft to Governments for their observations. Governments could then study the new text at their leisure and give their opinions in the full knowledge of the facts. It would then be possible to revise the text. He agreed with the Chairman that the Committee was in a difficult situation, and he thought that his proposal provided the only possible solution. The CHAIRMAN thought that in the case the Committee might facilitate the Council’s task by taking the further step of submitting amendments prepared by a drafting sub-committee. Mr. OSMAN (Egypt) supported the Yugoslav proposal. The new text proposed went much further than the treaty law in force; the question of competence, in particular, raised a difficult problem on which no decision could be taken at the present time. That was why he, too, considered that the Committee should refer the question to the Council, stating in its report that after examining both texts it had been unable to find a solution. That would be the most constructive attitude, as it would lead Governments to study the problem and state their views. Mr. SCOTT-FOX (United Kingdom) admitted that article 2 raised some very delicate problems. That was why his delegation had carefully re-examined its original text (E/2540/Add.4) and had submitted its first amendment (E/AC.43/L.6), which took account of the observations in the SecretaryGeneral’s memorandum (E/AC.43/L.1) and subsequently its second amendment (E/AC.43/L.6/Rev.1) which took into account the observations made by the members of the Committee. It was consequently disappointed to find that, despite its efforts, it had been unable to satisfy the various delegations. When it had put forward its second amended text on 24 January, it had announced its readiness to examine any changes suggested. But no amendment had been forthcoming. The Council had set up the Committee for the precise purpose of settling difficult questions which it could not deal with itself. Concrete proposals were expected, and it should not be impossible to work out a text which was acceptable, if not to all members of the Committee, at least to the majority; the minority could then state their point of view in the report and reopen the question in the Council. In the meantime, all Governments would have examined the drafts and if some delegations had new ideas to put forward, they could do so at the Council’s next session. The Committee should not close its eyes to the fact that the signature of the convention might be delayed, if it reached no decision on article 2; for that reason the Council should preferably have before it at least a text on which agreement had been reached.

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He therefore proposed that the Committee should take an immediate vote on paragraphs (a) and (b) of article 2, which gave rise to no difficulty. The same could obviously not be said of paragraph (c); but there would be enough time before the next meeting for members of the Committee to attempt to reach agreement among themselves on a satisfactory text. He suggested that a working party might be set up for this purpose. Turning to the points in paragraphs (a) and (b), on which some differences of opinion had arisen, he said he was prepared to replace the term ‘being concerned’ by any other expression conveying the meaning which all members of the Committee had in mind, provided that it was not too restrictive. Further, with regard to the definition of the maritime zones to which the Yugoslav representative had referred, he was prepared to reintroduce the text of his first amendment on that point. But he would not agree to delete from the article any mention of maritime zones indicated as being suspect, since it was essential to avoid opening the door to seizures in any part of the world. Such a provision might prevent some Governments from ratifying the Convention. Mr. BOZOVIC (Yugoslavia) remained convinced that his solution, which had the support of the Egyptian representative and was close to that proposed by the Soviet Union, was the wisest. While he was prepared to support the United Kingdom proposal on the voting procedure proposed by the Chairman, he would have to abstain in both cases, in order to reserve Yugoslavia’ position in the Council. The Yugoslav delegation was in fact ready to vote for the original United Kingdom text (E/2540/Add.4); but could not yet state its views on the changes which had been made in that text, since they were too important. He requested the Chairman to put the three proposals to the vote, beginning with the Yugoslav proposal, which had been submitted first. The CHAIRMAN observed that as the Yugoslav representative had merely put forward a suggestion, the first formal motion before the Committee was that presented by the Soviet Union.38

What followed was an exchange of views and the withdrawal of the Soviet suggestion in “favour of the Yugoslav suggestion, which the Yugoslav representative had converted into a formal proposal”. While the French representative did not agree with the adjournment of discussion, thinking that paragraphs (a) and (b) could gain agreement; the Dutch representative had misgivings about the Yugoslav proposal, considering that it “should

38

Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Sixteenth Meeting, 27 January 1956, UN Doc. E/AC.43/SR.16, 27 February 1956, pp. 3–8.

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be accepted only if all other solutions proved impossible”.39 The Dutch Representative, Mr. Schiff, went on to say that the sub-committee under consideration should consider article 2 “as a whole, rather than paragraphs (c) and (d) alone”. For his part, Mr. Cutts, the Chairman, observed that the British and Yugoslav “proposals were not mutually exclusive”, as the sub-committee could redraft article 2 and if its efforts failed, then the Yugoslav proposal could be taken up. The Committee decided that Mr. Bozovic would chair the sub-committee which was to consist of the representatives of France, India, the United Kingdom and the Union of Soviet Socialist Republics.40 In his Report to the Economic and Social Committee, Mr. Bozovic (here acting as Rapporteur for the Committee on the Drafting of a Supplementary Convention on Slavery and Servitude) explained what followed: The drafting committee held two meetings. In its report to the Committee (E/AC.43/L.37) it submitted a tentative draft of the article in which words and phrases on which there was no agreement in the drafting committee, and which had been supported by some members, were put in square brackets. An alternative text for paragraph (a) of the article, proposed by the representative of India, was also reproduced in square brackets.41

The proposals put forward by the Drafting Committee on article 2 reads: Article 2 (a) The Act of conveying or of attempting to convey slaves on the high seas or being accessory thereto, shall be a criminal offence under the laws of the Parties to this Convention and persons convicted thereof shall be liable to penalties as severe as those generally applied to acts of piracy. Alternative text by India [(a) The act of conveying or of attempting to convey slaves or being accessory thereto shall be a criminal offence under the laws of the Parties to this Convention and shall be made subject to appropriate penalties.

39 40 41

Id., p. 8. Id., p. 9. Economic and Social Council, Slavery: Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery: Report of the Committee appointed by Resolution 564 (XIX), 7 April 1955, UN Doc E/2824, 15 February 1956, p. 31.

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Persons convicted of such acts on the high seas shall be liable to penalties as severe as those generally applied to acts of piracy.] Paragraph b (b) While on the high seas [in the maritime zones defined in Article XXI of the General Act for the Suppression of the African Slaves Trade signed in Brussels on the 2nd July, 1890], warships or military aircraft under the control of Parties to the Convention shall have the same right of visit, search and seizure in relations to vessels of Parties to this Convention [or stateless vessels] suspected on reasonable grounds of being engaged in the act of conveying slaves as they have in relation to vessels so suspected of being engaged in acts of piracy. Paragraph c (c) (i) Any vessel [and any person suspected of being a slave who is found on board a vessel] seized in accordance with this article shall be brought in for adjudication by a court of the State which has made the seizure. However, this State may request any other State party to the [this] Convention [or to the Slavery Convention of 1926] to refer the case to one of its courts if, in its view, practical or other reasons make this advisable. (ii) Any slave who is found on board a vessel shall be immediately set at liberty. (iii) Any person found on board any vessel searched in accordance with this article who is reasonably suspected of having committed any of the offences specified in paragraph (a) of this article shall be handed over to the authorities of the State of which he is a national or, if practical or other reasons make this advisable, he may [subject to the consent of the State of which he is a national] be dealt with by the authorities of the capturing State. [(d) In this article ‘slave’ means any person over whom any or all powers attaching to the right of ownership are exercised and includes any person intended to be dealt with as a slave.]42

The proposal prepared by the sub-committee was considered at the eighteenth meeting of the overall Drafting Committee, where Mr. Bozovic (here acting as Rapporteur of the sub-Committee drafting Article 2) noted that the sub-committee “had felt that it should not take majority

42

Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Report of the Drafting Committee on article 2, UN Doc. E/AC.43/L.37, 30 January 1956, pp. 1–2.

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decisions and had consequently refrained from voting on controversial points, so as not to prejudge a decision by the Committee itself ”, thus the inclusion in its proposal of square brackets. The Chairman then put the text to a vote, paragraph by paragraph, first considering the Indian alternative text to paragraph (a). Mr. KAPUR (India) said that, in submitting an alternative text for that paragraph to the drafting committee, his delegation had pointed out that the alternative text would remove the need for the additional article which it had earlier proposed (E/AC.43/L.16).43 The new text would fill a gap in the drafts submitted by the United Kingdom delegation, which dealt only with the act of conveying slaves on the high seas; the Indian draft also aimed at repressing the traffic on land. The objection might be made that it would duplicate the provisions of the 1926 Convention; but article 2 and 6 of that Convention dealt only with the conveyance of slaves on the territory of the States Parties; the new text proposed by India was also designed to suppress the trade across State frontiers; it was thus wider in scope and would make the 1926 Convention more effective. Some States parties to that Convention would need to revise their legislation, while others could simply accede to the new convention. The Indian delegation was aware that its opinion was not universally held and would not therefore press its previous amendment (E/AC.43/L.16), provided that it was clearly understood that the repression envisaged would not be restricted to the conveyance of slaves on the high seas. The alternative text it had proposed for article 2, paragraph (a), (E/AC.43/L.37), which was acceptable to the majority of the drafting committee, had the advantage of obviating the insertion of an additional article. Mr. BOZOVIC (Yugoslavia) thought that the text of article 2 proposed by the United Kingdom (E/AC.43/L.6/Rev.1) was too restrictive in that it covered only the conveyance of slaves on the high seas. It was, however, also necessary to repress such traffic in territorial waters and on the territory of States. He would vote for the text proposed by India.

43

See Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, India: Draft text of additional article to follow Article 2 of the Draft Convention on the Abolition of Slavery and Servitude (E/2540/ Add.4), UN Doc. E/AC.43/L.16, 18 January 1956 which reads: Article 2A The act of conveying or being accessory to the conveyance of slaves or persons intended to be dealt with as slaves across international frontiers in any manner not covered by Article 2 above, including the act of slave raiding, shall be a criminal offence under the laws of the Parties to this Convention and shall be made subject to appropriate penalties. All slaves captured in the course of suppressing such acts shall be set at liberty.

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Mr. NIKOLAEV (Union of Soviet Socialist Republics) said that he supported the Indian draft, which provided for the repression of the slave trade in the broadest possible terms, as did article 2 and 6 of the 1926 Convention. If it refused to adopt that text, the Committee would still leave a loophole and would give the impression that the conveyance of slaves was punished on the high seas, but not if it took place on land. His willingness to vote for the Indian proposal was strengthened by the clarity and conciseness of its drafting. Mr. SCOTT-FOX (United Kingdom) fully understood the concern which had prompted the Indian delegation to present its draft, but felt that the question had already been dealt with in articles 1, 2 and 6 of the 1926 Convention. Those articles were satisfactory, and it would be undesirable to repeat what had already been said in another international instrument. He would therefore vote against the Indian text, which had the further disadvantage of confusing the question by introducing irrelevant issues into article 2, which was concerned solely with the act of conveying slaves on the high seas. Mr. SCHIFF (Netherlands) thought that the inclusion of the text proposed by India would unduly enlarge the scope of the convention. The convention should merely serve to supplement the 1926 Convention, which was still in force. In view of the fact that the reference to article 2 to the traffic in slaves was limited to traffic on the high seas, it would be illogical to introduce another subject into the same article. Furthermore, the United Kingdom text did not leave any loophole, since the matter had been covered by the 1926 Convention. Although he had the greatest appreciation for the commendable motives which had inspired the Indian proposal, he would vote against it. Mr. BENLER (Turkey) reiterated that slavery did not exist in Turkey, where it was prohibited by law. The point under discussion had been fully treated in the 1926 Convention, to which Turkey was a party and there was no reason why the supplementary convention should go further. Mr. GIRAUD (France) said he opposed the Indian proposal both for reasons of form, since it should not be included in article 2 but should constitute a separate article, and also of substance, because it was superfluous, since the question had already been dealt with in several provisions of the 1926 Convention. Repetition of texts, which should always be avoided, would be particularly unfortunate in the present convention, which supplemented the 1926 Convention and therefore had to be considered in conjunction with it.44

44

See Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Eighteenth Meeting, 31 January 1956, UN Doc. E/AC.43/SR.18, 29 February 1956, pp. 3–5.

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There being no more discussion, the Chairman put the alternative text of paragraph (a) to a vote, the outcome being five votes for and five votes against thus the proposal was not adopted. With no further discussion paragraph (a) of the sub-committee was put to a vote and was adopted unanimously.45 Consideration then turned to paragraph (b) proposed by the sub-committee which, it will be recalled, reads as follows: While on the high seas [in the maritime zones defined in Article XXI of the General Act for the Suppression of the African Slaves Trade signed in Brussels on the 2nd July, 1890], warships or military aircraft under the control of Parties to the Convention shall have the same right of visit, search and seizure in relations to vessels of Parties to this Convention [or stateless vessels] suspected on reasonable grounds of being engaged in the act of conveying slaves as they have in relation to vessels so suspected of being engaged in acts of piracy.

The Chairman indicated that the provisions in square brackets would be voted upon separately and opened the discussion to the Soviet representative: Mr. NIKOLAEV (Union of Soviet Socialist Republics) pointed out that the original United Kingdom draft (E/2540/Add.4) dealt with the conveyance of slaves on the high seas generally, without singiling out particular parts of the world. In its most recent draft, (E/AC.43/L.6/Rev.1), the United Kingdom was proposing to limit the convention’s area of application to certain defined maritime zones, thus reducing its scope. During the period of sixty-six years that the Brussels Act had been in force, changes had taken place in the region concerned and, as the Yugoslav representative had already observed, those changes must be taken into account; the Brussels Act was not of sufficient importance to necessitate the inclusion of a reference to it in the new convention. With regard to the insertion of the words ‘or stateless vessels’, he did not feel that it was of any great importance or utility, but he could see no objection to their addition, if particular significance was attached to it. Mr. SCOTT-FOX (United Kingdom) admitted that the original United Kingdom text did not limit the exercise of the right of seizure to certain regions. Since that text had been drafted, however, the International Law Commission had dealt with the matter and the United Kingdom had taken its observations into consideration (E/AC.43/L.1, paragraph 65) as regards the desirability, in order to prevent abuses, of limiting the maritime zones

45

Id., p. 5.

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where the right of seizure might be exercised. Although it was true that the General Act of Brussels had already been in existence for a very long time, it had never yet been claimed that the slave trade was carried on outside the zones it defined; it was thus natural to refer to the definition in that Act. Nevertheless, since the definition of those zones gave rise to some difficulties, in order to facilitate the Committee’s decision, he wished to propose a definition of the regions covered which he hoped would be acceptable for both the geographic and juridical points of view. His proposal was that in paragraph (b) (E/AC.43/L.37) the first passage in square brackets should be replaced by the words ‘in the areas of the Indian Ocean, including the Red Sea and Persian Gulf, bound by the twenty-sixth degree south of latitude and the sixty-second degree east of longitude’. Mr. GIRAUD (France) supported that amendment, which should satisfy those representatives who objected to any reference to the Brussels Act. It was necessary to stress the need to limit the right of visit and to authorize it only in those zones where the act of conveying slaves by sea was practised. It would be completely pointless to extend the right of visit to all seas, and as it was always possible that States would exercise a right conferred on them, the right might lead to abuses and disputes in periods and areas of tension. Mr. BOZOVIC (Yugoslavia) recalled that, when document E/AC.43/L.6/ Rev.1 had been under consideration, he had been opposed in principles to the inclusion of a reference to article XXI of the General Act of 1890, not only out of consideration for the States situated in the area in question but also because of the validity of the Act of 1890 was open to question. The text which the United Kingdom representative had just suggested was similar in substance to article XXI. The right to visit was admittedly an excessive right and its application should properly be restricted. But the principle of geographical limitation presupposed that States would not exercise the right of visit in good faith. It would nevertheless still be possible to abuse the right in the area defined. It would therefore be better to abandon the principle of geographical limitations, as being an inadequate guarantee against abuse, and to retain the principle, which was also restrictive, whereby on the high seas, the right of visit could be exercised only in relation to vessels suspected on reasonable grounds of being engaged in the act of conveying slaves. Mr. ABDEL-GHANI (Egypt) pointed out that his country was not situated far from the area defined by the United Kingdom representative. Even those with a good knowledge of geography might have some difficulty in visualizing the precise area and limits of the zone without the aid of a map. In view of the fact that the principle of geographical limitation had not been embodied in the initial draft, it was particularly necessary for Governments to study the United Kingdom proposal very carefully. It could not be adopted by a hasty vote.

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As it considered it necessary to avoid a hurried decision on the matter, which might be raised again in the Economic and Social Council, his delegation would vote against any text referring to any specific area. Mr. NIKOLAEV (Union of Soviet Socialist Republics) felt that the Committee should not base itself on the provisional articles which the International Law Commission had adopted concerning the regime of the high seas. Those provisional articles codified certain provisions of existing treaties, some of which, like the General Act of 1890, were very old. They were of no help to the Committee, which had been given the task of preparing a new instrument, on which the International Law Commission would base itself, when the time came, in preparing its own texts. He renewed his protest against the tactics used by the United Kingdom delegation; it had yet again submitted at the last moment an amendment which added nothing of value to the draft. That amendment required careful study. In particular, the definition of the area seemed entirely arbitrary. Furthermore, delegations no longer had time to consult their Governments. He consequently agreed with the Egyptian representative that the Committee should refer the matter to the Economic and Social Council.46

The Chairman intervened at this point noting that the United Kingdom was entitled to propose new amendments, just as other delegation were entitled to invoke the ‘twenty-four hour rule’ allowing for a day’s consideration of such proposals. The French representative, Mr. Giraud noted his surprise at the “unfavourable reception” to the British proposal and went on to say: While he had no desire to criticize anyone, he regretted that the Committee persisted in concealing the fundamental fact that the slave trade was carried on mainly in the Arabian peninsula. Anyone genuinely seeking to abolish slavery had to take that fact into account.47

The Chairman then asked that members “confine themselves to explanations of vote” and called the vote on the British amendment which was carried six votes to four. The Chairman then asked for consideration of the words found in the second square bracket of paragraph (b): ‘or stateless vessels’. In answer to the Yugoslavian representative’s question as to whether a vessel could indeed be ‘stateless’, the Chairman noted that

46

47

See Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Eighteenth Meeting, 31 January 1956, UN Doc. E/AC.43/SR.18, 29 February 1956, pp. 6–8. Id., p. 8.

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the word meant “not registered in any State”, while Mr. Schreiber of the Office of Legal Affairs stated that it also included ships which flew no national flag. “The expression” he went on to say “was not used in international law terminology”. Mr. Giraud felt that the “words in question were pointless and would strike the reader as strange”. As a result of these comments, Mr. Scott-Fox moved to withdraw his proposal, but was precluded from doing so temporarily as the Chairman noted that provision had been sponsored by the drafting committee and thus the non-support by the United Kingdom could only be manifest in not voting for the amendment. However, the Chair of the sub-committee noted that these words had not been sponsored by the drafting committee but “had been included in the text to enable certain representatives to request their retention”; as such the Chairman said that the British representative, as its author, could, indeed, withdraw his proposal. Finally, before a vote was taken on paragraph (b), the French Representative, Mr. Giraud “expressed the hope that the report would mention the words in question for the guidance of those who might be called upon to interpret the convention”. Paragraph (b) as amended was adopted by seven votes to one with two abstentions.48 The Drafting Committee moved to consider paragraph (c) (i), which reads: Any vessel [and any person suspected of being a slave who is found on board a vessel] seized in accordance with this article shall be brought in for adjudication by a court of the State which has made the seizure. However, this State may request any other State party to the [this] Convention [or to the Slavery Convention of 1926] to refer the case to one of its courts if, in its view, practical or other reasons make this advisable.

It was the Yugoslav representative who was first to consider the provisions: Mr. BOZOVIC (Yugoslavia) said that he would vote against the words ‘and any person suspected of being a slave who is found on board a vessel’, because he considered that slaves should be freed immediately. By making the freeing of slaves contingent upon court proceedings, the provision, which had been included at the request of the United Kingdom representative, would cause delay. Any advantage there might be in detaining slaves as witnesses did not justify its inclusion.

48

Id., pp. 9–10.

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He would also vote against the words ‘or to the Slavery Convention of 1926’ because to confer on States parties to that Convention the right to adjudicate upon seized vessels, even if they did not become parties to the supplementary convention, would not encourage them to sign and ratify the new instrument. Mr. NIKOLAEV (Union of Soviet Socialist Republics) again thought that the additional proposal at the last moment by the United Kingdom worsened the original text. It would seem strange to public opinion that, under a convention drawn up by eminent jurists under the United Nations auspices, slaves would have to prove that they were free men in a court of law by means of a possible lengthy procedure, before they could gain their freedom. Article XXVIII of the General Act of 1890 laid down that any slave who had taken refuge on board a ship of war bearing a flag of one of the signatory Powers should be ‘immediately and definitively set free’. Article 12 of the draft of the International Law Commission concerning the regime of the high seas provided that any slave who took refuge on board a warship or a merchant vessel ‘shall ipso facto be free. Article 2(c) of the initial text drafted by the United Kingdom was based on a similar idea. The new United Kingdom text turned the clock back to before 1890. His delegation would therefore vote against it. Mr. SCHIFF (Netherlands) said he would vote for the additional proposal by the United Kingdom. In view of his Government’s determination to contribute in every possible way to the earliest eradication of slavery in all its forms, his delegation emphatically rejected the allegation that a vote in favour of the addition was intended to weaken the convention. Mr. SCOTT-FOX (United Kingdom) said his delegation had proposed the inclusion of the words in square brackets in the first part of paragraph (c) (i) for practical reasons. It was essential that persons found on board a seized ship should be brought before a competent authority in order to ensure that they were slaves and not persons in lawful custody. Again, the United Kingdom delegation advocated reference to the 1926 Convention in the second part of the same paragraph for practical reasons. The Committee had decided that the Convention would enter into force as soon as two States had ratified it. Those two States might be very far apart and it was therefore wise to provide that their courts were not the only competent ones. Mr. GIRAUD (France) pointed out that the 1926 Convention and the draft supplementary convention were two separate instruments; States could therefore adhere to the new convention without being parties to the 1926 Convention. Although it was somewhat illogical to allow a State to adhere to a supplementary convention without being a party to the principal instrument, his delegation did not object to that arrangement because it felt that a partial undertaking was better than none at all.

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Nevertheless, the 1926 Convention was still the principal instrument and it was most desirable that all States should become Parties to that Convention. Hence it would be wrong for the Committee to do anything apt to diminish the importance of the Convention, as would be the case if it excluded States parties to the Convention from the benefits of the provisions under consideration. Mr. BOZOVIC (Yugoslavia) said that, in accordance with the generally accepted principle that any slave should be immediately set free, he would vote against the inclusion of the words in square brackets in the first part of paragraph (c) (i) whose only practical effect would be to prolong the procedure for freeing the slave. If the majority of the Committee were in favour of that phrase he would propose that the words ‘with the least possible delay’ should be added after the words ‘shall be brought in for adjudication’.49

While Mr. Scott-Fox was prepared to accept that amendment, the Soviet Representative, Mr. Nikolaev was not, as he thought: that the amendment suggested by Yugoslavia did not improve the position in any way. Legal proceedings would still have to be instituted and there was every indication that the lot of slaves, placed under supervision as soon as they disembarked, would be unenviable. To take an extreme case, the Committee might ask itself what would become of people who were not recognized as slaves; they might be detained indefinitely. It was difficult to believe that the captain of a warship could not settle the matter on the spot. He would therefore vote against the phrase in square brackets in the first paragraph (c) (i).50

The Chairman put the phrase ‘and any person suspected of being a slave who is found on board a vessel’ to a vote; it was defeated by five votes to four with one abstention. Referring back to the Yugoslav proposal, the British Representative, Mr. Scott-Fox, “observed that, in the circumstances, the words ‘with the least possible delay’ were meaningless and could be deleted”. The Chairman then put to a vote the items within square brackets in the second paragraph of (c) (i): i.e.: ‘[this] Convention [or to the Slavery Convention of 1926]’; these were adopted six votes to three, with one abstention. Finally, paragraph (c)(i) as a whole, as amended,

49 50

Id., pp. 10–12. See Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Eighteenth Meeting, 31 January 1956, UN Doc. E/AC.43/SR.18, 29 February 1956, p. 12.

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was put to a vote and adopted by nine votes in favour, none opposed and one abstention. Paragraph (c) (ii) reads ‘Any slave who is found on board a vessel shall be immediately set at liberty’ elicited no comments and was adopted unanimously. Paragraph (c) (iii) was then considered by the Drafting Committee. It reads: Any person found on board any vessel searched in accordance with this article who is reasonably suspected of having committed any of the offences specified in paragraph (a) of this article shall be handed over to the authorities of the State of which he is a national or, if practical or other reasons make this advisable, he may [subject to the consent of the State of which he is a national] be dealt with by the authorities of the capturing State.

Mr. Schiff, the Netherlands Representative, said that as a result of the text adopted for paragraph (c) (i), “it would be logical to add after the words ‘by the authorities of the capturing State’ the words ‘or of any State party to this Convention or to the Slavery Convention of 1926’. While the British representative supported the suggestions, the Soviet representative did not, saying he “could not understand why the Netherlands representative was reintroducing at such a late date a suggestion that had already been rejected in the drafting committee”.51 In more general terms, Mr. Nikolaev stated: that he had already explained his views before the drafting committee. It was essential to reaffirm in paragraph (c) (iii) the principle, generally recognized in international law, that any suspect found aboard an inspected vessel should be brought before the courts of the State to which he is a national. The objection had been raised that a more flexible procedure should be provided for and that the jurisdiction of the capturing State should also be recognized, to avoid practical difficulties. Although the execution of a sentence pronounced by a foreign court gave rise to many difficulties, he was prepared to accept that solution, provided that the words ‘subject to the consent of the State to which he is a national’ were retained; that wording preserved the principle of State sovereignty and should be generally satisfactory. He could not vote in favour of paragraph (c) (iii) unless those words were included. [. . .] Mr. GIRAUD (France) thought that the addition of the words in square brackets would render the provision ineffectual.

51

See id., p. 13.

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Mr. BOZOVIC (Yugoslavia) said that, if the Netherlands amendment were adopted, he would vote for the words in square brackets, which provided a guarantee. He proposed, however, that the words should be transposed so that the end of the paragraph would read: ‘by the authorities of the capturing State or, subject to the consent of the State of which he is a national, of any State party to this Convention or to the slavery Convention of 1926’. He did not think that a parallel could be drawn between paragraph (c) (i) and (c) (iii), as the former related to vessels and the latter to persons. Mr. SCOTT-FOX (United Kingdom) said that he had already advanced some arguments against the retention of the words proposed by the Soviet Union representative, but that he wished to raise another point. As the French representative had pointed out, the Committee was dealing with a problem which had narrow geographical limits. It was doubtful whether the States of the region concerned would be the first to accede to the convention and whether they would be prepared to agree that another State should judge their nationals. Guilty persons would thus have a good chance of evading justice. Mr. SCHIFF (Netherlands) shared the views of the United Kingdom representative. The essential point was that the guilty should be punished; they probably would not be punished if they were nationals of a State not party to the convention, which had no appropriate legislation on the subject and if they were tried by a court of that State. Moreover, there was a danger that the State concerned would not agree to its nationals being tried by the court of another country. The convention would then be useless. The wording that he had proposed would make it possible for culprits to be tried immediately in any country having the appropriate legislation in accordance with the provisions of the conventions. Mr. GIRAUD (France) said that he would vote for the drafting committee’s text, without the addition proposed by the USSR representative. That text, which was not completely satisfactory to him, represented a compromise between two solutions, namely, the exclusive competence of the State which the accused was a national and the exclusive competence of the capturing State. In the former case, there was a danger that decisions might be too lenient and in the latter that they might be too severe. International law offered other possible solutions, such as recognizing the competence either of the State of which the victim was a national or of the State where the offence had originally been committed. He acknowledged that the Netherlands representative’s proposal was the best, but preferred to adhere to the agreed compromise text, which could more readily be adopted. The CHAIRMAN, speaking as the representative of Australia, said that he would vote against the additional proposal by the Soviet Union representative, for the reasons stated by the United Kingdom and French representatives.

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He would also vote against the additional proposal by the Netherlands representative, because it might prevent certain States from becoming parties to the convention and because it would be unnecessary if the addition proposed by the USSR delegation was not adopted. Mr. BENLER (Turkey) pointed out that the deletion of the words ‘and any persons . . . on board a vessel’ from paragraph (c)(i) had already provided slave traffickers with an escape clause, as they could evade justice by mingling with the slaves and being freed with them. The adoption of the Soviet proposal would give the traffickers yet another loophole.52

Mr. Bozovic, the Yugoslav Representative, then proposed that the addition suggested by the Soviet Union be inserted in the Netherlands amendment; this, however, was not agreed to with Mr. Schiff asking that the question be put to a vote. The Chairman put the Yugoslav sub-amendment (i.e.: that the end of the paragraph would read: ‘by the authorities of the capturing State or, subject to the consent of the State of which he is a national, of any State party to this Convention or to the slavery Convention of 1926’) to the Netherlands amendment to a vote; the Committee adopted the sub-amendment by six votes to four. The Netherlands amendment (i.e.: ‘or of any State party to this Convention or to the Slavery Convention of 1926’) was then voted upon and adopted by six votes to none, with two abstentions. The Chairman then put to a vote the phrase found in square brackets: ‘subject to the consent of the State of which he is a national’, which was rejected by a vote of five against, two for and two abstentions. Finally, overall paragraph (c) (iii), as amended, was put to a vote and adopted seven to none with three abstentions.53 Paragraph (d), which reads “In this article ‘slave’ means any person over whom any or all powers attaching to the right of ownership are exercised and includes any person intended to be dealt with as a slave”, was then considered by the Drafting Committee: Mr. NIKOLAEV (Union of Soviet Socialist Republics) pointed out that paragraph (d) was logically unacceptable. It restated the definition of slavery in article 1 of the 1926 Convention then added another element; that amounted to stating that slavery was slavery plus something else. Moreover, as the United Kingdom representative had said, there was no need to repeat what was already included in the 1926 Convention. It was essential, as the French representative had pointed out, to avoid verbal inflation. The Soviet delegation therefore proposed the deletion of paragraph (d).

52 53

Id., pp. 13–15. See id., p. 15.

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Mr. SCOTT-FOX (United Kingdom) pointed out that the 1926 Convention defined slavery, but not a slave. He was surprised that the USSR representative, who usually maintained that the provisions of the draft convention were too restrictive, was objecting to the last sentence of the paragraph; the purpose of that sentence was to protect victims of a slave raid over whom the raiders did not yet exercise right of ownership. Mr. BOZOVIC (Yugoslavia) said that he was not satisfied with those explanations. The persons concerned were implicitly referred to in article 1, paragraph 2, of the 1926 Convention. Moreover, in defining slavery, that Convention also defined a slave.

With the final consideration of paragraph (d) having been given by the Yugoslav representative, the Chairman put the provisions to a vote. They were adopted by eight votes to none, with one abstention. Article 2, as a whole, was then put to a vote and adopted by the same vote: eight for, none against, and one abstention. Article 2, as adopted at second reading, is as follows: (a) The Act of conveying or of attempting to convey slaves on the high seas or being accessory thereto, shall be a criminal offence under the laws of the Parties to this Convention and persons convicted thereof shall be liable to penalties as severe as those generally applied to acts of piracy. (b) While on the high seas in the area of the Indian Ocean, including the Red Sea and the Persian Gulf, bound by the twenty-sixth degree south latitude and the sixty-second degree east longitude, warships or military aircraft under the control of Parties to this Convention shall have the same right of visit, search and seizure in relation to vessels of Parties to this Convention suspected on reasonable grounds of being engaged in the act of conveying slaves as they have in relation to vessels so suspected of being engaged in acts of piracy. (c) (i) Any vessel seized in accordance with this article shall be brought in for adjudication by a court of the State which has made the seizure. However this State may request any other State party to this Convention or the Slavery Convention of 1926 to refer the case to one of its courts if, in its view, practical or other reasons make this advisable. (ii) Any slave who is found on board a vessel shall be immediately set at liberty. (iii) Any person found on board any vessel searched in accordance with this article who is reasonably suspected of having committed any of the offences specified in paragraph (a) of this article shall be handed over to the authorities of the State of which he is a national or, if practical or if other reasons make this advisable, he may be dealt with by the authorities of the capturing State or, subject to the consent of the State

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of which he is a national, by the authorities of any other State party to this Convention or to the Slavery Convention of 1926. (d) In this article ‘slave’ means any person over whom any or all of the powers attaching to the rights of ownership are exercised and includes any person intended to be dealt with as a slave.54

As noted in the Report of the Committee on the Drafting of a Supplementary Convention on Slavery and Servitude to the Economic and Social Council, at “the 19th meeting the Committee decided that the article would appear in the draft supplementary convention as Article 3”.55 Further, at the twentieth meeting a number of drafting amendments were adopted. Mr. BROWN (United Kingdom) acknowledged that the wording proposed by his delegation to delimit the area of sea in which the right of seizure might be exercised was not entirely precise. It was clear from the context that the area contemplated was that bound ‘to the south’ by the twentysixth degree south latitude and ‘to the east’, by the sixty-second degree of east longitude; but for greater clarity he proposed that the words quoted should be inserted in the text of the article. He also suggested that the second sentence of paragraph (c)(i) should follow immediately after the first sentence instead of appearing as a separate sub-paragraph. Lastly, for stylistic reasons, the word ‘however’ should be placed after, instead of before, the words ‘this State’. It was so decided Mr. APUNTE (Ecuador) proposed that the word ‘efectuó’ in the Spanish text of paragraph (c)(i) and (c)(iii) should be replaced by ‘efectue’. It was so decided Mr. APUNTE (Ecuador) felt that the words ‘any person intended to be dealt with as a slave’ in paragraph (d) was unclear, as it was difficult to determine when that subjective condition was fulfilled. He would prefer a wording on the lines of: ‘any person who is presumably to be dealt with as a slave’.

54

55

Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude, Article 2 as adopted at the eighteenth meeting of the Committee on 31 January 1956, UN Doc E/AC.43/L.30/Add.2, 1 February 1956, pp. 1–2. Economic and Social Council, Slavery: Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery: Report of the Committee appointed by Resolution 564 (XIX), 7 April 1955, UN Doc E/2824, 15 February 1956, p. 37.

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Mr. BROWN (United Kingdom) thought that the difficulty might be due to inaccurate translation; the word ‘intended’ was quite clear in English. Mr. APUNTE (Ecuador) felt that his criticism applied equally to the English text in that it postulated intention, which was always difficult to determine. It was better, even in English, to use a word like ‘presumed’. He would not press the point, however, but merely draw attention to the element of vagueness and incompleteness. He would confine himself to improving the Spanish text.56

The final modification made by the Committee on the Drafting of a Supplementary Convention on Slavery and Servitude to the Economic and Social Council to the provisions of what was now Article 3 of the Draft Convention were, on the one hand “to accept suggestions by the Secretary-General [. . .] to insert the words ‘for trial’ between ‘hand over’ and ‘to the authorities of the State of which he is a national’ and to substitute the phrase ‘he may be brought to trial by the authorities of the capturing State’ for the phrase ‘he may be dealt with by the authorities of the capturing State.57 The Secretary-General provided the following rationale: In Article 2 (c) (iii) it provided that any person found on board any vessel searched ‘shall be handed over to the authorities of the State of which he is a national or . . . he may be dealt with by the authorities of the capturing State etc.’ The question arises whether the purpose for which he should be handed over or the way in which he should be dealt with should not be spelled out in the Convention more clearly in accordance with the general understanding which can be gathered from the debate of the Committee relating to Article 2.58

One the other hand, the “Committee also decided to use the term ‘States Parties’ in paragraph (a) instead of ‘Parties’ to conform with general United Nations practice, and to combine into one paragraph the two sub-paragraphs in paragraph (c)(i).”59 56

57

58 59

See Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Twentieth Meeting, 6 February 1956, UN Doc. E/AC.43/SR.20, 9 March 1956, p. 4. See Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude, Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices similar to Slavery (Third Reading), Suggestions by the Secretariat, UN Doc E/AC.43/L.41, 2 February 1956, p. 3. Id. Economic and Social Council, Slavery: Draft Supplementary Convention on the

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When in April 1956, the Report of the Committee on the Drafting of a Supplementary Convention on Slavery and Servitude was before the Economic and Social Council and a draft resolution regarding the convening of a conference of plenipotentiary to negotiate a supplementary convention to be considered, the Egyptian representative to the Economic and Social Council, Mr. Abdel-Ghani, stated that his delegation had decided to object to article 3. He continued: That article is irrelevant to the purposes of the convention. It defined a certain maritime area in the Indian Ocean, including the Red Sea and the Persian Gulf, and went on to state that warships or military aircraft under the control of parties to the convention should have the same right to visit, search and seizure in relations to vessels of parties to the conventions suspected on reasonable grounds of being engaged in the act of conveying slaves as they had in relation to vessels so suspected of being engaged in piracy. Members of the Council were well aware what warships and military aircraft operated in that area. But it had surely been far from the Council’s intention, when dealing with the question of slavery, to give certain warships and aircraft the right of search and seizure there. That was a development which went far beyond the provisions of the International Slavery Convention, signed in 1926, when a certain fleet might reasonably have had such rights, in view of the large scale slave-trading still prevalent at that time. All the countries in the area concerned had adopted national legislation to abolish slavery, which they had also adjured by their acceptance of the United Nations Charter. Any vestige of the slave-trade which persisted there was no more than illegal traffic, akin to the white slavery and narcotics traffic still rife in many civilised countries of the world, and it was of too small a scale to justify the right of search and seizure by military craft operating in those waters. There was only one earlier convention which contained a provision similar to the proposed article 3, and that was the Brussels Act of 1890, which in any case had stipulated that only vessels of under 500 tons could be subject to such action, and even with that limitation many States had refused to sign it. Under the new convention, however, there was to be no tonnage restriction at all. The Council’s intention had been to deal only with those practices resembling slavery not covered by the International Slavery Convention of 1926; it had said nothing about the conveying of slaves or about military craft in the Indian Ocean. The only reason why article 3 appeared to have been introduced was that an article on the conveying of slaves had been

Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery: Report of the Committee appointed by Resolution 564 (XIX), 7 April 1955, UN Doc E/2824, 15 February 1956, pp. 37–38.

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included in the original draft by the United Kingdom; but the Council had never suggested that the Committee should accept that draft in its entirety. It was a significant fact that the Committee had adopted the article by 6 votes to 4. In short, the political implications of the proposed article 3 were such that the United Nations could not possibly leave it as it stood. [. . .] With regard to further action, he did not agree that the proper course was to send the draft to a plenipotentiary conference. The purpose of General Assembly resolution 366 (IV), which empowered the Council to call such a conference, had been to give non-member States the opportunity of participating in some of the work of the United Nations through attendance at international conferences. Today the position was different: now that the United Nations had admitted sixteen new Members, probably more States would be participating at the coming session of the General Assembly than had ever participated at any conference called by the United Nations. If the object of the United Kingdom delegation was to enable as many countries as possible to take part in the discussion of the draft convention, then that object could surely be achieved by referring the matter to the General Assembly. The Egyptian delegation therefore proposed that the draft convention be referred to the Assembly, and discussed by the Sixth (Legal) Committee. The latter body still had on its agenda the question of the regime of the high seas and the territorial sea, and it was therefore fitting that the new convention, especially its provisions on the competence of warships in certain maritime zones, should be discussed against that background. In making its proposal the Egyptian delegation did not wish to exclude the proposed international conference of plenipotentiaries. But it was firmly convinced that no such conference should be called until the General Assembly had had a full opportunity at its next session to debate all aspects of the supplementary convention. The conference could then be called to take action on a convention studied by all Members States of the United Nations and could proceed safely to open it for the signature of the plenipotentiaries. The Egyptian proposal was therefore not an alternative to the United Kingdom proposal, but an addition, which he hoped all members of the Council could accept.60

The representative of the Union of Soviet Socialist Republics note that it was unable to accept several articles and as such it believe, like Egypt, the best place to consider the draft supplementary convention was General Assembly. This was also true of Indonesia, Czechoslovakia, and Yugoslavia. All three States mentioning Article 3 specifically, Indonesia as

60

Economic and Social Council, Official Record, Twenty-first Session, Agenda Item 12 – Slavery, 916 Meeting, 27 April 1956, p. 89.

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appearing unnecessary “limited as it was to one area of the Indian Ocean; Czechoslovakia as an example of a provision which had shortcomings; and Yugoslavia as being based on the outdated Brussels Act. The Yugoslavian statement, made by Mr. Bozovic, is worth considering: Mr. BOZOVIC (Yugoslavia) said that his delegation could not accept the territorial limitations provided in article 3 of the draft supplementary convention. Based as that article was on a provision of the Brussels Act of 1890, its adoption would imply the assumption that no changes had occurred in that specific part of the world to which it referred. In point of fact, new independent States had been established there and the feeling of their peoples could not but be taken into account. During the discussions in the Committee the Yugoslav delegation had taken the position that the provisions of the supplementary convention should be made to apply wherever slavery and servitude might exist. In that connexion, a corresponding provision in the draft convention prepared by the International Law Commission with respect to the regime of the high seas would meet the point. The relevant article in the draft supplementary convention should therefore be made to conform to that provision.61

On 30 April 1956, the President of the Economic and Social Council called for a vote on a resolution co-sponsored by Ecuador, France, Netherlands and the United Kingdom. Before that vote could be taken however, consideration had to be given to the Egyptian amendment to that the draft resolution. The Egyptian amendment read: 1. In the second paragraph of the preamble, after the word ‘plenipotentiaries’, add the words ‘after being discussed by the General Assembly’. 2. Insert the following paragraph after the operative paragraph 1: ‘2. Decides to transmit to the General Assembly at is eleventh session the report of the Ad Hoc Committee for discussion.’ 3. Amend operative paragraph 2(a) by the insertion after the words ‘should be convened’ of the words ‘after the eleventh session of the General Assembly’. 4. Amend paragraph 2(c) by the deletion of the words ‘after the end of the twenty-second session of the Economic and Social Council’. 5. Renumber operative paragraphs accordingly.62

61

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Economic and Social Council, Official Record, Twenty-first Session, Agenda Item 12 – Slavery, 916 Meeting, 27 April 1956, p. 93. Economic and Social Council, Egypt: Amendments to the joint draft resolution by

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The vote on the amendment was considered item by item, the first item being rejected nine votes to six with three abstentions, the second item being rejected by the same vote, the third item rejected by a vote of nine against, six for and with two abstentions. Mr. Abdel-Ghani then took the floor to say that in light of the first three items having been decided “a vote on the remaining amendments was unnecessary”. The President, as a result, put the joint draft resolution calling for a conference of plenipotentiaries to assemble to draft a supplementary convention to a vote, which was adopted, as Resolution 608 (XXI), by twelve in favour, one against and five abstentions.63 Thus, the provisions of Article 3 as adopted by the drafting Committee for consideration of the United Nations diplomatic Conference were as follows: (a) The act of conveying or of attempting to convey slaves on the high seas, or being accessory thereto, shall be a criminal offence under the laws of the States Parties to this Convention and persons convicted thereof shall be liable to penalties as severe as those generally applied to acts of piracy. (b) While on the high seas in the area of the Indian ocean, including the Red Sea and the Persian Gulf, bounded on the south by the twenty-sixth degree south latitude and on the east by the sixty-second degree east longitude, warships or military aircraft under the control of Parties to this Convention shall have the same right of visit, search and seizure in relation to vessels of Parties to this Convention suspected on reasonable grounds of being engaged in the act of conveying slaves as they have in relation to vessels so suspected of being engaged in acts of piracy. (c) (i) Any vessel seized in accordance with this article shall be brought in for adjudication by a court of the State which has made the seizure. This State, may, however, request any other State Party to this Convention, or to the Slavery Convention of 1926, to refer the case to one of its courts if, in its view, practical or other reasons make this advisable. (ii) Any slave who is found on board a vessel shall be immediately be at liberty. (iii) Any person found on board any vessel searched in accordance with this article who is reasonably suspected of having committed any of the

63

Ecuador, France, Netherlands and the United Kingdom of Great Britain and Northern Ireland (E/L.710) Twenty-first Session, Agenda Item 12 – Slavery, UN Doc E/L.711, 27 April 1956. Economic and Social Council, Official Record, Twenty-first Session, Agenda Item 12 – Slavery, 917 Meeting, 30 April 1956, p. 96.

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offences specified in paragraph (a) of this article shall be handed over for trial to the authorities of the State of which he is a national or, if practical or other reasons make this advisable, he may be brought to trial by the authorities of the capturing State, or, subject to the consent of the State of which he is a national, by the authorities of any other State Party to this Convention or to the slavery Convention of 1926. (d) In this article “slave” means any person over whom any or all powers attaching to the right of ownership are exercised and includes any person intended to be dealt with as a slave.64

iii. 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery ARTICLE 3 1. The act of conveying or attempting to convey slaves from one country to another by whatever means of transport, or of being accessory thereto, shall be a criminal offence under the laws of the States Parties to this Convention and persons convicted thereof shall be liable to very severe penalties. 2. (a) The States Parties shall take all effective measures to prevent ships and aircraft authorized to fly their flags from conveying slaves and to punish persons guilty of such acts or of using national flags for that purpose. (b) The States Parties shall take all effective measures to ensure that their ports, airfields and coasts are not used for the conveyance of slaves. 3. The States Parties to this Convention shall exchange information in order to ensure the practical co-ordination of the measures taken by them in combating the slave trade and shall inform each other of every case of the slave trade, and of every attempt to commit this criminal offence, which comes to their notice.65

64

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Economic and Social Council, Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, UN Doc. 2824, Annex I, 15 February 1956. United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Final Act and Supplementary Convention, 4 September 1956, UN Doc E/CONF.24/23.

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By way of Resolution 608 (XXI), the Economic and Social Council decided that “a conference of plenipotentiaries should be convened in order to complete the drafting of the Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices similar to Slavery and to open it for signature”.66 The United Nations Conference of Plenipotentiaries opened on 13 August 1956 and turned to consider the provisions of Article 3 on 16 August, though during the first substantive discussion of the draft convention – the general debate – the representative of Egypt, Mr. Abdel-Ghani noted that: the Economic and Social Council, in its resolution 564(XIX), had stated that it was desirable ‘to prepare a text of a draft supplementary convention which will deal with those practices resembling slavery not covered in the International Slavery Convention of 1926 ’. What was required, therefore, was a draft convention supplementing that adopted by the League of Nations. The present draft dealt with both slavery and the slave trade, yet the Conference, under its terms of reference, was not authorized to consider the slave trade. Accordingly, before adopting the preamble as it now stood, the Conference should discuss the appropriateness of the reference to the slave trade made therein, with which article 3, in particular, was concerned.67

At this early stage of the proceedings, the Conference did not take up Mr. Abdel-Ghani’s suggestion regarding a discussion of the slave trade. Instead, it was only during the first reading of Article 3, that the substance of its provisions was considered by various delegations. At the fifth meeting, when these first discussions took place, it became apparent that Article 3, as proposed, had many critics. The Sudan Representative, Mr. Adeel, was the first to be given the floor and noted that his Government supported paragraph (a), but called for the deletion of paragraph (b) “for legal, political and moral reasons”: The legal reason was that the Conference had been convened under the auspices of the Economic and Social Council to advance the purposes of the Council as set out in Chapter X of the United Nations Charter and, in particular, in Article 62. Paragraph (b) introduced political and military

66 67

Economic and Social Council, Resolution 608 (XXI), 30 April 1956. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Third Meeting, 15 August 1956, UN Doc E/CONF.24/SR.3, 10 November 1958, pp. 3–4.

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measures amounting almost to enforcement measures, which, under Chapter VII of the Charter, were the exclusive prerogative of the Security Council and might be taken by it only to maintain or restore international peace and security. The provisions in that paragraph thus fell outside the competence of the Economic and Social Council. In international law vessels on the high seas were within the jurisdiction of their home State and had, in fact, been defined as floating islands of such States. Interference with such vessels would therefore constitute intervention in matters which were essentially within the domestic jurisdiction of the States. Under Article 2 paragraph 7 of the Charter of the United Nations itself could not infringe domestic jurisdiction except to exercise enforcement measures under Chapter VII. If the United Nations itself had no such police powers, the Conference could obviously not build a form of United Nations superstructure without violating Article 103 of the Charter. He was not unmindful of the fact that in international law a State might, in the exercise of its sovereignty, sign away any part or all of that sovereignty; but that argument was beside the point. No such fantastic provision appeared in the 1926 Convention; its attempted introduction, which would have been abhorrent to the Contracting Parties to the 1926 Convention, was a hypocritical anachronism thirty years later. The moral reason was that it was psychologically wrong to single out a specific area for military supervision, since that was tantamount to an accusation that slavery and institutions and practices similar to slavery existed solely, or mainly, in that area. It could not, of course, be the intention of any State representative at the Conference to make injurious insinuations against any other State, but arguments about the abolition of slavery should be kept at the highest level of humanitarianism and conscience. To attempt to impose civilization by force would make a mockery of the very concept of humanitarianism. He could assure the Conference that Sudan’s objection to that specific clause in no way implied that it did not maintain its firm belief that slavery should be abolished. In 1926 the Sudan, although still a dependent territory, had been closely associated with drafting the Convention, and, at the direct invitation of the Secretary-General of the League of Nations, had acceded to it by administrative decision. Since 1927 the few remaining vestiges of slavery in the Sudan had disappeared, and under article 4 of the Sudanese constitution all persons in the Sudan were free and equal before the law. Mr. WILSON (Liberia) considered that some simplification of the article was desirable, especially with regard to the geographical area to be covered and the method of seizure proposed. His delegation was not prepared to approve any provision in the draft convention that implied a violation of a Member State’s territorial rights or property in contravention of the Charter. If the existence of slave traffic in any area was ascertained, the party concerned should be notified thereof without delay. If that step failed to achieve the desired result, the appropriate United Nations organ should be informed accordingly.

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His Government therefore reserved the right to vote for the article if it was amended on the lines suggested by him. The question whether the State capturing an offender should also try him should in all cases be decided by the State of which the offender was a national. Mr. JAFRI (Pakistan) agreed with the Sudanese representative that article 3(b) should be amended; there seemed to be no justification for prescribing a particular area. If adequate safeguards could be devised the application of the articles should be made universal. The article raised grave controversial issues and it was desirable that an attempt be made to study it more closely. In lieu of a general debate on the article, perhaps a sub-committee or working group of the Conference should be appointed to consider the implications of the article and to place its findings before the Conference. In any case, perhaps some member of the Drafting Committee should explain how the provisions relating to piracy could be adopted to the suppression of the slave trade without infringing the sovereignty of the States affected. As it was, any declaration by all States to suppress slavery and the slave trade would be a great and desirable achievement, but if the convention could provide for punitive measures with adequate safeguards it would signify an advance beyond the realm of pious platitudes. The Conference however, should not stop there, and if there were no valid legal objections, the clause should be extended to embrace such subjects as the white slave traffic. Mr. ABDEL-GHANI (Egypt) said that the article under discussion raised a new and grave issue. It its 1926 Convention, the League of Nations had called upon the Contracting Parties, now forty-five in number, to prevent and suppress the slave trade and to bring about the complete abolition of slavery in all its forms. It did not, however, give the warships or military aircraft of any State the right to search and seize vessels in any part of the world. Yet that convention had been adopted thirty years previously, when the slave trade was not prohibited by law in some countries and had therefore been conducted on a scale that might have justified granting the right of search and seizure. Now, after thirty-years of constant advance towards political and individual freedom, the United Nations was being asked to grant to certain warships and military aircraft a right that had been denied to them under the League. If there was still any vestige of the slave trade in the area defined in article 3(b), it was no more than an illegal traffic comparable to that which exists in the field of white slavery and narcotics distribution in many of the world’s civilized countries; its scale was too small to necessitate granting the proposed right of military intervention in the specified area. The only international convention which has accorded the right to search and seize ships on the high seas had been the General Act of the Brussels

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Conference of 1890; even in that instrument, however, that right had been restricted, which was not the case in the draft supplementary convention. Under the Brussels Act, only boats of less than five hundred tons could be suspected of engaging in the slave traffic; now, sixty-six years later, that suspicion was extended, under the draft convention, to all vessels operating in the prescribed area, whatever their size or flag. He recalled that may States had refused to adhere to the Brussels Act, notwithstanding the restrictions it had imposed on the right of search and seizure. The Drafting Committee had worked on a draft submitted by the United Kingdom Government, but the Economic and Social Council, had not instructed it to accept it in its entirety; in fact the Council’s decision had, by implication, suggested the deletion of that part of the United Kingdom draft referring to the conveying of slaves on the high seas to which it had made no reference. Article 2 of the original draft had not specified a restricted area of the world, as the present draft did; the present draft had been approved by the very small majority of two votes, those voting for it being France, the United Kingdom, the Netherlands, Australia, Turkey and Ecuador, and those voting against it being India, the Soviet Union, Yugoslavia and his own country. His delegation felt that article 3, as it stood, was outside the scope of the draft convention. If it was necessary to deal with the questions of the slave trade and of the conveyance of slaves, that could be the subject of a special convention, as had been envisaged under the League of Nations. In view of the forgoing facts, his delegation, with others, intended to propose at a later stage that the present article 3 should be replaced by a text having approximately the following wording: ‘The Contracting Parties shall adopt effective measures to prevent and punish the transport of slaves in ships authorized to fly their colours, and to prevent the unlawful use of their flag for that purpose. Any slave taking refuge on board any ship, whatever its colours, shall ipso facto be free’. Mr. NOGUEIRA (Portugal) said that article 3 clearly raised very serious difficulties, and his delegation shared the concern that seemed to be generally felt about the proposed text. He stressed, however, that his Government fully endorsed the view that slavery should be abolished everywhere in all its forms. Slavery did not exist in any Portuguese territory, but his Government would gladly co-operate in achieving the result desired by all; accordingly, his delegation welcomed any text which represented progress towards the abolition of slavery. While his delegation had no serious objection to article 3 as it stood, it felt that it could be greatly improved. Its present provisions called for some clarification. As the Egyptian representative had said, while the draft convention was supposed to relate to the abolition of slavery and similar practices, article 3 dealt with an entirely different matter, namely the traffic of slaves. Moreover,

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it did so without defining the slave trade or the traffic in slaves; it merely provided for the inspection and seizure of vessels carrying slaves. The area prescribed in article 3(b) was much larger than that defined in previous conventions; he hoped; therefore, that the sponsors of the draft convention would explain why it had been necessary to prolong its boundary along the twenty-sixth degree south latitude westwards to the African coast and eastwards to the sixty-second degree east longitude, and why that degree of longitude had been followed northwards. Mr. POMPOURAS (Greece) said that his delegation could not accept article 3, since it considered that the right to visit, search and seizure might be interpreted too broadly and provoke political disputes. Since it would be very difficult, within the framework of the present convention, to solve the technical and political problems arising out of article 3, the Greek delegation thought it advisable to leave that particular matter out of the Convention. It therefore supported the Egyptian proposal for the deletion of article 3 and its replacement by the text which the Egyptian representative had read out. The Greek delegation considered it expedient to omit such an article in order to facilitate signature and ratification of the Convention by as many States as possible. In view of its importance, the question of the slave trade on the high seas might be the subject of a separate agreement. Mr. TUNCEL (Turkey) described article 3 as the focal point of the draft Convention. First, he observed, the competence of the Conference to deal with the slave trade was not open to question. It had been pointed out during the debate that some Council resolutions failed to mention the slave trade, but operative paragraph 2 of resolution 608(XXI), the most recent Council resolution relating to the Conference, referred to expressly. Moreover, according to the Economic and Social Council the final text of the Convention was to be drafted by the Conference. Secondly, as the discussions in the Drafting Committee had shown, most of the delegations who objected to article 3(b) were opposed mainly to the demarcation of an area within which the right of visit, search and seizure was to be permitted. Thirdly, the delegations opposed to the right to visit specified in article 3(b) had with some justification argued that it would infringe their national sovereignty. All delegations, including those which accepted article 3(b), shared the same concern. International law recognized, however, that there were international servitudes that States could accept freely and voluntarily for humanitarian reasons or for reasons of international interest. Clearly the abolition of slavery was a matter of international interest, since for more than a century States had been seeking to suppress it. Since some States nevertheless refused to accept such servitude, a satisfactory formula should be sought which would reconcile both the international interests and the demands of national sovereignty. The Egyptian representa-

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tive’s formula was too categorical for that purpose. The Pakistan proposal to set up a working party supplied a procedure by which the issues could be examined, and he would like the Conference to take a decision on it. Mr. CHISTYAKOV (Union of Soviet Socialist Republics), describing the genesis of the draft Convention, said that the existing text of article 3 had been submitted to the 1956 ad hoc Committee by the United Kingdom. Several delegations had intimated at the time that they would oppose it at the Conference, and the current discussion were clear proof that the article was unacceptable to a large number of countries. Referring to specific flaws in article 3, he said that whereas paragraph (a) respected the principles of national sovereignty, as implied by the words ‘under the laws’, paragraph (b), which provided for the right of visit, search and seizure, was distinctly discriminatory in that without sufficient cause it limited that right to a specified region. Furthermore, the provisions of paragraphs (b) and (c) conflicted with two generally accepted principles of international law – that of freedom of navigation and the principle that penal jurisdiction over crimes committed on the high seas vested in the State of nationality of the ship in which the crime had been committed. The motivation behind the wording of the article had not been sufficiently clearly explained to the 1956 ad hoc Committee, and he would be glad if the author of the text would explain it to the Conference. A number of delegations had voiced what he considered very proper concern for the safeguard of the principle of national sovereignty, respect for the principle being of paramount importance. The Egyptian draft amendment to article 3 (E/CONF/24/L.9) reproduced the language of a draft article prepared by the International Law Commission, a body of highly qualified jurists, and hence certainly deserved consideration. The text in question, which was contained in the Commission’s report on its eight session, for distribution at the eleventh session of the General Assembly, felicitously defined the obligations of States in combating the slave trade with due regard for the principle of national sovereignty. The Soviet Union delegation accordingly supported the Egyptian proposal. Any reference by opponents of the Egyptian proposal to the General Act of the Brussels Conference of 1890 was misconceived, for the Act had been modified by the Convention of Saint-Germain-en-Laye, 1919. Furthermore, the Brussels Act, which had made provision for the possibility of visit and seizure, had been inspired by the memory of the large slave convoys and the desire on the part of the nations who had the mastery of the sea to secure that right for purposes which were often other than the abolition of the slave trade. In conclusion, he said that his delegation appreciated all the criticism levelled at article 3 paragraph (b), maintained its opposition to the article as expressed in the 1956 ad hoc Committee, and shared the views of those who had urged its amendment.

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On the question of procedure, he supported the Pakistan delegation’s proposal that a working party should be appointed; the USSR delegation was prepared to take part in the proceedings of such a working group.68

The President of the Conference, Mr. Calderon Puig of Mexico indicated that he “felt that it was still too early to appoint a drafting committee, as had been proposed by the representative of Pakistan”. At this point, the meeting was adjourned, with consideration of Article 3 once again being taken up at the following session. At this, the sixth meeting, the Turkish representative noting the Soviet reference to the freedom of the high seas and the Egyptian reference to the International Law Commissions work of the regime of the high seas, “pointed out that article 46 of the same draft convention, which dealt with the right to visit, contained an exception relating to the slave trade”. The considerations of Article 3 continued: Mr. GIRAUD (France) said that the right of visit could be universal or restricted to a certain zone. Article 46 of the International Law Commission’s draft Convention (A/CN.4/104) allowed for a universal right of visit in the case of piracy and a right of visit limited to certain areas for the slave trade.69 Some representatives at the Conference had opposed the right of visit on the ground of national sovereignty. It must, however, be remembered that States agreed to waive national sovereignty whenever they became parties to an international convention. Hence there was no reason for excitement when a new exception was made to the principle that merchant ships were liable only to inspection by warships of the country to which they belonged by nationality. The Sudan representative had stated that such inspection could be only exercised by the Security Council under Chapter VII of the Charter. Chapter

68

69

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Fifth Meeting, 16 August 1956, UN Doc E/CONF.24/SR.5, 11 November 1958, pp. 5–12. Article 46 of the International Law Commission’s draft Article concerning the law of the sea (see International Law Commission, Report of the International Law Commission to the General Assembly, Eight Session, 23 April–4 July 1956, UN Doc A/3159 (same as A/CN.4/104), p. 261) reads: 1. Except were acts of interference derive from powers conferred by treaty, a warship which encounters a foreign merchant ship on the high seas is not justified in boarding her unless there is reasonable ground for suspecting: [. . .] (b) That while in the maritime zones treated as suspect in the international conventions for the abolition of the slave trade, the ship is engaged in that trade; [. . .]

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VII, however, referred to action against States, whereas the matter now under discussion was action against individual slave traders. The question arose whether inspection should be exercised throughout the world or only in certain seas. The Sudan representative had stated that the limitation of inspection to a particular geographical area was an insult to certain States. But in the case of France it too had sustained an insult since Madagascar was included in the proposed zone. There was no point in disguising the facts beneath the cloak of hypocrisy. The truth was that not all States were in the same position where slavery was concerned. Slavery might be described as a sort of children’s disease of mankind. It had once existed everywhere. It had been one of the flaws in the Greek and Roman democracies, remarkable as these had been in many ways. Accordingly, the Conference had no intention of censuring countries where slavery had not yet been eradicated. There was no need for the socalled under-developed countries to entertain feelings of inferiority or guilt, but they should make an effort of their own volition. In order to avoid wounding certain over-susceptible feelings the Conference might decide in favour of a universal right of inspection, but that would serve no useful purpose and would consequently be pointless. The restriction of the right of visit to those seas which were the only remaining theatre of the slave trade was therefore justified. True, the right of visit might give rise to certain abuses, but every right might provoke abuses. A clause could be inserted to provide that any abuse provoked by the right of visit should be referred to the International Court of Justice and that if the latter found that an abuse had been committed in should award damages for the injury inflicted.70

The India Representative, Mr. Padmanabhan, noted the opposition to Article 3 as it currently stood. “The opposition”, he said, “was based on genuine apprehension as to the way in which the article would be applied. If the convention was to be generally accepted, the members of the Conference should try to meet all legitimate criticisms”. Mr. Padmanabhan then noted his support for the Pakistani and Turkish suggestion for the establishment of a working group to consider the provisions of Article 3. For his part, Mr. Jurkiewicz, the Polish Representative, noted that the representatives of Turkey and France had referred to the decisions of the International Law Commission. He would point out that the task of the International Law Commission was to interpret existing law. If

70

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Sixth Meeting, 16 August 1956, UN Doc E/CONF.24/SR.6, 11 November 1958, pp. 4–5.

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the Conference based its decisions on the International Law Commission’s report that Commission would in turn be bound by the decisions of the Conference. Thus, if the Conference reaffirmed the provisions of the General Act of the Brussels Conference of 1890 merely because the International Law Commission had referred to the provision of that Act, the Commission would in turn have to accept the Conference’s decision and there would be no possibility of changing the 1890 Act, though it had been adopted in circumstances entirely different from those of the present, when many independent countries existed in that area. Article 3(b) was regarded with suspicion by so many countries that there must be some foundation for that suspicion. Article 3(b) was in fact a dangerous clause. Its acceptance might lead to difficult situations. It should either be removed, and the inspection of their merchant ships left in the hands of individual countries, or a special committee should be established to discuss the question thoroughly with a view of finding some new formula. Mr. ADEEL (Sudan) observed that the French representative had referred to Madagascar. Madagascar, however, was not a sovereign State, and even if it were, and had sent a representative to the Conference, he doubted whether that representative would have shared the feelings expressed by the French representative. Mr. PAVLIK (Czechoslovakia) saw no good reason for the proposed geographical limitation. The existing text of Article 3 was restrictive and consequently could only weaken the Convention. The Czechoslovak delegation would therefore support the Egyptian amendment. Mr. NOGUEIRA (Portugal) had listened to the French representative with interest and entirely agreed with many of his points. His statement, however, had included no reply to the question he (Mr. Nogueira) has raised at the previous meeting. The French representative had said that the zone established in Article 3(b) corresponded with the area in which slavery was known to be practiced. But the zone was far larger than those delimited in previous conventions. Did that mean that slavery was now practised in a larger area? He could not support the suggestion that Article 3 should be considered by a drafting committee. It had already been agreed that no sub-committee should be established. Moreover, all delegations would like to take part in the discussion, and the establishment of a small committee would exclude some of them. Also, much time would be lost in the preparation and discussion of the report which would have to be produced by such a committee. Mr. ABDEL-GHANI (Egypt) said that the draft articles relating to the regime of the high seas prepared by the International Law Commission (A/ CN.4/104) distinguished between piracy and the slave trade, a separate article being devoted to each. The slave trade was placed under the jurisdiction of States, while piracy was regarded as a matter of international concern. That was a legitimate distinction, since slavery could most properly be regarded

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as a violation of human rights, and hence as a matter to be dealt with by national legislation. Article 3(a) was generally acceptable to his delegation, except in so far as the concluding words place the slave trade on the same footing as piracy. He thought it might be helpful if the Secretariat could produce a map showing the exact situation of the area mentioned in article 3(b). Mr. PESCATORI (Italy) observed that all members of the Conference were united in calling for the abolition of the slave trade. Since national reform were insufficient to achieve it, international collaboration was clearly vital. The question was, therefore, what form that collaboration should take in order to ensure positive results. The principle of universal right of visit might, of course, prove acceptable; but since that principle was too general to give satisfactory practical results, the right of visit should be limited to a specific zone. The geographical limitation and the procedure for inspection could be laid down in an annex to the convention rather than in an article of the convention itself.71

At this point, the Romanian Representative, Mr. Olteanu made an insightful statement, maintaining “that the objections formulated at the Conference could not be ignored during the drafting of the convention. The Romanian delegation therefore supported the Egyptian proposal”. Returning to the substance of Article 3, the British representative next took the floor: Mr. SCOTT-FOX (United Kingdom) said that in response to requests made at the preceding meeting he would like, as representative of one of the six countries which had voted for the present article 3 in the 1956 ad hoc Committee, to try to explain its meaning and intention more clearly. He repudiated the suggestion, advanced by the representative of the USSR, that the United Kingdom delegation had brought pressure to bear on other delegations to secure the adoption of the article in the Committee. The article had in fact been adopted only after prolonged discussion. The votes in favour of it had been given after mature consideration and in complete independence. His own delegation had been obliged to accept amendments which in its view somewhat detracted from the value of the article, and it had done so even though some of those amendments had been proposed by the representatives of countries which in the end had voted against the article. His delegation, however, sincerely felt that the article, even in its present form, was a practical contribution towards suppression the great evil of slave-trading. He had no alternative but to refer to the political undertones which, despite the President’s appeal at the opening meeting, had informed some of the earlier speeches. For example it has been implied that the purpose

71

Id., pp. 5–7.

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of the article was to open the way for the establishment of military bases, and that the article was perfidiously designed to restrict the independence of countries concerned. Such allegations could not be sustained and were contrary to the spirit of the Conference. So far as his own country was concerned, they were absurd, especially in view of the part played by the United Kingdom in the history of the anti-slavery campaign. As the representative of Turkey had pointed out, Council resolution 608 (XXI) stated specifically that the Conference was to complete the drafting of the supplementary convention on the abolition of slavery, the slave trade, and institutions and practices similar to slavery. The Conference was therefore not only entitled to deal with the slave trade, but specifically instructed to do so, despite the Egyptian representative’s assertions to the contrary. The suggestion had been advanced at the last meeting that since the League of Nations had decided to do nothing about the slave trade the United Nations should follow its example. That was not a convincing argument. It had been realized during the inter-War period that the slave trade ought to be speedily dealt with in an international convention, and such had been the tenor of article 3 of the 1926 Convention. In reply to the argument that the International Law Commission had dealt with the problems of the slave trade and piracy in two separate articles, the representative of France had pointed out that both evils were also referred to in article 46, which stated that under certain conditions foreign merchant shipping might be boarded by a warship if there was reasonable ground of suspecting that while in the maritime zones treated as suspect in the international conventions for the abolition of the slave trade the merchant ship was engaged in that trade. He had been encouraged by the USSR representative’s praise of the International Law Commission and by his recognition of its competence in such matters. The International Law Commission was a very representative group of distinguished lawyers, including lawyers from the USSR and Czechoslovakia. Article 46 had been unanimously approved by the whole International Law Commission without reservation. There had been much talk of national sovereignty, but there was a great deal of misunderstanding about what it involved. He quoted from Oppenheim’s International Law in support of the view that, in addition to the restrictions imposed by the customary law of nations on the complete liberty of action of States, there were also obligations which a State could assume through treaties without thereby losing its internal independence and territorial supremacy. Many questions had international as well as national aspects. In the case of States which were Parties to international agreements relating to such questions, the latter no longer fell exclusively within the national jurisdiction. Some representatives had affirmed that it was objectionable to single out particular areas. His delegation attached great importance to the principle of freedom of the seas and considered that it was in the interests of all users to see that that freedom was limited to the minimum possible extent. It

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had therefore opposed at New York the suggestions that the right of search should be extended to the high seas throughout the world. On purely practical grounds also, it was desirable to limit the area subject to search as much as possible. The most practical course was to confine the area in which vessels could be searched to those parts where there was reason to believe that the slave trade still existed. His delegation fully realized that the article raised important and difficult problems particularly with regard to the definition of the area contained in section (b). The representative of Portugal had suggested that the delimitation of the area was not logical. The United Kingdom delegation would be happy to consider the matter further, perhaps on slightly more informal lines in a working group or committee of the Conference.72

Picking up on the proposal by Mr. Scott-Fox, the President of the Conference said that despite the call by a number of representatives to establish a working group to consider Article 3, he thought “that such a group should not be constituted until all amendments to article 3 had been submitted in writing”. He then gave the floor to the representative of the Philippines: Mr. LOPEZ (Philippines) was inclined to support the Portuguese representative’s views. So far as he was aware, only three practical proposals has been submitted with regard to article 3, namely (1) to delete article 3; (2) to delete all reference in that article to any particular area in order to make the right of visit and search universal, and (3) to re-word the article, as suggested by the Egyptian representative, along the lines of article 37 of the Draft Articles on the Regime of the High Seas prepared by the International Law Commission (A/CN.4/104). He thought, therefore, that no useful purpose would be served by setting up a working group, as any statements made in that group would only have to be repeated in the plenary meeting. Mr. ADEEL (Sudan) said that in suggesting the deletion of article 3 he had not intended to imply that his country would not agree to any alternative drafting which might be more acceptable to it. He was therefore inclined to support the Egyptian representative’s amendment. Mr. CHISTYAKOV (Union of Soviet Socialist Republics) wished first to point out that in his statement at an earlier meeting he had not intended to disparage the part played by the United Kingdom delegation during the preparation of the draft supplementary convention. He had merely stated that that delegation had made strong efforts to ensure that article 3 was adopted by the Drafting Committee.

72

Id., pp. 7–9.

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Referring to article 46 of the Draft Articles on the Regime of the High Seas prepared by the International Law Commission, he noted that certain representatives considered that because that body had stated that warships might intercept any merchant ship found in a zone which under the international conventions for the abolition of slavery was regarded as suspect a similar provision should be embodied in the supplementary convention. The main task of the International Law Commission, however, was to codify international law. Certain representatives had said that the General Act of the Brussels Conference of 1890 was still in force, but he pointed out that great changes had taken place in Asia and North East Africa since the conclusion of that Act and new States had come into being. The Brussels Act had been signed by eighteen States, some of which no longer existed, and the legal and political status of some of the other signatures has changed. The Convention of St. Germain-en-Laye of 1919 had replaced the Brussels Act and had been signed by many of the States signatory thereto. He wondered, therefore, whether the Brussels Act could still be regarded as an international standard. If that Act had lost its validity as an international instrument, then he wondered on what international treaty the Conference could base its work of defining the zone to which the provisions of article 3 should apply. Mr. BAROODY (Observer for the Government of Saudi Arabia), speaking at the invitation of the President, said that it was because of the political implication of article 3 that he was not attending the Conference as a Government representative. That article as at present drafted was highly dangerous and he had reached the conclusion that the names of countries in the area mentioned in article 3(b) had been omitted in order to spare the feelings of their governments. He wondered, however, if the authors of the article had thought of the feelings of the peoples in the area mentioned, which was now one of the most important in the world both strategically and economically. It was wrong to single out one area and give warships and military aircraft the right to visit, search and seize any vessels suspected of being engaged in the slave trade therein. As the Conference had been convened to consider a draft supplementary convention on the abolition of all forms of slavery other than those covered by the 1926 Slavery Convention, he wondered whether representatives had given any thought to the white slave traffic which still existed and should be controlled, and whether any ships or aircraft had been searched for that purpose. Turning to article 3(b), he asked what exactly was meant by the phrase ‘on reasonable grounds’ and who would have the right to suspect any vessel of conveying or attempting to convey slaves on the high seas. He realized, of course, that informers existed everywhere, but wondered what would happen should the information given by them prove incorrect. No apology could redress the wrong caused by an aspersion cast on innocent people.

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Modern methods of propaganda were such that the wording of article 3 was dangerous, not only from the political but also from the humanitarian and social points of view. Moreover, there seemed no reason why only ships should be searched and not aircraft. His delegation had received from the people of certain areas along the east coast of Africa countless letters which would be circulated at the proper time. Many would shudder when they read those documents and discovered what was taking place in certain non-self-governing territories. He suggested that the shores of those territories should be inspected to control the smuggling of slaves in that area. He fully understood why certain countries did not wish the word ‘progressively’ deleted from article 1 and his opinion on that subject would be expressed at a later meeting. His statement could be substantiated by documents from the archives of certain chancelleries and from history books which have been written not only by Arabs but by persons who had at one time held responsible positions in the countries which were today trying to urge the inspection of vessels in the areas mention in article 3. Even if article 3 were redrafted to make such inspection universal certain Powers would abrogate to themselves the right to choose the areas of inspection. There lay the danger, and it would lead to chaos. Almost every international instrument had at one time or another been abused. He emphasized that slavery was on the decline everywhere, even in the area mentioned in article 3, because of changing social and economic conditions. The peoples of States which had become independent in recent years had made great progress, but the peoples of the dependent territories were still slaves. Since the Conference was discussing the eradication of all forms of slavery other than those mentioned in the 1926 Convention, it should investigate more types of slavery which were being practised on a collective scale in such territories. Mr. ABDEL-GHANI (Egypt), replying to a question by Mr. NOGUEIRA (Portugal), said that his amendment [E/CONF.24/L.9; to be considered shortly] was meant to replace the whole of article 3. Mr. TUNCEL (Turkey) wondered whether it was not a question of an area of the high seas, which in law belonged to no State. International action taken in that zone would be aimed at terminating an activity that was detrimental to human freedom and stemmed from the fact that the high seas did not belong to any State. If the suggestion of the Italian representative were approved, the geographical limits of the region could be defined in an annex to the Convention. The text proposed in the Egyptian amendment reproduced article 37 of the International Law Commission’s draft convention. As the Soviet Union representative had said, that article together with article 46 outlined the present situation in international law. It was based on certain previous conventions, and even restated article 3 of the 1926 Slavery Convention. The text

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proposed by the representative of Egypt therefore existed in a convention that was still in force, and there could be no legal reason to repeat its obligations in any other convention. The amendment made no new contribution and therefore did not help towards a solution of the problem. Mr. JAFRI (Pakistan) said that when he had suggested, at an earlier meeting, that a working group or a sub-committee should be set up he had done so because he realized that article 3 would raise very controversial issues, and the debate had certainly confirmed his apprehensions. He had already suggested that the geographical limitations in article 3(b) should be eliminated. The United Kingdom representative had explained why the majority of the Drafting Committee had felt that there should be geographical limitations and he said that the power to search vessels might be abused if it was made universal. He (Mr. Jafri) felt such an explanation implied that what was lawful in certain areas would not be so in others, and that whereas efforts were being made to prevent the power of search from being abused in some areas, in others no safeguards had been suggested which would at least lessen, if not completely eliminate, the abuse of that power as defined in article 3(b). He felt that if a working group or sub-committee were set up the clause in article 3 which had given rise to so much apprehension could be redrafted in such a way as to protect the sovereign rights of States and prevent the more powerful States from abusing the powers conferred on nations by that article. The fears of many representatives would be allayed if the first line of article 3(c)(i) were re-worded along the following lines: ‘Any vessel seized anywhere in the world in accordance with this article shall be brought in for adjudication by the court of the State of which the captain or officers are nationals’. Such phraseology would serve to safeguard the sovereignty of States. He therefore urged that a sub-committee composed of members of those delegations who had expressed concern about the wording of article 3 should be set up. He could not agree with the Philippines delegation that such a body would not achieve its object.73

The President of the Conference ended the sixth meeting saying that he wished to allow those intending to do so, to submit written amendments to Article 3; while “a decision on whether a small but geographically representative working group on that article should be set up would be taken at the following meeting”.74 At the following session, the Egyptian Representative, Mr. Abdel-Ghani, was called upon to introduce his amendment to Article 3. That amendment reads:

73 74

Id., pp. 9–13. Id., p. 13.

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Replace article 3 by the following text: The contracting States shall adopt effective measures to prevent and punish the transport of slaves in ships authorized to fly its colours, and to prevent the unlawful use of its flag for that purpose. Any slave taking refuge on board any ship, whatever its colours, shall ipso facto be free.75

For his part, Mr. Abdel-Ghani stated that before presenting his amendment, he wish to “refer to an important issue raised by the Turkish representative who did not consider that the article infringed the national sovereignty of States because it related only to vessels navigating on the high seas”: That argument raised the complex question of the demarcation of the high seas and territorial waters, which had not yet been defined. The issue had been the subject of controversy in the International Law Commission, and the General Assembly was to discuss it at its forthcoming session. Many States, such as the Latin American and Scandinavian countries, knew from experience what disputes could arise because of the uncertainty which prevailed on the subject; such disputes could not contribute to the maintenance of international peace and security. Moreover, owing to the narrowness of the waterways involved, the area defined in the draft supplementary convention consisted mainly of the territorial waters of adjacent States. If the limit of territorial waters were eventually fixed at 200 miles there would be literally no high seas in the area.76

Mr. Abdel-Ghani, then turned to his delegation’s proposed amendment: The purpose of the Egyptian amendment was to delete the article, which was a potential source of international controversy since the rights it conferred could be so abused as to endanger international peace and security. The distinction between piracy and conveying slaves on the high seas had been recognized by the International Law Commission, which had not only referred to the two acts in two separate articles but had pointed out the main difference. Piracy was held to be danger to international navigation and trade and should accordingly be dealt with through international co-operation.

75

76

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Egypt: Amendment to article 3, 16 August 1956, UN Doc E/CONF.24/L.9. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Seventh Meeting, 17 August 1956, UN Doc E/CONF.24/SR.7, 12 November 1958, p. 2.

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The slave trade, on the other hand, was a violation of the inherent right of every individual to freedom, but it had no international significance except in relation to the conscience of mankind. That did not mean, however, that national provisions would suffice to eliminate slavery; many international measures could also be devised. The crime of traffic in slaves would vanish automatically as soon as the economic and social conditions causing it were improved. One of the main purposes of the United Nations was to pool the efforts of its members and of the international community with a view to upholding human rights. The United Nations had not paid as much attention to the scourge of slavery as it had to many other social questions, having confined its work in that respect to compiling a report on slavery based on information from governmental and other sources. When the United Nations became more active in its development of backward regions it would be found unnecessary to use warships and military aircraft for solving a purely humanitarian problem. The United Nations had an imperative for solving a purely humanitarian problem. Non-Self-Governing and Trust Territories, which were the main source of slavery and the slave trade. It could ask Administering Authorities to report on the measures taken to suppress slavery and on the difficulties encountered, in order to see what international assistance could be rendered. Conditions in the Non-Self-Governing Territories were discussed every year in the Committee on Information from Non-Self-Governing Territories, which might hold a special session on slavery. An appeal might also be made to the Administering Powers to refer specifically to the question in their annual reports. In the case of Trust Territories, United Nations visiting missions might be instructed to pay special attention to slavery and the slave trade. If, as had been averred, outside elements were obstructing the work of the Administering Powers in that respect, the matter could be discussed and settled by diplomacy, without resort to military measures. The United Nations approach to the problem of the slave trade should be similar in its attitude towards such social scourges as white slavery and the traffic in narcotics drugs. In the former case, pure social methods had been used; in the latter case, a special Division of the United Nations Secretariat received detailed reports from many countries. If there was a real desire to combat slavery, similar machinery could be set up and a committee of experts appointed to supervise the efforts made. The Turkish representative had criticized the Egyptian amendment on the ground that the proposed new article was similar to an analogous provision of the 1926 Convention. That raised a technical question of the relationship between the 1926 Convention and the new draft, whether a country adhering to the supplementary Convention automatically became a party to the 1926 Convention. In his opinion, there was no automatic link between the two texts. Accordingly, the new article 3 would become an obligation under the supplementary convention and would merely serve as a re-affirmation of the obligations assumed by States adhering to both Conventions.

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The Turkish and United Kingdom representatives had alleged that the Economic and Social Council resolution on slavery gave some kind of endorsement to the draft supplementary convention. It should be borne in mind, however, that the Council had not discussed the draft at all; at its twenty-first session it had devoted one and a half meetings to discussing the procedure to be followed. The United Kingdom proposal had been to refer the draft to a conference of plenipotentiaries, while the Egyptian view had been that the convention had not been discussed thoroughly enough in the 1956 ad hoc Committee and that further consideration in the General Assembly was advisable in view of the political and military implications. That was the only discussion that had taken place in the Council, which had adopted the United Kingdom view. It should also be borne in mind that five of the nine delegations that had voted for the United Kingdom proposal had explicitly stated that the draft convention contained many serious shortcomings, which they would raise at the Conference. Mr. GIRAUD (France) uttered a warning against being hypnotized by the notion of sovereignty. If sovereignty was not an impediment to the right of visit in the case of piracy, it should not be one in the case of the slave trade. The International Law Commission had moreover, mentioned the slave trade as one of the cases in which the inspection of shipping by foreign vessels could be exercised notwithstanding the principles of the freedom of the high seas. The basic question before the Conference was whether control was useful or not. It was certain that maritime supervision was the only effective way of preventing the slave trade on the seas on which it was still practised. Those seas were known, just as were the points of departure and arrival of the slave ships; the slaves were taken from Africa and disembarked on the Arabian peninsula. To those who asked why it was not proposed to utilize the right of visit for the suppression of the white slave trade and trafficking in dangerous drugs the reply was that no useful purpose would be served thereby since those were clandestine activities of which neither the shipowners nor the masters of the vessels had usually any knowledge. There was every facility for arresting the guilty parties in the countries of embarkation and disembarkation. Some fears had been expressed regarding the abuses to which the rights of visit might lead, but those who felt such fears should specify cases where that right had been abused in dealing with piracy. Its extension to the whole world would be utterly useless and consequently unjustifiable. The theory put forward by the Egyptian representative that the area covered by territorial seas be so much enlarged that in the narrow seas the high seas would cease to exist or be reduced to vanishing point was very far-fetched. The concept of the territorial sea had evolved and some States no longer kept strictly to the traditional three-mile limit which others had reserved to themselves the exercise of certain police rights or the enjoyment of certain economic rights (exploitation of the sea bed) in zones stretching

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far beyond the three miles. Nevertheless, the rule of the freedom of shipping continued to exist within these enlarged zones. Finally, he protested strongly against the Egyptian representative’s allegation that slavery found its main sources in the Trust and Non-Self-Governing territories. That accusation was due to an anti-colonialist obsession. It was quite unfounded and in fact ridiculous. Slavery had not been introduced into Africa by the colonial powers; it has been in existence before they settled there. Although in the seventeenth and eighteenth centuries they had engaged in the slave trade, thus committing an undeniable historical wrong, they had, in the nineteenth and twentieth centuries, waged effective war on slavery, in which France had abolished in its colonies in 1848, subsequently taking practical measures to make the abolition a reality. The slavery, all traces of which those measures had been designed to eradicate, was not slavery practised by the colonists; it was the traditional slavery practised by the indigenous populations and dating back to long before the colonial era. Mr. ABDEL-GHANI (Egypt) assured the French representative that he had not intended to accuse the Administrating Powers of introducing slavery into Non-Self-Governing and Trust Territories and of not working to suppress it. He had merely indicated the ways in which the United Nations could assist their efforts. Mr. ABUSHKEVICH (Byelorussian Soviet Socialist Republics) supported the Egyptian proposal to delete article 3 in view of the fact that the right to search vessels was confined to a specific area. There was no basis for that limitation, which was discriminatory against the countries of the region. Moreover, any such search would inevitably infringe national sovereignty. The alternative text proposed in the Egyptian amendment was based on the principle of national sovereignty and would serve the interests of the supplementary convention. Mr. TUNCEL (Turkey) congratulated the Egyptian representative on his statement. While he could not support all the ideas expressed, the manner in which that representative had put forward his Government’s point of view, restricting him to a statement of principle and avoiding all reference to political events, was ground for satisfaction and justified the view that progress towards agreement had been made during discussions. The delimitation of the territorial sea raised a difficult problem for Egypt, but it was reasonable to refer in that connexion to the work accomplished by the International Law Commission. That body, under article 3 of the draft articles on the Régime of the Territorial Sea, had not fixed a precise limit for the territorial sea but merely stated its view that the extension of the territorial sea beyond the twelve miles was not endorsed by international law. The Turkish delegation thought it should be possible to find a compromise formula if the members of the Conference accepted the principle of international action on the high seas.

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The Egyptian representative had said that the future convention to be drawn up would have no connexion with the 1926 Convention, but a compromise could probably be found on that point also, since the decisions of the Economic and Social Council and the title and the articles of the draft itself showed clearly that it was to be a supplementary convention designed to fill the gaps in its predecessors. Furthermore, the preamble to the draft convention stated that the Convention of 1926 remained operative. The Turkish delegation thought that the provisions mentioned in the Egyptian proposal were already contained in the previous conventions, which provided in particular that States should take action with regard to their national territories including their territorial waters. Governments had given undertakings with regard to the shipment of slaves and that included the slave trade on the high seas. Consequently, every State was obliged to prevent a vessel flying its national flag from engaging in the slave trade, even on the high seas, and the Egyptian proposal was therefore no innovation. The Conference had to solve a problem which the previous convention had not tackled, that of international action on the high seas. If the Egyptian representative did not oppose that principle, common ground could be found and the question should be referred to a drafting committee for consideration. The Statement of the Byelorussian representative, in alleging that the draft convention discriminated to some extent between States, had not been in the spirit which ought to prevail at the Conference, whose object was to find a formula acceptable to all the participating Governments. Mr. SCOTT-FOX (United Kingdom) agreed with the Turkish representative that the Egyptian amendment represented no advance over the analogous provisions of the 1926 Convention. The main purpose of the supplementary convention was to deal with practices akin to slavery, which the parties would undertake to bring to an end progressively and as soon as possible. The United Kingdom hoped to be among the first to adhere to the new convention; it was doing its best to eradicate practices of those kinds, for all the territories from which it was responsible and, although it was not always successful in its efforts, it was willing to accept the obligations of continuing and intensifying its work. It was grotesque, however to suggest that the Non-Self-Governing and Trust Territories were the main source of slavery. He regretted that the Egyptian representative and the observer from Saudi Arabia had seen fit to refer to irrelevant matters and to use a tone which contrasted with the moderation that had prevailed during the Conference. Moreover, the amendment related to the slave trade, and the question of practices akin to slavery in dependent territories had therefore no real bearing on the matters. Article 3 contained features which might raise serious doubts in some minds and constructive amendments should of course, be considered; however, the simple deletion of the article and its replacement by provisions which are already existing in previous agreements would result only

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in eliminating one of the most important provisions of the convention. The emphasis on military aspects was based on a misconception. If it was agreed that the slave trade was an abominable practice, it was vain to expect effective and speedy international co-operation on any lines other than those set forth in article 3. Mr. MIKHAILENKO (Ukrainian Soviet Socialist Republic) thought that discussion had shown that the text of article 3 was unsatisfactory to many delegations and required substantive amendments or even deletion. The main shortcoming of the article was the nebulous idea it gave of the grounds on which a vessel might be suspected of being engaged in conveying slaves. That point should be decided by every State in respect to its own nationals without outside interference. In view of the importance of the article it would be advisable to set up a committee to draft a generally acceptable text. The PRESIDENT observed that he was bound to ensure freedom of expression and would do so as far as possible, but he appealed to the Conference not to indulge in controversy, although some of the points must inevitably be highly debatable. Mr. BAROODY (Observer for the Government of Saudi Arabia) speaking at the invitation of the President, said that he must exercise his right of reply to the United Kingdom representative because Saudi Arabia, like many under-developed countries, had only a rudimentary Press.77 In his previous statement he had merely pointed out that the political implications of article 3 paragraph (b). The people in the area named therein might very well misconstrue the right of search by warships or military aircraft when they knew that it would be entrusted to powers of which they had not had a very pleasant experience within the last hundred years. Saudi Arabia was not threatening any country but simply pointing out obvious dangers to the peace of the area in question from a chain of incidents. Such an article might set a precedent for similar provision in other conventions. The Conference should ponder the risks involved. Mr. de la FUENTE (Peru) desired to enter a formal reservation with regard to any proposal tending to mention a fixed limit for the territorial sea, either implicitly or explicitly, in the article of the draft convention under consideration. It was true that the International Law Commission had made recommendations on the subject in its recent reports, but it would be premature for the Conference to take up a position before the question had been submitted to the General Assembly or to the special international conference such as that envisaged in the International Law Commission’s report.

77

See for instance: “Geneva Debates Slavery: Ideology Trends Soon Evident”, The Times (London), 16 August 1956, p. 6.

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In any case, the Peruvian delegation reserved the right not to sign – at least for the time being – any instrument containing a clause that fixed or defined the territorial sea. Mr. DANNADIEU (Costa Rica) said his Government could not support the Egyptian amendment, which was not constructive and represented no progress on previous conventions. Like the Turkish Government, it mainly wished to see the Conference reach an agreement acceptable to all or most of the participant. Mr. NIKOLAEV (Union of Soviet Socialist Republics) suggested that the importance of control on the high seas was being exaggerated in connexion with a convention dealing mainly with the institutions and practices similar to slavery. In criticizing the Egyptian amendment (E/CONF.24/L.9), the United Kingdom representative had stated that it represented no advance over the 1926 Convention. Article 3 of the 1926 Convention stated that the high contracting particle undertook to adopt all appropriate measures with a view to preventing an suppressing the embarkation, disembarkation and transport of slaves in their territorial waters and upon all vessels flying their respective flags. The Egyptian amendment brought in three new elements: the punishment of slave-traders, the undertaking of contracting States to prevent the unlawful use of their flag in ships used for the transport of slaves and the provision that any slave taking refuge on board any ship, whatever its colours, should ipso facto, be free. None of those elements appear in the 1926 Convention. Admittedly, the high contracting parties to the 1926 Convention had undertaken to negotiate as soon as possible a general convention with regard to the slave trade. The Conference should look at the real needs of the present situation. The slave trade had been widespread in the past, but was now much rarer. The draft supplementary convention was dealing in the main with the institutions and practices similar to slavery which were defined in article 1. All those institutions and practices were quite obviously to be found mainly on land: serfdom exclusively so. The lengthy discussion of an article dealing with the control of the high seas was, therefore disproportionate. Article 3 of the 1926 Convention provided that the general convention to be negotiated would not place the ships (even of small tonnage) of any high contracting parties in a position different from that of the other contracting parties. No such discrimination had been contemplated in 1926. It had been said that the adoption of the 1926 Convention had laid down the principle of control by States of their own ships. The Egyptian amendment provided for steps to be taken by governments with regard to ships flying their flag, which was quite consistent with the purposes of the Convention. The Egyptian amendment was, therefore, on the whole satisfactory.

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Mr. LOPEZ (Philippines) had gathered from the Egyptian representative’s statement that the situation with regard to the definition of the high seas and the limits of the territorial sea was still uncertain, but the Turkish representative had implied that there had been some sort of agreement that the maximum breadth of the territorial seas was twelve miles. It would be helpful if a representative of the General Legal Division could inform the Conference whether the words ‘high seas’ in the context of article 3 implied a definitely measured distance for the territorial sea. He was less optimistic than the Turkish representative that the twelve-mile limit would be universally acceptable. The United Kingdom draft article 3 went much further than the proposals made by the representative of the British Empire in 1926 (ST/SOA/4, paragraphs 90 and 91). Those proposals had made it clear that the right to visit and search was to be universal, whereas in the present draft they referred to a specific area. The 1926 proposals had provided that the ships captured should be brought before the courts of the country of the ship which had affected the capture and should be dealt with according to the law of that country, but the slave traders should be handed over to their own country to be brought before its courts. Under the present draft such persons might be tried by the authorities of the capturing State. It was clear that the provisions of article 3 paragraph (b) in the present draft went considerably further than the United Kingdom proposals in 1926. In 1926 the British proposals had been rejected by the Sixth Committee of the League of Nations as many members had thought that serious difficulties arose with regard to their application in law. The proposals had been rejected at the time when the area concerned had been dominated primarily by the great maritime powers and no new nations had yet arisen, as they had today. In 1926, moreover, the concept of the high seas had not been so confused as it was at present. It was illogical, therefore, to bring forward in 1956 proposals even more radical than those rejected in 1926. Mr. SOMERHAUSEN (Belgium) thought the Egyptian amendment to article 3 added nothing new to the previous conventions and he disagreed on that point with the Soviet Union representative. To be convinced of that it was enough to compare the Egyptian amendment, destined to replace the whole of article 3, with paragraph (a) of that article, on which the amendment was based but which it weakened. The amendment provided for punishment for conveying slaves, whereas paragraph (a) of article 3 said that the act of conveying or of attempting to convey slaves on the high seas should be a criminal offence under laws of the States parties to the convention. Furthermore, the same paragraph (a) stipulated that persons convicted should be liable to penalties as severe as those generally applied to acts of piracy. Those provisions showed that the Egyptian amendment was weaker than article 3 paragraph (a) both in the obligations assumed and in the severity of the punishment.

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The Soviet Union representative must have confused practices similar to slavery, including serfdom, with slavery in the conventional sense as defined in the 1926 Convention. The distinction was clearly shown in a manifesto published in 1847 by Marx and Engels and should be respected. The draft convention aimed at condemning practices similar to slavery and also at introducing additional steps to deal with the slave trade proper. It appeared that real slavery still existed in a very limited part of the world and was still allowed by the laws of some countries taking part in the Conference. He was prepared to admit the slavery was disappearing as a result of economic and industrial evolution and agricultural development, but the slave trade might help to maintain slavery artificially and it was essential to abolish it. That the trade existed in the Persian Gulf, the Red Sea and the Indian Ocean had not been disputed and so it appeared right that the Conference, if it was to fulfil the task entrusted to it, should take measures to end that trade. The measures proposed in article 3(b) and (c) had led to a lively discussion and the representatives of the Sudan and Egypt, although they were opposed to the measures envisaged, had nevertheless shown a great deal of objectivity. The right to visit, search and seizure which it was proposed to apply on the high seas to deal with the slave trade already existed in the case of piracy, and if some governments had intended to misuse that right and invoke it against the slave trade they could have found some excuse without waiting for the new slavery convention to enter into force. Those who had talked of the danger of abuse should give some specific examples. His opinion was that abuse should involve penalties and he drew attention to the amendment submitted by the Portuguese delegation (E/CONF.24/L.6)78 providing explicitly for compensation for any damage and loss incurred in case where suspicious proved unfounded. As for procedure, he thought that all the members of the Conference should take part in the discussion on the important problem under consideration. The establishment of a sub-committee might, he feared, slow up the work. However, he would fall in with the majority of the Conference if it was thought necessary to appoint a sub-committee.

78

The Portuguese Amendment reads: In Article 3, after paragraph (c), insert the following new paragraph: “If the suspicions proved to be unfounded, and provided that the vessels boarded has not commited any act justifying them, it shall be compensated for any loss or damage that may have been sustained”. See Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Portugal: Amendments to Articles 3, UN Doc E/CONF.24/L.6, 15 August 1956.

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Mr. SCHACHTER (Secretariat) replying to the question asked by the Philippine representative, quoted from the commentary of the International Law Commission prepared at its eighth session on article 3 of the section of the article concerning the law of the sea dealing with the territorial sea (A/CN.4/104, pp. 39–41). The Committee [sic. Commission] had noted that the right to fix the limit of the territorial seas at three miles was not disputed and had stated that international law did not permit that limit to be extended beyond twelve miles. As between three and up to twelve miles, the Commission had taken no decision but suggested that the question be decided by an international conference. While thus recognising a degree of uncertainty as to the precise limits of the territorial sea, the Commission had not concluded that this uncertainty would prevent it from dealing with regulation of the high sea in such matters as navigation, piracy and other questions traditionally in that field. The Philippine representative had referred to claims by certain States to a territorial sea beyond the twelve mile limit. He (Mr. Schachter) pointed out that while certain coastal States had claimed rights beyond the twelve mile limit, such claims were concerned with fisheries and, possibly, the exploitation of the sea bed, and as he understood it they did not necessarily involve a claim to full sovereignty over such waters.79

Mr. Nikolaev of the Soviet Union concluded the seventh meeting by saying that his Belgian colleague might have misunderstood what he had suggested; “he had been comparing the Egyptian amendment with article 3 of the 1926 Convention, not with the present draft”.80 At the afternoon session of 17 August, the next meeting of the Conference resumed with the President recognizing the Portuguese representative: Mr. NOGUEIRA (Portugal) had listened with great attention to the various statements made in connexion with article 3. He felt that the Conference should be grateful for the light thrown on a most difficult subject and he wished especially to thank the representative of Egypt, France, Turkey and the United Kingdom. All the implications of article 3 were now understood and the time had come for more positive action. Commenting on some of the points raised, he felt unable to agree with the Turkish representative’s statement at an earlier meeting that the only objections raised had referred to the right of visit in territorial waters and that no substantial difference of opinion existed with regard to the right to visit on the high seas, over which no State held exclusive sovereignty.

79

80

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Seventh Meeting, 17 August 1956, UN Doc E/CONF.24/SR.7, 12 November 1958, pp. 2–12. Id., p. 12.

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The Portuguese delegation would formally oppose the right of visit if it were made universal, and he pointed out that the countries whose shipping use the area referred to in article 3(b) might sometimes have conflicting interests. Political divergences might have a bearing on the way in which the right of visit was exercised. Although, of course, no responsible government would use such right for purposes other than those provided for in the draft supplementary convention, the Portuguese Government could not accept a situation in which its shipping might be at the mercy of, say, a young commander of a small warship, particularly if no tonnage limit had been laid down and no proper safeguards provided. Vital interests might be jeopardized if the forty-eight hours limit was imposed, and Portugal could not accept that limitations [as to the detention of ships]. The suggestion had also been made that, since piracy had been suppressed by the interception of suspected ships, the same principles should be applied to the slave trade. He submitted, however, that the right of visit in relation to piracy had no bearing whatsoever on the right to visit to control the slave trade. Piracy implied violence on the high seas, and should therefore be suppressed by force, but similar action could not be taken in regard to the slave trade. A system of control similar to that applied to the traffic in narcotic drugs might well be instituted in the case of the slave trade. All States should take strict measures along their own coastlines, in their ports and at their airports to prevent the embarkation or disembarkation of slaves. If such action were taken he failed to see how the slave trade could continue. The Conference should decide whether it accepted the principle of the right of visit. On the decision taken in that connexion depended the answer to another question, namely whether the Conference accepted the feasibility of delimiting a certain geographical area. The future work and the success of the Conference would hinge on the replies of those two questions. Some representatives had asserted that progress would only be made if article 3 were adopted in its present form and that if such action were not taken the draft supplementary convention would not contain anything new and would therefore be purposeless. He could, however, see no object in linking the present draft to older instruments. A new convention signed by a larger number of States would in itself be an important step forward. Mr. JOCKEL (Australia) agreed with the Portuguese representative that the general debate, though it had been valuable, could not be usefully prolonged. The question of setting up a working group should be discussed forthwith, as it was difficult to deal with questions of principle in the abstract. Mr. JURIEWICZ (Poland), referring to the statements by the Belgian and United Kingdom representatives at the seventh meeting, explained the position of those countries which had doubts about article 3(b). Such countries were no less eager for the Conference to achieve its goal than countries which supported article 3, but they felt that other considerations must be taken

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into account. The question that had caused most doubt was the right of a warship of one country to intercept and search a ship of another country if it was suspected, on reasonable ground, of being engaged in the act of conveying slaves. He wondered how the captain of a warship would know which vessel to intercept. There were two possibilities: either the stipulation in article 3(b) was of no practical value or informers of one country would be stationed in another and instructed to give information on what craft they felt should be stopped and searched. Slaves could, he pointed out, be transported by land and by air as well as by sea. Mr. ABDEL-GHANI (Egypt) said that many countries in the area defined in article 3(b) had bilateral agreements with the United Kingdom in connexion with the campaign against the slave trade, among them the treaty concluded with that country by Saudi Arabia on 17 September 1927, and the treaty between the Government of Yemen and the United Kingdom Government, dated 11 February 1924. He noted from the report of the first session of the League of Nations Committee on Slavery (L. of N. document A.34. 1932.VI) that the Sultanates of Muscat, Oman, and the Bahrein Archipelago, the Trucial Sheikdoms and most of the Sultanates of the Hadramauth coast had undertaken to co-operate with the United Kingdom Government in the campaign against the slave trade. He suggested that the Secretariat should submit to the Conference a complete list of such agreements which were still in force. The communication dated 14 February 1935 from the United Kingdom Government to the Secretary-General of the League of Nations, a copy of which appeared in annex 3 of the report of the second session of the League’s Advisory Committee of Experts on Slavery (L. of N. document C.159.1935. VI.) stated that the Royal Navy anti-slavery patrols operating in the Red Sea had not captured a slave dhow for more than twelve years. Although that report had been written twenty-one years ago, he suggested that the Secretary-General should make a summary of the very useful information it contained and circulate it to the Conference to help the latter decide whether the measures prescribed in article 3 were really necessary. Mr. de la FUENTE (Peru) had listened with much interest to the explanations given that morning by the United Nations legal adviser concerning the high seas and the territorial sea. His statement confirmed the Peruvian delegation’s contention that the question of the limits of the territorial sea was a controversial issue and would be submitted to an ad hoc international conference. Pending a pronouncement by that conference or by the General Assembly the Peruvian delegation would regard as out of place any previous definition that might create a precedent. It merely desired to reaffirm its position with regard to two novel concepts of the law of the sea, which could neither be misunderstood nor ignored: that of the continental shelf as forming part of the coastal State’s patrimony and that of the extension of the territorial sea. Needless to say, the Peruvian delegation had no intention of gainsaying the hallowed principle of the freedom of the seas or of oppos-

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ing control carried out for the suppression of offences duly recognized by international law.81

After these numerous pronouncements, the President of the Conference suggested that it was time to establish a working group, “as more than fifty statements had been made”, in regards to Article 3. Having consulted various representatives, he proposed that such a working group be composed of the representatives from “Belgium, Egypt, France, India, Philippines, Portugal, Turkey, the Union of Soviet Socialist Republics and the United Kingdom of Great Britain and Northern Ireland”. Peru was then added to the working group at the request of Cuba, which noted that the twenty-strong Latin American contingency at the Conference was not represented on the working group. Eleven day’s later, on 28 August 1956, at the seventeenth meeting of the United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Representative of the Philippines, Mr. Lopez, was invited by the President of the Conference to introduce the report of the Working Group, for which he had acted as Chairman. The Report of the Working Group on Article 3 reads: 1. The Working Group appointed in the eighth meeting of the Conference and consisting of the representatives of Belgium, Egypt, France, India, Peru, Philippines, Portugal, Turkey, the Union of Soviet Socialist Republics and the United Kingdom of Great Britain and Northern Ireland, held six meetings on 16, 17, 20 and 24 August. Mr. Salvador P. Lopez (Philippines) was elected Chairman. 2. The Working Group unanimously agreed on the following text for the first and the last paragraphs of article 3: First Paragraph The act of conveying or attempting to convey slaves from one country to another by whatever means of transport, or of being accessory thereto, shall be a criminal offence under the laws of the States Parties to this Convention and persons convicted thereof shall be liable to very severe penalties.

81

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Eighth Meeting, 17 August 1956, UN Doc E/CONF.24/SR.8, 12 November 1958, pp. 2–4.

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Last Paragraph Any slave taking refugee on board any vessel of a State Party to this Convention shall ipso facto be free. 3. The Working Group was unable to agree on the paragraphs to be included in the middle section of article 3. 4. The representatives of Belgium, France, Turkey and the United Kingdom submitted a joint proposal for the middle section of article 3 as follows: (b) While on the high seas naval vessels under the control of Parties to this Convention may visit and search vessels of Parties to this Convention of less than 500 tons which are suspected on reasonable grounds of being engaged in the act of conveying slaves. (c) If any slaves are found on board a vessel mentioned in paragraph (b) of this article, the Party to the Convention whose vessels has been so visited and searched shall be immediately informed, and shall thereupon arrange for the vessel, and any persons who is responsibly suspected of having committed any of the offences specified in paragraph (a) of this article, to be brought in for adjudication by its courts. (d) If the suspicions that a vessel is engaged in the slave trade prove to be unfounded, and provided that the vessels has not committed any act justifying them, it shall be compensated for any loss or damage that may have been sustained. 5. The representative of Egypt, India, and the Union of Soviet Republics submitted another joint proposal for this middle section, jointly amended by the representatives of Peru and Portugal, which reads as follows (b) (i)The States Parties shall take all effective measures to prevent ships and aircraft authorized to fly their flags from conveying slaves and to punish the persons guilty of being instrumental thereof as well as of using national flags for that purpose; (ii) The States Parties to this Convention shall exchange information in order to ensure the practical co-ordination of the measures taken by them in fighting against the slave trade and shall inform each other of every found case of the slave trade and of every attempt at committing such a crime.82

82

See Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Report of the Working Group on article 3, UN Doc E/CONF.24/L.25, 24 August 1956, pp. 1–2.

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Mr. Lopez took the floor saying that while an “atmosphere of goodwill” had prevailed at the meetings of the Working Group, agreement could not be reached with regard to all the provisions of Article 3, though the members “had made every effort to reach an agreed formula on a very controversial article. The Group has unanimously agreed on the text for the first and last paragraphs. Two alternative texts had, however, been submitted for the middle section of the article, one by the representatives of Belgium, France, Turkey and the United Kingdom providing for the right to visit and search in a much milder and less radical form than in the original article 3. The other text, submitted by the representatives of Egypt, India, and the Union of Soviet Republics and amended by the representatives of Peru and Portugal, made no mention of the right to visit, search or seizure and placed the onus of responsibility for the abolition of the slave trade exclusively upon the national efforts of States Parties to the convention. Mr. SCOTT-FOX (United Kingdom), after paying tribute to the representative of the Philippines who had presided over the Working Group with his customary tact, patience and competence, said that it was certainly not the Chairman’s fault that the Group had not reached agreement on the text for article 3. As all would recall, article 3 in its original form had encountered very strong opposition based on political rather than on legal considerations. Such opposition had found expression in reference to discrimination and the use of force and even to the re-establishment of imperialism in a particularly sensitive area. His delegation had noted that the principal objections to article 3 in the form in which it had emerged from the 1956 ad hoc Committee arose first from the limitations of the rights mentioned in paragraph (b) to a particular maritime zone; secondly, from the provision that warships or military aircraft of States Parties to the Convention should be able to exercise right of seizure in respect of vessels belonging to other States parties to the convention. In the Working Group the United Kingdom representative and likeminded delegations had once more tried to meet those points just as they had been ready to take into account the amendment submitted by the delegation of Portugal. He believed that the text sponsored by the delegations of Belgium, France, Turkey and the United Kingdom in document E/CONF.24/L.25 did in fact meet the difficult points he had mentioned. On the first point, his delegation had previously expressed the view, endorsed in the comments of the International Law Commission on article 46 paragraph 1(b) of its draft articles concerning the law of the sea (A/CN.4/104) that any rights exercised against vessels reasonably suspected of being engaged in the slave trade should be restricted to a defined area in which the slave trade was known to exist. Other delegations had felt, however, that such a restriction savoured of discrimination. On reconsideration

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the United Kingdom delegation had, therefore, altered its original text and had provided in its new proposal for measures of international co-operation and control on the high seas as a whole and not within any specified maritime zone. With regard to the second point, his delegation fully appreciated the cogency of the argument that to accord to the warships and military aircraft of States parties to the convention rights of seizure over vessels belonging to other parties to the convention was a very serious step which could only be justified by the necessity – a necessity which all delegations to the Convention fully admitted – of taking effective measures to suppress the slave trade on the high seas. The United Kingdom delegation was very conscious that the seizure of a foreign vessel on the high seas by a warship was a measure normally only sanctioned in time of war. International law did, however, permit an exception in the case of piracy, and his delegation’s original intention – as shown by the original draft of article 3 – was to assimilate slave trading to piracy and to extend to its suppressive measures which were permitted and taken in the case of vessels engaged in piracy. That seemed both reasonable and logical. In the course of the debate, however, this delegation came to recognize that the arguments against the exercise of the right of seizure in the case of vessels engaged in the slave trade commanded substantial support among delegations. Therefore, while maintaining in the draft presented to the Working Group some practical measures for international co-operation and control in respect of the suppression of slave trading on the high seas, his delegation had not insisted on a provision regarding seizure, but had retained the provisions relating to visit and search by navel vessels of States parties to the Convention. His delegation believed that that would be justified both for legal and practical reasons. As far as the legal position is concerned, the International Law Commission, in its draft article 30 on the law of the sea, provided that ships should sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in the draft articles themselves, should be subject to its exclusive jurisdiction on the high seas. In its comments on that provision, the International Law Commission had said that in certain cases policing rights had been granted warships in respect of foreign ships. Such of those rights as were recognized in international law had been incorporated in draft articles 43, 46 and 47 on the law of the sea. Article 46 provided inter alia for the right of visit followed, if necessary, by search in the case of vessels reasonably suspected of being engaged in the slave trade. There were many practical reasons why naval vessels of States Parties to the convention should be granted powers of visit and search over vessels of other Parties suspected of engaging in the slave trade. Even if States Parties to the convention most vigilantly watched their ports and coasts, little boats would inevitably evade such vigilance. It was then equally probable that they would come to the notice on the high seas, not necessarily of the authorities of their own State, but of naval vessels under the control of

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other States. If nothing was done to verify on the spot the suspicion that such boats were engaging in the slave trade, no effective action was likely to be taken against them. Moreover, the police of a State where embarkation had taken place might well receive information of the embarkation when the suspected vessels had already sailed. In that event they could ask the nearest patrol vessel of another Party to the Convention to look out for, stop and search her. However, his delegation realized the delicate questions of sovereignty which would be involved in such a procedure. It had therefore, in paragraph (b) and (c) of the new draft, tried to leave to the party to which the vessel belonged as much responsibility as possible for further action against the offending vessel and its occupants. His delegation had recognized that certain words and phrases might have caused unfortunate and undesirable impressions. ‘Warships and military aircraft’ were perhaps the most obvious. It had therefore agreed to delete that expression and to substitute another which it felt expressed the practical purpose without undesirable overtones. It had made similar concessions in agreeing to the version of the first and last paragraphs of the draft article as recorded in document E/CONF.24/L.25. He sincerely hoped that representatives who had been able to study the new United Kingdom proposals would in all fairness realize that his delegation had moved a long way forward in a sincere desire to meet the difficulties and objections which had been raised to the 1956 ad hoc Committee’s proposals. His delegation was only too anxious to reciprocate the spirit of compromise which other delegations had shown over article 10, and which, he felt confident, they would also show over other articles which might raise special difficulties. The United Kingdom delegation had reflected once more most carefully and conscientiously on the whole difficult question of the right of search. It realized that however conciliatory and however unobjectionable it had endeavoured to make its proposals they might still cause serious difficulties for some participants. Therefore, despite its continued anxiety to see effective international measures taken against the slave trade, it was prepared not to press the new text to a vote unless the attitude of the majority of the Conference, after studying the new proposals, proved to have radically changed since the Conference’s discussion of article 3 during the previous week. Nevertheless, it was with the greatest reluctance that his delegation had decided to forego the inclusion of a really effective article 3, which would have filled the gap left by the Convention of 1926 in its failure effectively to cover the difficult question of the slave trade. The decision to leave that gap to a large extent still unfilled for the time being sprang from a real desire not to create difficulties or provoke misunderstanding in the minds of other delegations present. Mr. NOGUEIRA (Portugal) supported the United Kingdom representative in the tribute he paid to the Chairman of the Working Group. He also wished to support the United Kingdom delegation in stressing the spirit

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of compromise and mutual understanding which had prevailed throughout the proceedings of the Working Group. It was true that the report of the Working Group had not been unanimously agreed, and that of course was to be regretted. But one should not be too pessimistic, and some bright points should be brought out. In the first place mention should be made of paragraph (a): there, unanimous agreement had been reached. Secondly, there had also been unanimous agreement in regard to paragraph (d). Those two positive results should not be overlooked. In regard to other parts of article 3, unfortunately there has been no possibility of agreement. In respect of those parts, three positions had been put forward; the draft presented by Belgium, France, Turkey and the United Kingdom; another draft submitted by three other delegations; and finally, a third proposal mad by the delegates of Peru and Portugal. Speaking on behalf of the Peruvian and Portuguese delegations, he wished to stress the very commendable efforts made by the United Kingdom and others to meet the various difficulties, and he had not the slightest doubt that the four Power’s proposals had been presented and promoted by the highest principles and motives. The United Kingdom representative had again put before the Conference his case and had repeated his arguments. Every consideration had been given to them by the Portuguese delegation. However, Portugal was still unable to find those reasons entirely convincing. He was not going to state again the Portuguese position, as the Conference was well aware of it. But he wished to point out that on practical and legal grounds, and as a matter of principle, he still felt he could not adhere to the four Power’s proposal. Before international measures were adopted, it was necessary to test national measures, and the other proposal as amended by Peru and Portugal was addressed to that objective. This latter proposal entirely met the situation in regard to the slave trade, and the Portuguese difficulties were solved thereby. Other delegations might have other considerations in mind. The fact remained that the proposal as amended by Peru and Portugal did not raise any controversial questions and would offer a useful common ground acceptable to all. The result achieved thereby should not be minimized. On the contrary, the new draft represented an important step forward and should be viewed in that light. He suggested that a vote be taken forthwith on article 3, and hoped that delegations would be guided by the same spirit of compromise that had enabled them to reach a decision on article 10. Mr. ABDEL-GHANI (Egypt) agreed with the Portuguese representative that the Conference should now take a vote on the proposals of the Working Group to the Chairman and the members of which he wished to pay tribute. All members of the Group had tried to expedite the work of the Conference. He had listened very attentively to the United Kingdom representative’s statement but still felt that the new text which that representative had submitted together with the representative of three other State Members did

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not differ substantially from the text prepared by the 1956 ad hoc Committee. The crux of the problem was the right of visit and search of ships on the high seas. However, as the delegations of Belgium, France, Turkey and the United Kingdom did not intend to press for a vote on the text they has suggested, he hoped that the text supported by the representatives of Egypt, India and the USSR, as amended by the representatives of Peru and Portugal, which did not raise any controversial issues, would meet with the unanimous support of the Conference. Mr. KAHANY (Israel) said his delegation attached considerable importance to article 3, the only one in the entire draft convention dealing with slavery proper, and had, therefore, hoped that its provisions would be a real improvement on the rudimentary provisions on that subject in the 1926 Convention. No one denied that the classic form of slavery survived in a number of States and territories and that powers of ownership of persons were exercised there quite legally. It was true that in the absence of any official information from the countries concerned there was no accurate knowledge as to the number of such slaves nor was it known whether their number was decreasing or increasing. That was the precise reason why the available unofficial information acquired so much importance and was so disturbing. Nor had anyone denied that the slave trade existed and should be fought as effectively as possible. The Belgian representative had said at a previous meeting that the slave trade was in reality a symptom of slavery rather than the cause of it. If slavery disappeared there would be no market for slaves and, consequently, no trade, for in that kind of business, as in any other, offer was governed by demand. While it was true that the abolition of slavery demanded punitive action by the individual nations, the slave trade had to be dealt with essentially by international action. Accordingly, he had hoped the convention would include provisions for the concerted co-operation of the parties in combating that corollary of slavery, the slave trade. In light of those considerations, the report of the Working Group on article 3 (E/CONF.24/L.25) was disappointing. The explanatory comments offered by the representative of the United Kingdom concerning the draft provision proposed jointly by Belgium, France, Turkey and the United Kingdom E/CONF.24/L.25, para. 4) were thoroughly convincing: the text placed all concerned on a footing of equality in that it did not contain any provisions restricting the application of the article to a specified geographical area; and, in addition, it omitted the expression ‘warships and military aircraft’. Those two amendments and a number of others met the objections raised against the original text. The Israel delegation would therefore have supported the four-Power proposal if it had been approved by all the parties concerned. Proceeding to comment on the Working Group’s report (E/CONF.24/ L.25), he noted that the Group had unanimously agreed on a first paragraph which differed from the 1956 ad hoc Committee’s text in two important

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respects. Firstly, it extended the notion of the slave trade by using the expression ‘by whatever means of transport’, while the 1956 ad hoc Committee’s text had spoken only of conveyance of slaves on the high seas. That might be an improvement. But, in the second place, the new draft replaced by a much vaguer expression, ‘very severe penalties’, the clause which, for penal purposes, placed the slave trade on the same footing as piracy. That change considerably weakened the force of the provision in question. He did not understand why the idea of applying equal penalties for slave-trading and piracy was dropped. Surely the scale of penalties could with advantage have been determined in advance by a reference to penal provisions already in existing and familiar to all the contracting parties. Draft paragraph (b) as proposed jointly by Egypt, India and the Union of Soviet Socialist Republics (E/CONF.24/L.25, para. 5) represented a retrograde step since it provided only for control at airports and on the coast and did not even mention the control of land frontiers. The 1926 Convention had gone further than paragraph (c) of the threePower proposal, for its article 4 provided that the parties should give to one another ‘every assistance with the object of securing the abolition of slavery and the slave trade’; the three Power proposal by contrast provided merely for the exchange of information ex post facto and only between the contracting parties. Moreover, quite possibly some territories in which the slave trade was practised would not accede to the convention with the consequence that the most important information would be missing. In brief, the joint three-Power proposal was inadequate and represented a retrograde step in relation to the Convention of 1926. The Israel delegation would therefore be unable to support it. Mr. SCOTT-FOX (United Kingdom), replying to a question from Mr. JAFRI (Pakistan) said that the delegation of Belgium, France, Turkey and the United Kingdom had not so far formally withdrawn their text, but would now do so since it appeared that the opinion of the majority of the Conference on studying the new proposal had not materially changed since the debate on the original text of article 3. He suggested that the first and last paragraphs of article 3, which had been unanimously adopted by the Working Group, and the middle section proposed by the representatives of Egypt, India and the Union of Soviet Socialists Republics, as amended by the representatives of Peru and Portugal, should be put to the vote as a whole.83

83

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Seventeenth Meeting, 28 August 1956, UN Doc E/CONF.24/SR.17, 18 November 1958, pp. 2–9.

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As a result of the formal withdrawal of the proposal by the delegations of Belgium, France, Turkey and the United Kingdom, the President of the Conference put article 3, as amended by the Working Group, to a vote. Article 3 as amended was adopted by thirty-seven votes in favour, none against, with seven abstentions.84 The text of Article 3 adopted at first reading is as follows: 1. The act of conveying or attempting to convey slaves from one country to another by whatever means of transport, or of being accessory thereto, shall be a criminal offence under the laws of the States Parties to this Convention and persons convicted thereof shall be liable to very serve penalties 2. (a) The States Parties shall take all effective measures to prevent ships or aircraft authorized to fly their flags from conveying slaves and to punish the person guilty of being instrumental thereto as well as of using national flags for that purpose; (b) The States Parties shall take all effective measures to ensure that their ports, airfields and coastline are not used to convey slaves through them. 3. The States Parties to this Convention shall exchange information in order to ensure the practical co-ordination of the measures taken by them in fighting against the slave trade and shall inform each other of every found case of the slave trade and of every attempt at committing such a crime. 4. Any slave taking refuge on board any vessel of a State Party to this Convention shall ipso facto be free.85

The adoption of Article 3 at first reading was followed by the explanations of votes by the representatives of the United Kingdom, Canada, and France: Mr. SCOTT-FOX (United Kingdom), explaining his vote, said that his delegation did not feel that the text which the Conference had adopted was fully adequate in the circumstances. However, he had been able to vote

84 85

Id., p. 9. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, Articles of the Supplementary Convention adopted on First Reading (28 August 1956), UN Doc E/CONF.24/L.29/ Add.1, 28 August 1956. Note that a footnote was added to this text which reads: ‘In the present document the paragraphs of the articles are numbered instead of being designated by letters. This change is submitted for the consideration of the Conference in order to achieve a uniform presentation of the various articles.’

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for the article since no positive objection was apparent to the much more modest measures proposed in the text adopted and since he did not wish to mar the unanimity which the Conference had almost reached as a result of the spirit of compromise shown on all sides. Mr. JAY (Canada) explained that he had abstained from voting on article 3 since it did not include any provisions for international control of the slave trade, provisions which the Canadian Government considered a necessary complement to the Conference’s wish to abolish traditional slavery. Mr. GIRAUD (France) said he voted for the text adopted even though it did not entirely satisfy him. The new text would probably do no harm, but it had little value whereas that adopted by the ad hoc Committee in New York had great value. Various criticisms had been levelled against the latter text. Enormous concessions had been made in order to meet them. In the text placed by the five delegations before the Working Group, France had agreed to the extension of control to all seas and the dropping of the right of seizure, only the right of visit being retained. Thus, the possibilities of abuse and the troubles and difficulties to which control might have given rise had been completely eliminated. There had no longer been any possibility of seizing a vessel, or even of merely forcing it to alter course, or arresting suspects, or being presumed slaves. All that had remained was the right to make a check and bring to light criminal misdeeds. Any other possibility had been rejected. In voting nevertheless for article 3 thus disembowelled the French Delegation had been actuated by the assurance it had received that if the right of visit were included in the convention certain states whose accession was especially necessary would refuse to become parties to it. The French Delegation’s vote had accordingly been prompted by an essentially practical consideration.86

On 31 August, at the twenty-second meeting of the United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices similar to Slavery, Article 3 was considered at second reading. The President of the Conference, noting that no new amendments had been submitted sought to move towards a vote, and thus opened the floor for discussion:

86

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Seventeenth Meeting, 28 August 1956, UN Doc E/CONF.24/SR.17, 18 November 1958, pp. 9–10.

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Mr. JAFRI (Pakistan) said he had no new suggestions to make, but would like to clarify his delegation’s position with regard to the proposals that had been made relating to the slave trade. When he had first spoken on article 3, he had said that his Government was in favour of making the convention as effective as possible and that in principle it has no objection to the right of visit provided that certain objectionable features were removed. The first was the geographical limitation of the area in which vessels could be visited. Such a limitation was discriminatory because the slave trade might exist elsewhere. There was no up-to-date body of reliable knowledge concerning the slave trade. The agency which had originally been established by the League of Nations had ceased to function at the outset of the second world war. Such a geographical limitation was also objectionable because reference to a particular area would imply that the countries on the borders of that area allowed the slave trade in some form or other. The second objectionable feature had been the right to visit, search and seizure was to have been given to warships and military aircraft. That would have given some States an advantage over others. The third objectionable feature would have been the seizing Power’s right to take the ship of its own country for adjudication. That would have been a direct infringement of the sovereign rights of the State whose flag the seized vessel had been flying. In the text which it had submitted to the Working Group on article 3 the delegations of the United Kingdom had removed all those objectionable features, and he thanked that delegation for the understanding it had thus displayed. His delegation had not given the United Kingdom proposals its full support, because however laudable and useful they were it was necessary to think of the consequences and the circumstances in which action would have to be taken. Certain States had been greatly perturbed by the clause allowing the right of visit. They had felt that it might be used for merely political reasons. The delegation of Pakistan could not ignore that feeling on the part of States with which it was on the friendliest terms. Men were now living in an explosive world and the Conference should do nothing which might produce results directly contrary to its aims. In the absence of adequate data his delegation had felt that it might not really be necessary to allow the right of visit if responsibility for repressing the slave trade was laid squarely on the shoulders of States. It felt that if the right of search was insisted on some States might find it impossible to accede to the convention because they considered either that it would be of no use of that it would do mischief. Without the participation of those States, the convention would have been useless, because the right of search, even if it had been included, could not have been exercised in respect of vessels flying the flags of States which had not acceded.

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His delegation would have been able to go much further than did the present text. But it had not urged more drastic provisions because it fully sympathized with the objections that had been raised by States. Mr. TUNCEL (Turkey) thought that paragraph 4 of article 3 was so important that it should be a separate article. Paragraph 1 should be included in section III, which contained the penal clauses. Mr. VITANYI (Hungary) suggested the addition in paragraph 4 of the words ‘or aircraft’ after the words ‘on board any vessel’. Mr. PESCATORI (Italy) was not in favour of making paragraph 4 a separate article. If, however, the Turkish proposal were adopted it would have to be clearly stated that the new article related back to the provisions of article 3. Mr. PADMANHABHAN (India) said the point raised by the representative of Hungary had been considered by the Working Group, which had come to the conclusion that in practice it was not possible for slaves to take refuge on aircraft. The idea of including the words suggested by the Hungarian representative had consequently been dropped. Mr. VITANYI (Hungary) thanked the Indian representative for his explanation and withdrew the amendment.87

The President, Mr. Puig, then suggested that the Turkish proposal be considered by the Style Committee; which was agreed to by the Conference. He then put Article 3 to a vote on second reading; the provisions of Article 3 being adopted by a vote of thirty-nine in favour, none opposed and three abstentions.88 This was followed by an explanation of the vote by the Canadian and Yugoslav representatives. The Canadian representative, Mr. Jay said that having abstained during the vote on first reading because of the wish to see some type of international control being exercised on the high seas; he not had “been authorized to vote for the article on second reading”. The Representative of Yugoslavia, Mr. Vlahov, had also considered that some type of “international measures for the suppressing of the slave trade” had been required of Article 3, but that he voted “for

87

88

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Twenty-Second Meeting, 31 August 1956, UN Doc E/CONF.24/SR.22, 20 November 1958, pp. 7–9. Id., p. 9.

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the compromise formula which article 3 represented” as he had been “actuated by a spirit of conciliation”.89 The Style Committee, which had been appointed at the twenty-first meeting of the Conference and consisted of Belgium (Chairman), Chile, China, France, Pakistan, Spain, the Ukrainian Socialist Republic, the Union of Soviet Socialist Republics and the United Kingdom, followed the Turkish proposal, putting forward a draft, which decoupled paragraph 4 from Article 3, using those provisions (“Any slave who takes refuge on board any vessel of a State Party to this Convention shall ipso facto be free”) in new article 4. Thus, Article 3 as adopted at the United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery reads: 1. The act of conveying or attempting to convey slaves from one country to another by whatever means of transport, or of being accessory thereto, shall be a criminal offence under the laws of the States Parties to this Convention and persons convicted thereof shall be liable to very severe penalties. 2. (a) The States Parties shall take all effective measures to prevent ships and aircraft authorized to fly their flags from conveying slaves and to punish persons guilty of such acts or of using national flags for that purpose. (b) The States Parties shall take all effective measures to ensure that their ports, airfields and coasts are not used for the conveyance of slaves. 3. The States Parties to this Convention shall exchange information in order to ensure the practical co-ordination of the measures taken by them in combating the slave trade and shall inform each other of every case of the slave trade, and of every attempt to commit this criminal offence, which comes to their notice.

iv. Commentary on Article 3 of the 1956 Supplementary Convention Much like the provisions of Article 3 of the 1926 Slavery Convention negotiated some thirty years previously, Article 3 in the 1956 Convention as originally proposed by the United Kingdom sought to assimilate the 89

Id., pp. 9–10.

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slave trade at sea to piracy. Just as in 1926, and it may be added throughout the nineteenth century, such an attempt was unsuccessful. Yet, while the right to visit in specific zones as set out in the 1890 General Act of Brussels was not confirmed during the negotiations of the Supplementary Convention (quite the contrary, it was opposed); a general right to visit – that is: anywhere on the high seas – to suppress the slave trade was agreed to within the regime of the law of the sea: both in 1958 Convention on the High Seas (Article 22) and in the 1982 United Nations Law of the Sea Convention (Article 110). The United Kingdom in its 1954 Draft had proposed that the conveying of slaves on the high seas be deemed piracy and that ships engaged in the slave trade should be treated as pirate ships, that is: establishing universal jurisdiction to act against them. One further provision included in the 1954 British Draft Convention related to sanctuary of slaves captured being set at liberty. This provision, however, was decoupled from Article 3 during the drafting process and constitutes the essence of Article 4. The reader is thus directed to Article 4 for consideration of this provision in depth. The Anti-Slavery Society was in agreement with the provisions of the 1954 British Draft Convention, though it was the Society which drew the attention of the 1956 drafting Committee to the preparatory work of the International Law Commission touching on the regime of the high seas. The discussions regarding Article 3 by the 1956 drafting Committee were in-depth; and called on the expertise of the General Legal Division on the United Nations in Geneva with regard to questions touching on: ‘being an accessory to’ a crime; the definition of piracy in international law; the meaning of the high seas; maritime zones established by international treaties; and the right to visit and the jurisdiction attached to such a right. The United Kingdom early on dropped the first mention of piracy in the provisions of Article 3, proposing to replace it with a clause similar to that found in Article 6 of the 1926 Slavery Convention, which reads “and persons convicted thereof shall be liable for severe punishment”. This form of words, it was said, “did not give rise to the difficulties raised by the term ‘piracy’. That said, the term was maintained for the time being, in Article 3 where it equated slaving with piracy where the right of visit was concerned. Approximately half way through the negotiation process of Article 3 before the drafting Committee, it looked as though no provision would be

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accepted by the Committee, as a number of delegations, noting the various amendments which had been proposed to Article 3 of the 1954 British Draft Convention, found the proposed text “unsatisfactory” and “much too vague”. The Yugoslav Representative thought that as no agreement could be reached, it should be left to the Economic and Social Council to step in. Mr. Scott-Fox, did not believe this necessary, as “Council had set up the Committee for the precise purpose of settling difficult questions which it could not deal with itself. Concrete proposals were expected, and it should not be impossible to work out a text which was acceptable, if not to all members of the Committee, at least to the majority”. The Committee then established an ad hoc drafting committee to focus on Article 3. This sub-Committee returned to the drafting Committee of the Economic and Social Council with a Report which still reflected differences of opinion. After further negotiation, the following provisions of Article 3, largely based on the work of the sub-committee were adopted: (a) The act of conveying or of attempting to convey slaves on the high seas, or being accessory thereto, shall be a criminal offence under the laws of the States Parties to this Convention and persons convicted thereof shall be liable to penalties as severe as those generally applied to acts of piracy. (b) While on the high seas in the area of the Indian ocean, including the Red Sea and the Persian Gulf, bounded on the south by the twenty-sixth degree south latitude and on the east by the sixty-second degree east longitude, warships or military aircraft under the control of Parties to this Convention shall have the same right of visit, search and seizure in relation to vessels of Parties to this Convention suspected on reasonable grounds of being engaged in the act of conveying slaves as they have in relation to vessels so suspected of being engaged n acts of piracy. (c) (i) Any vessel seized in accordance with this article shall be brought in for adjudication by a court of the State which has made the seizure. This State, may, however, request any other State Party to this Convention, or to the Slavery Convention of 1926, to refer the case to one of its courts if, in its view, practical or other reasons make this advisable. (ii) Any slave who is found on board a vessel shall be immediately be at liberty. (iii) Any person found on board any vessel searched in accordance with this article who is reasonably suspected of having committed any of the offences specified in paragraph (a) of this article shall be handed over for trial to the authorities of the State of which he is a national or, if practical or other reasons make this advisable, he may be brought to trial

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by the authorities of the capturing State, or, subject to the consent of the State of which he is a national, by the authorities of any other State Party to this Convention or to the slavery Convention of 1926. (d) In this article “slave” means any person over whom any or all powers attaching to the right of ownership are exercised and includes any person intended to be dealt with as a slave.90

At the 1956 United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery much opposition was expressed at the inclusion of specified maritime zones where the right to visit would be exercised. Mr. Adeel, the Sudanese Representative, spoke of “legal, political and moral reasons” for deleting paragraph (b) of Article 3 of the Draft Convention. Legally, he argued, the use of force was controlled by the UN Security Council and if the Convention was to create policing powers, it would create a “superstructure” above and beyond the United Nations which would conflict with Article 103 of the Charter. Politically, he said that “no such fantastic provision appeared in the 1926 Convention; its attempted introduction, which would have been abhorrent to the Contracting Parties to the 1926 Convention, was a hypocritical anachronism thirty years later”. Finally, morally, it was psychologically wrong to seek to single out a specific area for military reason as it would be “tantamount to an accusation that slavery and institutions and practices similar to slavery existed solely, or mainly, in that area”. He continued: “To attempt to impose civilization by force would make a mockery of the very concept of humanitarianism”. For his part, the French Representative, Mr. Giraud, said there “was no point in disguising the facts beneath the cloak of hypocrisy. The truth was that not all States were in the same position where slavery was concerned” saying that the zones established by the 1890 General Act of Brussels were those in which the slave trade at sea still persisted. Very early in the process of considering Article 3, it was suggested that a sub-committee of the Conference participants should be formed to seek to gain agreement on provisions of the slave trade. This suggestion was, however, delayed by the President, saying that more discussion was

90

Economic and Social Council, Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, UN Doc. 2824, Annex I, 15 February 1956.

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needed, and concrete, written, proposals to amend the text would need to be submitted and considered. Egypt, basing itself on the work of the International Law Commission, did just that, proposing a paragraph which removed the ability of States acting against each other’s merchant navy via a right to visit, with a provision requiring States to police their own vessels. That proposed paragraph (b) reads: The contracting States shall adopt effective measures to prevent and punish the transport of slaves in ships authorized to fly its colours, and to prevent the unlawful use of its flag for that purpose. Any slave taking refuge on board any ship, whatever its colours, shall ipso facto be free.

While the form of this proposal was amended during the negotiation process, its substance remained intact. Thus, States distanced themselves from undertaking multilateral actions in favour of creating a set of unilateral obligations which each State was to undertake within its territory and jurisdiction. Later, the President noted that “more than fifty statements had been made” with regard to the Article 3, and as proposals had been tabled, it was time to establish a working group to seek to reach agreement on the provisions touching on the slave trade. While the Working Group agreed unanimously on the provisions of the first and last paragraphs, the provisions with regard to visitation drew alterative proposals, with Belgium, France, Turkey and the United Kingdom seeking the confirmation of a right to visit; while Egypt, India and the Soviet Union putting forward a proposal which provided for exclusive jurisdiction of the flag State. As it “appeared that the opinion of the majority of the Conference” was opposed to the four Power text, Mr. Scott-Fox ultimately withdrew that proposal; but he did seek to explain his sense of what had transpired with regard to the negotiations of Article 3 within the context of introducing his proposal: “As all would recall, article 3 in its original form had encountered very strong opposition based on political rather than on legal considerations. Such opposition had found expression in reference to discrimination and the use of force and even to the re-establishment of imperialism in a peculiarly sensitive area”. He noted that the new proposal no longer allowed for a right to visit in a specific zone but allowed for it “on the high seas as a whole”; it removed reference to warships and military aircraft (which it might be emphasised were threatening the very zone established by the 1890 Final Act of the Brussels Conference as a result of the Suez Crisis); and removed any reference to seizure of ships,

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though visit and search was maintained. The British Representative concluded by saying that his delegation “realized that however conciliatory and however unobjectionable it had endeavoured to make its proposals they might still cause serious difficulties for some participants”. Despite further discussions, it was apparent that the Four Power proposal was not favoured, and thus that proposal being formally withdrawn the provisions of Article 3 which find their way into the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery were adopted.

Article 4 (Slaves at Sea) Any slave who takes refuge on board any vessel of a State Party to this Convention shall ipso facto be free.

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i. 1954 British Draft Convention ARTICLE 2 [. . .] (c) All slaves so captured shall be set at liberty.1

In 1954, in the context of a call by the United Nations Economic and Social Council for the UN Secretary-General to undertake consultations with Member States of the United Nations as to the desirability of drafting a supplementary instrument to the 1926 Slavery Convention, the United Kingdom put forward a draft convention.2 The United Kingdom drafted its proposed instrument using, as its basis, recommendations which had emerged from the 1950–51 Ad Hoc Committee on Slavery.3 As a result of those consultations, the Economic and Social Council appointed, in 1955, an ad hoc committee of ten of its members “for the purpose of preparing a text of a draft supplementary convention”.4 In preparation for the Committee on the Drafting of a Supplementary Convention on Slavery and Servitude to undertake its work, the Secretary-General prepared a memorandum of the relevant activities which had transpired to date within the United Nations “and a summary of the comments received on the [British] draft convention”.5 With regard to the provisions of Article 2 of the British Draft Convention, the Anti-Slavery Society provided comments which consider, inter alia, the provisions of paragraph (c), touching on the status of slaves capture at sea: Paragraph (c) of Article 2 is an abbreviated form of the draft submitted by the British Government to the League of Nations, which was: ‘Vessels

1

2 3

4 5

Economic and Social Council, Slavery: Consultations Concerning the Desirability of a Supplementary Convention on Slavery and its Possible Contents, UN Doc. E/2540/ Add.4, 12 April 1954, p. 3. See id. Economic and Social Council, Report of the Ad Hoc Committee on Slavery (Second Session), UN Doc. E/1988, E/AC.33/13, 4 May 1951, p. 20, para. 2. Economic and Social Council, Resolution 564 (XIX), 7 April 1955. Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude Submitted by the Government of the United Kingdom and Comments Thereon (Memorandum by the Secretary-General), UN Doc. E/AC.43/L.1, 2 December 1955, p. 4.

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and slaves captured in accordance with this article shall be brought before the courts of the country whose ship affected the capture and dealt with in accordance with its laws. Persons on board such vessels who are engaged in the act of conveying slaves on the high seas shall be handed over to the authorities of their own country to be brought before its courts. The slaves shall in all cases be set at liberty’. . . .6

The Memorandum of the Secretary-General then considers the AntiSlavery Society’s comments, drawing the Drafting Committee’s attention to provisional Article 12 adopted by the International Law Commission with regard to its work on the regime of the high seas: Every State shall adopt effective measures to prevent and punish the transport of slaves in vessels authorized to fly its colours, and to prevent the unlawful use of its flag for that purpose. Any slave who takes refuge on board a warship or a merchant vessel shall ipso facto be free. In its comments on this provision the Commission points out that the last sentence thereof is taken from Article XXVIII of the General Act of Brussels of 2 July 1890. That provision reads: Article XXVIII Any slave who takes refuge on board a ship of war bearing the flag of one of the signatory powers, shall be immediately and definitively set free. Such freedom, however, shall not withdraw him from the competent jurisdiction if he has been guilty of any crime or offense at common law.7

ii. 1956 Draft Supplementary Convention on Slavery and Servitude ARTICLE 3 [. . .] (c) (i)[. . .] (ii) Any slave who is found on board a vessel shall be immediately be at liberty.8 [. . .]

6 7 8

Id., p. 27. Id., p. 31. Economic and Social Council, Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, UN Doc. 2824, Annex I, 15 February 1956.

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The Committee on the Drafting of a Supplementary Convention on Slavery and Servitude appointed by the Economic and Social Council met for the first time in New York on 16 January 1956 and considered the provisions of Article 2 of the 1954 British Draft Convention in light of the 1955 Memorandum prepared by the Secretary-General.9 At the fourth meeting of the Drafting Committee, the Chairman, Mr. Cutts from Australia, noted that the United Kingdom had put forward an amendment to its Article 2 which “sought to replace the existing text of that article by a longer text which differed substantially from the original.10 The United Kingdom’s proposed amendment called for the deletion of the present article and the adoption of new provisions touching on the status of slaves captured as sea: (c) Vessels and slaves captured in accordance with this Article shall be brought before a competent Court for adjudication. Persons in charge of such vessels and other persons thereon who are suspected of having committed an offence specified in paragraph (a) of this Article shall, unless dealt with by the authorities of their own State or of any other State whose Courts have jurisdiction to punish them for that offence. The slave shall in all cases be set at liberty.11

At the following meeting of the Drafting Committee, Mr. Scott-Fox introduced the United Kingdom’s proposed amending text. With regard to the provisions touching on the status of slaves captured at sea, the British representative stated that: the provision that slaves should be brought before a court for adjudication had been included for two reasons: firstly, a competent authority had to establish that they really were slaves and not persons in lawful custody;

9

10

11

See Economic and Social Council, Slavery: Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery: Report of the Committee appointed by Resolution 564 (XIX), 7 April 1955, UN Doc. E/2824, 15 February 1956. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Fourth Meeting, 17 January 1956 UN Doc. E/AC.43/SR.4, 9 February 1956, p. 8. Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude, United Kingdom: Amendment to Article 2, UN Doc. E/AC.43/L.6, 17 January 1956.

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secondly, the right of ownership over the slaves had to be terminated in a legal manner in order to ensure that it was not reasserted. Such matters were best resolved by a court of law, where they would be duly recorded. As far as offenders were concerned, the new paragraph (c) was designed to be as flexible as possible. In some instances, it might be desirable for a contracting party to try its own nationals even if they were captured by the authorities of another State.12

Later, at the fourteenth meeting, Mr. Scott-Fox stated that “he had redrafted article 2 to take into account the views of other members of the Committee”. The redrafted article read, inter alia: (ii) Any person suspected of being slaves who are found on board any vessel searched in accordance with this Article shall be brought before a competent court for adjudication. All persons adjudged to be slaves shall be set at liberty.13

In considering this new provision, the Soviet representative voiced his concern over the legal status of slaves captured at sea being determined by a court of law: Mr. NIKOLAEV (Union of Soviet Socialist Republics) did not know that he was expected to vote on, because the proposed article was much too vague. He had already said, as had other speakers, that the ‘competent court’ was not clearly defined and the report was not the place where that concept could be elaborated. Moreover, paragraph (c) (ii) implied that a slave would have to prove to the court that he was a slave before he could be set at liberty, which did not make much sense. [. . .] The original draft (E/2540/Add.4) [re: the 1954 British Draft] was far better than the text now before the Committee. As the Committee had little time left, he wondered whether it would not be advisable to revert to that original draft, submitted in 1954, which Governments had had ample time to study and with which all the members of the Committee were familiar.

12

13

Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Fifth Meeting, 18 January 1956 UN Doc. E/AC.43/SR.5, 10 February 1956, pp. 4–5. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, United Kingdom of Great Britain and Northern Ireland: Amendment to Article 2 of the Draft Convention on Slavery and Servitude (E/2540/Add.4), UN Doc. E/AC.43/L.6/Rev.1, 24 January 1956.

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In the circumstances, he understood even less why the United Kingdom had submitted a new text at the last moment containing important changes and so vague as to give rise to serious debate. Like the representative of Egypt, he could not vote on the text as it stood. He proposed that the Committee should go back to the draft originally submitted by the United Kingdom.14

The proposal that the Committee revert to the original British Draft Convention Article 2 was not taken up by the Committee, instead it formed a sub-committee to draft provisions of Article 2. With regard to the relevant provisions, the Committee put forward the following as its proposed paragraph (c), (i) and (ii): (c) (i) Any vessel [and any person suspected of being a slave who is found on board a vessel] seized in accordance with this article shall be brought in for adjudication by a court of the State which has made the seizure. However, this State may request any other State party to the [this] Convention [or to the Slavery Convention of 1926] to refer the case to one of its courts if, in its view, practical or other reasons make this advisable. (ii) Any slave who is found on board a vessel shall be immediately set at liberty. [. . .]15

In his Report to the Economic and Social Committee, Mr. Bozovic, Rapporteur for the drafting Committee explained that “words and phrases on which there was no agreement in the drafting committee, and which had been supported by some members, were put in square brackets”.16 With regard to Article 2, paragraph (c) (i), the Yugoslav representative was given the floor first: Mr. BOZOVIC (Yugoslavia) said that he would vote against the words ‘and any person suspected of being a slave who is found on board a vessel’, because he considered that slaves should be freed immediately. By making

14

15

16

Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Sixteenth Meeting, 27 January 1956, UN Doc. E/AC.43/SR.16, 27 February 1956, p. 4. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Report of the Drafting Committee on article 2, UN Doc. E/AC.43/L.37, 30 January 1956, pp. 1–2. Economic and Social Council, Slavery: Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery: Report of the Committee appointed by Resolution 564 (XIX), 7 April 1955, UN Doc. E/2824, 15 February 1956, p. 31.

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the freeing of slaves contingent upon court proceedings, the provision, which had been included at the request of the United Kingdom representative, would cause delay. Any advantage there might be in detaining slaves as witnesses did not justify its inclusion. [. . .] Mr. NIKOLAEV (Union of Soviet Socialist Republics) again thought that the additional proposal at the last moment by the United Kingdom worsened the original text. It would seem strange to public opinion that, under a convention drawn up by eminent jurists under the United Nations auspices, slaves would have to prove that they were free men in a court of law by means of a possible lengthy procedure, before they could gain their freedom. Article XXVIII of the General Act of 1890 laid down that any slave who had taken refuge on board a ship of war bearing a flag of one of the signatory Powers should be ‘immediately and definitively set free’. Article 12 of the draft of the International Law Commission concerning the regime of the high seas provided that any slave who took refuge on board a warship or a merchant vessel ‘shall ipso facto be free’. Article 2(c) of the initial text drafted by the United Kingdom was based on a similar idea. The new United Kingdom text turned the clock back to before 1890. His delegation would therefore vote against it. Mr. SCHIFF (Netherlands) said he would vote for the additional proposal by the United Kingdom. In view of his Government’s determination to contribute in every possible way to the earliest eradication of slavery in all its forms, his delegation emphatically rejected the allegation that a vote in favour of the addition was intended to weaken the convention. Mr. SCOTT-FOX (United Kingdom) said his delegation had proposed the inclusion of the words in square brackets in the first part of paragraph (c) (i) for practical reasons. It was essential that persons found on board a seized ship should be brought before a competent authority in order to ensure that they were slaves and not persons in lawful custody. Again, the United Kingdom delegation advocated reference to the 1926 Convention in the second part of the same paragraph for practical reasons. The Committee had decided that the Convention would enter into force as soon as two States had ratified it. Those two States might be very far apart and it was therefore wise to provide that their courts were not the only competent ones.

[. . .] Mr. BOZOVIC (Yugoslavia) said that, in accordance with the generally accepted principle that any slave should be immediately set free, he would vote against the inclusion of the words in square brackets in the first part of paragraph (c) (i) whose only practical effect would be to prolong the procedure for freeing the slave. If the majority of the Committee were in favour of that phrase he would propose that the words ‘with the least

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possible delay’ should be added after the words ‘shall be brought in for adjudication’.17

Although Mr. Scott-Fox was prepared to accept the Yugoslav amendment, Mr. Nikolaev, the Soviet Representative, objected, saying: that the amendment suggested by Yugoslavia did not improve the position in any way. Legal proceedings would still have to be instituted and there was every indication that the lot of slaves, placed under supervision as soon as they disembarked, would be unenviable. To take an extreme case, the Committee might ask itself what would become of people who were not recognized as slaves; they might be detained indefinitely. It was difficult to believe that the captain of a warship could not settle the matter on the spot. He would therefore vote against the phrase in square brackets in the first paragraph (c) (i).18

The phrase ‘and any person suspected of being a slave who is found on board a vessel’ was then put to a vote and defeated by five votes to four with one abstention. Referring back to the Yugoslav proposal, the British Representative, Mr. Scott-Fox, “observed that, in the circumstances, the words ‘with the least possible delay’ were meaningless and could be deleted”. The Chairman then put to a vote the items within square brackets in the second paragraph of (c) (i): i.e.: ‘[this] Convention [or to the Slavery Convention of 1926]’. The provisions were adopted six votes in favour, three against and one abstention. Paragraph (c) (i) as a whole, as amended, was then put to a vote and adopted nine votes in favour, none against, with one abstention. Paragraph (c) (ii) which reads ‘Any slave who is found on board a vessel shall be immediately set at liberty’ elicited no comment and was adopted unanimously.19 After all the provisions of Article 2 as proposed by the drafting sub-committee were considered in turn, Article 2 as a whole was put to a vote and adopted by a vote of eight for, none against, and one abstention. Article 2, in its entirety, as adopted in second reading, is as follows: (a) The Act of conveying or of attempting to convey slaves on the high seas or being accessory thereto, shall be a criminal offence under the laws of the

17

18 19

See Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Eighteenth Meeting, 31 January 1956, UN Doc. E/AC.43/SR.18, 29 February 1956, pp. 10–12. See id., p. 12. Id.

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453

Parties to this Convention and persons convicted thereof shall be liable to penalties as severe as those generally applied to acts of piracy. (b) While on the high seas in the area of the Indian Ocean, including the Red Sea and the Persian Gulf, bound by the twenty-sixth degree south latitude and the sixty-second degree east longitude, warships or military aircraft under the control of Parties to this Convention shall have the same right of visit, search and seizure in relation to vessels of Parties to this Convention suspected on reasonable grounds of being engaged in the act of conveying slaves as they have in relation to vessels so suspected of being engaged in acts of piracy. (c) (i) Any vessel seized in accordance with this article shall be brought in for adjudication by a court of the State which has made the seizure. However this State may request any other State party to this Convention or the Slavery Convention of 1926 to refer the case to one of its courts if, in its view, practical or other reasons make this advisable. (ii) Any slave who is found on board a vessel shall be immediately set at liberty. (iii) Any person found on board any vessel searched in accordance with this article who is reasonably suspected of having committed any of the offences specified in paragraph (a) of this article shall be handed over to the authorities of the State of which he is a national or, if practical or if other reasons make this advisable, he may be dealt with by the authorities of the capturing State or, subject to the consent of the State of which he is a national, by the authorities of any other State party to this Convention or to the Slavery Convention of 1926. (d) In this article ‘slave’ means any person over whom any or all of the powers attaching to the rights of ownership are exercised and includes any person intended to be dealt with as a slave.20

While at third reading, a number of minor changes were made to the provisions of Article 2, none touched on paragraph (c) (ii). Yet, it should be noted that at the nineteenth meeting of the Committee on the Drafting of a Supplementary Convention on Slavery and Servitude to the Economic and Social Council, it was “decided that the article would appear in the draft supplementary convention as Article 3”.21

20

21

Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude, Article 2 as adopted at the eighteenth meeting of the Committee on 31 January 1956, UN Doc. E/AC.43/L.30/Add.2, 1 February 1956, pp. 1–2. Economic and Social Council, Slavery: Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery:

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iii. 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery ARTICLE 4 Any slave who takes refuge on board any vessel of a State Party to this Convention shall ipso facto be free.22

On 30 April 1956, the Economic and Social Council decided that “a conference of plenipotentiaries should be convened in order to complete the drafting of the Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices similar to Slavery”.23 The United Nations Conference of Plenipotentiaries opened on 13 August 1956 and turned to considering what was now Article 3 at its fifth meeting. At that meeting the Egyptian delegation considered that Article 3 was flawed with regard to its provisions allowing for warships and military aircraft to visit ships suspected of being involved in the slave trade and with regard to designation as specific zone in which visitation would be allowed. The Representative of Egypt, Mr. Abdel-Ghani “said that the article under discussion raised a new and grave issue”; while stating, in conclusion, that: his delegation, with others, intended to propose at a later stage that the present article 3 should be replaced by a text having approximately the following wording: ‘The Contracting Parties shall adopt effective measures to prevent and punish the transport of slaves in ships authorized to fly their colours, and to prevent the unlawful use of their flag for that purpose. Any slave taking refuge on board any ship, whatever its colours, shall ipso facto be free’.24

22

23 24

Report of the Committee appointed by Resolution 564 (XIX), 7 April 1955, UN Doc. E/2824, 15 February 1956, p. 37. United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Final Act and Supplementary Convention, 4 September 1956, UN Doc. E/CONF.24/23. Economic and Social Council, Resolution 608 (XXI), 30 April 1956. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions

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At the sixth meeting, the President of the Conference, Mr. Puig of Mexico asked that written amendments to Article 3 be submitted and “a decision on whether a small but geographically representative working group on that article should be set up would be taken at the following meeting”.25 At that seventh meeting, the Egyptian Representative, Mr. Abdel-Ghani, was called upon to introduce his amendment to Article 3, which reads: Replace article 3 by the following text: The contracting States shall adopt effective measures to prevent and punish the transport of slaves in ships authorized to fly its colours, and to prevent the unlawful use of its flag for that purpose. Any slave taking refuge on board any ship, whatever its colours, shall ipso facto be free.26

Mr. Abdel-Ghani did not specifically mention the provisions regarding the status of slaves captured at sea, instead he noted that the “purpose of the Egyptian amendment was to delete the article, which was a potential source of international controversy since the rights it conferred could be so abused as to endanger international peace and security.” Yet, later in the discussion of the seventh meeting, the Representative of the Union of Soviet Socialist Republics, Mr. Nikolaev noted that the “Egyptian amendment brought in three new elements: the punishment of slave-traders, the undertaking of contracting States to prevent the unlawful use of their flag in ships used for the transport of slaves and the provision that any slave taking refuge on board any ship, whatever its colours, should ipso facto, be free. None of those elements appear in the 1926 Convention”.27 Also at this meeting, the President of the Conference suggested that, “as more than fifty statements had been made” with regard to Article 3,

25

26

27

and Practices Similar to Slavery, Summary Record of the Fifth Meeting, 16 August 1956, UN Doc. E/CONF.24/SR.5, 11 November 1958, p. 9. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Sixth Meeting, 16 August 1956, UN Doc. E/CONF.24/SR.6, 11 November 1958, p. 13. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Egypt: Amendment to article 3, 16 August 1956, UN Doc. E/CONF.24/L.9. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Seventh Meeting, 17 August 1956, UN Doc. E/CONF.24/SR.7, 12 November 1958, p. 9.

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it was time to establish a working group to seek agreement on its provisions. He proposed the following membership for the working group: Belgium, Egypt, France, India, Philippines, Portugal, Turkey, the Union of Soviet Socialist Republics and the United Kingdom of Great Britain and Northern Ireland. Peru was then added at the request of Cuba, which noted that the Latin American contingency at the Conference was not represented on the working group. At the seventeenth meeting of the United Nations Conference, the Representative of the Philippines, Mr. Lopez, was invited as Chairman, to introduce the report of the Working Group. Where the provisions regarding the status of slaves captured at sea are concerned, Mr. Lopez noted that: The Working Group unanimously agreed on the following text for the first and the last paragraphs of article 3: [. . .] Last Paragraph Any slave taking refugee on board any vessel of a State Party to this Convention shall ipso facto be free.28

While discussion took place with regard to the other elements of Article 3 paragraph (d), no substantive statements were made with regard to the final paragraph of the Working Group’s proposal. Thus, Mr. Nogueira, the Portuguese Representative stated that: It was true that the report of the Working Group had not been unanimously agreed, and that of course was to be regretted. But one should not be too pessimistic, and some bright points should be brought out. In the first place mention should be made of paragraph (a): there, unanimous agreement had been reached. Secondly, there had also been unanimous agreement in regard to paragraph (d). Those two positive results should not be overlooked.29

In fact there had been two proposals on the table as to what should constitute the provisions of Article 3, paragraphs (b) and (c). While the substantive discussions of these provisions need not concern us here, it

28

29

See Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Report of the Working Group on article 3, UN Doc. E/CONF.24/L.25, 24 August 1956, pp. 1–2. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Seventeenth Meeting, 28 August 1956, UN Doc. E/CONF.24/SR.17, 18 November 1958, p. 5.

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457

should be noted that the formal withdrawal of the proposal put forward by delegation of Belgium, France, Turkey and the United Kingdom, in favour of a proposal tabled by Egypt, India, and the Union of Soviet Socialist Republics meant that the President of the Conference could put to a vote article 3, as amended by the Working Group. That article, as amended was adopted by thirty-seven votes for, none against, and seven abstentions.30 The text of Article 3 adopted at first reading included the following provision as its paragraph 4: Any slave taking refuge on board any vessel of a State Party to this Convention shall ipso facto be free.31

At the twenty-second meeting of the United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices similar to Slavery, Article 3 was considered at second reading. The President of the Conference, noting that no new amendments had been submitted, opened the floor to discussion. The Representative from Turkey, Mr. Tuncel “thought that paragraph 4 of article 3 was so important that it should be a separate article”. This proposal generated a number of comments: VITANYI (Hungary) suggested the addition in paragraph 4 of the words ‘or aircraft’ after the words ‘on board any vessel’. Mr. PESCATORI (Italy) was not in favour of making paragraph 4 a separate article. If, however, the Turkish proposal were adopted it would have to be clearly stated that the new article related back to the provisions of article 3. Mr. PADMANHABHAN (India) said the point raised by the representative of Hungary had been considered by the Working Group, which had come to the conclusion that in practice it was not possible for slaves to take refuge on aircraft. The idea of including the words suggested by the Hungarian representative had consequently been dropped.

30 31

Id., p. 9. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, Articles of the Supplementary Convention adopted on First Reading (28 August 1956), UN Doc. E/CONF.24/L.29/ Add.1, 28 August 1956. Note that a footnote was added to this text which reads: ‘In the present document the paragraphs of the articles are numbered instead of being designated by letters. This change is submitted for the consideration of the Conference in order to achieve a uniform presentation of the various articles.’

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Mr. VITANYI (Hungary) thanked the Indian representative for his explanation and withdrew the amendment.32

The President of the Conference suggested that the Turkish proposal should be taken up by the Style Committee; then put Article 3 to a vote on second reading. Article 3 was adopted by a vote of thirty-nine in favour, none opposed and three abstentions.33 The Style Committee, consisting of Belgium (Chairman), Chile, China, France, Pakistan, Spain, the Ukrainian Socialist Republic, the Union of Soviet Socialist Republics and the United Kingdom, followed the Turkish proposal, putting forward a draft which created a new Article 4 which reads: Any slave who takes refuge on board any vessel of a State Party to this Convention shall ipso facto be free.

iv. Commentary on the Provisions of Article 4 of the Supplementary Convention There are two proposals that were put forward during the drafting of the 1956 Supplementary Convention which, especially in retrospect, appear to contradict the ethos of negotiations: that is attempting to establish an international instrument meant, as its Preamble notes, to protect the birthright of every human being, that is: their freedom. Those two proposals were: within the context of Article 6 (Criminal Offence) the proposal to criminalise the act of selling oneself into slavery; and with regard to Article 4 now under consideration: the freeing of slaves taking refugee on ship not ipso facto, but remaining slaves until their status was determined by a competent court. As originally proposed, Article 2 of the 1954 British Draft Convention related to the right to visit and the assimilation of the slave trade at sea to piracy included a provision mandating that “all slaves so captured shall be set at liberty”. The Anti-Slavery Society brought to the attention of

32

33

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Twenty-Second Meeting, 31 August 1956, UN Doc. E/CONF.24/SR.22, 20 November 1958, pp. 7–9. Id., p. 9.

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the 1956 Committee on the Drafting of a Supplementary Convention on Slavery and Servitude the work of the International Law Commission on the regime of the high seas which included a provision which stated that “any slave who takes refuge on board a warship or a merchant vessel shall ipso facto be free”; and Article 28 of the 1890 General Act of Brussels Conference of 2 July 1890 which reads: “Any slave who takes refuge on board a ship of war bearing the flag of one of the signatory powers, shall be immediately and definitively set free”. Despite this, the United Kingdom proposed, at the fourteenth meeting of the 1956 drafting Committee an amendment to Article 2 which “differed substantially from the original”. Amongst its provisions the proposed article stated that “vessels and slaves captured in accordance with this Article shall be brought before a competent court for adjudication”. Mr. Scott-Fox explained these provisions on two grounds: “firstly, a competent authority had to establish that they really were slaves and not persons in lawful custody; secondly, the right of ownership over the slaves had to be terminated in a legal manner in order to ensure that it was not reasserted. Such matters were best resolved by a court of law, where they would be duly recorded”. This provision was criticised by the Representative of the Union of Soviet Socialist Republics, Mr. Nikolaev, who said that “paragraph (c) (ii) implied that a slave would have to prove to the court that he was a slave before he could be set at liberty, which did not make much sense”. As a result, he was in favour of the original, 1954 draft of Article 2. To bring the point home, Mr. Nikolaev stated that it “It would seem strange to public opinion that, under a convention drawn up by eminent jurists under the United Nations auspices, slaves would have to prove that they were free men in a court of law by means of a possible lengthy procedure, before they could gain their freedom”. That, in essence, that provision “text turned the clock back to before 1890”. When put to a vote, a modified version of the British proposal which read in part ‘and any person suspected of being a slave who is found on aboard a vessel’ was defeated. Instead, the 1956 drafting Committee settled on “Any slave who is found on board a vessel shall be immediately be at liberty” as the provisions related to slaves at sea in Article 2. With regard to the negotiations of the 1956 United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery,

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the delegations reverted to language more in tune with the International Law Commission’s draft article included in the regime of the high seas. Where discussion did take place was whether the provision should hold whether at sea, land or air. While language along these lines was considered, it was noted that “in practice it was not possible for slaves to take refuge on aircraft”. Finally, it was agreed that because of the importance of the provision that it should appear as a stand alone article; this was agreed to in the closing sessions of the 1956 Conference.

Article 5 (Mutilation) In a country where the abolition or abandonment of slavery, or of the institutions or practices mentioned in article 1 of this Convention, is not yet complete, the act of mutilating, branding or otherwise marking a slave or a person of servile status in order to indicate his status, or as a punishment, or for any other reason, or of being accessory thereto, shall be a criminal offence under the laws of the States Parties to this Convention and persons convicted thereof shall be liable to punishment.

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i. 1954 British Draft Convention ARTICLE 3 In a country where the abolition of servile status is not yet complete, any person who mutilates, brands or otherwise marks another person to indicate that status, and any person accessory to such an act, shall be guilty of a criminal offence and liable to punishment.1

In answering the call by the Economic and Social Council as to the desirability of a supplementary convention related to slavery, the United Kingdom noted to the UN Secretary-General that it was in “broad agreement” with the recommendations made by the 1950–51 Ad Hoc Committee on Slavery, and “in view of the importance which they attached to the subject they are also preparing a draft based upon these recommendations which they hope may eventually serve as a basis for the conclusion of a Supplementary Convention”.2 Article 3 of the 1954 British Draft Convention is devoted to the indication of the servile or slave status, the genesis having been in a specific recommendation by the Ad Hoc Committee on Slavery which read: It is recommended: [. . .] 3. That States adhering to the Supplementary Convention should bind themselves to enact laws prohibiting the mutilation, branding or otherwise marking of human beings within their territories, whether as a means to indicate their servile status or in punishment of such offences as theft or running away.3

1

2

3

Economic and Social Council, Slavery: Consultations Concerning the Desirability of a Supplementary Convention on Slavery and its Possible Contents, UN Doc. E/2540/ Add.4, 12 April 1954, p. 4. See Economic and Social Council, Slavery: Consultations concerning the Desirability of a Supplementary Convention on Slavery and its Possible Contents, UN Doc. E/2540/ Add.1, 3 March 1954, p. 2. Economic and Social Council, Report of the Ad Hoc Committee on Slavery (Second Session), UN Doc. E/1988, E/AC.33/13, 4 May 1951, p. 21, para. 3.

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With regard to this provision, the United Kingdom noted, “Her Majesty’s Government agree with the recommendations on mutilation etc. subject to the reservations already expressed on the question of domestic legislation”.4 That earlier reservation was as follows: Her Majesty’s Government also believes that it should be left to Governments to decide, in the light of domestic circumstances, whether and what legislative or other action is necessary in order to enable them to comply with the requirements of the Convention, and that it would be inappropriate that the Convention should contain a specific obligation to enact laws for this purpose. Any state becoming party to the Convention would automatically accept under international law the obligation to ensure that its domestic law contained such provisions as might be necessary to fulfil its purpose. But the nature of the requisite legislation would be in the opinion of Her Majesty’s Government a matter for each Party”.5

Only one other State, Pakistan, made comments on the recommendations put forward by the 1950–51 Ad Hoc Committee on Slavery, simply stating that “no such practice exists in Pakistan. The Government of Pakistan has no objection to the recommendation”.6 As for provisions of Article 3 of the 1954 British Draft Convention, only one State, Monaco, a Non-Member of the United Nations Organisation, commented: [. . .] the draft in question calls for no comment on its substance by the Government of the Principality. The Government noted, however, that article 3 and 4 [related to criminal offences] of the draft communicated to it contained penal provisions which are generally a matter for domestic law; it would prefer the adoption of a different wording. For this purpose, the Government suggests that the articles in question should provide for an undertaking by the Contracting States to enact suitable measures, in their national legislation for the prevention and punishment of the acts referred to in the said articles”.7

4

5 6

7

See Economic and Social Council, Slavery: Consultations concerning the Desirability of a Supplementary Convention on Slavery and its Possible Contents, UN Doc. E/2540/ Add.1, 3 March 1954, p. 4. See id., p. 2. See Economic and Social Council, Slavery: Consultations concerning the Desirability of a Supplementary Convention on Slavery and its Possible Contents, UN Doc. E/2540, 11 February 1954, p. 18. Economic and Social Council, Slavery: Comments Received on the Draft Convention on the Abolition of Slavery and Servitude submitted by the Government of the United Kingdom, Report of the Secretary-General, UN Doc. E/2679, 3 February 1955, p. 13.

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Beyond Monaco, the Anti-Slavery Society made an observation which, thought not reproduced in UN documents as they were a late submission, were summarised by the Secretary-General in a memorandum as follows: The Anti-Slavery Society expressed the opinion that it is difficult to see why mutilation or branding of a person should be prohibited only if this is perpetrated in order to indicate his or her servile status. In its view mutilation inflicted upon a person in servile status as a punishment is not less objectionable, and should be equally prohibited.8

For his part, the Secretary-General sought to raise a question with regard to Article 3, as to “whether the term ‘servile status’ might be interpreted as equivalent to ‘serfdom’, as defined in Article 1(b) of the draft convention, or whether it covers slavery as defined in the 1926 Convention, or both”. The Secretary-General went on to suggest a rewording of Article 3: In a country where the abolition of slavery or of the institutions or practices mentioned in Article 1 of the Convention is not yet complete, any person who mutilates, brands or otherwise marks another person to indicate the status of slave or the condition arising from either of those institutions or practices, and any person accessory to such an act, shall be guilty of a criminal offence and liable for punishment.9

ii. 1956 Draft Supplementary Convention on Slavery and Servitude ARTICLE 4 (a) In a country where the abolition or abandonment of slavery, or of the institutions or practices mentioned in Article 1 of this Convention, is not yet complete, the act of mutilating, branding or otherwise marking another person of servile status in order to indicate that status, or as a punishment, or for any other reason, or of being accessory thereto, shall be a criminal offence under the laws of the States Parties to this Convention and persons convicted thereof shall be liable to punishment.

8

9

Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude Submitted by the Government of the United Kingdom and Comments Thereon (Memorandum by the Secretary-General), UN Doc. E/AC.43/L.1, 2 December 1955, p. 32. Id.

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(b) In this article “person of servile status” means any slave or any person who has a servile status resulting from any of the institutions or practices mentioned in Article 1 of this Convention.10

Resolution 564 (XIX) of the Economic and Social Council considered that it was “desirable to prepare a text of a draft supplementary convention which would deal with those practices resembling slavery not covered by the International Slavery Convention of 1926”.11 As a result, the Council appointed a Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, consisting of ten of its members which considered the provisions of the 1954 British Draft Convention and utilised the 2 December 1955 Memorandum prepared by the Secretary-General as its “basic working document”.12 With regard to Article 3 of the British Draft Convention, before States started to deliberate on its provisions, non-governmental organisations were asked for comments, to which Mr. Greenidge, of the Anti-Slavery Society noted that it was “too restrictive, since the form of mutilation it mentioned was not the only one in existence; castration and punitive mutilation (amputation of toes, fingers or ears) were also practised and should be prohibited”.13 At the same session, the British Representative, Mr. Scott-Fox, moved an amendment. Saying that he

10

11 12

13

Economic and Social Council, Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, UN Doc. 2824, Annex I, 15 February 1956. See Economic and Social Council, Resolution 564 (XIX), 7 April 1955. Economic and Social Council, Slavery: Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery: Report of the Committee appointed by Resolution 564 (XIX), 7 April 1955, UN Doc. E/2824, 15 February 1956, p. 8. For the Secretary-General’s memorandum, see Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude Submitted by the Government of the United Kingdom and Comments Thereon (Memorandum by the Secretary-General), UN Doc. E/AC.43/L.1, 2 December 1955. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Fourth Meeting, 17 January 1956 UN Doc. E/AC.43/SR.4, 9 February 1956, p. 4.

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agreed with the Anti-Slavery Society that it was not sufficient to forbid mutilation and similar practices only when their object was to indicate the servile status of the person concerned. He considered that mutilation inflicted as a punishment must also be condemned, and suggested that the words ‘another person to indicate that status’ should be replaced by ‘another person to indicate that the status or to punish a person having that status’.14

In his Report to the Economic and Social Council of the Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, the Rapporteur, Mr. Aleksandar Bozovic of Yugoslavia noted that the “amendment was in line with the view of the Anti-Slavery Society that mutilation inflicted upon a person in servile status as punishment is no less objectionable than mutilation perpetrated in order to indicate that a person’s servile status”.15 With regard to the proposed amendment, the following comments were made: Mr. GIRAUD (France) approved that amendment, but felt that it would be better if it were made to the text suggested by the Secretary-General, which was clearer and more precise. He suggested that deletion of the words ‘guilty of a criminal offence and’ as being superfluous, and leaving only ‘liable to punishment’. Indeed, it was unnecessary to make such practices separate criminal offences in countries where they already came under various provisions of the legislation. Mr. NIKOLAEV (Union of Soviet Socialist Republics) thought that it would be better to retain the words in question. They conformed to the general arrangement of the article which was drafted in rather broad terms.16

At the twelfth session of the Drafting Committee, the British amendment was adopted unanimously. Also during that session, the Chairman noted the French proposal to amend the text of Article 3 of the 1954 British Draft Convention in line with the proposal which had been put forward by the Secretary-General, that is to replace “the words ‘servile status’ by the words ‘slavery or the

14 15

16

Id., p. 8. Economic and Social Council, Slavery: Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery: Report of the Committee appointed by Resolution 564 (XIX), 7 April 1955, UN Doc. E/2824, 15 February 1956, p. 38. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Fourth Meeting, 17 January 1956 UN Doc. E/AC.43/SR.4, 9 February 1956, p. 8.

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institutions and practices mentioned in Article 1 of the Convention’; and to replace the words ‘that status’ by the words ‘the status of slave or the condition arising from any one of those institutions or practices’ ”.17 Mr. Scott-Fox of the United Kingdom noted that the “expression used in the French proposal described very aptly the term ‘servile status’ ” and said that while he preferred his own text he had no objection to the Committee adopting the latter. Before the French proposal was put to a vote, Mr. Giraud stated that “it was somewhat confusing to use the term ‘servile status’ to refer collectively to slavery and to analogous institutions”. The French amendment was adopted by four votes for, one against and five abstentions.18 Mr. Scott-Fox then requested the floor to say “that the Anti-Slavery Society had drawn his attention to the fact that the wording of article 3 did not cover the practices of castration”. He thus asked that the provision be amended in the following manner, with the promise that he would introduce a revised text at the next session: . . . any person who mutilates, brands or otherwise marks another person having the status of slave or the condition arising from any one of those institutions and practices, whether in order to indicate that status or condition, as punishment or for any other reasons, or any person accessory to such an act. . . .19

At that session the revised text was distributed, Mr. Scott-Fox for his part, noted that “he had redrafted his proposal as a result of the adoption of the French amendment for the including of a specific reference in article 3 to the institutions and practices mention in article 1”, so that the revised text read: (a) In a country where the abolition or abandonment of slavery or of the institutions or practices mentioned in Article 1 of this Convention is not yet complete, any person who mutilates, brands or otherwise marks another

17

18 19

Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Twelve Meeting, 24 January 1956, UN Doc. E/AC.43/SR.12, 20 February 1956, pp. 8–9. Id., p. 9. See Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Twelve Meeting, 24 January 1956, UN Doc. E/AC.43/SR.12, 20 February 1956, p. 9.

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person of servile status in order to indicate that status or as a punishment or for any other reason, or any person accessory to such an act, shall be a criminal offence and liable to punishment. (b) In this Article ‘person of servile status’ means any slave or any person who has a servile status resulting from any of the institutions or practices mentioned in Article 1 of this Convention.20

Consideration having been deferred to the next session so that the Soviet Representative might consider the Russian language text, the redrafted text proposed by the United Kingdom was adopted unanimously.21 At the nineteenth session, the ordering of the various articles was considered. On the basis of a vote of four for, none against and six abstentions, it was decided that the draft convention should be separated into sections, the first dealing with slavery proper; the second touching on institutions and practices analogous to slavery; and finally, on slavery and analogous practices. The vote came as a result of a French proposal which also noted that the final section would contain article 3 of the British Draft Convention as new Article 4.22 In his Report to the Economic and Social Council, Aleksandar Bozovic explained that at the twentieth session, the Drafting Committee accepted a suggestion by the Secretariat that “the present articles 2, 3, and 4 of the Convention dealing with obligations of States Parties to make certain acts criminal offences under their law [. . .] should be drafted on lines as closely similar as possible”.23 “Accordingly”, Mr. Bozovic noted, “paragraph (a) of article 4 was revised to read” as follows:

20

21

22

23

Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude, United Kingdom of Great Britain and Northern Ireland: Suggested Redrafting of Article 3, UN Doc. E/AC.43/L.31/Rev.1, 25 January 1956, p. 4. See Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Fourteenth Meeting, 25 January 1956, UN Doc. E/AC.43/SR.14, 29 February 1956, p. 3. See Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, France: Proposal to change the order of certain articles of the Draft Convention on Abolition of Slavery and Servitude (E/2540/Add.4), UN Doc. E/AC.43/L.14, 18 January 1956. See Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude, Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices similar to Slavery (Third Reading), Suggestions by the Secretariat, UN Doc. E/AC.43/L.41, 2 February 1956, p. 1.

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In a country where the abolition or abandonment of slavery or of the institutions or practices mentioned in Article 1 of this Convention is not yet complete, the act of mutilating, branding or otherwise marking another person of servile status in order to indicate that status, or as a punishment, or for any other reason, or of being accessory thereto, shall be a criminal offence under the laws of the States Parties to this Convention and persons convicted thereof shall be liable to punishment.24

iii. 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery ARTICLE 5 In a country where the abolition or abandonment of slavery, or of the institutions or practices mentioned in article 1 of this Convention, is not yet complete, the act of mutilating, branding or otherwise marking a slave or a person of servile status in order to indicate his status, or as a punishment, or for any other reason, or of being accessory thereto, shall be a criminal offence under the laws of the States Parties to this Convention and persons convicted thereof shall be liable to punishment.25

Upon taking up the first reading of the Article 4 at the 1956 United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices similar to Slavery, the Head of the Delegation of the United Kingdom of Great Britain and Northern Ireland, Mr. Scott-Fox “suggested that the words ‘within the meaning of the 1926 Slavery Convention’ should be inserted between the words ‘slave’ and ‘or any person’ in article 4(b)”.

24

25

Economic and Social Council, Slavery: Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery: Report of the Committee appointed by Resolution 564 (XIX), 7 April 1955, UN Doc. E/2824, 15 February 1956, p. 8. United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Final Act and Supplementary Convention, 4 September 1956, UN Doc. E/CONF.24/23.

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This was being suggested, he said: so as to make it clear that the provisions of article 4 applied to chattel slaves as well as persons covered by article 1 of the draft supplementary convention. As had been pointed out by the Anti-slavery Society of the United Kingdom, acts of mutilation and branding were most likely to occur in the case of chattel slaves.26

Mr. Abdel-Ghani of Egypt suggested that reference need not be made to the 1926 Convention “if the words ‘slavery or from’ were inserted after the words ‘resulting from’, so as to make it clear that the main cause of servile status was slavery proper”. For his part, the Portuguese Representative, Mr. Norgueira shifted focus, as he stated that he “thought that since the definition given in article 4(b) related also to several other articles” and thus “it would be better to incorporate it in the draft convention as a separate article”.27 The President of the Conference, Calderon Puig of Mexico, then asked whether the three speakers might want to propose their suggestions as amendments, to which the Egyptian representative answered in the negative, while the British and Portuguese representatives answered in the affirmative. The Philippines Representative took the floor next saying that he “was unable to see the reason for the United Kingdom amendment. Article 3(d), which was similar to the nature of Article 4(b), had been included in the draft supplementary convention precisely because no definition had been provided in the 1926 Convention”. Mr. Scott-Fox acknowledged that the word slave did not appear in the 1926 Convention. As a result, Mr. Lopez suggested “that instead of referring to the 1926 Convention, it might be better to replace the phrase given in the United Kingdom amendment by the phrase ‘within the meaning of article 3(d) of this Convention”. At this point the President of the Conference intervened to remind the delegates that Article 3, touching on the slave trade at sea, had yet to be decided upon. Mr. Lopez, for his part, noted that, as Chairman of the Working Group considering Article 3, no objections had been made to paragraph (d); to which the President then asked whether the Philippines

26

27

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Ninth Meeting, 21 August 1956, UN Doc. E/CONF.24/SR.9, 13 November 1958, p. 2. Id.

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representative wished to make a sub-amendment to the one being put forward by the United Kingdom. The President asked that the United Kingdom proposal be presented as a written amendment, and at the prompting of the Canadian representative, that the Portuguese proposal also merited a written proposal.28 At the following meeting, the Portuguese and British amendments were considered in short order. The Portuguese amendment sought to take the definition of ‘slave’ found in Article 3(d) and ‘person of servile status’ found in Article 4(b) and amalgamate them into a new article.29 Mr. Scott-Fox supported the Portuguese proposal and thus withdrew the British proposal. It was decided that the Portuguese amendment would be deferred until “the general shape of the draft convention” came into view.30 This was followed by the President calling a vote. The PRESIDENT asked the Conference to resume consideration of article 4. The United Kingdom delegation had withdrawn its amendment to paragraph (b), but since the Portuguese proposal involving the deletion of that paragraph had been deferred the vote could be taken only on paragraph (a).31

Article 4 paragraph (a), which reads as follows, was adopted at first reading by thirty-seven votes in favour, none opposed and one abstention: In a country where the abolition or abandonment of slavery, or of the institutions or practices mentioned in article 1 of this Convention, is not yet complete, the act of mutilating, branding or otherwise marking a slave or a person of servile status in order to indicate that status, or as a punishment or for any other reason, or of being accessory thereto, shall be a criminal offence under the laws of the States Parties to this Convention and persons convicted thereof shall be liable to punishment.32

28 29

30

31 32

Id., pp. 2–3. See Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Portugal: Amendments to Articles 3 and 4 and Proposal for a New Article, UN Doc. E/CONF.24/L.14, 21 August 1956. See Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Tenth Meeting, 21 August 1956, UN Doc. E/CONF.24/SR.10, 14 November 1958, p. 5. Id. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions

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During the nineteenth session, a proposal put forward by a Drafting Committee on Definitions for a new article (Article 7) which incorporated elements of Article 3(d) and former Article 4(b). Consequential to the establishment of this new provision: The Committee recommends that in the phrase ‘. . . the act of mutilating, branding or otherwise marking another person of servile status . . .’ the word ‘another’ be replaced by the words ‘a slave or a’ so that article 4 would read as follows: In a country where the abolition or abandonment of slavery, or of the institutions or practices mentioned in article 1 of this Convention, is not yet complete, the act of mutilating, branding or otherwise marking a slave or a person of servile status in order to indicate that status, or as a punishment, or for any other reason, or of being accessory thereto, shall be a criminal offence under the laws of the States Parties to this Convention and persons convicted thereof shall be liable to punishment.33

When putting to a vote the text of the new article on definitions, the President “pointed out that by accepting the new article, representatives would automatically agree to consequential changes being made to article 4”. The new article was adopted by thirty-six votes in favour, none against and three abstentions.34 At the twenty-first meeting, the Conference considered suggestions to improve the style of the text made by the Secretariat. With regard to article 4, it was suggested that Instead of the phrase “. . . in order to indicate that status” say: “. . . in order to indicate his status”.35

33

34

35

and Practices Similar to Slavery, Text of Articles of the Supplementary Convention adopted on First Reading, UN Doc. E/CONF.24/14, 30 August 1956. See Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Report of the Drafting Committee on Definitions, UN Doc. E/CONF.24/L.33, 29 August 1956. pp. 1–2. Emphasis in the original. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Nineteenth Meeting, 29 August 1956, UN Doc. E/CONF.24/SR.19, 19 November 1958, p. 22. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Draft Supplementary Convention on the Abolition

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These provisions were taken up, but were first considered by an ad hoc drafting committee of the Conference which was “empowered solely to deal with matters of style”.36 During the twenty-second session, the President “observed that no amendment had been submitted to the text of article 4”, and thus called a vote. Article 4 was adopted by a vote of forty in favour, none opposed, and one abstention.37 As a result of the work of the Style Committee, the provisions of Article 4 were moved to become the Article 5 of the Supplementary Convention. Thus, as a result of these negotiations, the provisions of Article 5 adopted as part of the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery reads: In a country where the abolition or abandonment of slavery, or of the institutions or practices mentioned in article 1 of this Convention, is not yet complete, the act of mutilating, branding or otherwise marking a slave or a person of servile status in order to indicate his status, or as a punishment, or for any other reason, or of being accessory thereto, shall be a criminal offence under the laws of the States Parties to this Convention and persons convicted thereof shall be liable to punishment.

iv. Commentary on the Provisions of Article 5 of the Supplementary Convention The provisions of Article 5 of the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery raised little comment during the drafting process. Two issues were discussed during the drafting process, the first prompted by comments made by Monaco to the 1954 British Draft Convention, was

36

37

of Slavery, the Slave Trade and Institutions and Practices similar to Slavery (Second Reading), Suggestions by the Secretariat, UN Doc. E/CONF.24/L.37, 30 August 1956, p. 3. Emphasis in the original. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Twenty-First Meeting, 31 August 1956, UN Doc. E/CONF.24/SR.21, 20 November 1958, p. 11. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Twenty-Second Meeting, 31 August 1956, UN Doc. E/CONF.24/SR.22, 20 November 1958, p. 12.

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with regard to the wording of this provision and what would become Article 6 of the 1956 convention related to criminal offences. The concern expressed by the Monegasque Government was to ensure that the penal provisions envision within the Convention be “a matter of domestic law”. The second issue related to the reasons for an individual of servile status being mutilated. As originally conceived in the 1954 British Draft Convention, the provisions on mutilation sought to criminalise the mutilation, branding, or marking of individual solely for indicating their servile status. However, as a result of comments made by the Anti-Slavery Society and moved as an amendment by the United Kingdom during the drafting Committee phase of negotiations, mutilation for the purposes of punishment was also included in the provisions of Article 5.

Article 6 (Criminal Offence) 1. The act of enslaving another person or of inducing another person to give himself or a person dependent upon him into slavery, or of attempting these acts, or being accessory thereto, or being a party to a conspiracy to accomplish any such acts, shall be a criminal offence under the laws of the States Parties to this Convention and persons convicted thereof shall be liable to punishment. 2. Subject to the provisions of the introductory paragraph of article 1 of this Convention, the provisions of paragraph 1 of the present article shall also apply to the act of inducing another person to place himself or a person dependent upon him into the servile status resulting from any of the institutions or practices mentioned in article 1, to any attempt to perform such acts, to bring accessory thereto, and to being a party to a conspiracy to accomplish any such acts.

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i. 1954 British Draft Convention ARTICLE 4 Any person shall be guilty of a criminal offence and liable to punishment who attempts, or is an accessory to an attempt, or takes part in a conspiracy, to enslave another person or to induce another person to give himself, or a 1 person dependent upon his, into slavery or any other form of servitude.

With regard to the provisions touching on the criminalisation of slavery and servile status, the elements of what would become Article 6 of the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery commenced the drafting process as Article 4 of the 1954 British Draft Convention. The genesis of the British Draft Convention was an April 1953 United Nations Economic and Social Council request to the Secretary-General “to consult the Governments of all States, both Members and non-members of the United Nations, concerning the desirability of a supplementary convention and its possible contents”.2 Within the context of those consultations, in March 1954, the United Kingdom put forward its comments as well as a draft convention, as a means of proposing the possible contents of such a supplementary convention.3 It based its Draft Convention on the recommendations of the 1951 United Nations Ad Hoc Committee on Slavery. With regard to provisions on the criminalisation of enslavement and other forms of servitude, the Ad Hoc Committee on Slavery had recommended:

1

2 3

Economic and Social Council, Slavery: Consultations Concerning the Desirability of a Supplementary Convention on Slavery and its Possible Contents, UN Doc E/2540/ Add.4, 12 April 1954, p. 4. See Economic and Social Council, Resolution 475 (XV), 27 April 1953. See Economic and Social Council, Slavery: Consultations Concerning the Desirability of a Supplementary Convention on Slavery and its Possible Contents, UN Doc E/2540/ Add.4, 12 April 1954.

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That such early stages of dealing in slaves as may not be embraced by Article 1 of the Slavery Convention of 1926, such as conspiracy to enslave, incitement to enslave, accessories to enslavement, attempts at enslavement and enticement to part with the liberty of oneself or of a dependent person, should be made criminal offences in the laws of States parties to the Convention.4

The United Kingdom comments with regard to Article 4 of its draft convention considered this recommendation of the Ad Hoc Committee on Slavery and stated “Her Majesty’s Government agree in general with the recommendation on actions accessory to enslavement, subject to their reservations on the question of domestic legislation”.5 That reservation was spelled out as follows: Her Majesty’s Government [. . .] believes that it should be left to Governments to decide, in the light of domestic circumstances, whether and what legislative or other action is necessary in order to enable them to comply with the requirements of the Convention, and that it would be inappropriate that the Convention should contain a specific obligation to enact laws for this purpose. Any state becoming party to the Convention would automatically accept under international law the obligation to ensure that its domestic law contained such provisions as might be necessary to fulfil its purpose. But the nature of the requisite legislation would be in the opinion of Her Majesty’s Government a matter for each Party.6

In April 1954, the Economic and Social Council invited States and the International Labour Organisation to submit comments on the British Draft Convention to the Secretary-General and to establish a ten-Member strong Committee on the Drafting of a Supplementary Convention on Slavery and Servitude.7 Monaco, at the time a non-Member of the United Nations Organization, had the following to say with regard to Article 4: the draft in question calls for no comment on its substance by the Government of the Principality. The Government noted, however, that article 3

4

5

6 7

Economic and Social Council, Report of the Ad Hoc Committee on Slavery (Second Session), UN Doc E/1988, E/AC.33/13, 4 May 1951, p. 21. See Economic and Social Council, Slavery: Consultations concerning the Desirability of a Supplementary Convention on Slavery and its Possible Contents, UN Doc E/2540/ Add.1, 3 March 1954, p. 4. Id., p. 2. See Economic and Social Council, Resolution 525 (XVII), 29 April 1954.

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and 4 [related to the indication of the status of a slave (i.e.: branding)] of the draft communicated to it contained penal provisions which are generally a matter for domestic law; it would prefer the adoption of a different wording. For this purpose, the Government suggests that the articles in question should provide for an undertaking by the Contracting States to enact suitable measures, in their national legislation for the prevention and punishment of the acts referred to in the said articles”.8

Rather late in the process, Pakistan (a Member of the United Nations) also provided comments. Pakistan communicated “to the Committee the following comments on 25 January 1956”; simply stating that Article 4 “may be redrafted as”: Any person who attempts or is an accessory to an attempt, or takes part in a conspiracy, to enslave another person or to induce another person to give himself, or a person dependent upon him, into slavery or another form of servitude, shall be guilty of a criminal offence and liable to punishment.9

ii. 1956 Draft Supplementary Convention on Slavery and Servitude ARTICLE 5 The act of enslaving another person or of inducing another person to give himself or a person dependent upon such other person into slavery or any other form of servitude, or of attempting these acts, or being accessory thereto, or being a party to a conspiracy to accomplish any such acts, shall be a criminal offence under the laws of the States Parties to this Convention and persons convicted thereof shall be liable to punishment.10

8

9

10

Economic and Social Council, Slavery: Comments Received on the Draft Convention on the Abolition of Slavery and Servitude submitted by the Government of the United Kingdom, Report of the Secretary-General, UN Doc E/2679, 3 February 1955, p. 13. Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude Submitted by the Government of the United Kingdom and Comments Thereon (Memorandum by the Secretary-General) Addendum, UN Doc E/AC.43/ L.1/Add.2, 25 January 1956, p. 1. Economic and Social Council, Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, UN Doc. 2824, Annex I, 15 February 1956.

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The Committee on the Drafting of a Supplementary Convention on Slavery and Servitude established by the United Nations Economic and Social Council met in January and February 1956. The drafting Committee considered Article 4 of the 1954 British Draft Convention at first reading on 24 January 1956 and adopted it without comment or discussion.11 Likewise, while the provisions of Article 4 of the British Draft Convention were considered at the nineteenth and twentieth meeting of the Committee, no comments or discussions transpired. At the nineteenth meeting is was decided that Article 4 would now become Article 5 of the 1956 Draft Supplementary Convention on Slavery and Servitude. At the twentieth meeting, the Committee accepted suggestions of the Secretary-General that Article 4 be revised to mirror as closely as possible the provisions of Articles 2 and 3 which also “deal with obligations of States Parties to make certain acts criminal offences under their law”. Thus, the provisions of Article 4 to emerge from the Committee on the Drafting of a Supplementary Convention on Slavery and Servitude are as follows: The act of enslaving another person or of inducing another person to give himself or a person dependent upon such other person into slavery or any other form of servitude, or of attempting these acts, or being accessory thereto, or being a party to a conspiracy to accomplish any such acts, shall be criminal offence under the laws of the States parties to this Convention and persons convicted thereof shall be liable to punishment.12

11

12

Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Twelve Meeting, 24 January 1956, UN Doc. E/AC.43/SR.12, 20 February 1956, p. 9. See Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude, Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices similar to Slavery (Third Reading), Suggestions by the Secretariat, UN Doc E/AC.43/L.41, 2 February 1956, pp. 2 and 3.

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1956 United Nations Supplementary Convention

iii. 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery ARTICLE 6 1. The act of enslaving another person or of inducing another person to give himself or a person dependent upon him into slavery, or of attempting these acts, or being accessory thereto, or being a party to a conspiracy to accomplish any such acts, shall be a criminal offence under the laws of the States Parties to this Convention and persons convicted thereof shall be liable to punishment. 2. Subject to the provisions of the introductory paragraph of article 1 of this Convention, the provisions of paragraph 1 of the present article shall also apply to the act of inducing another person to place himself or a person dependent upon him into the servile status resulting from any of the institutions or practices mentioned in article 1, to any attempt to perform such acts, to being accessory thereto, and to being a party to a conspiracy to accomplish any such acts.13

In April 1956, the Economic and Social Council decided that “a conference of plenipotentiaries should be convened in order to complete the drafting of the Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices similar to Slavery”.14 That Conference considered Article 5 of the Draft Supplementary Convention at its ninth meeting of 21 August 1956 wherein the Egyptian Representative, Mr. Abdel-Ghani said: he would propose that persons who willingly gave themselves into slavery should also be punishable under article 5. The penalty should take the form of corrective punishment such as would constitute a lesson to others. Besides providing the severest penalty (capital punishment) for persons

13

14

United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Final Act and Supplementary Convention, 4 September 1956, UN Doc E/CONF.24/23. Economic and Social Council, Resolution 608 (XXI), 30 April 1956.

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engaged in the slave trade, the Egyptian Slavery Act of 1896 also rendered liable to punishment any person who renounced his own personal liberty. The provision in question stated that no person might renounce this legal capacity to act or modify the conditions thereof. Every human being must have the same respect for his personal liberty as for his life. It was possible, however, for a person to renounce this personal liberty and to contract such forms of servitude as those mentioned in article 1, including debt bondage and serfdom. He therefore suggested that a new paragraph should be added to article 5 reading as follows: ‘The act of giving one’s own self into slavery or any other form of servitude of one’s own will should be a punishable offence.’ Miss LUNSINGH-MEIJER (Netherlands) suggested that the text might be made clearer by replacing the words ‘upon such other person’ by the words ‘upon him’. Mr. AMY (El Salvador) had no major objection to article 5 of the draft Convention. Nevertheless, in order to take into account the terms of article 151 of the Constitution of El Salvador, which reads: ‘Every person in the Republic is free. No one who enters its territory shall be a slave, nor shall anyone who deals in slaves be a Salvadorian citizen. No person may be placed in servitude or subjected to conditions detrimental to the dignity of the person.’ He proposed that some phrase should be added to the article prohibition the act of reducing other persons to a condition degrading to human dignity. Mr. GIRAUD (France) appreciated the motives underlying the proposal of Viet-Nam that a more adequate expression be substituted for the words ‘any other form of servitude’, which seemed to introduce a new concept into the Convention. Nevertheless, if the expression ‘institutions and practices similar to slavery’, which was terminologically more suitable, were adopted, allowance would have obviously to be made for the fact that that penalties foreseen by article 5 could only be applied is so far as they institutions and practices mentioned in article 1 became illegal in a country party to the convention.15

Turning to the Egyptian Proposal to criminalise self-enslavement, the French Representative said:

15

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Ninth Meeting, 21 August 1956, UN Doc E/CONF.24/SR.9, 13 November 1958, pp. 3–4.

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The Egyptian proposal that the act of giving oneself into slavery should be a punishable offence did not commend itself to the French delegation. Just as suicide, a punishable offence in English law, was not an offence in many other States, so the act of giving oneself into slavery, which was somewhat analogous to suicide, could not be treated as an offence. Persons who gave themselves into slavery were in most cases the victims of circumstances or of their own weakness. To punish them would be unfair, and would not be an effective means of reducing slavery. Mr. SCOTT-FOX (United Kingdom) entertained the same misgivings as had been expressed by the representative of France regarding the Egyptian representative’s suggestion that people who gave themselves into slavery should be liable to punishment. It would be particularly difficult and in many cases an unjust principle to penalize in that manner the categories of persons referred to in article 1. Mr. ABDEL-GHANI (Egypt) noted that three categories of persons were mentioned in article 5 as being liable to punishment under the laws of the States Parties to the convention: persons who enslaved other persons or induced them to give themselves into slavery, or who attempted to commit those acts; persons who were parties to a conspiracy to accomplish any such acts; and persons who were accessory to the commission of such acts. He could understand the first and second categories, but found it difficult to realize what was meant by the third. He suggested that the representative of the Secretary-General might perhaps provide an explanation. Mr. SCHWELB (Secretariat) said that the term ‘accessory’ had been discussed in some detail at the meeting of the 1956 ad hoc Committee in connexion with what was the present article 3, in which it also appeared. The original United Kingdom proposal for the present article 3 (E/2824, paragraph 100) had used, not ‘being accessory to’, but ‘being concerned in’. Several delegations had expressed the opinion that that expression was not sufficiently precise and might lead to confusion arising from the different existing systems of law. The representative of India had suggested that the words ‘being concerned in’ should be replaced by the words ‘being accessory to’ (E/2824, paragraph 104). The representative of the Legal Division had been consulted on the subject and at the fifteenth meeting of the 1956 ad hoc Committee had expressed the view that the term ‘being concerned in’ could be more easily rendered by the equivalent technical term in the various languages of the contraction parties. The phrase ‘being accessory to’ was probably more precise but would be difficult to translate from the sphere of domestic legislation to that of international law or from a country in which it had a specific meaning to another where it was unknown. The expression ‘being concerned’ might embrace acts rather different from those it was desired to repress, but it had the advantage of covering activities which other expressions would exclude (E/AC.43/SR.15, pages 10–11).

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The text of what was now article 3 of the draft had been referred by the 1956 ad hoc Committee to a Drafting Committee consisting of the representatives of France, India, the United Soviet Socialist Republics, the United Kingdom and Yugoslavia. The text proposed by the Drafting Committee for article 2 (Article 3 of the present draft) (E/AC.43/L.37) had used the words ‘being accessory thereto’ and at a later meeting it had been decided to use them also in the text of what was now article 5 so as to ensure uniformity of wording. In general, an accessory was a person who assisted the principal perpetrator of an illegal act either before or after the act was committed, by giving advice, furnishing means, or helping the perpetrator to hide or escape from justice. Mr. SOMERHAUSEN (Belgium) pointed to an inconsistency between article 1 and article 5 of the draft supplementary convention. Article 1 required all States Parties to abolish slavery but the obligation was qualified by the word ‘progressively’ and other terms; article 5, on the other hand, did not allow for any lapse of time. That meant that the States Parties would, for the purpose of giving effect to article 5, be under an immediate duty to punish persons who induced others to submit to practices similar to slavery, whereas under the particular municipal law such acts would not yet be punishable offences. Mr. JOCKEL (Australia) shared the Belgian representative’s misgivings concerning the contradiction in terms between article 1 and 5. Mr. GIRAUD (France) said that the word ‘accessory’ best expressed the notion of complicity and should therefore be allowed to stand. In his view there was not really any inconsistency between article 1 and 5. So long as certain practices the abolition of which was called for in the draft convention were not punishable under municipal law, it would be impossible to punish those engaging in the practices in question. Article 5 would be applicable immediately and definitely to slavery and would become applicable progressively to the other practices referred to in the draft convention. Mr. JOCKEL (Australia) said that while he approved the interpretation furnished by the French representative, he was not sure that the articles in question would in fact be so applied, and his delegation therefore reserved its position in the matter. Mr. SCOTT-FOX (United Kingdom) suggested that the legal representative of the Secretariat might give his views on the interpretation advanced by France.16

16

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Ninth Meeting, 21 August 1956, UN Doc E/CONF.24/SR.9, 13 November 1958, pp. 3–7.

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As the representative of the Legal Division was absent from the meeting, the President moved to consider another article of the draft convention. At the following meeting, the President called on Mr. Schachter of the General Legal Division to answer the questions posed regarding whether the “provisions of article 5 were inconsistent with those of article 1”; while drawing attention to an amendment which had been submitted by Viet-nam which reads: “Instead of ‘any other form of servitude’ insert ‘any institution or practice similar to slavery’ ”.17 Mr. SCHACHTER (Secretariat) said that article 5 was in part inconsistent with article 1 in view of the qualification in the latter article ‘progressively and as soon as possible’. The inconsistency arose only in connexion with the phrase ‘or any other form of servitude’. The difficulty might be obviated by dividing article 5 into two paragraphs, in the first of which slavery would be required to be made a criminal offence immediately, while in the second the provisions of the first paragraph would be made subject to the provisions of the introductory paragraph of article 1. Mr. SOMERHAUSEN (Belgium) said that the explanation given by the representative of the General Legal Division confirmed the view of the Australian and Belgium delegations concerning the inconsistency between article 1 and 5. The representative of the Legal Division had suggested that the case of a person giving himself into ‘any other form of servitude’ should be dealt with in a second paragraph. Perhaps the Legal Division might draft the text of such a second paragraph.18

The President asked that the Secretariat to submit a working draft and suggested that consideration “of article 5 be deferred until that paper had been distributed”. The Working Paper prepared by the Secretariat, which reads as follows, was considered at the eleventh meeting: (1) The act of enslaving another person or of inducing another person to give himself or a person dependent upon such other person into slavery, or of attempting these acts, or being accessory thereto, or being a party to a conspiracy to accomplish any such acts, shall be a criminal offence under

17

18

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Viet-Nam: Amendment to article 5, UN Doc E/CONF.24/L.16, 21 August 1956. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Tenth Meeting, 21 August 1956, UN Doc E/CONF.24/SR.10, 14 November 1958, p. 6.

Article 6 (Criminal Offence)

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the laws of the States Parties to this Convention and persons convicted thereof shall be liable to punishment. (2) Subject to the provisions of the introductory paragraph of article 1 of this Convention, the provisions of paragraph 1 of this article shall also apply to the act of inducing another person to place himself or a person dependent upon such other person into the servile status resulting from any of the institutions or practices mentioned in article 1, to any attempt to perform such acts, to bring accessory thereto, and to being a party to a conspiracy to accomplish any such acts.19

The President noted that certain delegations had also held informal talks while awaiting the Working Paper prepared by the Secretariat; he then called on the Soviet Union delegation to resume consideration of Article 5 of the 1956 Draft Supplementary Convention. Mr. Chistyakov suggested “the deletion in paragraph (2) of the words ‘subject to the provisions of the introductory paragraph of article 1 of this Convention, the provisions of paragraph 1 of this article shall also apply to’. The remainder of the paragraph should be redrafted and the words ‘It shall be a criminal offence’ inserted in the appropriate place”. He went on to say that reference “in article 1 made the text of article 5 very cumbersome, at least in the Russian version”. This was followed by further discussion: Mr. SOMERHAUSEN (Belgium) remarked that the Soviet Union representative’s proposal conflicted with that representative’s comments at the previous meeting. Article 4, which dealt with the mutilation of persons of servile status should become operative immediately on the entry into force of the convention, irrespective of the extent to which the State concerned had enacted legislation to give effect to the provisions of article 1. Article 5, however, dealt with a different matter. In countries where debt bondage still formed part of the customary law a creditor who enslaved his insolvent debtor would be committing an offence only if legislative or other measures had been taken to abolish the custom. Article 5 would operate immediately to make it a criminal offence to enslave another person, but in the case of the act of inducing another person to give himself or someone else into slavery or to place himself into servile status article 5 would only become applicable as and when amendments were introduced in the legislative or other provisions.

19

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Article 5 (Working paper prepared by the Secretariat at the request of the President), UN Doc E/CONF.24/L.19, 21 August 1956.

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Adoption of the Soviet Union amendment would mean reverting to article 5 of the draft. If that was the object of the Soviet Union, it would be preferable to adhere to the text of the 1956 ad hoc Committee. The Belgian delegation would only support that solution if it was stated expressly in the summary record that article 5 in that wording would only be operative immediately with respect to the act of enslaving another person. His delegation would, however, prefer the Secretariat text. Mr. JAFRI (Pakistan), supported the Secretariat’s amended text, said that the USSR representative appeared to be under some misapprehension about its implications. When article 5 was first discussed certain representatives had said that its provisions contradicted the provisions of article 1. That doubt had later been confirmed by the statement of the Director of the General Legal Division. As the representative of Belgium had pointed out, the effect of the USSR representative’s amendment would be to retain article 5 in its present form, which would mean that the contradiction would remain. The supporters of the words ‘progressively’ and ‘as soon as possible’ in article 1 would be unable to accept article 5 in its present form or the USSR amendment to the text prepared by the Secretariat. In pressing for the retention of those words, they had had no mental reservation but had merely wished to emphasize that in some States conditions existed which would preclude immediate implementation of article 1. Anxious as they were to see slavery and similar practices abolished, they realized that some institutions which were now regarded as slavery were deeply rooted in the religious and social fabric of certain countries. In Pakistan, for instance, while the vast majority of the people who owed allegiance to Islam would have no hesitation in accepting article 1, there were communities which, by their interpretation of their religion, were not prepared immediately to abolish the practices mentioned in that article. Suitable educational and other measures, however, should soon persuade them to adopt a more compliant attitude. Article 5 should be divided into two parts, as proposed by the Secretariat, so that States signatories of the supplementary convention could take immediate action as far as traditional forms of slavery were concerned and progressive action with regard to the acts mention in paragraph (2). Mr. JOCKEL (Australia), supported the revised text of article 5 (E/ CONF.24/L.19), agreed with the remarks of the Belgium and Pakistan representatives and said that the USSR amendment was unacceptable to his delegation, as its adoption would compel States to bring certain practices mentioned immediately within the scope of their legislation. The Soviet proposal would eliminate the concept of ‘other measures’ as well as the concept of ‘progressively’. Australia was dealing with the problem of bride price in New Guinea by seeking the assistance of newly-established village councils and, as he had already stated, did not intend to proceed immediately to adopt legislation.

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Mr. SCOTT-FOX (United Kingdom) had listened with great sympathy to the statement of the Pakistan and Australian representatives, and pointed out that, the best of his knowledge, when article 5 had been adopted by the Drafting Committee no member of that body who had approved the present text had realized that there might be any contradiction between it and article 1. However, the contradiction had been brought to light during the discussions in the Conference and the formula suggested by the Secretariat would serve to remove it. His delegation would therefore be happy to sponsor the Secretariat’s text. He suggested, however, that the phrase ‘of this article’ in the second line of paragraph (2) of the amended text should be replaced by ‘of the present article’. Mr. CHISTYAKOV (Union of Soviet Socialist Republics), replying to a question by the President, said that he would not maintain his amendment, but would ask that paragraphs (1) and (2) of the amended text of article 5 be put to a vote separately. Mr. JURKIEWICZ (Poland) supported the USSR representative’s request for a separate vote, as many delegations had voted against the retention of the words ‘progressively’ and ‘as soon as possible’ in article 1. Mr. PHAN-TRONG-NHIEM (Viet-Nam) said he was satisfied with the new wording of article 5 (E/CONF.24/L.19) and would therefore withdraw the amendment to that article submitted by his delegation (E/CONF.24/ L.16).20 He added that it should have been possible in the French version of the new article 5 to avoid repetition in paragraph (2) of the phrase at the end of paragraph (1). Mr. SOMERHAUSEN (Belgium) agreed that the repetition of the words mentioned by the Viet-nam representative seemed unnecessary; still, if the phrase were deleted the French and English text might be yet further out of line. Mr. CAPPELEN (Norway) pointed out that article 4 [Indications of Status] and 5 [Criminal Offence] both contained the phrase ‘shall be a criminal offence under the laws of the States Parties to this Convention’, which seemed to imply that such States must punish the acts mentioned in article 4 and 5 even if they had been committed on the territory of another State. He felt that that was not the intention of those who had drafted the article, and he asked that the answer of the Legal Adviser to his questions be included in the records of the Conference.

20

See Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Viet-Nam: Amendment to article 5, UN Doc E/CONF.24/L.16, 21 August 1956.

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Mr. SCHWELB (Secretariat) replying, in the absence of the Director of the General Legal Division who had had to leave Geneva on another mission, said that he had attended the meetings of the ad hoc Committee held in early 1956 and felt that all who had done so would agree with him that when article 4 and 5 had been drafted no one had considered that a State party to the convention would be under the obligation to punish acts committed outside its territory by persons who were not their nationals. They did not consider that an act of mutilation, which was mentioned in article 4, if committed in State A by a national of State B should be punished by State C. Under article 4, as adopted by the Conference in first reading, and the new draft text of article 5, a State party to the convention would assume the obligation to consider the acts described in those articles as criminal offences under its law. That could only mean that such acts would be a criminal offence under the laws of all States parties wherever such laws applied, but the laws of State C would not apply to acts committed in the territories of State A and B, unless the offender was a national of State C. He could not, however, without further consideration state what the position would be if and when an offence such as those mentioned in article 4 and 5 was committed on the high seas outside the territorial jurisdiction of any State.21

At this point the President of the Conference, Mr. Calderon Puig, put the paragraphs to a vote, paragraph 1 being adopted by thirty-nine votes in favour, none opposed, with one abstention. Paragraph 2 was adopted twenty-nine votes to none, with ten abstentions; while the overall Article 5 was adopted at first reading by a vote of thirty-nine votes to none, with one abstention.22 During second reading, at the twenty-first meeting of the Conference, the President asked that consideration be give to the suggestions of the Secretariat to the text of the draft convention. As there was some discussion as to the availability of texts in various languages and some protest as to the Secretariat’s suggestions, the President moved that a drafting committee be established, consisting of Belgium, China, France, Pakistan, Spain, the Ukrainian Soviet Socialist Republic, the United Kingdom and the Union of Soviet Socialist Republics, to “solely deal with matters of

21

22

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Eleventh Meeting, 21 August 1956, UN Doc E/CONF.24/SR.11, 14 November 1958, pp. 2–5. Id., p. 5.

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style”.23 With regard to Article 5, the Secretariat had suggested that instead of “the phrase ‘. . . dependent upon such other person . . .’ say: ‘. . . dependent upon him’ ” and in the “penultimate line instead of ‘. . . or being party’ say: and to being a party’ ”.24 At the twenty-second meeting, Article 5 was put to a vote at second reading; there having been no amendments proposed, was adopted by thirty-nine votes in favour, none against, and one abstention.25 The Style Committee established by the President presented its report to the Conference at its twenty-fourth and final meeting. The Draft Supplementary Convention as amended by the Style Committee was adopted by forty votes in favour, none opposed and three abstentions. Where Article 5 was concerned, the suggestions made by the Secretariat were incorporated into the text while the article was renumbered as Article 6. Thus the final version of Article 6 of the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery reads: 1. The act of enslaving another person or of inducing another person to give himself or a person dependent upon him into slavery, or of attempting these acts, or being accessory thereto, or being a party to a conspiracy to accomplish any such acts, shall be a criminal offence under the laws of the States Parties to this Convention and persons convicted thereof shall be liable to punishment. 2. Subject to the provisions of the introductory paragraph of article 1 of this Convention, the provisions of paragraph 1 of the present article shall also apply to the act of inducing another person to place himself or a person dependent upon him into the servile status resulting from any of the

23

24

25

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Twenty-First Meeting, 31 August 1956, UN Doc E/CONF.24/SR.21, 20 November 1958, p. 11. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices similar to Slavery, Second Reading: Suggestions by the Secretariat, UN Doc E/CONF.24/L.37, 30 August 1956, p. 3. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Twenty-Second Meeting, 31 August 1956, UN Doc E/CONF.24/SR.22, 20 November 1958, p. 10.

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institutions or practices mentioned in article 1, to any attempt to perform such acts, to being accessory thereto, and to being a party to a conspiracy to accomplish any such acts.

iv. Commentary on the Provisions of Article 6 of the Supplementary Convention Much of the discussions during the negotiation process with regard to what would become Article 6 of the 1956 Supplementary Convention revolved around the inclusion of the word ‘accessory’; as to whether this term, typical in Anglo-American law, would best convey the meaning as to those implicated in enslavement and thus transcend the common law. While this was settled in the affirmative, what was rather more interesting was a proposal by the Egyptian Delegation to criminalise those that would willingly give themselves into slavery as a “form of corrective punishment such as would constitute a lesson to others”. Clearer heads, however, prevailed as the French Representative, Mr. Giraud, stated that people who gave themselves into slavery “were in most cases the victims of circumstance or of their own weakness. To punish them would be unfair”. A further item worth mentioning with regard to the drafting process of Article 6 of the Supplementary Convention was that the Belgian Representative, Mr. Somerhausen, pointed out an inconsistency between Articles 1 and 5: Article 1 required all States Parties to abolish slavery but the obligation was qualified by the word ‘progressively’ and other terms; article 5, on the other hand, did not allow for any lapse of time. That meant that the States Parties would, for the purpose of giving effect to article 5, be under an immediate duty to punish persons who induced others to submit to practices similar to slavery, whereas under the particular municipal law such acts would not yet be punishable offences.

This apparent anomaly was rectified by reference, in Article 6(2) of the introductory paragraph of Article 1 which mentions obligations which States Parties undertook under the Convention. Finally, rather interestingly, consideration was given as to whether the provisions of Article 6 extended jurisdiction to being universal in scope. The Norwegian Representative, Mr. Cappelen, indicated that both provisions of what would become Article 6 of the Supplementary Convention and those related to mutilation seemed to imply that States Parties

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“must punish the acts mentioned in [those articles] even if they had been committed on the territory of another State. He felt that that was not the intention of those who had drafted the article”. The Norwegian Representative asked if the United Nations legal representative might be able to answer this question. Mr. Schwelb stated that he had “attended the meetings of the drafting Committee and “no one had considered that a State party to the convention would be under the obligation to punish acts committed outside its territory by persons who were not their nationals”. In essence, Mr. Schwelb stated that it was never considered, with regard to the Convention, that a criminal act committed in “State A by a national of State B should be punished by State C”; or that the laws of State C would not apply to “acts committed in the territories of State A and B, unless the offender was a national of State C”. Thus, under the Convention, it was understood, that States retained the power to criminalise acts of their own nationals abroad, but that jurisdiction did not extend to acts committed abroad by non-nationals. In other words, that the 1956 Convention was very much an instrument of municipal criminal law and did not extend to universal jurisdiction.

Article 7 (Definition) For the purposes of the present Convention: (a) “Slavery” means, as defined in the Slavery Convention of 1926, the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, and “slave” means a person in such condition or status; (b) “A person of servile status” means a person in the condition or status resulting from any of the institutions or practices mentioned in article 1 of this Convention; (c) “Slave trade” means and includes all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging him; all acts of disposal by sale of exchange of a person acquired with a view to being sold or exchanged; and, in general, every act of trade or transport in slaves by whatever means of conveyance.

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On the basis of Economic and Social Council Resolution 475, the United Nations Secretary-General was requested, in April 1953, to hold consultations with States, both members and non-members of the UN Organisation, as to the desirability of establishing an instrument supplementing the 1926 Convention.1 In April 1954, the United Kingdom using as its basis the recommendations of the 1950–51 Ad Hoc Committee on Slavery had put forward a draft convention which did not include an article related to definitions.2 However, in proposing a supplementary convention the issues of its ratione materiae was evident from the very beginning of the negotiation process, wherein the Ad Hoc Committee on Slavery had “proceeded to attempt to prepare a definition of slavery and other institutions or customs resembling slavery”. It was not until the ninth meeting of the United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, that the Portuguese Representative, Mr. Nogueira, stated that he thought that it would be better to incorporate into the “draft convention as a separate article” definitions. The three items defined in Article 7 of the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery will now be considered. They are ‘Slavery’, ‘A Person of Servile Status’, and ‘Slave Trade’.

a) Slavery i. 1954 British Draft Convention The following is the recommendation which the 1950–51 Ad Hoc Committee on Slavery made with regard to the definition of ‘slavery’: “that the definition of slavery [. . .] contained in Article 1 of the International Slavery Convention of 1926 should continue to be accepted as [an] accurate and adequate” international definition of that term. The 1951 Report of the

1 2

See Economic and Social Council, Resolution 475 (XV), 27 April 1953. See Economic and Social Council, Slavery: Consultations Concerning the Desirability of a Supplementary Convention on Slavery and its Possible Contents, UN Doc. E/2540/ Add.4, 12 April 1954.

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Ad Hoc Committee on Slavery provided more details into the thinking which went into this recommendation: The Committee found that the rather loose present-day usage of the term ‘slavery’, that characterizes not only the most recent studies of the subject, but also much of its discussion during the last hundred years or so, arises in part from the fact that the nature of the institution, the conditions which surround it, and the public attitudes towards it, are undergoing constant change.

The Committee then went on to consider how slavery by the 1950s was, for the most part, clandestine; how “public opinion is now almost universally with the agencies appointed to enforce the laws”. It noted that much had improved with regard to the suppression of slavery since the 1926 Convention, however, “the task of suppression has not yet been fully met” as causes such as war, famine, and economic change “still threaten in many places the right of individuals to dispose of their own person”. The Committee continued: In seeking a definition of slavery which would meet present-day requirements the Committee turned first to the definition contained in the International Slavery Convention of 1926. In Article 1 of that instrument slavery is defined as ‘the status or condition of a person over whom any or all the powers attached to the right of ownership are exercised’. Feeling that perhaps that definition might be improved in the light of modern thinking, the Committee took cognizance of the debates on slavery which have occurred in the United Nations in recent years, particularity in relation to the drafting of Article 4 of the Universal Declaration of Human Rights; of many suggestions put forward by interested organizations and outstanding authorities on the subject, past and present; and the Report of the International Commission of Enquiry into the Existence of Slavery and Forced Labour in Liberia of 1930. It agreed with the conclusion reached by that International Commission, that slavery is so various in its forms that it hardly admits of a strict definition and that there is little prospect of formulating a definition of it which will be so precise and comprehensive as to embrace all types of servitude in all societies. As a result of its examination of this question, the Committee decided that there is not sufficient reason for discarding or amending the definition of slavery contained in Article 1 of the International Slavery Convention of 1926. It agreed therefore to recommend that this definition should continue to be accepted as an accurate and adequate definition of the term.3

3

Economic and Social Council, Report of the Ad Hoc Committee on Slavery (Second Session), UN Doc. E/1988, E/AC.33/13, 4 May 1951, pp. 5–7.

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The Committee, after having noted the 1926 Convention definition of the slave trade stated that it felt that “it was questionable whether these definitions embrace all the types of servile status the abolition of which, in its opinion, should be promoted by the United Nations”. After considering debt bondage, forced marriage, and child exploitations as types of servile status, it was noted that: Some members of the Committee expressed the opinion that the three forms of servitude described above fall within the definition of slavery contained in Article 1 of the International Slavery Convention of 1926. Others pointed out that these forms of servile status could not have been present in the minds of all the governments that signed the Slavery Convention of 1926, and that therefore it would be more reasonable, both on legal and practical grounds, to consider these forms of servitude as involving a ‘status analogous to slavery’.4

In 1951, the United Nations Secretary-General was asked to consider the Report of the 1950–51 Ad Hoc Committee and to indicate what action the United Nations “could most appropriately take in order to achieve the elimination of slavery, the slave trade and forms of servitude resembling slavery in their effects”.5 The Secretary-General reported back to the Economic and Social Committee in 1953, and included in his Report a section entitled “Examination of the Problem of Definitions”. In that section the Secretary-General notes the definitions found in Article 1 of the 1926 Slavery Convention as well as the list of servitudes noted by the 1950–51 Ad Hoc Committee on Slavery (re: debt bondage, serfdom, forced marriage and child exploitation). The Secretary-General then stated: It will be noted that in preparing the above list the ad hoc Committee raised, but did not answer, the question whether or not the institutions or practices described above fall within the scope of the definitions contained in the International Slavery Convention of 1926. In this connexion it will be recalled that at the time of the preparation of the International Slavery Convention of 1926, the question was examined whether certain conditions analogous to slavery should be considered as covered by the Convention. As interpretation, contained in the Report of the Rapporteur of the Sixth Committee to the 1926 Assembly of the League, was accepted by the Assembly as the authoritative commentary on the provisions of the Convention. In this interpretation the Rapporteur stated that reference to domestic slavery and similar conditions was omitted:

4 5

Id., p. 10. Economic and Social Council, Resolution 388 (XIII), 10 September 1951.

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because it was believed that such conditions came within the definition of slavery contained in the first article and that no further prohibition of them in express terms was necessary. This applies not only to domestic slavery but to all those conditions mentioned by the Temporary Slavery Commission . . . i.e., ‘debt slavery’, the enslaving of persons disguised as the adoption of children, and the acquisition of girls by purchase disguised as payment of dowry, etc. Even if, as is possible, these last practices do not come under the definition of slavery as it is given in Article 1, the Commission is unanimously of the opinion that they must be combated. In a more general way, it interprets Article 2 as tending to bring about the disappearance from written legislation or from the custom of the country of everything which admits the maintenance by a private individual of rights over another person of the same nature as the rights which an individual can have over things. It would appear from a study of the International Slavery Convention of 1926, and of the preparatory work leading to its adoption, that the obligations of the Parties therefore extended to all institutions or practices, whether or not designated as ‘slavery’, provided that, as stated in Article 1 of the Convention, ‘any or all of the powers attaching to the right of ownership are exercised’ over a person in these institutions or practices.

At this point, in his Report to the Economic and Social Committee, the Secretary-General provides an extended footnote, which reads: One does not find in the travaux préparatoires of the International Slavery Convention of 1926 any precise indication of the meaning of the ‘power attaching to the right of ownership’ to which the drafters of that Convention intended to refer, or of the legal system by which they were guided. In the absence of such an indication, it may reasonably be assumed that the basic concept which they had in mind was that of the authority of the master over the slave in Roman law, the ‘dominica potestas’. This authority was of an absolute nature, comparable to the rights of ownership, which included the right to acquire, to use, or to dispose of a thing or of an animal or of its fruits or offspring. By virtue of this right, in its most general form the master could utilise the services of the slave in his house or on his land. The children of the slave also belonged to the master, and he could sell them separately from their mother and father. As a result of the evolution of Roman law, the authority of the master over the slave was subjected successively to more and more limitations; but even though it was restricted, the master never had towards his slave the obligations that an employer has today towards his servant or employee. This seems to have been the guiding concept in Geneva, as is apparent from the following quotation of a governmental communication [re: Union of South Africa] to the League of Nations in 1926 (League of Nations document A.10(a), 1926.VI., pp. 5–6):

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a person is a slave if any other person can, by law or enforceable custom, claim such property in him as would be claimed if he were an inanimate object; and thus the natural freedom of will possessed by a person to offer or render his labour or to control the fruits thereof or the consideration therefrom is taken from him. The term also seems to imply a permanent status or condition of a person whose natural freedom is taken away, for from the proprietary interest of the other person in the person to whom that status attaches is implied a right of disposal of sale, gift or exchange. If the above interpretation is correct, the characteristics of the various powers attaching to the ‘right of ownership’, referred to in Article 1 of the International Slavery Convention of 1926, may be described as follows: 1. the individual of servile status may be made the object of a purchase; 2. the master may use the individual of servile status, and in particular his capacity to work, in an absolute manner, without any restriction other than that which might be expressly provided by law; 3. the products of labour of the individual of servile status become the property of the master without any compensation commensurate to the value of the labour; 4. the ownership of the individual of servile status can be transferred to another person; 5. the servile status is permanent, that is to say, it cannot be terminated by the will of the individual subject to it; 6. the servile status is transmitted ipso facto to descendants of the individual having such status.

With this, the extended footnote comes to an end. Returning to the text, the Secretary-General then bringing his analysis to an end: If this conclusion is correct, an examination of the institutions and practices described by the ad hoc Committee on Slavery (see paragraph 34 of this Report) indicates that in the main these institutions or practices are covered by the undertaking contained in Article 2(b) of the International Slavery Convention of 1926, interpreted in the light of the definition of slavery contained in Article 1(1) of the same Convention. The possible exceptions are some of the institutions or practise described under (b) [under the heading of serfdom] and (c) [“the practice whereby an individual or group of individuals who, being obliged by customary or other law, to perform services for another individual, or for the collectivity, with or without financial consideration, cannot terminate those services of their own free will].6

6

United Nations Economic and Social Council, Slavery, the Slave Trade, and other forms

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1956 United Nations Supplementary Convention

When the United Kingdom Government put forward its Draft Convention in 1954, it made no comment either on the recommendations of the Ad Hoc Committee or the Report of the Secretary-General. Recalling that, in fact, a definition of ‘slavery’ was not included in the 1954 British Draft Convention, it is somewhat surprising to see one State, Burma, compelled to speak to the issue in its comments on the 1954 British Draft Convention. The Government of Burma noted that: The Convention, after it has come into force, will give the contracting parties the right to seize and punish persons for the commission of acts of ‘slavery’. Further it will also impose a duty upon the parties to suppress such acts as ‘slavery’ and ‘servitude’. However, the Government of the Union of Burma has its doubts as to whether there could be any authoritative definition of international law on slavery; i.e. slavery under the ‘law of nations’. To clarify further, the customs, usage and municipal laws of one state may, according to its own standard, denominate and punish as ‘slavery’ numerous acts, which may not constitute ‘slavery’ under the ‘laws of nations’ or by another’s standard, and which therefore may not be of universal cognizance so as to be made punishable by all nations. As analogous situation will also arise in the case of ‘piracy’.7

ii. 1956 Draft Supplementary Convention on Slavery and Servitude ARTICLE 3 [. . .] (d) In this article “slave” means any person over whom any or all powers attaching to the right of ownership are exercised and includes any person intended to be dealt with as a slave.8

7

8

of Servitude (Report of the Secretary-General), UN Doc. E/2357, 27 January 1953, pp. 26–28. Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude Submitted by the Government of the United Kingdom and Comments Thereon (Memorandum by the Secretary-General), UN Doc. E/AC.43/L.1, 2 December 1955, p. 13. Economic and Social Council, Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, UN Doc. 2824, Annex I, 15 February 1956.

Article 7 (Definition)

499

When the 1956 ad hoc Committee of the Economic and Social Council moved to draft a supplementary convention, the inclusion of a definition of ‘slavery’ formed part of the discussions regarding the suppression of the slave trade on the high seas as manifest in Article 2 of the 1954 British Draft Convention, and what would become Article 3 of both the 1956 Economic and Social Council Draft Supplementary Convention and the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery. During the drafting process, the Representative of the United Kingdom put forward two revised texts dealing with the slave trade at sea. During discussions of the first revised draft, the Representative of the Netherlands, Mr. Schiff, suggested for the first time that it “might be advisable, in view of the fact that word ‘slave’ was not used in any earlier provisions of the draft convention, to incorporate a paragraph (d) containing a definition of the term”.9 At the fourteenth meeting, on second revised draft by the United Kingdom was put forward; this draft having developed “on the basis of the observations which had been made in the Committee”,10 and thus included the following provision at paragraph (d); In this Article ‘slave’ means any person over whom any or all powers attaching to the right of ownership are exercised and includes any person intended to be dealt with as a slave.11

While discussions continued during the Fifteenth Meeting, at the next session, “there was general agreement that the problems raised by the article called for further study; and as such the a drafting committee, consisting of the representatives of France, India, the USSR, the United Kingdom and Yugoslavia (as Chair) were “appointed to prepare a draft

9

10

11

Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Fifth Meeting, 18 January 1956 UN Doc. E/AC.43/SR.5, 10 February 1956, p. 5. Economic and Social Council, Slavery: Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery: Report of the Committee appointed by Resolution 564 (XIX), 7 April 1955, UN Doc. E/2824, 15 February 1956, p. 29. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, United Kingdom of Great Britain and Northern Ireland: Amendment to Article 2 of the Draft Convention on Slavery and Servitude (E/2540/Add.4), UN Doc. E/AC.43/L.6/Rev.1, 24 January 1956.

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of the article for consideration of the full Committee”.12 The Drafting Committee submitted a “tentative draft”, noting that “[w]ords and phrases on which there was no agreement in the drafting Committee, and which were supported only by some members of the Committee are put in square brackets”.13 The provisions of paragraph (d) found themselves in such square brackets. The following is the verbatim discussion which transpired during the Eighteenth Meeting of the ad hoc drafting Committee, wherein paragraph (d) of what was to become Article 3 of the Draft Convention was adopted: Mr. NIKOLAV (Union of Soviet Socialist Republics) pointed out that paragraph (d) was logically unacceptable. It restated the definition of slavery in article 1 of the 1926 Convention and then added another element; that amounted to stating that slavery plus something else. Moreover, as the United Kingdom representative had said, there was no need to repeat what was already included in the 1926 Convention. It was essential, as the French Representative had pointed out, to avoid verbal inflation. The Soviet delegation therefore proposed the deletion of paragraph (d). Mr. SCOTT-FOX (United Kingdom) pointed out that the 1926 Convention defined slavery, but not a slave. He was surprised that the USSR representative, who usually maintained that the provisions of the draft convention were too restrictive, was objecting to the last sentence of the paragraph; the purpose of that sentence was to protect victims of a slave raid over whom the raiders did not yet exercise right of ownership. Mr. BOZOVIC (Yugoslavia) said that he was not satisfied with those explanations. The persons concerned were implicitly referred to in article 1, paragraph 2, of the 1926 Convention. Moreover, in defining slavery, that Convention also defined a slave. Paragraph (d) was adopted by 5 votes to 4 with 1 abstention.14

12

13

14

Economic and Social Council, Slavery: Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery: Report of the Committee appointed by Resolution 564 (XIX), 7 April 1955, UN Doc. E/2824, 15 February 1956, p. 30. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Report of the Drafting Committee on Article 2, UN Doc. E/AC.43/L.37, 30 January 1956, p. 1. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Eighteenth Meeting, 29 August 1956, UN Doc. E/CONF.24/SR.18, 19 November 1958, p. 16.

Article 7 (Definition)

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iii. 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery ARTICLE 7 For the purposes of the present Convention: (a) “Slavery” means, as defined in the Slavery Convention of 1926, the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, and “slave” means a person in such condition or status;15[. . .]

At the ninth meeting of the UN Conference drafting the Supplementary Convention, discussions regarding the definition of ‘slavery’ first emerge as part of the consideration related Article 4 of the 1956 Draft Supplementary Convention touching on ‘person of servile status’. The British Representative, Mr. Scott-Fox, had suggested modifying that article so as to read that slavery be considered “within the meaning of the 1926 Convention”. This was proposed “so as to make it clear that the provisions of article 4 applied to chattel slaves as well as persons covered by article 1 of the draft supplementary convention”.16 The Representative of the Philippines, Mr. Lopez, for his part “was unable to see the reason for the United Kingdom amendment”; in his view, “Article 3(d), which was similar in nature to article 4(b), had been included in the draft supplementary convention precisely because no definition had been provided in the 1926 Convention”. Mr. Scott-Fox making the distinction between

15

16

United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Final Act and Supplementary Convention, 4 September 1956, UN Doc. E/CONF.24/23. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Ninth Meeting, 23 January 1956 UN Doc. E/AC.43/SR.9, 17 February 1956, p. 2.

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‘slave’ and ‘slavery’ responded that “while it was true that no definition of the word ‘slave’ had been included in the 1926 Convention article 1 of that Convention did contain a definition of slavery”.17 Mr. Lopez then “suggested that instead of referring to the 1926 Convention it might be better to replace the phrase given in the United Kingdom amendment by the phrase ‘within the meaning of article 3(d) of this Convention’ ”.18 At this point, the President of the Conference interjected saying that Article 3 had yet to be decided and asked if the Representative of the Philippines – who was the Chairman of the Working Party on Article 3 – wished to “present his suggestions as a sub-amendment to the United Kingdom amendment”.19 Mr. Lopez said that he would, but only if the United Kingdom Representative thought it useful, to which Mr. Scott-Fox replied: “even if article 3(d)” – which it will be recalled reads: In this article “slave” means any person over whom any or all powers attaching to the right of ownership are exercised and includes any person intended to be dealt with as a slave – “were retained, his delegation would feel that the United Kingdom amendment was the more concise way of dealing with the point”.20 The President once more took the floor, asking if the United Kingdom would present its proposed amendment in writing. While Mr. Scott-Fox had followed the President’s suggestion and drafted an amendment which read: “Insert after the word ‘slave’ in line one of the words ‘within the meaning of the 1926 Slavery Convention”;21 the United Kingdom Representative, withdrew it from consideration at the Tenth Meeting,22 in favour of a Portuguese proposal which sought to subsume the definition of slavery within that of ‘person of servile status’. The Portuguese proposal read:

17 18 19 20 21 22

Id. Id., p. 3. Id. Id. Id. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Tenth Meeting, 21 August 1956, UN Doc. E/CONF.24/SR.10, 14 November 1958, p. 5.

Article 7 (Definition)

503

Delete paragraph (d) of article 3 and paragraph (b) of article 4 and insert a new article after article 5 reading as follows: For the purpose of this Convention, ‘person of servile status’ means any slave within the meaning of the 1926 Slavery Convention or any person who has a status resulting from any of the institutions or practices mentioned in article 1 of the present Convention.23

For her part, Miss. Lunsingh-Meijer of the Netherlands “asked why the phrase ‘and includes any person intended to be dealt with as a slave’ in article 3(d) had been omitted from the Portuguese amendment. Mr. Nogueira did not answer the question directly, instead explaining that as Article 3 was still under discussion, that there “should be no difficulty in adopting the Portuguese amendments and amending them again at the second reading to make them consistent with the final draft of article 3”.24 This Portuguese proposal that the amendments be adopted was not accepted, as the Representative of the United Kingdom instead turned to an earlier Indian suggestion that “the vote on the Portuguese amendments be deferred until it was more possible to see the general shape of the draft convention”.25 This Mr. Nogueira accepted and the vote on his amendments was thus deferred. At the eighteenth meeting, Mr. Nogueira, acknowledging a proposal being put forward by the Representative of Pakistan which sought to establish a new article, meant solely for definitions, stating that if that proposal was accepted “he would withdraw the Portuguese proposal”.26 With regard to the definition of slavery, the Pakistan proposal read as follows:

23

24

25 26

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Portugal: Amendments to Articles 3 and 4 and Proposal for a New Article, UN Doc. E/CONF.24/L.14, 21 August 1956. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Tenth Meeting, 21 August 1956, UN Doc. E/CONF.24/SR.10, 14 November 1958, p. 5. Id. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Eighteenth Meeting, 29 August 1956, UN Doc. E/CONF.24/SR.18, 19 November 1958, p. 10.

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Delete paragraph (b) of article 4, insert the following as article 1 and renumber present articles 1, 2, etc. as articles 2, 3, etc. For the purpose of the present Convention, the following definitions are agreed upon: (a) Slave means any person over whom any or all of the powers attaching to the right of ownership are exercised and includes a person intended to be dealt with as a slave; (b) Slavery is the status or condition of a person mentioned in paragraph (a) above; [. . .]27

Consideration of this proposal in the first instance was manifest in a number of short comments by delegates. The Belgium Representative, Mr. Somerhause “observed that according to sub-paragraph (b) and (d) [which read: Servitude is the status of a slave or of a person of servile status]28 a slave would have two kinds of status, the status of slavery and the status of servitude”.29 Mr. Apollon, the Representative of Haiti, “pointed out that some of the terms were self-defining”. Finally, the Israeli Representative, Mr. Kahany, “asked what was the precise meaning of the expression ‘person intended to be dealt with as a slave’. If the reference was to a person taken captive such person ought no doubt to be regarded as a slave”.30 In response to these queries, the Representative of Pakistan, Mr. Jafri stated the following: that he had not drafted any new definitions but had merely used those in article 1 of the 1926 Convention and in the draft supplementary convention. Objections had been raised to the addition to the phrase “and includes any person intended to be dealt with as a slave” in paragraph (a) of the Pakistan

27

28 29

30

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Pakistan: Proposal for a New Article, UN Doc. E/CONF.24/L.31, 28 August 1956. Id. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Eighteenth Meeting, 29 August 1956, UN Doc. E/CONF.24/SR.18, 19 November 1958, p. 10. Id.

Article 7 (Definition)

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proposal, but that had been drawn from the original text of article 3(d) in the draft supplementary convention. He agreed with the Israel representative that the expression was not very happy; it had been adversely criticized in the 1956 ad hoc Committee. While the latter had none the less agreed to retain it, it had probably been for want of a better alternative. The meaning was quite clear: the phrase covered persons who had not yet been given the status of slaves, but had just been captured or bought, were in transit to the slave markets and required the same protection as actual slaves. He would be glad to substitute any better expression. The word “servitude” had been used in paragraph (d) to cover both slavery and the institutions and practices similar to slavery defined in article 1 of the draft supplementary convention. If, however, the word “servitude” no longer appeared in the final draft of the other articles, the paragraph might well be deleted at the second reading. When the Conference had been discussing the original draft of article 3(d) the Philippine representative had stated at one stage that the definition therein could be incorporated directly in the definitions clause because it had given rise to no dispute. If doubts had now arisen about the scope of the word “intended” an amendment might be proposed, since the definition had now to be placed in the context of slavery and the slave trade.31

Following the comments made by Mr. Jafri, the representatives of Canada and France made comments specific to definition of slavery: Mr. JAY (Canada) remarked that if an article on definitions needed to be so comprehensive it would be less dangerous to adhere more closely to accepted definitions. The wording of the first paragraph should therefore be identical with article 1 paragraph 1 of the 1926 Convention defining slavery. Paragraph (b) might then be drafted to the effect that a slave was a person in the status or condition described in paragraph (a) or a person victim of the slave trade as defined below. The word “intended” has been used to protect persons in transit towards the slave market; any ambiguities would be removed by redrafting in the way that he has suggested. [. . .].32 Mr. GIRAUD (France) considered sub-paragraph (b) redundant. There was no point in giving a definition of “slavery” as well as a definition of “slave”. The tautology of sub-paragraph (c) could be obviated by deleting the word “servile” at the end of the first line.

31 32

Id. Id., p. 11.

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1956 United Nations Supplementary Convention

Since only drafting changes were at issue, he proposed that a sub-committee be set up to revise the drafting of the various definitions in the Pakistan amendment.33

For his part, the Representative of Turkey, Mr. Tuncel, “agreed that paragraph (a) and (d) might best be cleared up by a small informal drafting committee”. The President of the Conference, having “observed that no objections of substance had been raised against the Pakistan proposal, merely criticism of drafting”; called for the establishment of an “informal drafting committee composed of the representatives of Belgium, Cuba, France, Pakistan and Portugal [. . .] to revise the Pakistan text and report back to the Conference at the next meeting”.34 That Committee recommended that the Conference adopted a text which included the following provisions touching on the definition of slavery: For the purpose of the present Convention: (a) “Slavery” means the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised. (b) “Slave” means a person in the condition or status defined in (a) above.[. . .].35

At the nineteenth meeting of the Conference, the President invited the Pakistan Representative, Mr. Jafri to introduce the report of the Drafting Committee on Definitions and the new article proposed. Mr. Jafri said that: The Committee had reversed the order of paragraphs (a) and (b) of the Pakistan proposal in order to follow as closely as possible the definitions given in the 1926 Slavery Convention.

33 34 35

Id. Id., p. 12. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Report of the Drafting Committee on Definitions, UN Doc. E/CONF.24/L.33, 29 August 1956.

Article 7 (Definition)

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[. . .] The Drafting Committee had also decided to omit the definition of “servitude” since the word no longer appeared in any article of the draft supplementary convention.36

The Representative of Turkey, Mr. Tuncel, felt that no changes should be made to the definitions already laid down in the 1926 Convention and that if “necessary, a reference should merely be made to those definitions instead of laying them down as a new definition. He then turned to specific provisions of the draft article, stating that paragraph (a): Reproduced word for word a definition in the 1926 Convention without acknowledging the fact. The text should at least make it clear that it was repeating the definition in the 1926 Convention; that itself would show that the new convention was a continuation of the earlier one. That point could be met merely by adding the words “as defined in the 1926 Convention”. Sub-paragraph (b) of the new draft article consisted of the definition of a term not defined in the 1926 Convention, and the Turkish delegation had no objection to it.37

The Israeli Representative, Mr. Kahany, supported “the Turkish representative’s suggestion that the words “as defined in the 1926 Convention” be inserted in sub-paragraph (a) after the words “Slavery . . .”;38 while the French and Canadian representatives saw things otherwise. Mr. Giraud of France stated that: In his opinion, clauses duplicating those in the 1926 Convention should be retained in the supplementary convention. The two conventions were quite independent of one another, since the contracting parties would not be the same in both cases. It would be somewhat improper for parties to the supplementary convention who were not also parties to the 1926 Convention to be obliged to refer to the provisions of the latter. Moreover, it would be more convenient not to have to refer to another text.39

36

37 38 39

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Nineteenth Meeting, 29 August 1956, UN Doc. E/CONF.24/SR.19, 19 November 1958, p. 17. Id., p. 18. Id., p. 19. Id., p. 20.

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The Canadian Representative, Mr. Jay, for his part: felt that there was a fundamental difference between the 1926 Slavery Convention and the convention now before the Conference since the latter in no way prohibited slavery as such. His delegation would therefore support any useful amendment which would link the two instruments and reaffirm the point that slavery must be abolished. Nevertheless, much as he sympathized with the reasons which had prompted the representative of Israel to suggest that it would be a great stride forward if the States which acceded to the new convention would also accede, if they had not already done so, to the 1926 Slavery Convention, he could not support his proposal. He thought that the interests of universality might be better served in practice if the question of signature and accession to the two instruments was kept separate.40

In response, Mr. Kahany, the Representative of Israel, stated that he “did not see how the addition of the words ‘as defined in the 1926 Convention’ would in any way create an obligation for parties to the supplementary convention to be also parties to the 1926 Convention”. The draft convention already contained two references to the 1926 Convention which had not so far occasioned any objections. If the addition in question were adopted, the Israel delegation would prepare to withdraw its proposal in favour of the French delegation’s proposal that the Final Act of the Conference should include a recommendation to States to accede to the 1926 Convention if they had not already done so.41

Mr. Lopez, the Representative of Philippines, emphasised the point made by the Israeli Representative, noting “that the preamble to the draft supplementary convention contained two references to the 1926 Convention”.42 The President of the Conference put the Turkish amendment, proposed by Israel, to a vote, wherein it was adopted by a vote of five for, two against, and twenty-one abstentions.43 Beyond this amendment, the Representative of the Philippines, Mr. Lopez, “suggested that the definition of ‘slavery’ and ‘slave’ should appear in one paragraph worded as follows”:

40 41 42 43

Id. Id., p. 21. Id. Id.

Article 7 (Definition)

509

‘Slavery’ means the status or condition or a person over whom any or all of the powers attaching to the right of ownership are exercised, and ‘slave’ means a person in such a condition or status.44

Mr. Jafri, the Representative of Pakistan, looked upon this amendment with favour stating that he “was ready to accept the suggestion of the Philippines representative that paragraph (a) and (b) of the proposed new article should be combined”.45 These amendments were thus incorporated in the text and adopted at second reading; and later adopted at third reading without modification as: For the purpose of the present Convention: (a) “Slavery” means, as defined in the Slavery Convention of 1926, the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, and “slave” means a person in such condition or status; [. . .]46

iv. Commentary on the Article 7(a) of the 1956 Supplementary Convention The introduction of the definition of ‘slavery’ in Article 7 of the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery as a reproducing of the definition, verbatim, from 1926 Slavery Convention means that any attempt to interpret ‘slavery’ in light of travaux préparatoires must extend from the 1925 British Draft Protocol till the end of the 1956 United Nations Conference of Plenipotentiaries which negotiated the Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery. For consideration of the definition as established in the 1926 Slavery Convention, reference should be made to the travaux préparatoires of Article 1(1) of that instrument. With regard to the negotiation history of the provisions of Article 7(a) during the United

44 45 46

Id., p. 19. Id., pp. 20–21. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Text of Articles of the Supplementary Convention adopted on First Reading, UN Doc. E/CONF.24/14, 30 August 1956.

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Nations era, it should be emphasised that a definition was not included in the 1954 British Draft Convention. Yet the 1926 definition slavery was unpacked by the 1950–51 Ad Hoc Committee on Slavery, which “proceeded to attempt to prepare a definition of slavery and other institutions or customs resembling slavery”.47 After consideration by the Committee, which had thought that the definition “might be improved in light of modern thinking” it was “decided that there is not sufficient reason for discarding or amending the definition of slavery contained in Article 1 of the International Slavery Convention of 1926”. Thus, the 1950–51 Ad Hoc Committee recommended that the 1926 definition “should continue to be accepted as an accurate and adequate definition of the term”.48 When, in 1954 the United Kingdom put forward a draft Convention, no definition or mention of the 1926 Slavery Convention beyond the preamble was made; yet, the Anti-Slavery Society, in considering the provisions of Article 1 of the British Draft related to the applicability of the proposed convention where servitudes were concerned, proposed the following be added to the end of the first paragraph which read: “All practicable and necessary measures, including legislation where appropriate, shall be taken to bring about, progressively and as soon as possible, the complete abolition or abandonment of the following institutions and practices, where they still exist”: and whether or not they are embraced by the definitions of slavery and slave trade contained in the Slavery Convention of 1926.49

This was being put forward as a proposal, as the UN Secretary-General commented in his Memorandum meant to assist the 1956 Ad Hoc Committee of the Economic and Social Council tasked with drafting a text of the supplementary convention, as the “possibility of differing opinions as to the precise scope of these definitions would thus be recognized”.50

47

48

49

50

Economic and Social Council, Report of the Ad Hoc Committee on Slavery (Second Session), UN Doc. E/1988, E/AC.33/13, 4 May 1951, p. 5. Economic and Social Council, Report of the Ad Hoc Committee on Slavery (Second Session), UN Doc. E/1988, E/AC.33/13, 4 May 1951, pp. 5–7. Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude Submitted by the Government of the United Kingdom and Comments Thereon (Memorandum by the Secretary-General), UN Doc. E/AC.43/L.1, 2 December 1955, pp. 21–22. Id., p. 22.

Article 7 (Definition)

511

It was instead with regard to the provisions of Article 3 regarding the right to visit at sea that the Dutch Representative had noted that it might be advisable to include a definition of a ‘slave’. As a result of this, the British Representative on the Committee on the Drafting of a Supplementary Convention on Slavery and Servitude proposed a definition which integrated the substance of the 1926 definition of slavery: In this Article ‘slave’ means any person over whom any or all powers attaching to the right of ownership are exercised and includes any person intended to be dealt with as a slave.51

This proposal was considered by the Representative of the Soviet Union, as being “logically unacceptable”. He explained: It restated the definition of slavery in article 1 of the 1926 Convention and then added another element; that amounted to stating slavery plus something else. Moreover, as the United Kingdom representative had said, there was no need to repeat what was already included in the 1926 Convention. It was essential, as the French Representative had pointed out, to avoid verbal inflation.52

The British proposal was accepted by the Drafting Committee, but during the 1956 Conference the Portuguese Representative sought to subsume the definition of slavery within a larger definition of ‘person of servile status’; yet this did not take place as that proposal was withdrawn in light of a Pakistan proposal that an article be devoted specifically to definitions and include definitions of: slave, slavery, person of servile status, servitude, and slave trade.53 When asked what the precise meaning of ‘person intended

51

52

53

Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, United Kingdom of Great Britain and Northern Ireland: Amendment to Article 2 of the Draft Convention on Slavery and Servitude (E/2540/Add.4), UN Doc. E/AC.43/L.6/Rev.1, 24 January 1956. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Eighteenth Meeting, 29 August 1956, UN Doc. E/CONF.24/SR.18, 19 November 1958, p. 16. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Pakistan: Proposal for a New Article, UN Doc. E/CONF.24/L.31, 28 August 1956.

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to be dealt with as a slave”, Mr. Jafri, the Pakistani Representative, said the “meaning was quite clear: the phrase covered persons who had not yet been given the status of slaves, but had just been captured or bought, were in transit to the slave markets and required the same protection as actual slaves. He would be glad to substitute any better expression”.54 A drafting committee was then formed which revised the Pakistani text so that it now read: (a) “Slavery” means the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised. (b) “Slave” means a person in the condition or status defined in (a) above.[. . .].55

Finally, the Representative of the Philippines suggested that these two definitions be amalgamated and as a result Article 7(a) of the Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery reads: For the purpose of the present Convention: (a) “Slavery” means, as defined in the Slavery Convention of 1926, the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, and “slave” means a person in such condition or status; [. . .]56

54 55

56

Id. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Report of the Drafting Committee on Definitions, UN Doc. E/CONF.24/L.33, 29 August 1956. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Text of Articles of the Supplementary Convention adopted on First Reading, UN Doc. E/CONF.24/14, 30 August 1956.

Article 7 (Definition)

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b) A Person of Servile Status i. 1954 British Draft Convention Although the term ‘person of servile status’ would emerge later in the drafting process, the Ad Hoc Committee on Slavery sought to make the distinction between slavery and the slave trade on the one hand and various types of servile statuses on the other. It will be recalled that the Committee, after considering the ‘definitions of slavery’ and the ‘slave trade’ went on to say that “it was questionable whether these definitions embrace all the types of servile status the abolition of which, in its opinion, should be promoted by the United Nations”. It continued: It took note of information received from many sources which indicated that other forms of servitude, in addition to slavery and the slave trade, existed to a considerable extent in many portions of the world. When it attempted to define these forms of servitude, it discovered that a great deal of confusion had arisen because different names were applied to these practices in different regions of the world, and even in different countries. It therefore discarded the existing nomenclature for the time being, and instead attempted to describe these forms of servitude be reference to their particular characteristics.57

For its part, the United Kingdom, beyond considering the individual provisions of Article 1 of its 1954 Draft Convention, had the following to say about servile statuses: first, that “Her Majesty’s Government agree that the practices of debt bondage and serfdom [. . .] should be subjects of the Supplementary Convention; and second, that “Her Majesty’s Government are firmly convinced of the necessity of abolishing as early as possible the practices whereby the persons of women and children are dispoed of without their consent”.58 The UN Secretary-General, it should be noted, in considering the provisions of Article 3 of the British Draft Convention touching upon the mutilation or branding, which reads:

57

58

Economic and Social Council, Report of the Ad Hoc Committee on Slavery (Second Session), UN Doc. E/1988, E/AC.33/13, 4 May 1951, p. 8. See Economic and Social Council, Slavery: Consultations concerning the Desirability of a Supplementary Convention on Slavery and its Possible Contents, UN Doc. E/2540/Add.1, 3 March 1954, pp. 2 and 3.

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In a country where the abolition of servile status is not yet complete, any person who mutilates, brands or otherwise marks another person to indicate that status, and any person accessory to such an act, shall be guilty of a criminal offence and liable to punishment.59

He asked “whether the term ‘servile status’ may be interpreted as equivalent to ‘serfdom’, as defined in Article 1(b) of the draft convention, or whether it covers slavery as defined in the 1926 Convention, or both”. The Secretary-General then went to suggest that “the relevant provision of Article 3 might be reworded as follows: In a country where the abolition of slavery or of the institutions or practices mentioned in Article 1 of the Convention is not yet complete, any person who mutilates, brands or otherwise marks another person to indicate that status of slavery or the condition arising from either of those institutions or practices, and any person accessory to such an act, shall be guilty of a criminal offence and liable to punishment.60

ii. 1956 Draft Supplementary Convention on Slavery and Servitude ARTICLE 4 [. . .] (b) In this article “person of servile status” means any slave or any person who has a servile status resulting from any of the institutions or practices mentioned in Article 1 of this Convention.61

59

60

61

See Economic and Social Council, Slavery: Consultations Concerning the Desirability of a Supplementary Convention on Slavery and its Possible Contents, UN Doc. E/2540/Add.4, 12 April 1954. Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude Submitted by the Government of the United Kingdom and Comments Thereon (Memorandum by the Secretary-General), UN Doc. E/AC.43/L.1, 2 December 1955, p. 32. Economic and Social Council, Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, UN Doc. 2824, Annex I, 15 February 1956.

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The definition of ‘person of servile status’ first appears when considering Article 3 of the 1954 British Draft Convention which reads: In a country where the abolition of servile status is not yet complete, any person who mutilates, brands or otherwise marks another person to indicate that status, and any person accessory to such an act, shall be guilty of a criminal offence and liable to punishment.62

During the fourth meeting, the Representative of France, Mr. Giraud, stated that he felt that any amendments to that article should be made not on the basis of the above text, but “the text suggested by the SecretaryGeneral, which was clearer and more precise”. The text referred to was the one the UN Secretary-General put forward in his 1955 Memorandum in which he proposed that the term ‘servile status’ be replaced by the term “slavery or any of the institutions or practices mentioned in Article 1 of the Convention”.63 At the twelfth meeting, the French proposal was considered, wherein Mr. Scott-Fox, the Representative of the United Kingdom, said “that the expression used in the French proposal described very aptly the term ‘servile status’ which had been used in the United Kingdom proposal. While he preferred his own text to the long and elaborate French proposal, he had no objection to adopting the latter if that was the feeling of the Committee”. For his part, the French Representative, Mr. Giraud “observed that it was somewhat confusing to use the term ‘servile status’ to refer collectively to slavery and to analogous institutions”.64 While the French proposal was adopted by a vote of four in favour, one against and five abstentions, the United Kingdom Representative sought to deal with an oversight with regard to the provisions of Article 3 unrelated to the definition of ‘person of servile status’ (re: castration) and would thus put forward a revised text to the next meeting. At the thirteenth meeting, Mr. Scott-Fox, having incorporated the changes, put forward a redrafted text 62

63

64

See Economic and Social Council, Slavery: Consultations Concerning the Desirability of a Supplementary Convention on Slavery and its Possible Contents, UN Doc. E/2540/Add.4, 12 April 1954. Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude Submitted by the Government of the United Kingdom and Comments Thereon (Memorandum by the Secretary-General), UN Doc. E/AC.43/L.1, 2 December 1955, p. 32. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Twelfth Meeting, 24 January 1956, UN Doc. E/AC.43/SR.12, 20 February 1956, p. 9.

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of his proposal saying that the “changes made were purely formal, the article now consisting of two paragraphs”; paragraph (b) reading: In this Article ‘person of servile status’ means any slave or any person who has a servile status resulting from any of the institutions or practices mentioned in Article 1 of this Convention.65

The revised text put forward by the United Kingdom was adopted unanimously and without comment at the start of the next Meeting.66

iii. 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery ARTICLE 7 For the purposes of the present Convention: [. . .] (b) “A person of servile status” means a person in the condition or status resulting from any of the institutions or practices mentioned in article 1 of this Convention;67 [. . .]

At the ninth meeting of the 1956 UN Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Article 4 of the Economic and Social Council Draft Supplementary Convention was considered. Mr. Scott-Fox of the United Kingdom started the discussion by

65

66

67

Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, United Kingdom of Great Britain and Northern Ireland: Suggested redraft of Article 5, UN Doc. E/AC.43/L.31/Rev.1, 25 January 1956. See Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Fourteenth Meeting, 25 January 1956, UN Doc. E/AC.43/SR.14, 29 February 1956, p. 3. United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Final Act and Supplementary Convention, 4 September 1956, UN Doc. E/CONF.24/23.

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suggesting “that the words ‘within the meaning of the 1926 Convention should be inserted between the words ‘slave’ and ‘or any person’ in article 4(b)” which, it will be recalled, reads as follows: ‘In this article “person of servile status” means any slave or any person who has a servile status resulting from any of the institutions or practices mentioned in Article 1 of this Convention’. The proposal was being put forward “so as to make it clear that the provisions of article 4 applied to chattel slaves as well as persons covered by article 1 of the draft supplementary convention”.68 The Egyptian Representative, Mr. Abdel-Ghani, for his part “suggested that the same purpose might be achieved without reference to the 1926 Convention if the words ‘slavery or from’ were inserted after the words ‘resulting from’, so as to make it clear that the main cause of servile status was slavery proper”; while the Representative of the Philippines, Mr. Lopez, “was unable to see the reason for the United Kingdom amendment”, as “Article 3(d), which was similar in nature to article 4(b), had been included in the draft supplementary convention precisely because no definition had been provided in the 1926 Convention”.69 At this point, the discussion veered away from a servile status towards a consideration of ‘slavery’, but for the statement by the Portuguese Representative, Mr. Nogueira, who “thought that since the definition given in article 4(b) related also to several other articles, it would be better to incorporate it in the draft convention as a separate article. When the President of the Conference asked that the United Kingdom Representative put his proposal in writing, the Canadian Representative, Mr. Jay, noted that Mr. Nogueira’s “proposal also merited written presentation”.70 At the following meeting, the President asked that the Portuguese proposal, which constituted the introduction of a new article, amending articles 3 and 4, be considered. That proposal read: Delete paragraph (d) of article 3 and paragraph (b) of article 4 and insert a new article after article 5 reading as follows: For the purpose of this Convention, ‘person of servile status’ means any slave within the meaning of the 1926 Slavery Convention or any person

68

69 70

Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Ninth Meeting, 23 January 1956 UN Doc. E/AC.43/SR.9, 17 February 1956, p. 2. Id. Id., p. 3.

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who has a status resulting from any of the institutions or practices mention in article 1 of the present Convention.71

The discussion which ensued was led by the Chinese Representative, Mr. Tsao, who “suggested that, for the sake of consistency, the phrase “Slavery Convention of 1926” should be substituted for “1926 Slavery Convention”.72 It was then followed by remarks by the French Representative, Mr. Giraud, who was in favour of the Portuguese proposal, in principle, but wondered whether, “the definition of servile status should be contained in a new article, as the “expression ‘person of servile status’ only appeared in article 4 of the draft convention” yet needed to be defined. The President of the Conference asked that this French suggestion be considered later in the drafting process, while the Representative of the United Kingdom supported an earlier Indian suggestion that “the vote on the Portuguese amendments be deferred until it was more possible to see the general shape of the draft convention”.73 This was accepted by the Portuguese Representative, Mr. Nogueira, and the vote on his amendments was thus deferred until the eighteenth meeting when the Portuguese Representative acknowledged a counter-proposal put forward by Pakistan and stated that if that proposal was accepted “he would withdraw the Portuguese proposal”.74 With regard to the definition of a person of servile status, the Pakistan proposal reads: Delete paragraph (b) of article 4, insert the following as article 1 and renumber present articles 1, 2, etc. as articles 2, 3, etc. For the purpose of the present Convention, the following definitions are agreed upon:

71

72

73 74

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Portugal: Amendments to Articles 3 and 4 and Proposal for a New Article, UN Doc. E/CONF.24/L.14, 21 August 1956. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Tenth Meeting, 21 August 1956, UN Doc. E/CONF.24/SR.10, 14 November 1958, p. 5. Id. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Eighteenth Meeting, 29 August 1956, UN Doc. E/CONF.24/SR.18, 19 November 1958, p. 10.

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[. . .] (c) Person of servile status means any slave or any person who has a servile status resulting from any of the institutions or practices mentioned in article 3 [present article 2] of this Convention; (d) Servitude is the status of a slave or of a person of servile status; [. . .]75

Mr. Jay, the Canadian Representative, commenting on the draft stated that the word “servitude” no longer appeared in the draft articles adopted at the first reading, so that paragraph (d) might be omitted.76 For his part, Mr. Tuncel, the Representative of Turkey, agreed that paragraphs (a) and (d) which, in essence, defined slavery as both slavery and servitude “might best be cleared up by a small informal drafting committee”; something which the French Representative in fact proposed.77 The President of the Conference “observed that no objections of substance had been raised against the Pakistan proposal, merely criticism of drafting” and, as such, established a “drafting committee composed of the representatives of Belgium, Cuba, France, Pakistan and Portugal” and asked that it “revise the Pakistan text and report back to the Conference”.78 At the next meeting, the Committee recommended that the Conference adopt a text which included the following provisions touching on servile status: For the purpose of the present Convention: [. . .] (c) “Servile status” means the condition or status resulting from any of the institutions or practices mentioned in article 1 of this Convention; [. . .]79

75

76

77 78 79

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Pakistan: Proposal for a New Article, UN Doc. E/CONF.24/L.31, 28 August 1956. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Eighteenth Meeting, 29 August 1956, UN Doc. E/CONF.24/SR.18, 19 November 1958, p. 11. Id. Id., p. 12. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Report of the Drafting Committee on Definitions, UN Doc. E/CONF.24/L.33, 29 August 1956.

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Also at the nineteenth meeting of the Conference, the President invited the Pakistan Representative, Mr. Jafri, to introduce the report of the Drafting Committee on Definitions and the new article proposed: With regard to the definition of ‘servile status’, the Drafting Committee had decided that the definition should be confined to the narrow meaning of that term and had rejected that suggestion made by the Pakistan delegation at an earlier meeting that it should also include slavery. The Drafting Committee had also decided to omit the definition of ‘servitude’ since the word no longer appeared in any article of the draft supplementary convention. [. . .] Drawing attention to the consequential amendment to article 4 which the Drafting Committee had recommended in view of the definition of the term “servile status” in paragraph (c) of the new article, he pointed out that article 4 would have remained unchanged had “servile status” been defined in accordance with his own earlier suggestion.80

In considering this new article, the Representative of Turkey, Mr. Tuncel, stated that he “felt that no changes should be made to the definitions already laid down in the 1926 Convention and that if “necessary, a reference should merely be made to those definitions instead of laying them down as a new definition”. He noted that: there was no harm in including a new definition in sub-paragraph c), but the Turkish delegation was not fully satisfied with the term “servile status”, which might cover other cases of slavery over and above all the special cases enumerated in article 1 of the supplementary convention. The Turkish delegation would therefore like a better term to be found, e.g. a phrase such as “condition similar to slavery”.81

Mr. Lopez, the Representative of Philippines, “pointed out that article 5 contained a definition of the term ‘servile status’ and that it was unnecessary for that term to be defined again in the proposed new article, and vice versa.”82 In response, Mr. Jafri, the Representative of Pakistan, stated that

80

81 82

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Nineteenth Meeting, 29 August 1956, UN Doc. E/CONF.24/SR.19, 19 November 1958, p. 17. Id., p. 18. Id., p. 19.

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he “agreed that there had been some duplication and therefore suggested that the term “a person of servile status” should be defined in the new article as meaning a person in the condition or status resulting from any of the institutions or practices mentioned in article 1 of the Convention, and that article 5 should be amended accordingly”.83 When the overall Article was put to a vote – which was adopted by a vote of thirty-six in favour, none opposed and three abstentions, the President pointed out “that by accepting the new article, representatives would automatically agree to consequential changes being made to article 4”.84 The provisions thus adopted at first reading – and later accepted at second reading without change – were the following: For the purpose of the present Convention: [. . .] (b) “A person of servile status” means a person in the condition or status resulting from any of the institutions or practices mentioned in article 1 of this Convention;85

iv. Commentary on the Article 7(b) of the 1956 Supplementary Convention In establishing a definition of ‘Person of Servile Status’ at Article 7(b) 1956 Convention, the drafters limited the scope of servitudes to those four mentioned in Article 1: debt bondage, serfdom, forced marriage, child exploitation. While the 1950–51 Ad Hoc Committee on Slavery had sought to define “all types of servile status”, and proposed five types, only four were retained. Thus what did not find its way into the 1954 British Draft Convention, or for that matter, into the actual 1956 Convention was:

83 84 85

Id., pp. 20–21. Id., p. 22. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Text of Articles of the Supplementary Convention adopted on First Reading, UN Doc. E/CONF.24/14, 30 August 1956.

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the practice whereby an individual or groups of individuals who, being obliged by customary or other law, to perform services for another individual, or the collectivity, with or without financial consideration, cannot terminate those services of their own will.86

The United Kingdom justified the omission of this provision on the basis of duplication of work, saying that Her Majesty’s Government “believe that the practices which this section describes are, rather than slavery, either a form of forced labour, which would more appropriately be dealt with as such by the International Labour Organisation, or kinds of civic obligations which are generally accepted and in no way resemble slavery in their effects”.87 The notion of ‘servile status’ emerged during the discussions of the Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, in regard to draft Article 3 of the 1954 British Draft Convention as it spoke of the ‘abolition of servile status’ with regard to a provision meant to outlaw the indication of status through mutilation. As originally conceived servile status was to include not only servitudes, but rather oddly also slavery. This was manifest by a proposal by the United Kingdom that ‘person of servile status’ means any slave or any person who has a servile status resulting from any of the institutions or practices mention in Article 1 of this Convention” which was adopted by the Committee as part of the 1956 Draft Convention. Odd because slavery was already defined by the 1926 Convention which had attached to it specific obligations. By including slavery in the definition of ‘servile status’, the 1956 Convention would have lifted the concept from the 1926 Convention and incorporated it into its own provisions and obligations. At the 1956 United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, this issue was rectified by a small drafting committee which came back to the Conference with a proposal defining ‘servile status’ as “the condition or status resulting from any of the institutions or practices mentioned in article 1 of this Conven-

86

87

Economic and Social Council, Report of the Ad Hoc Committee on Slavery (Second Session), UN Doc. E/1988, E/AC.33/13, 4 May 1951, p. 20. Economic and Social Council, Slavery: Consultations concerning the Desirability of a Supplementary Convention on Slavery and its Possible Contents, UN Doc. E/2540/ Add.1, 3 March 1954, p. 3.

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tion”. That same Committee rejected a Pakistani proposal that ‘servitude’, defined as “the status of a slave or of a person of servile status” be included in the Convention. The Committee stated “that the definition should be confined to the narrow meaning of that term and had rejected that suggestion made by the Pakistan delegation at an earlier meeting that it should also include slavery”. The Committee “also decided to omit the definition of ‘servitude’ since the word no longer appeared in any article”.88 This notion of ‘servile status’, was then redrafted so that the definition covered, in its final manifestation: ‘a person of servile status’.

c) Slave Trade i. 1954 British Draft Convention Where the definition of the slave trade is concerned, the Ad Hoc Committee on Slavery, on whose proposal the 1954 British Draft Convention was based, made the following recommendation which also touched on the definition of slavery: “that the definition of slavery and the slave trade contained in Article 1 of the International Slavery Convention of 1926 should continue to be accepted as accurate and adequate international definitions of those terms”.89 In its Report, the Committee simply stated that as with the definition of ‘slave trade’ in the 1926 Slavery Convention, it “found no reason to discard or to amend the definition contained in paragraph 2 of Article 1 of the same convention, which is as follows”: The slave trade includes all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging him; all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged, and, in general, every act of trade or transport in slaves.90

88

89

90

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Nineteenth Meeting, 29 August 1956, UN Doc. E/CONF.24/SR.19, 19 November 1958, p. 17. Economic and Social Council, Report of the Ad Hoc Committee on Slavery (Second Session), UN Doc. E/1988, E/AC.33/13, 4 May 1951, p. 19. Id., p. 8.

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ii. 1956 Draft Supplementary Convention on Slavery and Servitude No discussion took place regarding a definition of ‘slave trade’ during the sessions of the Committee on the Drafting of a Supplementary Convention on Slavery and Servitude.

iii. 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery ARTICLE 7 For the purposes of the present Convention: [. . .] (c) “Slave trade” means and includes all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging him; all acts of disposal by sale of exchange of a person acquired with a view to being sold or exchanged; and, in general, every act of trade or transport in slaves by whatever means of conveyance.91

It was only at the eighteenth meeting of the Conference that a definition of the ‘slave trade’ was introduced and considered on the basis of a proposal put forward by Pakistan of a new article setting out definitions, which read inter alia: Delete paragraph (b) of article 4, insert the following as article 1 and renumber present articles 1, 2, etc. as articles 2, 3, etc. For the purpose of the present Convention, the following definitions are agreed upon: [. . .] (e) Slave trade means and includes all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery;

91

United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Final Act and Supplementary Convention, 4 September 1956, UN Doc. E/CONF.24/23.

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all acts involved in the acquisition of a slave with a view to selling or exchanging him; all acts of disposal by sale of exchange of a person acquired with a view to being sold or exchanged; and, in general, every act of trade or transport in slaves, whether by land, sea or air.92

In considering these provisions, Mr. Tuncel, the Representative of Turkey, said there “was some objection to paragraph (e) as it now stood. It reproduced article 1 paragraph 2 of the 1926 Convention, which covered the slave trade on the national territory and within territorial waters”. He continued: In the draft adopted for article 3 of the supplementary convention at first reading that text had been extended to cover the conveyance of slaves by air and sea without specifying whether the sea was the territorial sea or the high seas. The new draft of the definitions clause should therefore include at an appropriate place words making it clear that the slave trade by air or by the high seas was also covered by the draft convention under consideration.93

As the President of the Conference, “observed that no objections of substance had been raised against the Pakistan proposal, merely criticism of drafting”; he established an “informal drafting committee composed of the representatives of Belgium, Cuba, France, Pakistan and Portugal” and asked that they might “revise the Pakistan text and report back to the Conference at the next meeting”.94 The Committee prepared a Report for the next meeting in which it recommended that the Conference adopt a text which “bore in mind the Canadian representative’s remarks” thus “included the phrase “all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged”.95 The new provisions thus reads:

92

93

94 95

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Pakistan: Proposal for a New Article, UN Doc. E/CONF.24/L.31, 28 August 1956. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Eighteenth Meeting, 29 August 1956, UN Doc. E/CONF.24/SR.18, 19 November 1958, p. 11. Id., p. 12. Id., p. 17.

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For the purpose of the present Convention: [. . .] (d) Slave trade means and includes all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging him; all acts of disposal by sale of exchange of a person acquired with a view to being sold or exchanged; and, in general, every act of trade or transport in slaves, whether by land, sea or air”.96

In introducing the Report of the Drafting Committee on Definitions at the Nineteenth Meeting, the Pakistan Representative, Mr. Jafri, also sought to address the Turkish Representative’s objections to the provisions on the slave trade: Referring to the Turkish representative’s observations on the question of the transport of slaves, he pointed out that the Drafting Committee had included in the new article the wording suggested by Pakistan, viz. “whether by land, sea or air”.97

This did not prove satisfactory to the Representative of Turkey, as he felt that generally no changes should be made to the definitions already laid down in the 1926 Convention and that if “necessary, a reference should merely be made to those definitions instead of laying them down as a new definition”. Despite this and having commented on other provisions of the draft put forward by Drafting Committee on Definitions, Mr. Tuncel, then turned to the provisions concerning the slave trade, saying: He had much more serious objections to the definition in sub-paragraph (d), which was an amended version of a text in the 1926 Convention. A clear distinction should be drawn between the slave trade within national territory and in the territorial waters, on the one hand, and transport of slaves on the high seas or in the air, on the other; but the draft definition did not make it clear that such transport was in fact meant. Since it wished to clarify the text and lay more emphasis on this new factor, i.e.

96

97

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Report of the Drafting Committee on Definitions, UN Doc. E/CONF.24/L.33, 29 August 1956. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Nineteenth Meeting, 29 August 1956, UN Doc. E/CONF.24/SR.19, 19 November 1958, p. 17.

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transport of slaves on the high seas and in the air, the Turkish delegation proposed that the deletion of the words “sea or air” and the words “trade or”. Those words related to matters already covered by the 1926 Convention which was still in force. It was necessary to avoid giving the impression that it was intended to replace that Convention, even partially.98

Mr. Lopez, the Representative of the Philippines, for his part, felt that: too much emphasis should not be laid on the fact that the definition of the term “slave trade” differed from that which appeared in the 1926 Slavery Convention. He could not therefore agree with the Turkish representative’s remarks in that connexion. He recognised that the 1926 Slavery Convention and the convention now before the Conference would overlap to a certain extent, but pointed out that the latter could be implemented without any reference to the earlier Convention and should not therefore be regarded as a supplementary convention. He therefore urged the representative of Israel and Turkey not to insist on their amendments.99

The Representative of Israel, Mr. Kahany, stated that “Israeli delegation had no very strong views on sub-paragraph (d). In its opinion the text would be equally satisfactory after the proposed deletions and it would be desirable that a somewhat closer approach to the 1926 definition be made”.100 In response to the proposed amendment put forward by Turkey in regard to the last line of paragraph (d), the Representative of Pakistan, Mr. Jafri, stated that “he felt that it would be a retrograde step to refer only to the transport of slaves by land. The Drafting Committee had used the term “transport of slaves whether by land, sea or air” in order to include all kinds of transport”.101 At this juncture, Mr. Padmanabhan, the Representative of India suggested that: the last line of paragraph (d) should be amended to read “by whatever means of transport”, a phrase which had been suggested by the Working Group on Article 3, and adopted by the Conference.102

This suggestion was agreed to unanimously by the Conference, though the wording of the Working Group on Article 3 spoke of the “act of

98 99 100 101 102

Id., p. 18. Id., p. 19. Id. Id., p. 21. Id.

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conveying or attempting to convey slaves from one country to another by whatever means of transport”.103 The Summary Records however, do not reveal what transpired, as the provisions regarding the slave trade adopted at first reading – reproduced below – do not included the phrase ‘by what ever means of transport’ but instead speak of ‘by whatever means of conveyance’. The provision accepted at first reading remained unaltered at second reading and thus the following is the provision which appears in the 1956 Supplementary Convention. For the purpose of the present Convention: [. . .] (c) “Slave trade” means and includes all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging him; all acts of disposal by sale of exchange of a person acquired with a view to being sold or exchanged; and, in general, every act of trade or transport in slaves by whatever means of conveyance.104

iv. Commentary on Article 7(c) of the 1956 Supplementary Convention The definition of ‘slave trade’ which is incorporated in Article 7(c) of the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery differs in an insignificant manner from the definition found in Article 1(2) of the 1926 Slavery Convention. For its part the 1950–51 Ad Hoc Committee had accepted that definition as an “accurate and adequate” international definition. Where modification did take place was as a result of the fear that the slave trade might not only take place on land and at sea, but might also

103

104

See Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Articles of the Supplementary Convention adopted at First Reading, UN Doc. E/CONF.24/L.29/Add.1, 28 August 1956. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Text of Articles of the Supplementary Convention adopted on First Reading, UN Doc. E/CONF.24/14, 30 August 1956.

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transpire by air. As there had been objections to the inclusion of a clause at the end of the definition which read ‘whether by land, sea or air’; the Indian Delegation proposal that the term ‘by whatever means of transport’ be used instead. This was modified so that the final definition of ‘slave trade’ included in the 1956 Convention includes, as its final clause the following: ‘by whatever means of conveyance’.

Article 8 (Cooperation and Communication) 1. The States Parties to this Convention undertake to co-operate with each other and with the United Nations to give effect to the foregoing provisions. 2. The Parties undertake to communicate to the Secretary-General of the United Nations copies of any laws, regulations and administrative measures enacted or put into effect to implement the provisions of this Convention. 3. The Secretary-General shall communicate the information received under paragraph 2 of this article to the other Parties and to the Economic and Social Council as part of the documentation for any discussion which the Council might undertake with a view to making further recommendations for the abolition of slavery, the slave trade or the institutions and practices which are the subject of this Convention.

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i. 1954 British Draft Convention ARTICLE 6 The contracting parties undertake to co-operate with each other to give effect to the forgoing provisions, and to communicate to each other through the Secretary-General of the United Nations copies of any laws and regulations enacted to implement the provisions of this Convention.1

In 1953, the Economic and Social Council had requested the United Nations Secretary-General to consult with States as to the desirability of a supplementary convention touching on issues of slavery and its possible content.2 In April 1954, the United Kingdom, using as its basis the recommendations of the 1950–51 Ad Hoc Committee on Slavery, put forward a draft convention.3 The basis of what would become Article 8 of the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery is found in Article 6 of that 1954 British Draft Convention. With regard to the provisions of Article 6, the United Kingdom commented on the following two recommendations made by the Ad Hoc Committee on Slavery, one with regard to reporting, the other concerning cooperation: Each Contracting State should undertake to transmit an annual report to the Secretary-General of the United Nations on the application of this convention. Each Contracting State should undertake to co-operate with the United Nations and any agency created within the framework of the United Nations

1

2 3

Economic and Social Council, Slavery: Consultations Concerning the Desirability of a Supplementary Convention on Slavery and its Possible Contents, UN Doc E/2540/Add.4, 12 April 1954, p. 4. See Economic and Social Council, Resolution 475 (XV), 27 April 1953. See Economic and Social Council, Slavery: Consultations Concerning the Desirability of a Supplementary Convention on Slavery and its Possible Contents, UN Doc E/2540/Add.4, 12 April 1954.

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for the purpose of bringing about the abolition of slavery and other forms of servitude.4

With regard to the recommendation on reporting to the UN SecretaryGeneral, the United Kingdom stated the following: Her Majesty’s Government agree that the exchange of information between States members of this Convention could serve a useful purpose and that such exchange could best be affected through the Secretary-General of the United Nations. They do not, however, feel that it would be desirable in this connexion to depart from the provisions of the 1926 Convention.

Where cooperation and ‘any agency created’ was concerned, the 1950–51 Ad Hoc Committee on Slavery had stated that it: felt that the creation of international supervisory machinery for the abolition of slavery and other forms of servitude was urgent and should be undertaken immediately. It decided that a standing body of experts on slavery would be the most practical type of organization to undertake the tasks which it envisioned for such a body.[ . . .] The Committee expressed the view that an appropriate secretariat should be assigned to provide the administrative and substantive services which such a body would require.5

The Committee went so far as to outline the tasks that such a supervisory body might perform if it was established: 1. to examine the information communicated to the United Nations in accordance with the terms of any United Nations convention on slavery; 2. to study the working of any laws, regulations, or administrative measures that may have been adopted by any of the Member States to carry out or to make effective the terms of their obligations under the conventions; 3. to appoint commissioners or to set up special commissions to co-operate with the governments concerned in the study and evaluation of such measures; 4. to study and make recommendations to the Economic and Social Council on social and economic measures which might be taken by governments to correct abuses of debtor-creditor and landlord-tenant relationships which have resulted, or are liable to result, in slavery or other forms of servitude;

4

5

United Nations Economic and Social Council, Report of the Ad Hoc Committee on Slavery (Second Session), UN Doc E/1998, E/AC.33/13, 4 May 1951, p. 20. Id., 17.

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5. to work out and supervise a programme of education designed to correct a social outlook that justifies the existence of slavery and other forms of servitudes; 6. to report on its activities to the Council at least once a year.6

For its part, the United Kingdom took another view: Her Majesty’s Government also agree that the Parties should undertake to co-operate with one another, but do not believe it would be appropriate to include in this Convention a general undertaking to co-operate with any agency which may be created, in advance of its creation.7

Later that same month of April, 1954, the Economic and Social Council invited States to submit comments on the British Draft Convention.8 While no comments from States were received with regard to Article 6, some comments were provided by the United Nations Secretary-General, as he: Draw attention to the fact that the Article, like Article 7 of the 1926 Convention, provides for exchange of information by the Contracting Parties inter se only. Moreover, as in Article 7 of the 1926 Convention, the information to be communicated is restricted to laws and regulations. The question arises whether such information should not also be transmitted periodically to the Economic and Social Council. The question also arises whether the information to be transmitted should not cover, in addition to the de jure situation, the de facto situation resulting from the ‘practicable and necessary measures, including legislation when appropriate’, taken in accordance with Article 1 of the draft convention.9

6 7

8 9

Id., 25. See Economic and Social Council, Slavery: Consultations concerning the Desirability of a Supplementary Convention on Slavery and its Possible Contents, UN Doc E/2540/Add.1, 3 March 1954, p. 3. See Economic and Social Council, Resolution 525 (XVII), 29 April 1954. Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude Submitted by the Government of the United Kingdom and Comments Thereon (Memorandum by the Secretary-General), UN Doc E/AC.43/L.1, 2 December 1955, p. 35.

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ii. 1956 Draft Supplementary Convention on Slavery and Servitude ARTICLE 6 1. The States Parties to this Convention undertake to co-operate with each other to give effect to the foregoing provisions. 2. The Parties undertake to communicate to the Secretary-General of the United Nations copies of any laws, regulations and administrative measures enacted or put into effect to implement the provisions of this Convention. 3. The Secretary-General shall communicate this information to the other Parties and to the Economic and Social Council as part of the documentation for any discussion which the Council might undertake with a view to making further recommendations for the abolition of slavery, the slave trade or the institutions and practices which are the subject of this Convention.10

The Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, established by the United Nations Economic and Social Council, met in Geneva from 16 January to 6 February 1956 and considered the provisions of Article 6 of the British Draft Convention for the first time at its fourth session, where non-governmental organisations were give the opportunity to present their comments. Mr. Greenidge of the Anti-Slavery Society stated that: Article 6 was [ . . .] too restrictive. It was not enough for information to be exchanged among contracting parties; the convention would remain a dead letter if the information were not communicated to the United Nations also. Moreover, the information should cover not only laws and regulations, but all administrative practices. The experience of the League of Nations had proved conclusive in that respect.11

10

11

Economic and Social Council, Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, UN Doc. 2824, Annex I, 15 February 1956. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Fourth Meeting, 17 January 1956, UN Doc. E/AC.43/SR.4, 9 February 1956, p. 4.

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Mr. Thormann of the International Federation of Christian Trade Unions for his part stated that his Federation “also considered article 6 should be amended on the lines indicated by the Secretary-General of the Anti-Slavery Society, to provide expressly that information should be transmitted to the United Nations and should cover administrative measures as well as laws and regulations”.12 After the comments of the various non-governmental organisations, Mr. Rajan, the Indian Representative stated, with regard to Article 6, that he “thought that the scope of the article should be widened in order to make communications of administrative measures compulsory”. The Chairman of the drafting Committee, Mr. Cutts, asked Mr. Rajan to submit his proposal in writing.13 At the thirteenth meeting of the drafting Committee, consideration turned to the Indian proposed amendment which reads: Replace the present text of Article 6 by the following: The Contracting Parties undertake to co-operate with each other to give effect to the foregoing provisions and to communicate to each other through the Secretary-General of the United Nations, as well as to the Economic and Social Council, copies of any laws, regulations and administrative measures enacted or put into effect to implement the provisions of this Convention.14

Mr. Kaul of India introduced the amendment, saying that: The texts to be communicated should include not only laws and regulations, but administrative decisions, since administrative measures were one of the means by which the convention would be put into effect. They should be communicated not merely to the contracting parties, but also to the Economic and Social Council so that it should be in a position to take appropriate action where necessary. Mr. NIKOLAEV (Union of Soviet Socialist Republics) said he would vote for the Indian amendment.

12 13 14

Id., p. 6. Id., p. 9. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, India: amendment to article 6 of the Draft Convention on the Abolition of Slavery and Servitude (E/2540/Add.4), UN Doc. E/AC.43/L.12, 17 January 1956.

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Mr. SCOTT-FOX (United Kingdom) agreed with the Indian representative on the desirability of transmitting information with regard to administrative measures. On the other hand, while he recognized that the Economic and Social Council was directly concerned with the question of slavery, he thought it was for the Secretary-General to collate the information transmitted by the contracting parties and to submit it to the Council in a suitable form. He feared that the Council might feel obliged to institute a debate each time the text was communicated to it, whereas its proper course would be to make a periodic examination of the whole subject of slavery on the basis of the information submitted and of the other information available to the Secretary-General. At all events, its function in the matter should be clearly defined. Mr. KAUL (India) agreed that the Council should undertake periodic examinations of the communications it received. The CHAIRMAN [Mr. Cutts], speaking as the representative of Australia, offered no objection to the part of the Indian amendment relating to administrative decisions. He found it difficult, however, to accept the remainder. As all the members of the Economic and Social Council would not necessarily be contracting parties the amendment might have the effect of compelling some of the contracting parties to report to States which had assumed no obligations under the convention. He agreed, however, that the Economic and Social Council was concerned with the question of slavery, and accordingly suggested that the Indian amendment should be modified by deleting the words ‘and to communicate to each other through the Secretary-General of the United Nations’ by substituting the words ‘Secretary-General of the United Nations’, for the words ‘Economic and Social Council’ and by adding the following sentence to the end of the article: The Secretary-General will transmit such information to all other Contracting Parties and make it available to the Economic and Social Council.’ Mr. ABDEL-GHANI (Egypt) approved of both parts of the Indian amendment. He recalled that all United Nations convention dealing with human rights provided for some form of control. Under the draft covenant on economic, social and cultural rights, the Contracting States undertook to submit reports to the Economic and Social Council and to any specialized agency concerned. The draft covenant on civil and political rights provided for control by a committee whose members were elected by the International Court of Justice. The Office of the United Nations High Commissioner for Refugees submitted annual reports to the General Assembly and the Economic and Social Council concerning

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the application of the Convention related to the Status of Refugees. Lastly, the Secretary-General submitted an annual report to the General Assembly on the application of the Convention on the Political Rights of Women. The Committee should follow those precedents and state in the convention that the Contracting Parties should transmit to the Council copies of the texts mentioned in the Indian amendment. It would, indeed, be preferable to give the Council even wider powers and oblige the Contracting Parties also to communicate to it information on the current situation with their territories as regards slavery and similar practices. While it was for the Economic and Social Council itself to consider that important question, the Committee could at least make a recommendation to the Council on the subject. Mr. NIKOLAEV (Union of Soviet Socialist Republics) regretted that proposals had been made to change the Indian amendment. In his view, the convention should form part of the United Nations system and should be organically connected to it. The Committee itself was composed only of representatives of Member States and had been created by an Economic and Social Council resolution. It has been suggested that a committee of experts should be set up to supervise the application of the convention. Such a suggestion was premature at the present stage, but the need for a control organ could not be denied. That organ could be only the Economic and Social Council itself. The Secretary-General should merely transmit the reports and should not analyse them. The Council would have a wide range of effective methods at its disposal. It would breathe life into the convention and enable it to grow. Mr. GIRAUD (France) remarked that the Indian amendment differed appreciably from the original text. He agreed that information should be transmitted to the Economic and Social Council through the SecretaryGeneral, provided that the latter merely communicated documents and did not submit reports. However, he doubted the need for control machinery. The precedents cited by the Egyptian representative did not appear to be conclusive. Thus, the reason the High Commissioner for Refugees was obliged to submit reports was that his office was subordinate to the General Assembly. As far as the covenants on human rights were concerned, they were still in the draft stage. He warned the Committee against affording the opportunity of making unjustified accusations and of engaging in polemics for political motives alien to the effective carrying out of the Convention. The control of the Convention should be free of political influence and should therefore be exercised principally by the International Court of Justice. Mr. SCOTT-FOX (United Kingdom) shared the Chairman’s views and proposed, in order to make the article still clearer, the addition of the following

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passage to the text suggested by the Chairman: ‘as part of the documentation for any discussion on slavery and the institutions and practices referred to in this Convention’. Mr. APUNTE (Ecuador) said that, while he had no objection to the submission of information on the administrative measures taken by the Contracting States to give effect to the convention, he did not think it useful to add the text suggested by the United Kingdom representative. Like the French representative, he feared that the establishment of extensive control might open the door to all kinds of abuse. For example, the information transmitted to the Economic and Social Council might be used as a basis for unjustified attacks on countries with insufficiently developed minorities which, for lack of economic resources, had been so far unable to eliminate completely some practices which would come within the scope of the convention. With that in mind his delegation, together with the Egyptian and Indian representatives, had submitted an amendment to the preamble of the draft convention because it considered that, in order to eliminate those practices, legislative instruments and measures were not sufficient without an improvement in the people’s cultural, economic and social conditions.15 By the inclusion of such a provision his delegation did not wish to attack the Latin-American countries whose vestiges of the colonial past still persist. He urged the adoption of the original text of article 6 as it appeared in the United Kingdom draft. Mr. BOZOVIC (Yugoslavia), Rapporteur, said that he had always been in favour of constructive international control. It was necessary to determine which States had been guilty of violations, but that was not enough. It was also necessary to consider why such States had not carried out the necessary reforms and how the international community could assist them in so doing. The report of the Contracting Parties should be transmitted to the Economic and Social Council though the Secretary-General. The Council should not condemn a guilty State but come to its aid. His delegation therefore supported the Indian amendment. The forms of words suggested by the

15

The proposed amendment to the preamble reads: Recognizing further that progress on the elimination of slavery and similar forms of servitude depends not only on international conventions but also, to a great extent, on concerted measures for economic, social and cultural advancement and on international co-operation towards this end. See Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Ecuador, Egypt and India: Amendment to the title and preamble of the Draft Convention on the Abolition of Slavery and Servitude proposed by the United Kingdom (E/AC.43/L.18), UN Doc. E/AC.43/L.22, 19 January 1956.

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Chairman and the United Kingdom representative were also acceptable, provided that it was stated that the reports would be transmitted to the Council for such action as it deemed necessary. The Council’s freedom of action would thus not be curtailed in any way and its competence would be fully respected. The CHAIRMAN, speaking as the Australia representative, remarked that all members were agreed that the convention should be linked to the United Nations. If it were certain that all members of the Economic and Social Council would be parties to the convention, there might be no great difficulty, but that was not the case and he could not accept a form of words which explicitly gave the Council powers of supervision in relation to the convention. In any event, the Council would consider the question of slavery in the normal course of its work. He added that he would consult the Indian and United Kingdom representatives, and endeavour to suggest a generally acceptable text. Mr. KAUL (India) did not think that a system of control should give rise to polemics and criticisms. There was no reason for assuming that the Council’s debates would be barren and negative; the Council was aware of its responsibilities and was directly concerned with the question of slavery. He suggested that the additional sentence proposed by the Chairman should be reworded as follows: “The Secretary-General shall communicate this information to the Contracting Parties and submit it to the Economic and Social Council as part of the documentation for any discussion on slavery and the institutions and practices referred to in this Convention, and for such further action as considered necessary”.16

At this point the meeting adjourned; with consideration of Article 6 taking place once more during the fifteenth meeting, with a revised Indian amendment having been tabled, and a sub-amendment to that text having been submitted by the United Kingdom. The revised Indian amendment reads: Replace the present text of Article 6 by the following: 1. The Contracting Parties undertake to co-operate with each other to give effect to the foregoing provisions and to communicate to the SecretaryGeneral of the United Nations copies of any laws, regulations and admin-

16

Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Thirteenth Meeting, 25 January 1956, UN Doc. E/AC.43/SR.13, 27 February 1956, pp. 8–13.

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istrative measures enacted or put into effect to implement the provisions of this Convention. 2. The Secretary-General shall communicate this information to the Contracting Parties and to the Economic and Social Council.17

The sub-amendment proposed by the United Kingdom reads: Paragraph 2 Delete the full stop at the end of the sentence and add the words ‘as part of the documentation for any general discussion on slavery or the institutions and practices which are the subject of this Convention.18

Mr. Nikolaev of the Soviet Union opened the discussions with regard to the proposals, pointing out that: the first three words of the sub-amendment, ‘as part of ’, indicated that the information concerned would merely be included in the documentation of the Economic and Social Council. That detail was purely subsidiary; the important point was that the information should be transmitted to the Council. Moreover, the use of the word ‘general’ gave the impression that a simple discussion with any consequences was at issue; the wording previously suggested by the Indian representative (‘and for such further action . . .) had been much more satisfactory. He suggested that the United Kingdom sub-amendment should be redrafted to read: ‘for any consideration on slavery or of the institutions and practices which are the subject of this Convention and for any such action as the Council may deem appropriate.’ Mr. ABDEL-GHANI (Egypt) said that he could not vote in favour of the sub-amendment because it implied that the Council would confine itself to discussions and that those discussions would be general. Mr. SCOTT-FOX (United Kingdom) said that the purpose of his amendment was to make it clear that the Council was not obliged to embark on

17

18

Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, India: Amendment to Article 6 of the Draft Convention on the Abolition of Slavery and Servitude (E/2540/Add.4), UN Doc. E/AC.43/L.12/Rev.1, 25 January 1956. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, United Kingdom of Great Britain and Northern Ireland: Sub-amendment to E/AC.43/L.12/Rev.1: amendment of India to Article 6 of the Draft Convention on the Abolition of Slavery and Servitude (E/2540/Add.4), UN Doc. E/ AC.43/L.12/Rev.1, 25 January 1956.

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a debate whenever a document was transmitted to it. He thought that the Council should hold periodic discussions on the whole question of slavery. The Egyptian representative’s interpretation was unduly narrow. The contracting parties could not, even if they so wished, impose their views on the Council, which was the master of its procedure. The words ‘as part of the documentation’ should not give rise to any difficulties, since it was obvious that the Council would receive other documents, such as information relating to States non-parties to the convention. Mr. NIKOLAEV (Union of Soviet Socialist Republics) could not see why the United Kingdom representative was unwilling to insert in his text a provision to the effect that the Council could take valid decisions, when he had admitted that it could do so. He himself agreed with the Egyptian representative that the word ‘general’ would limit the Council’s scope for action. He proposed that the sub-amendment should be modified in the way that he had indicated or, if that proposal were rejected, that the Indian amendment should be adopted as it stood. Mr. APUNTE (Ecuador) proposed the following wording for the United Kingdom sub-amendment: ‘as part of the documentation to enable the Council to adopt positive measures aimed at the abolition of the institutions and practices which are the subject of this Convention’. Mr. GIRAUD (France) felt that the first step should be the adoption of a system of ‘positive control’ as the representative had put it in a previous intervention. Some States would accept their obligations under the Convention, carry them out to the letter and transmit communications to the Council. Others would not ratify the Convention or would not adhere to it. To prevent the latter, as members of the Council, from treating as defendants the Powers parties to the Convention which would notify the Council of the measures they had taken, the sub-amendments should be amended to make it clear that the debate should be kept general and constructive in character. The CHAIRMAN, speaking as the representative of Australia, said that the Indian text, while not in itself unacceptable, would be improved by adoption of the United Kingdom sub-amendment. The words ‘as part of the documentation’ made a useful point. Under Article 6, communication would not be transmitted regularly but only upon adoption by the contracting parties of a law, regulation or administrative decision. If the above words were used, the danger that the Council might consider itself called upon to deal with each communication separately would be avoided. However, the words ‘general’ added little to the text. The Council presumably conducted its discussions on slavery in the manner it thought best. It was to be hoped such discussions would be general in character, but inclusion of the word in the convention could make little difference in this regard.

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The wording suggested by the USSR representative was tantamount to admonishing the Council and was therefore ill-advised. The same could be said for the Ecuadorian representative’s proposal. Mr. ABDEL-GHANI (Egypt) said that he was unable to support any of the amendments to the Indian amendment, since his primary concern was not to hamper the Council’s freedom of action in any way. Mr. NIKOLAEV (Union of Soviet Socialist Republics) withdrew this proposal. Like the United Kingdom sub-amendment, the Ecuadorian proposal limited the Council’s sphere of action. The best course would be to adopt the Indian amendment as it stood. Mr. SCOTT-FOX (United Kingdom) said that he understood and shared the Indian representative’s concern not to commit the Economic and Social Council in any way. As the Chairman had observed, however, the United Kingdom sub-amendment contained some useful clarification. The wording proposed by Ecuador was tantamount to giving the Council instructions. Mr. GIRAUD (France) shared the concern of the United Kingdom and Ecuadorian representatives, who wished to institute a positive form of control. He had arrived, however, at the conclusion that the Indian amendment could be adopted. It was simple and concise and did not prejudice in the slightest the competence of the Economic and Social Council, which remained as established by the Charter and would be neither extended nor restricted. Mr. BOZOVIC (Yugoslavia), Rapporteur, thought that unanimity might be reached on the following words: ‘as part of the documentation for any discussion which the Council might undertake with a view to making further recommendations for the abolition of slavery or the institutions and practices which are the subject of this convention’. Use of the formula ‘might undertake’ would leave unimpaired the Council’s freedom of action. Mr. BENLER (Turkey) said that he was all the more satisfied with the Yugoslav amendment because it was in keeping with the wording used in paragraph 1 and 2 of Article 62 of the Charter. The new text was a distinct improvement. Mr. ABDEL-GHANI (Egypt) said that he had some difficulty in choosing between the various texts proposed. In recent years the Economic and Social Council had made a substantial contribution to the anti-slavery campaign by adopting recommendations and resolutions, by appointing special rapporteurs and, finally, by establishing the Committee. Any provision in the convention relating to the Council should also be positive in nature and should enhance the Council’s work. A mere description of the Council’s work would not serve any useful purpose, while to restrain the Council would be ill-advised. The Committee should therefore adopt a positive

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text, such as the Ecuadorian or Indian proposal, without adding anything to it. Mr. SCHIFF (Netherlands) said that he agreed generally with the observations the Chairman had made as the Australian representative. While he was not sure that anything need be added to the proposed article, he was prepared to support the Yugoslav amendment in the interest of unanimity. Mr. KAUL (India) agreed with the Netherlands representative. While he still felt that the Indian amendment was better, he was prepared to vote in favour of the Yugoslav amendment if unanimity could thus be achieved. Mr. BOZOVIC (Yugoslavia) said that he had submitted his amendment only to enable the Committee to come to a unanimous decision. Like the Egyptian representative, he recognized the value of the decisions of the Economic and Social Council had taken. The Committee’s task was precisely to make provision for further positive decisions based on Article 55 of the Charter. However, he would support the Indian text if his proposal met with any objection. Mr. SCOTT-FOX (United Kingdom) appreciated the spirit in which the Yugoslav delegation had proposed its amendment. In the same spirit, the United Kingdom delegation was prepared to withdraw its proposal in view of the difficulties it had encountered, and to support the Yugoslav amendment. Mr. NIKOLAEV (Union of Soviet Socialist Republics) said that he would vote in favour of the Yugoslav text if the words ‘the slave trade’ were inserted after ‘slavery’. Mr. BOZOVIC (Yugoslavia) accepted the amendment. Mr. APUNTE (Ecuador) said that the Egyptian representative’s position and his own were virtually the same. He wanted the convention to contain a reference to the measures which the Economic and Social Council would take, without in any way imposing measures upon it, for there was no questions at all of giving the Council instructions. The information communicated to it should enable it to take concrete measures; the information should not be examined as in the case of information transmitted under Article 73 of the Charter. Since the United Kingdom delegation had withdrawn its amendment, he would vote in favour of the Yugoslav proposal, even though it was not entirely satisfactory, on the clear understanding that the Council’s action would be positive. He therefore withdrew his amendment.19

19

Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Fifteenth Meeting, 26 January 1956, UN Doc. E/AC.43/SR.15, 27 February 1956, pp. 4–8.

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The Chairman then put the Yugoslav proposal to a vote; that amendment to the Indian text was adopted by nine votes to none, with one abstention. The provision in question reading: The Secretary-General shall communicate this information to the Contracting Parties and to the Economic and Social Council as part of the documentation for any discussion which the Council might undertake with a view to making further recommendations for the abolition of slavery, the slave trade or the institutions and practices which are the subject of this Convention.

The French Representative, Mr. Giraud, then proposed that the first paragraph should be a separate into two, stating that: “The first clause was concerned with a general rule which should be given due prominence; what followed was merely a particular application of the rule”. The following is what was proposed: ‘The Contracting Parties undertake to co-operate with each other to give effect to the foregoing provisions.’

The next paragraph [would] then begin with the words: ‘The Parties undertake to communicate . . .’20

As the Chairman noted no objections to this proposal and the United Kingdom providing its support, Article 6 as a whole – including the French amendment – was put to a vote and accepted at second reading unanimously.21 At the twentieth meeting of the Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, the Representative of the United Kingdom, Mr. Brown: Proposed that in paragraph 1 the words ‘to this Convention’ should be inserted after the words ‘the States parties’ suggested by the Secretariat (E/AC.43/L.41, paragraph 10). He also proposed that the words ‘to the Contracting Parties’ in paragraph 3 should be replaced by the words ‘to the other Contracting Parties’.22

20 21 22

Id., p. 9. Id. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Twentieth Meeting, 6 February 1956, UN Doc. E/AC.43/SR.20, 9 March 1956, p. 5.

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This was agreed to. In the report of the Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Mr. Bozovic, the Rapporteur, noted that the “Committee subsequently decided to change the words ‘Contracting Parties’ to ‘States Parties’ where these words first occurred in the article, and to use the word ‘Parties’ elsewhere in the article”. Thus concluded the Report of the Committee on Article 6 which, as adopted reads: 1. The States Parties to this Convention undertake to co-operate with each other to give effect to the foregoing provisions. 2. The Parties undertake to communicate to the Secretary-General of the United Nations copies of any laws, regulations and administrative measures enacted or put into effect to implement the provisions of this Convention. 3. The Secretary-General shall communicate this information to the other Parties and to the Economic and Social Council as part of the documentation for any discussion which the Council might undertake with a view to making further recommendations for the abolition of slavery, the slave trade or the institutions and practices which are the subject of this Convention.23

iii. 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery ARTICLE 8 1. The States Parties to this Convention undertake to co-operate with each other and with the United Nations to give effect to the foregoing provisions. 2. The Parties undertake to communicate to the Secretary-General of the United Nations copies of any laws, regulations and administrative measures enacted or put into effect to implement the provisions of this Convention. 3. The Secretary-General shall communicate the information received under paragraph 2 of this article to the other Parties and to the Economic and Social Council as part of the documentation for any discussion which the

23

Economic and Social Council, Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, UN Doc. 2824, Annex I, 15 February 1956.

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Council might undertake with a view to making further recommendations for the abolition of slavery, the slave trade or the institutions and practices which are the subject of this Convention.24

In April 1956, the Economic and Social Council decided that “a conference of plenipotentiaries should be convened in order to complete the drafting” of a supplementary convention.25 The United Nations Conference of Plenipotentiaries on the Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices similar to Slavery opened on 13 August 1956 and considered the provisions of draft Article 6 on 21 August 1956. At that, its ninth meeting, it was noted that as ‘the Chairman of the Working Party on article 3 [the Slave Trade] had intimated that the Working Party had proposals to make which related to article 6, discussion of that latter would be postponed for the time being”.26 At the nineteenth meeting the President of the Conference, noting that consideration of Article 6 had been postponed until other articles had been considered, stated that no amendments had been submitted in its regard and as there was nobody wishing to speak on the article, he would put the provisions to a vote. Article 6 was adopted at first reading by thirty-five votes in favour, none against, with one abstention.27 At second reading, the Philippines delegation introduced an amendment to Article 6 which read: “In paragraph 1, insert after ‘with’ the following words: ‘the United Nations and with’”.28 Mr. Lopez stated that this amendment “would be appropriate in view of the references to the

24

25 26

27 28

United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Final Act and Supplementary Convention, 4 September 1956, UN Doc E/CONF.24/23. Economic and Social Council, Resolution 608 (XXI), 30 April 1956. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Ninth Meeting, 23 January 1956 UN Doc. E/AC.43/SR.9, 17 February 1956, p. 7. Id., p. 2. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, Philippines: Amendment to article 6, UN Doc E/CONF.24/L.42, 31 August 1956.

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United Nations in paragraphs 2 and 3.” The amendment engendered the following discussion: Mr. TUNCEL (Turkey) observed that in article 6 paragraph 2 the parties undertook to communicate to the Secretary-General of the United Nations copies of any laws, regulations or administrative measures enacted or put into effect to implement the provisions of the convention. The information communicated would, according to this paragraph, be used by the Economic and Social Council. In his opinion it would be desirable for States where the provisions of the convention were already in force also to communicate such information to the Secretary-General. The Council could have an over-all view and would consequently know in which States the provisions of the convention were not yet in force. Mr. GIRAUD (France) felt that too many requests ought not to be addressed to governments. The latter might feel annoyed and fail to respond. Mr. NOGUEIRA (Portugal) was not quite sure what the Philippine proposal meant. The title to the Section IV, of which article 6 was the first article, provided for two things: cooperation between States parties and the communication of information. The United Nations would normally be concerned with the communication of information and the insertion in paragraph 1 of the words suggested by the representative of the Philippines would alter the whole purpose of the paragraph. Mr. JAY (Canada) said that provision for co-operation had originally been included under the terms of article 3. Now that article 3 had been so amended as to remove the provision of co-operation he considered that paragraph 1 of article 6 was redundant. Mr. JAFRI (Pakistan) said that the co-operation referred to in paragraph 1 was the co-operation involved in consultation and the exchange of ideas. With reference to the loophole which, in the opinion of the Turkish representative, would be left if the governments of States in which the provisions of the convention were already applied were not called upon to inform the United Nations accordingly, he said that the question of reports to be communicated to the Secretariat or the States parties had been discussed in connexion with article 7 of the 1926 Convention.29 At the time also there had been a proposal that countries should make annual reports, but even then it had not been considered feasible.

29

Article 7 of the 1926 Convention reads: The High Contracting Parties undertake to communicate to each other and to the Secretary-General of the League of Nations any laws and regulations which they may enact with a view to the application of the provisions of the present Convention.

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Mr. GIRAUD (France) considered it preferable to retain article 6 as it stood. The article was constructed with order and method. Paragraph 1 dealt with co-operation between the parties, while paragraphs 2 and 3 concerned collaboration by the parties with the United Nations. That collaboration was very clearly defined. No addition was needed.30

Following these discussions, the President of the Conference asked whether the Philippines representative still wished his amendment to be considered. Mr. Lopez: said it was apparent from paragraph 2 and 3 that a certain measure of cooperation between the parties and the United Nations was expected. His amendment would be in accordance with the articles of the Charter dealing with the implementation of human rights and fundamental freedoms and with the obligations of Member States, under the Charter, to carry out the resolutions of the General Assembly and the Councils. He therefore saw no harm in his amendment and had not heard any serious objection against it.

The President thus put the Philippine amendment to a vote; it was adopted twelve-votes in favour, ten opposed, with twenty abstentions. This was followed by the adoption of Article 6 as a whole at second reading by a vote of thirty-seven to none, with two abstentions.31 Finally, the Style Committee which had been established to consider cosmetic changes to the overall draft Convention, sought to move Article 6 to the Article 8 slot. This change was accepted at third reading by the Conference and thus the provisions on cooperation and communication became Article 8 of the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery.

iv. Commentary on the Provisions of Article 8 of the Supplementary Convention Much of the discussion during the negotiation process of what would become Article 8 of the 1956 Supplementary Convention on the Aboli30

31

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Twenty-Second Meeting, 31 August 1956, UN Doc E/CONF.24/SR.22, 20 November 1958, pp. 10–11. Id., p. 12.

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tion of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery focused on the role the United Nations might have in assisting cooperation and communication where the Convention was concerned. The 1950–51 Ad Hoc Committee on Slavery had called for the establishment of a standing body to, inter alia, supervise “any United Nations convention on slavery”. This recommendation was not included in the 1954 British Draft Convention, though the Indian and Egyptian representatives on the 1956 Drafting Committee had indicated that they were in favour of some type of control mechanism. While early discussion considered the Economic and Social Council as a possible locale for centring such control, it was felt by States such as France that the Council was too political, and thus supervision should be exercised by the International Court of Justice (i.e.: thorough the compromissory clause). Ultimately, agreement was reached by the drafting Committee that recourse would be made to the Economic and Social Council but its ability to act would be limited, as the information received from States would constitute “a part of the documentation for any discussion which the Council might undertake with a view to making further recommendations for the abolition of slavery, the slave trade or the institutions and practices which are the subject of this Convention”. That agreement was not modified at the 1956 United Nations Conference negotiating the Supplementary Convention. Thus, while the Supplementary Convention creates obligations for each State to act to suppress the enumerated servile institutions and practices in the domestic system, it does give the United Nations Economic and Social Council the ability to make further recommendations based on material communicated to the UN SecretaryGeneral by States Parties.

Article 9 (Reservations) No reservations may be made to this Convention.

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i. 1954 British Draft Convention ARTICLE 7 Any State may when signing this Convention or when depositing its instrument of ratification or accession, or when making a modification under Article 10, make a reservation in respect to any particular provision of the Convention to the extent that any law then in force in its territory or territories is not in conformity with the provisions thereof. Reservations of a general character shall not be permitted. Any reservation made under this Article shall contain a brief statement of the law concerned.1

The drafting history of Article 9 of the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery starts in 1953 with a request by the United Nations Economic and Social Council to the Secretary-General “to consult the Governments of all States, both Members and non-members of the United Nations, concerning the desirability of a supplementary convention and its possible contents”.2 In March 1954, the United Kingdom put forward its comments as well as a draft convention, as a means of proposing the content of such a supplementary convention.3 As to the issue of reservations, the United Kingdom proposed the provisions noted above. The Economic and Social Council decided, in April 1955, to appoint a drafting committee “for the purpose of preparing a text of a draft supplementary convention”; and requested that the Secretary-General convene the committee.4 In the lead up to the first meeting of the 1956 Committee on the Drafting of a Supplementary Convention on Slavery

1

2 3

4

Economic and Social Council, Slavery: Consultations Concerning the Desirability of a Supplementary Convention on Slavery and its Possible Contents, UN Doc E/2540/Add.4, 12 April 1954, p. 4. See Economic and Social Council, Resolution 475 (XV), 27 April 1953. See Economic and Social Council, Slavery: Consultations Concerning the Desirability of a Supplementary Convention on Slavery and its Possible Contents, UN Doc E/2540/Add.4, 12 April 1954. Economic and Social Council, Resolution 564 (XIX), 7 April 1955.

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and Servitude, the Secretary-General prepared a memorandum of the relevant activities which had transpired to date within the United Nations touching on slavery and prepared “a summary of the comments received on the draft convention”.5 In that Memorandum, the Secretary-General noted that Canada had made clear that it: cannot support the articles in the United Kingdom’s draft supplementary Convention which require the signatory states to implement certain provision of the Convention. The Government of Canada believes that, in countries like Canada where slavery does not exist, such action would accomplish nothing. Furthermore, in Canada the implementation of some of the proposed provisions (for example in Article 5 concerning consent to marriage) would create constitutional difficulties and, at the same time, they would not serve a very useful purpose. To obviate this difficulty the Government of Canada suggests an amendment to article 7.

That amendment proposed by Canada is found in the following statement: in order that the provisions concerning the enactment of legislation should not be binding on countries which have eliminated slavery and analogous practices or, alternatively, that such countries should be permitted to make a reservation when signing the Convention with respect to the enactment of legislation. Without either of those provisions the Government of Canada, although it is strongly opposed to slavery in all its manifestations, would find it difficult to consider participating in a Convention along the lines of the United Kingdom’s draft.

Also within the context of providing comments on the 1954 British Draft Convention, the Secretary-General noted the submission of the non-governmental Anti-Slavery Society which pointed out: that Article 7 seems ‘to provide for confession’ by a Contracting Party of non-conformity of its laws with the Convention, ‘accompanied, presumably, by a promise’ to undertake to adopt the necessary measures in order to make them conform with the provisions thereof at an early date.6

5

6

Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude Submitted by the Government of the United Kingdom and Comments Thereon (Memorandum by the Secretary-General), UN Doc E/AC.43/L.1, 2 December 1955, p. 4. Id., 36.

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In his Memorandum, the United Nations Secretary-General then gave a thorough consideration of the issue of reservations in light of draft covenants on human rights also being considered in the early 1950s: The Secretary-General notes that the reservations article is based on the principles which also underlay the provisions of reservations which the United Kingdom proposed for insertion in the draft covenants on human rights (document E/CN.4/L.345 and Add.1; Annex II of the Report of the tenth session of the Commission on Human Rights, Economic and Social Council, Eighteenth session, Official Records, supplementary No. 7, document E/2573). There are considerable differences, however, between the cases of the draft covenants on human rights on the one hand, and the draft supplementary convention on slavery on the other. The draft covenants on human rights, and in particular the draft covenant on civil and political rights, for which the United Kingdom proposal referred to above was drafted in the first instance, is a very comprehensive instrument intended to legislate on a great many aspects of public and private life. These are regulated in each individual jurisdiction by constitutional provisions, by many statutory enactments, and by comprehensive systems of case law and administrative practice. There is force, therefore, in the contention that a State should not be prevented from becoming a party to the draft covenant on civil and political rights if a particular law in force in its territory is in conflict with, or does not give effect to, a particular substantive provision of the draft covenant. The draft convention which this Committee is called upon to prepare is, however, of a very limited scope. Under its Article 1, contracting parties would undertake to take all practicable and necessary measures, including legislation where appropriate, to bring about – ‘progressively and as soon as possible’ – the complete abolition or abandonment of certain institutions or practices. It is therefore the main ‘object and purpose’ of the draft convention that laws which are not in conformity with its provisions should be repealed. To make the existence of such a law a basis of a reservation might therefore not be appropriate. Moreover, the draft for Article 7 differs in important respects from the draft article proposed for inclusion in the draft covenants. The latter provides for a two-year period, after the lapse of which all reservations shall be circulated to all States which have deposited instruments of acceptance, and stipulates that a State to whom copies have been circulated accept, or do not object to it. The article suggested for inclusion in the covenants also provides that any States making a reservation should take, as soon as practicable such steps as will enable it to withdraw the reservation.7

7

Id., pp. 36–37.

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The Secretary-General concluded his remarks saying that he “would be pleased to submit to the Committee alternative texts of an article on reservations as might appear appropriate in light of the exchange of opinions on this question which may take place in the Committee”.

ii. 1956 Draft Supplementary Convention on Slavery and Servitude ARTICLE 7 No reservations may be made to this Convention.8

In January and February 1956, the Committee on the Drafting of a Supplementary Convention on Slavery and Servitude met in Geneva. The Committee decided to use the Secretary-General’s Memorandum “as its basic working document, and to examine the article of the [British] draft convention one by one”.9 As for Article 7, the consideration of its provisions transpired for the first time during the eighteenth meeting of the Committee, wherein consideration was given to a proposal by the Soviet delegation to delete Article 7.10 The discussion regarding Article 7 went as follows:

8

9

10

Economic and Social Council, Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, UN Doc. 2824, Annex I, 15 February 1956. Economic and Social Council, Slavery: Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery: Report of the Committee appointed by Resolution 564 (XIX), 7 April 1955, UN Doc. E/2824, 15 February 1956, p. 8. See Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Union of Soviet Socialist Republics: amendment to the draft convention on the abolition of slavery and servitude (E/2540/Add.4), UN Doc. E/AC.43/L.14, 18 January 1956.

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Mr. NIKOLAEV (Union of Soviet Socialist Republics) asked the United Kingdom representative what he meant by ‘reservations of a general character’. Mr. SCOTT-FOX (United Kingdom) replied that the meaning of the words was quite clear from the purpose of the article, which was to enable the contracting parties to make a limited and specific reservation whenever existing legislation in their territory made the application of any provision in the convention impossible. Reservations ‘of a general character’ were such as did not fulfil those conditions; they ought not to be permitted, as they would render the signature and ratification of the convention of no effect. Mr. NIKOLAEV (Union of Soviet Socialist Republics) asked whether article 7 would enable the contracting parties to make a reservation to article 8 [re: compromissory clause], for instance. The CHAIRMAN though that it would, as the sentence ‘reservations of a general character shall not be permitted’ meant that reservations to the convention as a whole were not permissible. Mr. NIKOLAEV (Union of Soviet Socialist Republics) still wished to know how the United Kingdom representative would interpret the article. The CHAIRMAN pointed out that the most important question was not the interpretation which that representative would place in the article, but the content and meaning of the text. Mr. SCOTT-FOX (United Kingdom) was surprised that the representative of the Soviet Union should wish to amend article 7, after suggesting that it should be deleted. In the spirit of conciliation, he himself was prepared to omit the article. Mr. BOZOVIC (Yugoslavia) could not agree to the deletion of the article unless it were replaced by some other text providing either that reservations should not be permitted, or that they might refer to certain articles. If some article on those lines was adopted, there would be flagrant inequalities between States which accepted all the obligations in the convention and those which accepted only such parts as they chose to accept.11

The Yugoslav Representative then proposed a new text for Article 7 which reads:

11

See Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Eighteenth Meeting, 31 January 1956, UN Doc. E/AC.43/SR.18, 29 February 1956, pp. 16–17.

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1. At the time of signature, ratification, or accession, any State may make reservations to articles of the Convention other than to articles ____. 2. Any State making a reservation in accordance with paragraph 1 of this article may at any time withdraw the reservation by a communication to that effect addressed to the Secretary-General of the United Nations.12

The Chairman of the Committee, Mr. Cutts from Australia, explained that the adoption of the Soviet amendment would not preclude consideration of the Yugoslav proposal. This led to the following discussion: Mr. GIRAUD (France) said that article 7 was very important. He personally would prefer that no reservation should be made to the convention, but thought that in some cases it was better to have an accession with reservations rather than no accession at all. It went without saying that the only reservations permissible were reservations of limited scope which did not render the accession meaningless. The sentence ‘reservations of a general character shall not be permitted’ should be deleted because its meaning was not entirely clear. The remainder of the United Kingdom text was adequate. When a law or custom in any territory was not in conformity with a provision of the convention, the State concerned would merely have to indicate what that law or custom was, at the same time submitting the text of the law and giving a brief outline of the law or custom so that all might be aware of the scope of the reservation made. Mr. APUNTE (Ecuador) [. . .] agreed that general reservations which would limit the scope of the convention should not be permitted. Nevertheless, he felt that it would be inadvisable to eliminate the possibility of reservations with regard to specific institutions or practices, since the abolition of slavery was a slow process and some countries would be unable to accede to the convention if reservations (of a limited character, of course) were not permitted. For those reasons he was not in favour of deleting Article 7, and would prefer the Committee to study the offer of the Secretary-General in paragraph 88 of his memorandum (E/AC.43/L.1), which might prove satisfactory to all the members of the Committee. Mr. SCHREIBER (Secretariat) said that whatever decision the Committee took must be clear in its implications, as the Secretary-General was to act as depository of the convention. If the Committee decided to delete article 7, how was the Secretary-General to interpret that decision when reservations

12

Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Yugoslavia: Proposed new Article 7, UN Doc. E/AC.43/L.40, 31 January 1956.

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were announced to him? It might be as well if there were some justifications on the subject, at least in the report.13

Note that in the Report of the Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, clarification was provided as to the role of the Secretary-General vis-à-vis reservations: The representative of the Legal Office of the Secretariat drew the Committee’s attention to the desirability of clarifying what the Secretary-General would be expected to do, if no article on reservations were included in a convention and if States were subsequently to ratify or accede to the convention subject to reservation. The representative of the USSR pointed out that under paragraph (b) of the third operative paragraph of General Assembly resolution 598(VI), the Secretary-General had been requested ‘to continue to act as depository in connexion with the deposit of documents containing reservations or objections, without passing upon the legal effect of such documents’.14

The discussions continued briefly: The CHAIRMAN asked the representative of the Soviet Union whether he would agree to withdraw his amendment, in which case he could put the text of article 7 proposed by the United Kingdom to a vote. Mr. NIKOLAEV (Union of Soviet Socialist Republics) replied in the affirmative. Mr. GIRAUD (France) wanted to suggest certain minor amendments to article 7. He proposed firstly the deletion of the sentence ‘reservations of a general character shall not be permitted’; and secondly the addition of the words ‘or custom’ in the first sentence after the phrase ‘to the extent that any law’ and in the last sentence before the word ‘concerned’.15

The Chairman then put to a vote the first amendment proposed by the French representative (re: delete the sentence ‘Reservations of a general

13

14

15

Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Eighteenth Meeting, 31 January 1956, UN Doc. E/AC.43/SR.18, 29 February 1956, pp. 17–18. See Economic and Social Council, Slavery: Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery: Report of the Committee appointed by Resolution 564 (XIX), 7 April 1955, UN Doc. E/2824, 15 February 1956, p. 44. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Eighteenth Meeting, 31 January 1956, UN Doc. E/AC.43/SR.18, 29 February 1956, p. 19.

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character shall not be permitted’); it was adopted three votes to none, with six abstentions. The second proposed amendment put forwards by the French representative (re: add the words ‘and custom’ in two places) was rejected by three votes to two with five abstentions. Finally, the Chairman put Article 7 as a whole, as amended, to a vote wherein it was rejected by four votes against, two in favour, and four abstentions. The Chairman then noted that the rejection of Article 7 as a whole did not mean that further proposals could be considered. To which Mr. Nikolaev of the Soviet Union replied that he “saw no purpose in an article on reservations, and thought that the situation was covered by General Assembly resolution 598 (VI)”.16 Discussions on Article 7 were resumed during the twentieth meeting of the drafting Committee, wherein the Chairman drew the Committee’s attention to a new French proposal, calling for the deletion of the current provisions of Article 7 and replacing them with the following: ‘No reservations may be made to this Convention’.17 Mr. Nikolaev indicated that he would vote against the proposal, explaining that it “was contrary to the principles of the sovereignty of States. Any State should have the opportunity of making reservations when it acceded to an international convention”. With that, the Chairman put the French proposal to a vote, whereby it was adopted by six votes in favour, three against, with one abstention.18

16 17

18

Id. Id., p. 9. Note that the summary records indicate that the provisions proposed were found in document E/AC.43/L.39, when in fact the provisions as proposed and adopted at second reading are to be found in E/AC.43/L.39/Rev.2. For its part, E/AC.43/L.39 reads: ‘On signing, ratifying, or acceding to the Convention, States may not make any reservations whatsoever’; while E/AC.43/L.39/Rev.1 reads: ‘No reservation to this Convention shall be admitted’. See Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, France: new article 7, 31 January 1956, UN Doc. E/AC.43/L.39; 13 February 1956, E/AC.43/L.39/Rev.1; and 14 February 1956, E/AC.43/L.39/Rev.2. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Nineteenth Meeting, 2 February 1956, UN Doc. E/AC.43/SR.19, 9 March 1956, p. 9. Note that as the French proposal was adopted, there was no vote taken on the Yugoslav proposal. The provisions reproduced above can be found at Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Yugoslavia: Proposed new Article 7, UN Doc. E/AC.43/L.40, 31 January 1956.

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iii. 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery ARTICLE 9 No reservations may be made to this Convention.19

The first consideration of Article 7 at the 1956 United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices similar to Slavery transpired during its ninth meeting, though at the request of the Indian representative, consideration of it provisions was postponed until other, what he considered ‘crucial’, articles could be considered. At that meeting the President of the Conference, Mr. Calderon Puig, pointed out that there was a Soviet proposal that Article 7 should be deleted.20 Full consideration of Article 7 transpired on 29 August 1956, at the nineteenth meeting of the Conference, starting with the Soviet Representative, Mr. Chistyakov, introducing his proposal that Article 7 should be deleted: His delegation had made that proposal not with the intention of weakening the convention but in order to uphold the general principle that every State had the sovereign right to make reservations to multilateral conventions. That right was in turn based on the sovereign right of every State to determine its legal relationship with other States. The right to make reservations was recognized in many international instruments, including in particular the Havana Charter. Article 7 of the draft was thus contrary to certain basic principles of international law.

19

20

United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Final Act and Supplementary Convention, 4 September 1956, UN Doc. E/CONF.24/23. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Ninth Meeting, 21 August 1956, UN Doc. E/CONF.24/SR.9, 13 November 1958, p. 7.

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Mr. PAVLIC (Czechoslovakia) considered that the right to make reservations to multilateral conventions was indefenceable. Any provision such as that in Article 7 might have the most serious consequences; it might prevent States desirous of making reservations, possibly insignificant in themselves, from signing the Convention. Conventions on humanitarian matters must be universal, and if they were to be universal it was essential that the right to make reservations should be upheld. The Czechoslovakian delegation would, therefore, support the Soviet amendment. Mr. BELTRAMINO (Argentina) emphasized the theoretical and practical importance of the whole question of reservations to multilateral conventions. Despite exhaustive debate in the Sixth Committee of the General Assembly, an advisory opinion by the International Court of Justice and studies by the International Law Commission, there were still widely differing views on the legal aspect of the problem. Reservations should clearly not be allowed in bilateral treaties, since that would simply have the effect of invalidating the reserved clauses. Multilateral conventions, on the other hand, were the outcome of international conferences and it was only by means of reservations that the required agreement could be reached among States whose opinion differed on certain points. The practice of making reservations had thus become widespread and indeed was the normal procedure in the Americas. Some conventions contained clauses precluding reservations on specific provisions; others allowed no reservation at all and in yet others the entire question was not mentioned. When that was the case, it was a generally accepted principle that reservations could be made. Statistics on multilateral conventions in force would undoubtedly show that only a very small proportion of them did not allow reservations. The inference was that under international law it was not the rule to exclude the possibility of reservations from multilateral conventions. Moreover, in relation to the number of States which had acceded to conventions, the number of reservations made had been small. The representative of the Secretary-General, speaking on 17 December 1951 before the Sixth Committee of the General Assembly, had stated that ninety conventions had so far been concluded under the United Nations auspices and that the Secretariat had received 520 instruments of ratification, accession or acceptance. In all, only 17 reservations had been made and no objections had been raised to them except in the case of those made to the Convention on Genocide. It was questionable whether article 7 of the draft Convention now under consideration was appropriate. Clearly, if it were adopted only those States which accepted the Convention as a whole would be able to sign. Since the instrument which would be opened for signature would be the result of successive votes by simple majority, the government whose representatives had voted against particular articles might have grave objections

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of substance, or purely incidental objections, to accepting the provisions as a whole, depending on whether the point at issue did or did not affect the objectives of the convention. In many cases the negative votes would be no more than the expression of a wish on which delegations had not insisted at the second reading in a spirit of compromise. But there were other cases in which fundamental provisions were involved, closely linked, for example, with the legal, constitutional or territorial organizations of States or the principles of international policy which the governments voting with the minority jealously defended. Such governments, having serious objections to certain provisions, could not become parties to the convention since they would be unable to make appropriate reservations at the moment of signature. The Argentine delegations considered that, having regard to the humanitarian aims of the convention, every effort should be made to secure the adherence of the largest possible number of States. That could not be done unless the convention allowed for reservations, most of which would not affect the essential purposes of the instrument. Draft article 7 was unquestionably incompatible with the principles of universality; those who had drafted it in their desire to keep the text of the convention inviolate – especially the section relating to its objectives and the implementation machinery – had apparently not given sufficient thought to the effect it would have in practice. Some might contemplate the insertion of a clause allowing such reservations as were consistent with the purpose of the convention. Any reservation which might be made must certainly be in conformity with those purposes. But who was to be the judge of that conformity, since there was no judicial body whose decisions were binding on all States? To determine the duties of the Secretary-General of the United Nations should no article on reservations be approved, the proper course would be to adopt the solution embodied in resolution 598(VI) of the General Assembly. Paragraph 3(b) of that resolution requested the Secretary-General ‘to continue to act as depository in connexion with the deposit of documents containing reservations or objections, without passing upon the legal effect of such documents’. The Argentine delegation, therefore, considered that article 7 should be deleted. If the matter were pressed to a vote it would oppose the present draft text. Miss LUNSINGH-MEIJER (Netherlands) said that the mere deletion of the article would not settle the question of reservations at all. As the case of the Genocide Convention had amply shown, the absence of a reservation article was likely to raise serious difficulties and complicated legal questions. The convention itself should state clearly whether or not reservations would be admissible, and if they were what kind of reservations and with respect to what specific articles.

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The present convention dealt with what was fortunately a very limited field of human relationships and with institutions which were dying out gradually with the march of human progress. Her delegation felt that the Contracting Parties should not be permitted to reserve their position with regard either to the substantive articles or to the other articles of the convention if it were adopted in its present form. In article 1, for example, the possibility of a temporary conflict between a particular national legislation or institution and the convention at the time of accession was already taken into account by the use of the words ‘progressively and as soon as possible’. Article 1 carried with it the obligation to resolve such conflicts by repealing the law or abolishing the institution in question as soon as possible. To admit a reservation to that article would imply that national legislation might continue indefinitely to be at variance with the convention. That would frustrate the convention’s main purpose. Her delegation had also carefully studied those articles of the convention from that particular point of view. Article 8, for example, was essential for the effective implementation of the convention, and it ought not to be possible to weaken it by reservations. In fact, her delegation saw no grounds for admitting reservations with respect to any of the articles. It would therefore vote for the retention of article 7 in its present form. Mr. JAFRI (Pakistan) said that many of the points he had wished to make had already been mentioned by the representative of the Netherlands. Since the representative of the Union of Soviet Socialist Republics had not indicated that any limits would be placed on the scope of his amendment, it followed that if the amendment was adopted every State would be entitled to make reservations to any article as well as concerning the application of the Convention to any area in its territory or under its administration. That position was slightly inconsistent with the stand taken by the Union of Soviet Socialist Republics delegation, and supported by the delegation of Pakistan, on article 8 and 10. If reservations were to be allowed there would be little justification for all the efforts which had been made to secure a generally acceptable text for article 10 for example. If it had known that it would be able to make reservations to that article in respect to any of its territories, and on either a temporary or permanent basis, the United Kingdom delegation, for instance, would presumably have been able to accept without demur any amendments which the opponents of the original text might have cared to present. As the representative of the Netherlands had pointed out, reservations to article 1 might reduce the whole convention to an absurdity. In view of the inclusion of the phrase ‘progressively and as soon as possible’ the making of reservations could only mean that the State in question did not agree with the laudable aims expressed in that article. A similar safeguard was provided by the words ‘where appropriate in article 2’. Article 3 [re: Slave Trade] had been the object of so much exhaustive discussion and conciliatory effort that it was now completely innocuous. He could not imagine how any State

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might wish to make reservations to it. The only other operative articles were 4 [re: Indications of Status] and 5 [re: Criminal Offence] which enjoined States to make certain actions criminal offences. These two articles were the logical consequences of the objectives laid down in article 1, 2 and 3 [re: servitudes, minimum age of marriage and right to visit]. His statement that reservations were unnecessary applied only to the convention as at present drafted. If material changes, such as the amendment to article 2 proposed by the delegation of Portugal (E/CONF.24/L.29),21 were made at the second reading, for example, his delegation might have to alter its position. He therefore appealed to the members of the Conference not to make such changes in the draft as would necessitate reconsideration of the question of reservations. What might be said about the sovereign rights of States, reservations detracted from the efficacy and advantages of any multilateral convention, whatever its object. Reservations were necessary only in cases where highly controversial articles had been forced through by the pressure of ‘brute majority’ voting. That had not been the case so far as the present draft convention was concerned, though his delegation, for example, was not happy about the form which some of the articles had now assumed. It considered, for example that article 8 [re: compromissory clause] should have been as generally applicable as possible, that article 9 [re: consent to be bound] should apply to non-member States and that article 10 [re: overseas territories] should apply without qualification to Non-Self-Governing Territories. On those points the delegation of the Union of Soviet Socialist Republics had shared the Pakistan delegation’s view. Nevertheless, he could not conceive how it would keep any State to make a reservation to those articles as at present drafted, since they were negative in content. Reservations could be made only to positive provisions, and in that respect the convention did not call for reservations. While not at present supporting the suggestion that article 7 should be deleted his delegation reserved its rights on the question of reservations should sheer majority force be used to incorporate in the convention a point of view which would make it impossible for all States to support the instrument fully in letter and spirit. Mr. ABDEL-GHANI (Egypt) said that as the convention was now drafted, he could support either the retention or the deletion of article 7. He could support its retention because the scope of the convention was fortunately very well defined. The practices and institutions which was its fundamental aim to abolish were surely not so necessary or desirable as to justify leaving the

21

See Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Portugal: Amendment to article 2 (E/CONF.24/L.29), UN Doc. E/CONF.24/L.32, 29 August 1956.

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door open for reservations. If any State did not agree with that fundamental aim, or considered that it was not the only aim of the convention, it would not sign, whether an article on reservations was included or not. On the other hand, it was standard practice to include in any multilateral convention provisions for such reservations as were compatible with its principles and purpose. In the 1956 ad hoc Committee the delegation of Yugoslavia had proposed the inclusion of an article permitting reservations, not to substantive, but only to procedural articles.22 Such articles might have a bearing on similar clauses in other conventions, and consequently it could be argued that the door should be left open for reservations to them at least. Mr. ABDALLA (Sudan) said that in a spirit of objectivity his delegation had advocated the universality of application of every article of the convention. Any reservation would defeat that end. Either the convention was acceptable or the door would be left open for wholesale reservations. The only articles which might have provided ground for reservations were articles 3 and 10 [re: right to visit and overseas territories], but they had now been made generally acceptable by compromise. Mr. GIRAUD (France) said he would not deal with the question of reservations in its general and theoretical aspects, but would simply draw attention to a principle allowed by practice, viz. that reservations had to be accepted by the parties. That principle was fully justified. Without it States would be able at their discretion to enter reservations to fundamental provisions of the convention, reservations which would minimize the real force of their acceptance of the convention. But the main point to bear in mind was that conventions most commonly rested on compromise. That was true even of multilateral conventions dealing with an issue of general interest and it was true of the present convention. In those circumstances reservations enabling States to accept what they liked and reject what they did not like would upset the balance of the convention and certain States would feel they had been unfairly thwarted. The worst solution would be to include no provision at all relative to reservations. A survey of the substantive articles of the convention would show that reservations did not correspond to any real need. Article 1, the basic article of the convention, is an elastic provision and permitted States to take their time in giving effect to its requirements. The only reservation that some States could, in fact, contemplate entering concerned the final clauses of the convention on which agreement had been reached with some difficulty. It was, for instance, inconceivable that the agreement arrived at

22

See Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Yugoslavia: Proposed new Article 7, UN Doc. E/AC.43/L.40, 31 January 1956.

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on article 10 should be jeopardized by reservations enabling metropolitan Powers to shut out from the benefits of the convention territories whose exclusion therefrom was forbidden by the article. By contrast, it should not be possible for other States to obtain protection from the application of the compromissory clause inserted in article 8; certain States regarded that clause as a guarantee that might be needed for the due application of the convention. Nevertheless, the French delegation could agree to innocuous reservations being submitted to the Conference and accepted by it. Reservations attaching to later accession would be subject to the prior agreement of all parties. By innocuous reservations he meant those relating to questions not intrinsically relevant to the purpose of the convention. For example, a reservation by Peru to the original article 3 to indicate its position with regard to the territorial sea would fall with that category; likewise, a reservation concerning a territorial dispute, or on indicating the sense of the interpretation placed by a State on its national law. The French delegation, therefore, regarded the retention of article 7 in its present form as indispensable, though it would agree to members of the Conference entering innocuous reservations acceptance of which would depended on the decision of the Conference. Miss KRACHT (Chile) said that she would vote against article 7. She was ready, however, in a conciliatory spirit to support any compromise provision which would admit reservations. Mr. TUNCEL (Turkey) said it was true that at all international meetings the USSR delegation had always supported the right of parties to make reservations. In the present circumstances, the representative of the Soviet Union was undoubtedly actuated by a desire to support that principle and his statement had in no way been prompted by an intention to evade certain provisions of the convention. However, such a position of principle should not be defended in categorical terms. The Conference should admit that the scope of the convention was such that Governments should not make reservations. Why not therefore put the matter to a vote? Delegations which supported the principle of the admissibility of reservations could vote against, or better still, abstain, The representative of Egypt had taken over the proposal made by the representative of Yugoslavia in the 1956 ad hoc Committee (E/2824, paragraph 185) which would have allowed reservations to be made to provisions not affecting the purpose of the convention. In the Turkish delegation’s opinion, there was no justification for allowing even such reservations. He had the impression that some delegations had the draft covenant on human rights particularly in mind and that they would not like any precedent to be created which would affect possible reservations to the covenants. It was interesting to consider the texts of the various amendments and proposals concerning reservations to the covenants on human rights which had been presented at the tenth session of the Commission on Human Rights

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(E/2573–E/CN.4/705, Annex II A). A USSR amendment providing for the possibility to making ‘reservations with regard to any of the provisions contained therein’ – i.e. in the covenants – showed that the attitude adopted by the Soviet Union delegation at the Conference was in accordance with that country’s previous attitude. A proposal submitted jointly by China, Egypt, Lebanon and the Philippines was in accordance with the position adopted by the Conference by the representative of Egypt and would allow only those reservations which were ‘compatible with the object and purpose of the covenant’. Another proposal, presented by the representative of Chile and Uruguay, provided that no State could make a reservation in respect of the provisions of the covenant. Having referred to the different attitudes adopted on that occasion, the Turkish delegation was in a position to assure representatives who had misgivings on the subject that it had no intention of establishing a precedent, since every international instrument had its special features and the wording which should be chosen was the one which seemed most suitable in each particular case. The Turkish delegation would therefore have no hesitation in voting for the draft article 7, even though on other occasions the Turkish Government had adopted a different attitude. Mr. DUPONT-WILLEMIN (Guatemala) said his delegation shared the Argentine representative’s views and wondered in the light of the last observations by the French representative whether it would not be possible to adopt the proposal made in the 1956 ad hoc Committee by the Yugoslav delegation to allow reservations to all articles except such as were expressly indicated. He reserved the right to advance the proposal at the second reading, should he find it desirable to do so. Mr. GIRAUD (France) considered that the general theory of reservations was not involved. Each case must be treated on its merits and the present case was that of the convention before the Conference. It had been acknowledged that there was no need for reservations as to the fundamental stipulations. The question only arose as regards the final clause. States might wish to enter reservations as to those clauses (Article 8 and 10) but such reservations would destroy the balance of the convention. They should, therefore, not be allowed. Mr. ABDEL-GHANI (Egypt) thought a modification of his suggestion regarding reservations might be acceptable to some member of the Conference. He would therefore like to propose an amendment not substantially different form the idea put forward by the representative of Guatemala. In the structure of the convention article 7 had a position which, though it might be of no significance to those representatives who were jurists, did in fact separate the substantive, while articles 8 to 13 were final clauses, clauses which might have some bearing on the corresponding clause of other

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conventions. He therefore suggested that the words ‘articles 1, 2, 3, 4, 5, and 6 of ’ should be inserted between the words ‘to’ and ‘this’ in article 7. Mr. JAFRI (Pakistan) said that the representative of Egypt had now unfortunately made it even more difficult for the Pakistan delegation to accept his point of view. He did not agree that reservations should be allowed to some of the procedural clauses. Much importance had rightly been attached to article 8 [re: compromissory clause], for example, by the French representative. That article, together with the Indian and Czechoslovak amendments to it, had been discussed at great length. It provided for the reference of disputes to the International Court. The overwhelming opinion in the Conference had been that it should be open to any of the parties to bring a dispute before the Court. If reservations to that article were allowed, one of the parties to a dispute might not be amenable to the jurisdiction of the Court, and consequently a very useful provision of the convention, on which opinion had been almost unanimous, would be destroyed. He would also like to indicate the danger of allowing reservations to article 10 [re: overseas territories]. The USSR delegation, for example, had been emphatically of the opinion that the original draft of article 10 should be replaced by the proposal submitted by Egypt and the Sudan and supported by Pakistan. The effect of allowing reservations would be to surrender to the metropolitan Powers a right which many delegations, including the USSR delegation, had been at great pains to take away from them. Reservations to any of the other procedural articles would not serve any useful purpose and he therefore appealed to the Egyptian representative to reconsider his suggestion. If, on the other hand, reservations were allowed to any of articles 1 to 5, either in respect of particular articles or concerning their application to particular areas, the whole convention would be reduced to a sheer absurdity. As he had stated in his previous speech, reservations might be justifiable only if at the second reading the draft was so altered as to be fundamentally unacceptable. He therefore suggested that consideration of article 7 be again deferred until the preamble had been discussed and the second reading completed. The Conference would then have a full picture of the convention before it and each country would know whether or not it must insist on the right to make reservations. Mr. JURKIEWICZ (Poland) said the representative of Pakistan had referred to the difficulties which might be created if reservations to article 8 [re: compromissory clause] were allowed. If one of the parties to a dispute had made a reservations to the article and the other had not, the position of the two parties might seem to be incompatible: whereas one party would be obliged to accept references of the dispute to the Court, the other would be unable to do so. The same problem had arisen in connexion with the drafting of five European transport conventions signed in Geneva in May

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1956. Some of the European countries participating in those conventions were in the same position as the countries of Latin America. They had been unable to accept a no-reservations clause for reasons of principle. In that connexion, he would point out that reservations to article 8 would have a twofold effect. By making a reservation to that article a country would at the same time lose its right to appeal to the Court. Perhaps the Secretariat could obtain the formula which had been used in the case of the transport conventions. It might suggest a way of solving the difficulty referred to by the representatives of Pakistan and France. He supported the Pakistan proposal that further consideration of article 7 should be deferred until the second reading had been completed. Mr. HUMPHREY (Executive Secretary [Director of the UN Division of Human Rights]) read articles 47 and 48 of the Conventions on Contract for International Carriage of Goods by Road done at Geneva on 19 May 1956 (E/ECE/23). Mr. SCOTT-FOX (United Kingdom) said he had been greatly impressed by the Pakistan representative’s trenchant criticism of the situation which would result in practice from acceptance of the Egyptian amendment allowing reservations to procedural articles. It might at first sight seem more sensible to allow reservations to the substantive articles, but he agreed with the representative of Pakistan and others that to do so would be to weaken the convention materially. The members of the Conference had reached agreement on what was essentially a very conciliatory and flexible instrument, and it was difficult to imagine that any government which was prepared to sign the convention at all should wish to make reservations to the substantive articles. The opponents of article 7 had based their objections on the principle that the inclusion of a no-reservations clause was incompatible with the sovereign rights of State. He disagreed. If, on becoming a party to the convention a State agreed that no reservations to it should be allowed, it would not be doing anything incompatible with its sovereign rights. Each case must of course be considered on its merits but there was a certain number of conventions, including the present one, reservations to which would open the door to modifications that would destroy the fundamental values of the convention. It was in the interest of all States intending to become Parties to the convention that they should agree before hand to allow no reservations. One of the objects to allowing reservations was that if reservations were made and objected to, the Conference would be faced with serious legal difficulties. Among authorities on international law, there were four or five schools of thought on the effect of objections to reservations to multilateral conventions. The International Court’s advisory opinion in connexion with the Genocide Convention had not, in the opinion of many international

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lawyers, resolved the difficulties. It was for that reason that, in its resolution 598(VI) the General Assembly of the United Nations had recommended that organs of the United Nations, specialised agencies and States should, in the course of preparing multilateral conventions, consider the insertion therein of provisions relating to the admissibility of non-admissibility of reservations and to the effect to be attributed to them. It was in accordance with that resolution and to avoid the many difficulties that reservations would create that article 7 had been included in the draft in its present form. Mr. ARGUDIN (Cuba) said that his delegation was not completely satisfied with the draft preamble and thought that article 1 was excessively conservative, nor was it convinced of the rightness of the other provisions; but it was nevertheless prepared to accede to the Convention, the purpose of which over-rode any possible objection. The Cuban Government had entered numerous reservations on other occasions, but the admissibility of reservations was a principle from which departure should be possible. In view of its very different character, the Havana Charter, which set up an international organization concerned with trade, could not be taken as a precedent. The Cuban delegation would support the draft of article 7 or, if need be, any compromise solution which might arise from the discussion. Mr. GIRAUD (France) remarked that the same rules could not be applied to reservations in regard to all conventions. In principle his delegation was not opposed to the admissibility of reservations in all conventions. In some cases acceptance qualified by reservations was better than no acceptance at all. But in the present case the only reservation (those affecting the final clauses) by which States could qualify their acceptance might destroy the convention by preventing other States from acceding to it. The PRESIDENT, referring to the Pakistan representative’s suggestion that further consideration of article 7 should be deferred until the preamble had been discussed and the second reading completed, felt that it might be wiser for the conference to vote on that article at the present meeting. With regard to the draft supplementary convention as a whole, he suggested that, as there had been a full debate on each article in first reading, the second reading should consist merely of a quick review of all the articles, it being understood, of course, that delegations could submit amendments should they so wish. Mr. JAFRI (Pakistan) said that although he was willing to bow to the wishes of the President the work of the Conference would have been facilitated had his suggestion been adopted. If article 7 was put to a vote forthwith his delegation would have to abstain from voting and would reserve its right to express its views and definite opinion at the second reading.

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Mr. ABDEL-GHANI (Egypt) withdrew the proposal he had submitted as a compromise solution, because it had met with criticism and opposition on one side and silence on the other. Mr. GIRAUD (France) said this discussion confirmed his opinion that every case should be examined on its merits. There was no serious political objection to admitting reservations with regard to the arbitration clause of a convention dealing, say, with the transport of goods; but if the same reservations were admitted in the supplementary convention they would have very serious political consequences. It has been remarked that if a reservations were entered by one State, the other Parties could claim the benefit of it vis-à-vis that State. That was true, but in the case of the present convention and of article 8 [re: compromissory clause], the benefit would be altogether illusory. A State wanting to evade the control of the International Court of Justice, would enter a reservation that would completely safeguard its exemption from the Court’s jurisdiction, but if it wished to sue another State before the Court it would solicit an allied or friendly State which had not refused the Court’s compulsory jurisdiction for the reason that owing to the absence of any trace of slavery on its territory compulsory jurisdiction would be no advantage to itself.23

The President of the Conference then put to a vote the amendment proposed by the representative of the Union of the Soviet Socialist Republics, that is, to delete Article 7. The amendment was rejected by a vote of twenty-two against, eight for, with eleven abstentions.24 The President called a vote on Article 7 “as it appeared in the report of the Committee appointed by the Economic and Social Council resolution 564(XIX) (E2824, Annex 1)”, that is: “No reservations may be made to this Convention”. This proposal was adopted with twenty-four in favour, nine against, and nine abstentions. Not surprising, as the Article was adopted with opposing votes, a number of delegations sought to explain their position:

23

24

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Nineteenth Meeting, 29 August 1956, UN Doc. E/CONF.24/SR.19, 19 November 1958, pp. 2–15. Id., p. 15.

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Mr. BELTRAMINO (Argentina) said he was authorized to state that, if the draft of article 7 were retained in its present form, the Argentine Government would be unable to sign the convention. Mr. TUNCEL (Turkey) said that in voting against the Soviet Union proposal and for the draft of article 7 he in no way wished to prejudice the Turkish Government’s future position with regard to the admissibility of reservations in other multilateral agreements. Mr. ABDALLA (Sudan) said that his delegation had voted for the original article 7 on the assumption that none of the articles in the draft supplementary convention called for reservations. However, his delegation reserved its right to change its vote should any amendment made in second reading calling for reservations on the part of his Government. Mr. ARGUDIN (Cuba) said that his delegation was not opposed on principle to admitting reservations. He had voted in favour because of the nature of the convention. Mr. GIRAUD (France) thought it would be regrettable if the Argentine Government’s support could not be obtained for the convention. If that Government wished to enter any innocuous reservation which would not upset the balance of the convention, it could always submit them to the Conference, which would consider whether they were acceptable.25

As no amendments had been submitted with regard to Article 7 as adopted at first reading, the President put the Article to a vote at second reading. Article 7 was adopted by twenty-six in favour, nine opposed and six abstentions. Two delegations sought the floor to explain their vote, the Argentina Representative, Mr. Beltramino to “reiterate his Government’s position, which was that the adoption of article 7 would make it impossible for Argentina to sign the Convention”. Mr. Jafri of Pakistan, sought to explain the fact that his delegation had voted in favour of Article 7, though it had abstained on the vote in first reading: During discussion which had preceded the vote on the article at first reading he had said that if the spirit of compromise continued to prevail he would be able to vote for the article subsequently; and in that connexion he had referred to the Portuguese amendment to article 2 and the possibility of other substantive changes. Since, however, the deliberations of the Conference had been guided by the same conciliatory spirit, he did not think reservations

25

Id., p. 16.

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to the convention were necessary and he had therefore been directed by his Government to vote for article 7.26

A Style Committee, having been established to draft the overall convention for final consideration, moved Article 7 to Article 9. This was accepted by the Conference without discussion, so that the provisions of Article 9 of the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, read: “No reservations may be made to his Convention”.27

iv. Commentary on the Provisions of Article 9 of the Supplementary Convention As originally proposed in the 1954 British Draft Convention, a supplementary convention would allow for reservations. During the negotiation process, some States sought to ensure that this freedom of action was maintained, while others sought to insist that no reservations should be allowed. While States sought a compromise, for instance, calling for reservations to be excluded from the substantive provisions but not to the procedural articles, these proposals failed as ultimately it was decided that no reservations should be allowed. The ethos which then permeated the negotiations, as is apparent with regard to Article 9, was that the states had developed limited international obligations in substance, but sought to, in a rigid manner, ensure that those obligations were carried out. Thus, supervision of activities by the Economic and Social Council (Article 8),

26

27

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Twenty-Second Meeting, 31 August 1956, UN Doc. E/CONF.24/SR.22, 20 November 1958, p. 12. For the adoption of the draft supplementary convention as a whole see Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Twenty-Fourth Meeting, 4 September 1956, UN Doc. E/CONF.24/SR.24, 20 November 1958, p. 5. The Report of the Style Committee is found at: Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Report of the Style Committee, UN Doc. E/CONF.24/19, 3 September 1956.

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mandatory dispute settlement (Article 10) and with regard to Article 9, no reservations was mandated. In response to the provisions on reservations found in the 1954 British Draft Convention, the United Nations Secretary-General put forward the position that reservations should not be allowed for a supplementary convention. Noting that the provisions put forward by the United Kingdom were the same as had been put forward by the British (and accepted by the Commission on Human Rights) with regard to the draft covenants of human rights. Arguing that as opposed to the covenants, the supplementary convention is “very limited in scope”, as the object and purpose of the draft convention was to repeal any legislative provisions that were not in conformity with the requirement to take all practicable and necessary measures to bring about ‘progressively and as soon as possible’ the “complete abolition or abandonment of certain institutions or practices”. Whereas, with the covenants, with its large number and varied provisions, a State might be required to make a reservation to one or another of the articles to allow it to become party to either of the instruments. The Secretary-General then argued that with regard to Article 1 of the supplementary Convention, to “make the existence of such a law a basis of a reservation might therefore not be appropriate”. Initially, no agreement could be reached as to the possible wording of the provision of the 1954 British Draft Convention related to reservation by the 1956 drafting Committee; as a result no provision regarding reservation was adopted. This was of concern. Yet, it was emphasised that there was a need for clarification on the issue, as the failure to include a clause could be interpreted as either allowing or forbidding reservations. As a result, the French Representative put forward a proposal which simply read ‘no reservation may be made to this Convention’. That proposal was accepted by the drafting Committee, though not unanimously. When the provision was considered during the United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, the Argentinean Representative, Mr. Beltramino, did well to spell out United Nations action thus far with regard to reservations, noting that up to 1951, of the ninety convention which had been concluded by the UN, only seventeen reservations had been made with no objections. As such, and alluding to advisory opinion of the International Court of Justice, he considered that, “having regard to the humanitarian aims of

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the convention, every effort should be made to secure the adherence of the largest possible number of States. That could not be done unless the convention allowed for reservations, most of which would not affect the essential purposes of the instrument”. Yet, States negotiating at the UN Conference in Geneva in the autumn of 1956 were unwilling to follow this line of reason, siding instead with the approach taken by the Secretary-General, saying that, for instance, the admitting of reservations to Article 1 “would imply that national legislation might continue indefinitely to be at variance with the convention”, or that allowing reservations would nullify the various compromises which had been reached, with specific mention being made to the so-called ‘colonial clause’ established at Article 12 (Overseas Territories). For his part the Turkish Representative, Mr. Tuncel, noted that “at all international meetings the USSR delegation had always supported the right of parties to make reservations”. In the present circumstances, the representative of the Soviet Union was undoubtedly actuated by a desire to support that principle and his statement had in no way been prompted by an intention to evade certain provisions of the convention. However, such a position of principle should not be defended in categorical terms”. As a result, the Turkish Representative called for a vote. After further deliberations, a Soviet Union proposal to delete the provision on reservations failed, while the French proposal carried the day, thus no reservation are allowed to the supplementary convention.

Article 10 (Compromissory Clause) Any dispute between States Parties to this Convention relating to its interpretation or application, which is not settled by negotiation, shall be referred to the International Court of Justice at the request of any one of the parties to the dispute, unless the parties concerned agree on another mode of settlement.

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i. 1954 British Draft Convention ARTICLE 8 (1) Any question or dispute concerning the interpretation or application of this Convention which arises between Contracting States both or all of which are parties to the Statute of the International Court of Justice shall be referred to the International Court of Justice, unless in any specific case it is agreed by the parties to have recourse to another mode of settlement. (2) If the Contracting States between which a dispute has arisen are not parties, or any one of them is not a party, to the Statute of the International Court of Justice, the dispute shall, if the State concerned so desires, be submitted, in accordance with the constitutional rules of each of them, to an arbitral tribunal established in conformity with the Convention for the Pacific Settlement of International Disputes signed at The Hague on October 18, 1907, or to any other arbitral tribunal.1

In 1953, the United Nations Economic and Social Council requested the Secretary-General to consult with States as to the desirability of a supplementary convention on slavery and to its possible content.2 In April 1954, the United Kingdom using as its basis the recommendations of the 1950-51 Ad Hoc Committee on Slavery, put forward a draft convention which included a compromissory clause at Article 8.3 As Article 8 dealt with a procedural aspect of the 1954 British Draft Convention and did not register amongst the considerations or the recommendations of the 1950-51 Ad Hoc Committee on Slavery, the United Kingdom did not provide any comments on its content of form. A year later, in April 1955, the Economic and Social Council decided to appoint a drafting committee “for the purpose of preparing a text of a draft supplementary

1

2 3

Economic and Social Council, Slavery: Consultations Concerning the Desirability of a Supplementary Convention on Slavery and its Possible Contents, UN Doc E/2540/Add.4, 12 April 1954, p. 5. See Economic and Social Council, Resolution 475 (XV), 27 April 1953. See Economic and Social Council, Slavery: Consultations Concerning the Desirability of a Supplementary Convention on Slavery and its Possible Contents, UN Doc E/2540/Add.4, 12 April 1954.

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convention”.4 In the lead up to the first meeting, in mid-January 1956, of what would be termed the Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, the Secretary-General had prepared a memorandum of the relevant activities which had transpired within the United Nations touching on slavery and prepared “a summary of the comments received on the draft convention”.5 With regard to the provisions of Article 8 of the British Draft Convention, the SecretaryGeneral noted in his Memorandum that the Anti-Slavery Society raised “the question whether the article (follows closely Article 8 of the 1926 Slavery Convention) would empower the United Nations to submit a case for interpretation of the convention to the International Court of Justice, or whether that power is vested in States only”.6 That question was never answered; but it is clear from the Statute of the International Court of Justice that only States can appear in contentious cases while only the Security Council, the General Assembly, or other organs of the United Nations and specialized agencies authorised by the General Assembly, can request advisory opinions.

4 5

6

Economic and Social Council, Resolution 564 (XIX), 7 April 1955. Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude Submitted by the Government of the United Kingdom and Comments Thereon (Memorandum by the Secretary-General), UN Doc E/AC.43/L.1, 2 December 1955, p. 4. Id., p. 38. Article 8 of the 1926 Convention reads: The High Contracting Parties agree that disputes arising between them relating to the interpretation or application of this Convention shall, if they cannot be settled by direct negotiation, be referred for decision to the Permanent Court of International Justice. In case either or both of the States Parties to such a dispute should not be parties to the Protocol of December 16th, 1920 relating to the Permanent Court of International Justice, the dispute shall be referred, at the choice of the Parties and in accordance with the constitutional procedure of each State either to the Permanent Court of International Justice or to a court of arbitration constituted in accordance with the Convention of October 18th, 1907, for the Pacific Settlement of International Disputes, or to some other court of arbitration.

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ii. 1956 Draft Supplementary Convention on Slavery and Servitude ARTICLE 8 Any dispute between States Parties to this Convention relating to its interpretation or application, which cannot be settled by other means, shall be referred to the International Court of Justice at the request of any one of the parties to the dispute.7

The Committee on the Drafting of a Supplementary Convention on Slavery and Servitude considered the provisions of Article 8 at its fifth meeting on 18 January 1956, wherein the Chairman noted that the Soviet Union had submitted two amendments. These read: In article 8, paragraph (1), before the words ‘be referred to the International Court of Justice’, insert the words ‘with the agreement of all the parties to the dispute’. In paragraph (2) of the same article, replace the word ‘if the State concerned so desires’ by the words ‘if the parties to the dispute so desire’.8

With regard to the first proposed amendment, the Union of Soviet Socialist Republics Representative, Mr. Nikolaev, stated: “The reason for this was that many States, including the USSR, had not accepted the compulsory jurisdiction of the International Court of Justice”. As to the second proposal, Mr. Nikolaev noted that the “underlying principle was that arbitration required the agreement of both or all the parties to the

7

8

Economic and Social Council, Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, UN Doc. 2824, Annex I, 15 February 1956. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Union of Soviet Socialist Republics: amendment to the draft convention on the abolition of slavery and servitude, UN Doc. E/AC.43/L.13, 18 January 1956, paragraph 2.

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dispute”.9 Mr. Giraud, the French Representative, suggested that paragraph 2 be deleted. “Thus”, he continued, “the International Court of Justice alone would be competent. Indeed, the Court was better able than courts of arbitration to establish a coherent and authoritative jurisprudence. Besides, the creation of a court of arbitration might give rise to difficulties”. Mr. Giraud requested the opinion of the Office of Legal Affairs on the following point, that there “was no reason for paragraph (2), as nearly all States were either Members of the United Nations or parties to the Statute of the International Court of Justice and thus came within the scope of paragraph (1)”.10 At the seventh meeting of the Committee, the question by the French representative was taken up by Mr. Schreiber, the Deputy Director of the General Legal Division of the United Nations: With regard to article 8, the French representative had suggested that paragraph (2) be deleted. Such a deletion would leave the text substantially unchanged, since the existing text of paragraph (1) contained a provision for recourse by mutual agreement to a mode of settlement other than reference to the International Court of Justice, thus covering the possibility of reference to the Permanent Court of Arbitration. A specific mention of the 1907 Hague Convention, which might have been necessary in the 1926 Slavery Convention under the auspices of the League of Nations, was not required in the present draft.11

This was followed, at the fourteenth meeting on 25 January 1956, by a more thorough consideration of Article 8 as well as a proposed amendment of its provisions by the French representative. The proposal put forward by France reads: Amend paragraph (1) of this article to read: Any question or dispute concerning the interpretation of this Convention which arises between the Contracting States shall be referred to the

9

10 11

Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Fifth Meeting, 18 January 1956 UN Doc. E/AC.43/SR.5, 10 February 1956, p. 9. Id. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Seventh Meeting, 19 January 1956, UN Doc. E/AC.43/SR.7, 17 February 1956, p. 6.

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International Court of Justice as provided in Article 35 of the Statute of the said Court. Delete paragraph (2) of this article.12

The French representative opened the discussion in the following manner: Mr. GIRAUD (France) said that the French Government considered it essential that the Court should have compulsory jurisdiction in the settlement of disputes arising between the parties concerning the application of the convention. It was necessary to give every contracting party an opportunity both to substantiate charges against other contracting parties and to refute unfounded accusations against itself, and the deciding body must be a judicial organ which could be relied upon to be impartial and which was free from political passions and pressures. The second paragraph of article 8 seemed superfluous. The provision was a survival from the time of the League of Nations, when the United States and other States had not been Parties to the Statute of the Permanent Court of International Justice. Today, however, States Members of the United Nations were ipso facto Parties to the Statute of the International Court of Justice, and even if they were not the Court was open to them under Article 35 of the Statute.13 For that reason, he had proposed (E/AC.43/L.17) the deletion of paragraph (2). The USSR representative had maintained that in the present instance the compulsory jurisdiction of the International Court of Justice was inconsistent with the principles of State sovereignty. That argument was unfounded. The sovereignty of States could not place them beyond the compass of international law. When they accepted the obligations of a

12

13

Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, France: amendments to articles 8, 9, 11 and 12 of the Draft Convention on Slavery and Servitude (E/2540/Add.4), UN Doc. E/AC.43/L.17, 18 January 1956. Emphasis in the original. Article 35 of the Statute of the International Court of Justice reads: 1. The Court shall be open to the states parties to the present Statute. 2. The conditions under which the Court shall be open to other states shall, subject to the special provisions contained in treaties in force, be laid down by the Security Council, but in no case shall such conditions place the parties in a position of inequality before the Court. 3. When a state which is not a Member of the United Nations is a party to a case, the Court shall fix the amount which that party is to contribute towards the expenses of the Court. This provision shall not apply if such state is bearing a share of the expenses of the Court.

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convention they thereby accepted certain limitations on their sovereignty. If disputes arose concerning the application of the convention, the proper procedure was to refer them to an impartial authority – which could only be a judicial authority – instead of using them as material for inconclusive discussion motivated by political consideration. Nor was the proposal to include an arbitration clause in the convention in any way revolutionary, for such a clause appeared in every convention concluded under the auspices of the United Nations. It was consequently surprising to hear the USSR representative using a reactionary argument which had been invoked half a century previously. The French delegation’s concern was to make certain that the provisions of the instrument were properly observed, and that the arbitration clause was a necessary safeguard.14 Mr. BOZOVIC (Yugoslavia) asked what was the reason for the reference, in the French amendment, to Article 35 of the Court’s Statute. Mr. NIKOLAEV (Union of Soviet Socialist Republics) said that although many of the French representative’s proposals were manifestly designed to weaken the convention, he would support the proposal to delete paragraph (2). His reasons for doing so might not be the same as those of the sponsor of the amendment, but the provision was completely redundant by reason of the saving clause at the end of paragraph (1). The USSR regarded it as vital that the principle of sovereignty should be constantly upheld. Along with a number of other States, it firmly believed that principle constituted the very cornerstone of international law. It was especially important at present, when many new States were taking their place in the comity of nations. Mr. BOZOVIC (Yugoslavia) agreed that paragraph (2) would be redundant if paragraph 1 were adopted in its original version. For that reason, he would certainly vote for the second French amendment. It would nevertheless be impossible for him to vote in favour of the first French amendment, which did not provide for the possibility of settling a dispute otherwise than by reference to the Court. Mr. SCOTT-FOX (United Kingdom) said that he would have no objection to the deletion of paragraph (2). He would support both the French amendments and the complementary Netherlands amendments.15

14

15

Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Fourteenth Meeting, 25 January 1956, UN Doc. E/AC.43/SR.14, 29 February 1956, pp. 6–7. Id.

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The Netherlands amendment referred to by the United Kingdom representative, was in fact a sub-amendment to the text proposed by France and called for the following: (1) deletion of the words ‘question or’, and insertion of the words ‘or application’ after the word ‘interpretation; (2) insertion of the words ‘at the request of either party’ after the words ‘shall be referred; and (3) addition of the words ‘unless in any specific case it is agreed by the parties to have recourse to another mode of settlement’, at the end of the sentence.16

For his part, the French Representative, Mr. Giraud stated “that the Netherlands amendments were perfectly acceptable to his delegation”. The Chairman, Mr. Cutts, speaking as the representative of Australia, “said that he agreed with the French representative’s reasons for insisting that provisions should be made for the compulsory reference of disputes to a judicial body. He would also support the proposal to delete paragraph (2), as well as the combined French and Netherlands amendments to paragraph (1)”. This was followed by a vote to delete paragraph 2 which was approved unanimously.17 Discussion again resumed with regard to the provisions of Article 8: Mr. NIKOLAEV (Union of Soviet Socialist Republics) said that his delegation had proposed its amendment to paragraph (1) (E/AC.43/L.13) because it believed that the International Court should only hear such cases as

16

17

Note that while the original sub-amendment proposed by the Netherlands was in English, only the French translation is found in the United Nations Archives as Couseil Economique et Social, Comite charge de rediger une convention supplementaire relative a l’esclavage et à la servitude, Pays-Bas. Amendement aux amendements de la France (E/AC.43/L.17) aux article 8, 9, 11, et 12 du project de convention pour l’abolition de l’esclavage et à la servitude (E/2540/Add.4), UN Doc. E/AC.43/L.17, 18 janvier 1956. That being said, the Report of the Committee on the Drafting of a Supplementary Convention on Slavery and Servitude reproduced the substance of the Netherlands proposal which is the version quoted. See Economic and Social Council, Slavery: Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery: Report of the Committee appointed by Resolution 564 (XIX), 7 April 1955, UN Doc E/2824, 15 February 1956, p. 27. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Fourteenth Meeting, 25 January 1956, UN Doc. E/AC.43/SR.14, 29 February 1956, pp. 7–8.

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were referred to it with the agreement of both parties to the dispute. The combined French and Netherlands amendments were unacceptable, because they were based on fundamentally different principles. The argument that there was some inherent merit in the compulsory jurisdiction clause was one which he felt bound to reject. For those reasons, the USSR delegation would vote against those amendments and would formally propose its own amendment to the original text. Mr. SCOTT-FOX (United Kingdom) said that it might be advisable to follow precedent by adopting the wording used in other international instruments concluded under the auspices of the United Nations. The text of the corresponding provision in the Convention relating to the Status of Refugees (article 38) and in the Convention relating to the Status of Stateless Persons (article 34)18 did not differ from the combined French and Netherlands amendments to any great extent and there was no reason to introduce a new form in the convention under consideration. Mr. GIRAUD (France) and Mr. SCHIFF (Netherlands) agreed to that proposal. The CHAIRMAN, speaking as representative of Australia, said that he could not support the USSR amendment. The contracting parties should be prepared to accept compulsory jurisdiction in all instances where they could not agree on another mode of settlement. Sovereignty was certainly of the utmost importance, but a convention such as the one under discussion could never be effectively enforced unless States voluntarily surrendered a fraction of their sovereignty. If the USSR amendment were adopted, the contracting parties would not be assuming any obligations whatsoever and the convention would become virtually valueless. States which could not accept the compulsory jurisdiction clause might equally well refuse to accede to the instrument. Mr. NIKOLAEV (Union of Soviet Socialist Republics) said that his amendment was in no way designed to do away with the right to recourse to the International Court. The proposal was fully consistent with article 36(2) of the Court’s Statute.19

18

19

Article 38 of the Convention relating to the Status of Refugees reads, for instance: Any dispute between parties to this Convention relating to its interpretation or application, which cannot be settled by other means shall be referred to the International Court of Justice at the request of any one of the parties to the dispute Article 36 (2) of the Statute of the International Court of Justice reads: The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning:

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Mr. ABDEL-GHANI (Egypt) supported the United Kingdom representative’s suggestion that article 8(1) should be replaced by the text used in earlier conventions. It was desirable to maintain the greatest possible uniformity in instruments dealing with human rights. He reserved his right to refer to the French and Netherlands amendments at a later stage. Mr. BENLER (Turkey) said that he was in full agreement with the Australian representative regarding the true purpose of the compulsory jurisdiction clause. He would therefore support the combined French and Netherlands amendments. Mr. GIRAUD (France) said that he would withdraw his amendment in favour of the wording used in the Convention relating to the Status of Refugees. Mr. SCOTT-FOX (United Kingdom) said that he would propose the wording which appeared in that Convention as a formal amendment to his original draft.20

The fourteenth meeting then rose, with the provisions of Article 8 beginning the discussions of the fifteenth meeting of the Committee. The President noted that the United Kingdom had proposed the following new text for Article 8: Replace the text of this article by the following:21 Any dispute between parties to this Convention relating to its interpretation or application, which cannot be settled by other means, shall be referred to the International Court of Justice at the request of any one of the parties to the dispute.22

20

21

22

a. the interpretation of a treaty; b. any question of international law; c. the existence of any fact which, if established, would constitute a breach of an international obligation; d. the nature or extent of the reparation to be made for the breach of an international obligation. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Fourteenth Meeting, 25 January 1956, UN Doc. E/AC.43/SR.14, 29 February 1956, pp. 8–9. In the amendment a footnote was added at this location which reads: “Based on Art. 38 of the Convention relating to the Status of Refugees, document A/CONF.2/108/Rev.1 and Art. 34 of the Convention relating to the Status of Stateless Persons, document E/CONF.17/5.” Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Draft Supplementary Convention on the Abolition of Slavery, United Kingdom of Great Britain and Northern Ireland: Amendment to Article 8 of the

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The Chairman then asked if the representative of the Soviet Union “wished to retain his amendment”, to which Mr. Nikolaev responded in the affirmative; asking for a vote on his amendment and a separate vote on the words ‘at the request of any one of the parties to the dispute’ at the end of the new text submitted by the United Kingdom (E/AC.43/ L.33)”. The Chairman was unwilling to allow this, as it would “enable the USSR representative to have a vote taken twice on the same text” and thus asked that the representative of the Soviet Union choose between the separate vote and his amendment. Mr. Nikolaev asked that the vote take place on his amendment which “he modified to the effect that the words ‘at the request of any of the parties to the dispute’ in the new text submitted by the United Kingdom (E/AC.43/L.33) should be replaced by the words ‘with the agreement of all the parties to the dispute’”. The amendment of the Union of Soviet Socialist Republics was then put to a vote and rejected by five votes against, three for, with two abstentions. The United Kingdom text was then adopted at second reading by a vote of eight in favour, one opposed, with one abstention.23 Following the vote, a number of members of the Committee had comments: Mr. BOZOVIC (Yugoslavia), Rapporteur, said that he had voted in favour of the United Kingdom text because he considered that, in the event of a dispute, any one of the parties should be entitled to refer the matter to the International Court. Nevertheless, he believed that exceptions to that principle should be admitted and he had therefore been prepared to accept the USSR amendment. He had felt obliged to vote as he had done because the arguments used by the USSR and French representatives had lent the original draft a somewhat political significance. The French representative had held that certain contracting parties which were not parties to the Statute of the International Court might with impunity create difficulties for other contracting parties. The contrary was also possible, however, and certain States might abuse the clause by bringing complaints against other States for purely political reasons.

23

Draft Convention on the Abolition of Slavery and Servitude, UN Doc. E/AC.43/L.33, 25 January 1956. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Fifteenth Meeting, 26 January 1956, UN Doc. E/AC.43/SR.15, 27 February 1956, p. 3.

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Mr. GIRAUD (France) thought it was not unnatural for the motives of Governments to be, generally speaking, political; but the decision on the dispute must be juridical. The political motives of the requesting State were not the determining factor for the International Court of Justice, which pronounced its judgments in terms of law. Mr. APUNTE (Ecuador) explained that he had abstained from voting because his country had not yet recognized that the Court had compulsory jurisdiction. Mr. NIKOLAEV (Union of Soviet Socialist Republics) doubted the validity of the French representative’s assertion that the International Court of Justice was not subject to political influence and based its decisions on legal considerations only. He had voted against the United Kingdom text because that text violated the principle of the sovereignty of States by rendering the jurisdiction of the International Court compulsory.24

On 6 February 1956, at the twentieth meeting of the Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, the various provisions of the Draft Convention were considered at third reading. With regard to Article 8, the only comment came from the British Representative, Mr. Brown, who “pointed out that the word ‘Parties’ was used in the article in two different senses. He proposed that it should be written with the initial capital in the first line and with a small letter in the last line”. This was agreed to. Thus, what emerged from the Committees work as Article 8 is the following: Any dispute between States Parties to this Convention relating to its interpretation or application, which cannot be settled by other means, shall be referred to the International Court of Justice at the request of any one of the parties to the dispute.25

24 25

Id., pp. 3–4. Economic and Social Council, Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, UN Doc. E/2824, Annex I, 15 February 1956.

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iii. 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery ARTICLE 10 Any dispute between States Parties to this Convention relating to its interpretation or application, which is not settled by negotiation, shall be referred to the International Court of Justice at the request of any one of the parties to the dispute, unless the parties concerned agree on another mode of settlement.26

On 20 April 1956, the Economic and Social Council decided that “a conference of plenipotentiaries should be convened” in order to complete the drafting of a supplementary convention.27 At first reading of the Article 8, at the ninth meeting of the United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices similar to Slavery, the Indian Representative, Mr. Padmanabhan, introduced an amendment jointly sponsored by his and the Czechoslovak delegations. This amendment reads: Replace article 8 by the following text: Any question or dispute concerning the interpretation or application of this Convention, which is not settled by negotiation shall be referred to the International Court of Justice in conformity with the Statute of the Court, unless the parties concerned agree on another mode of settlement.28

Mr. Padmanabhan “pointed out that the new text suggested was identical with the text which had been proposed by Czechoslovakia, India, the

26

27 28

United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Final Act and Supplementary Convention, 4 September 1956, UN Doc E/CONF.24/23. Economic and Social Council, Resolution 608 (XXI), 30 April 1956. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Czechoslovakia and India: Amendments to Articles 8, UN Doc E/CONF.24/L.15, 21 August 1956.

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Union of Soviet Socialist Republics, the United Kingdom and the United States of America, in connexion with an article of the draft statute of the Atomic Energy Agency”. The Indian representative went on to say: The amendment also sought to improve the draft article in that it proposed, firstly, to substitute for the words ‘which cannot be settled by other means’ the words ‘which is not settled by negotiations’, and, secondly, to add at the end of the article the words ‘unless the parties concerned agree on another mode of settlement’.

Mr. Padmanabhan concluded by saying that he ‘hoped that the new formulation would commend itself to the Conference. What ensued was a thorough consideration of Article 8 at first reading: Mr. PAVLIC (Czechoslovakia) said that, as it stood, article 8 of the draft Convention laid down the principle of compulsory reference to the International Court of Justice. That mandatory provision was incompatible with the sovereign right of States to choose the mode of settlement in the event of a dispute. Accordingly, his delegation proposed the adoption of the text to be found in document E/CONF.24/L.15 [re: proposed joint-amendment by Czechoslovakia and India], which should cover every case. Mr. GIRAUD (France) pointed out that draft article 8 was merely the compromissory clause normally found in all conventions concluded under the United Nations auspices. He would strenuously oppose any move tending to impair the principle of compulsory reference to the International Court, which was a highly valued addition to international law. For the application of a convention the processes of law seemed to him far superior to political procedures, since with the latter there was no sure way of averting slanderous accusations and of retaining only charges having a basis. Every party could adopt any position it chose vis-à-vis any other party. The Indian/Czechoslovak proposal made reference to the Court’s Statute and might look harmless. But in fact it could be interpreted in several ways. Was it the intention that disputes might be brought before the Court under the last part of paragraph 1 of article 36 of the Statute, or that the Court could only be seized at the request of a party if all the parties to the dispute accepted compulsory jurisdiction under Article 32(2).29 The first interpretation was of course the more plausible, but there was room for discussion. Moreover, the expression ‘by other means’ was wider than, and therefore preferable to, ‘by negotiation’.

29

Article 36(1) and (2) reads: 1. The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.

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Mr. TUNCEL (Turkey) said that the statements of the representative of the two delegations sponsoring the joint amendment, and especially that in which the Czechoslovak representative had criticized principles that might justifiable be regarded as firmly established, had aroused some apprehension. The joint amendment was in effect an escape clause which would enable one or other of the parties to evade important provisions of the Supplementary Convention. It virtually made reference to the International Court contingent upon unanimity among the parties to the dispute. Yet many States parties to the Court’s Statute had already pledged themselves, by declarations under Article 36, paragraph 2, of the Statute, to recognize the jurisdiction of the Court as compulsory. If the two States between which a dispute existed had made that declaration, would article 8 prevail over their earlier undertaking? Surely, it could not be contended on grounds of national sovereignty that consent of all the parties to a dispute was required before the dispute could be referred to the International Court. The Turkish delegation had no fear of the Court’s jurisdiction and sincerely hoped that the joint amendment proposed by Czechoslovakia and India would be rejected. Mr. BELTRAMINO (Argentina) expressed support for the joint amendment. Among those represented at the Conference, the States which had not recognized the jurisdiction of the Court as compulsory were more numerous than those which had recognized it. Those which had recognized the Court’s jurisdiction would act as they thought fit. Mr. GIRAUD (France) said that the clause contained in article 8 of the draft occurred in the vast majority of conventions concluded under the United Nations auspices. To amend it in a restrictive sense would be a retrograde step in international law and a departure from long-established practice; it would remove an indispensable safeguard for States which were actuated by good faith. Mr. CHISTYAKOV (Union of Soviet Socialist Republics), supporting the joint amendment submitted by the delegations of Czechoslovakia and India, emphasized that his delegation considered that States should make every

2. The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: a. the interpretation of a treaty; b. any question of international law; c. the existence of any fact which, if established, would constitute a breach of an international obligation; d. the nature or extent of the reparation to be made for the breach of an international obligation.

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effort to settle any question or dispute concerning the interpretation or application of the draft supplementary convention by direct negotiation. The new text was an improvement on the present text of article 8 as it would permit signatories to resort to another mode of settlement if efforts at direct negotiation failed and the parties did not wish to refer the dispute to the International Court of Justice. The text should not meet with any objections as it had been taken from the draft statute of the Atomic Energy Agency, and similar wording could be found in many international instruments as for example, the Convention of the World Meteorological Organization. Mr. SCHACHTER (Secretariat [Director of the General Legal Division]), in reply to the representative of Turkey, said that the following countries had accepted the compulsory jurisdiction of the International Court of Justice in pursuance of article paragraph 2, of the Statute: Australia, Canada, China, Colombia, Denmark, Dominican Republic, El Salvador, France, Haiti, Honduras, India, Israel, Liberia, Liechtenstein, Luxembourg, Mexico, Netherlands, New Zealand, Nicaragua, Norway, Pakistan, Panama, Paraguay, Philippines, Portugal, Sweden, Switzerland, Thailand, Turkey, Union of South Africa, United Kingdom, United States of America and Uruguay. Referring to the amendment submitted by the delegations of Czechoslovakia and India, he said that the type of compromissory clause it contained would constitute a basis of jurisdiction irrespective of whether the States signatory to the draft supplementary convention had accepted the optional clause under Article 36(2) of the Statute. He referred to Article 36 paragraph 1 of the Statute which provided that the jurisdiction of the Court comprised all cases which the parties referred to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force, and noted that the last phrase covered treaty clauses providing for reference of cases to the Court. Both under the amended article proposed by the two delegations and the original article 8, he believed that any States parties to the convention would have the right unilaterally to bring a dispute between them to the Court unless they had agreed on another mode of settlement. Consequently, as far as he could see the new text proposed for article 8 was not a substantial departure from the type of compromissory clause included in almost all United Nations conventions, although the original text was more explicit in recognizing that any one State could refer the dispute to the Court. Mr. TUNCEL (Turkey) said that nobody had commented on his earlier remarks. The Soviet Union representative had merely asserted that the solution offered by the joint amendment proposed was very simple and, in support of that solution, had cited precedents in the constitutions of certain specialized agencies and the draft statute of the International Atomic Energy Agency. Actually, however, every instrument probably had its own peculiar features, and each specific case should be considered, not in light of precedents, but on its own merits.

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The Conference had not been convened to destroy principles set forth in the draft convention by means of escape clauses. The unavoidable conclusion was that the joint amendment tended to weaken articles 1 to 5. Mr. TSAO (China) supported the retention of article 8 of the draft supplementary convention as it provided (1) for inter-State settlement by negotiation or other means and (2) for the reference of a dispute to the International Court of Justice at the request of one of the parties to the dispute. That provision was in perfect harmony with Article 36 of the Statute of the Court. His delegation had no objection to the wording used in the amendment submitted by the delegations of Czechoslovakia and India, but was somewhat concerned at the explanation given by the previous speaker in support of the amendment. He felt that the amendment as interpreted might result in a deadlock and cases might arise of States parties to the dispute refusing to refer their case to the Court, with the result that such a dispute might never be settled. If such a deadlock arose the proposed convention would be greatly weakened, and his delegation could not therefore support the joint amendment. Mr. GIRAUD (France) had the impression that the object of the amendment was to substitute a less clear formula for one that was commonly used and perfectly clear. That amounted to inserting a wedge in the system of compromissory clauses, thereby making a breach which would subsequently be gradually widened. According to the Soviet Union representative’s interpretation, it seemed that if the amendment came into force, reference to the International Court of Justice would be compulsory for disputes between parties which had made declarations under Article 36 paragraph 2 of the Court’s Statute but would not be compulsory if one Party had not made the declaration. On the other hand, article 8 of the draft convention, as it stood, formally bound all parties to the convention to accept reference to the International Court and a Party could make an ex parte application to the Court. The amendment would only be acceptable if it contained a clear provision binding on any party which had not made application to the Court to recognize the Court’s jurisdiction, but in that case it would be indistinguishable from the text of in the draft convention. Mr. ADEEL (Sudan) felt that the phrase ‘which cannot be settled by other means’ in article 8 of the draft supplementary convention was somewhat ambiguous as so many means of settlement exited, The ambiguity might be removed if the words ‘of their choice’ were added at the end of the article. Supporting the joint amendment of the Indian and Czechoslovak delegations, he felt that it would bring article 8 into harmony with the Statute of the International Court of Justice and would dispel certain misgivings which he had felt about States which had not signed the optional clause.

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Mr. CHISTYAKOV (Union of Soviet Socialist Republics), referring to the Turkish representative’s statement, did not think that the representatives of Czechoslovakia and India had intended that any escape clause should appear in article 8, and pointed out that the wording they had used had been unanimously adopted in connexion with the draft statute of the Atomic Energy Agency. He agreed that representatives taking part in the Conference had every right to adopt new phraseology for the articles of the draft supplementary convention if they so desired, but pointed out that countless precedents existed in various United Nations instruments for the wording used in the amendment. He wished to thank the Director of the General Legal Division for his explanation. Mr. SCOTT-FOX (United Kingdom) said that his delegation preferred the present text of article 8, and could not support the USSR representative. The latter had laid much stress on the precedents which existed; but it seemed to him (Mr. Scott-Fox) that in general the great weight of precedent supported the present text. He felt that the only precedent cited by the USSR representative referred to two rather special cases, and it seemed probable that the formulae suitable to them might not be suitable for international agreements in general. He agreed with the representative of France that the general formula which had been adopted for the great majority, if not all, agreements concluded under the auspices of the United Nations was the formula which at present stood in article 8 of the draft supplementary convention. When studying the amendment submitted by the Czechoslovak and Indian delegation he would bear in mind the encouraging interpretation put on it by the Director of the General Legal Division might be right in his interpretation that for all practical purposes there was no difference between it and the present text. If that was so, the sponsors of the amendment ought presumably to have no difficulty in supporting the present text of article 8. Mr. PESCATORI (Italy) believed that the draft joint amendment would probably be acceptable if the words ‘in conformity with the Statute of the Court’ were replaced by ‘at the request of one of the parties to the dispute’. As it stood, the draft amendment was hardly an effective provision for the settlement of disputes. Mr. JAY (Canada) felt that the issue before the Conference was whether it should ensure that there was a specific provision in the draft convention providing that any dispute that might arise would be taken to a position where it could be settled, and in that respect there appeared to be a great difference between the text of article 8 as at present drafted and that of the proposed amendment. The text of article 8 specifically indicated that whenever everything else failed parties to a dispute could submit it to the

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International Court if one of them wished to do so. The text of the joint amendment did not imply that but was open to the interpretation that, should a dispute arise and attempts at negotiation fail, then one of the parties must take the dispute to the Court and, if the other party had not accepted the latter’s compulsory jurisdiction, it could refuse to do so on the basis of the wording of Article 36 paragraph 2. Article 36 clearly referred to international disputes in general but article 8 of the draft supplementary convention referred to specific disputes arising in the context of a specific convention, and if the amendment suggested by the Czechoslovak and Indian representatives were accepted he felt that a number of cases might arise in which a deadlock would be reached and the dispute would remain unresolved. He noted that many delegations which at earlier meetings had laid much emphasis on the possibility of disputes arising under the convention now appeared to support the procedure which he felt should be called the ‘road of no return’. Mr. GIRAUD (France) would be able to support the joint amendment by Czechoslovakia and India if it were amended in the manner proposed by the Italian representative. A distinction should be drawn between two kinds of precedent. The first were conventions signed under the auspices of the United Nations such as those on genocide, narcotic drugs, refugees etc., all of which contained in the normal way a compromissory clause similar to or on the same lines as that in the ad hoc Committee’s draft. Secondly, there were the instruments by which the international organizations had been set up, such as the United Nations Charter and the constitutions of most of the specialized agencies. Most of them contained no such clause. There were however exceptions (the Constitution of the ILO, the Convention establishing the World Meteorological Organization) while the draft Statute of the International Atomic Energy Agency included an imperfect formulation of the compromissory note such as that now proposed. It was a step forward that the statutes of the latter bodies contained even an imperfect clause governing the settlement of disputes concerning the application of their statute, by contrast with those of other international bodies which contained no such clause at all. In the case of the conventions under consideration, the only valid precedents were those from the conventions concluded under the auspices of the United Nations. There was no reason to break away from precedent and the formula hitherto used normally should not be weakened. Mr. SCHACHTER (Secretariat), referring to the Canadian representative’s statement, explained that Article 36 of the Statute of the International Court of Justice provided for various bases of jurisdiction. One clear basis of such jurisdiction was the so-called compromissory jurisdiction based on the last phrase in paragraph 1 of Article 36. The jurisdiction under that paragraph had no relation to paragraph 2 of the same article, the ‘optional

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clause’ where a different procedure was provided. Under paragraph 2, as he had mentioned, a certain number of States had agreed to accept the compulsory jurisdiction of the Court on a reciprocal basis, but in addition a large number of treaties and agreements listed in the various yearbooks of the Court contained clauses providing for reference to the Court of disputes under those treaties and agreements. Where such compromissory clauses existed in a treaty that clause was in itself a basis for jurisdiction upon the application of only one of the parties to a dispute, unless, of course, the clauses expressly required further agreement of the parties. He could cite cases brought before the Permanent Court of International Justice by one of the parties to a dispute in accordance with the compromissory clause in a treaty, even though the clause did not explicitly declare that one of the parties could bring the case. It would therefore be in conformity with article 36 paragraph 1 of the Statute of the International Court of Justice to provide for the submission of disputes to the Court on the basis of that jurisdictional provision, and if that jurisdictional basis existed the special agreement of the parties (‘compromis’) would be necessary. He agreed that it should be clear that whatever wording was adopted for article 8 the compromissory clause would be the basis of jurisdiction of the Court, irrespective of whether a State had accepted the compulsory jurisdiction of that body under article 36 paragraph 2. Replying to a question from Mr. JAY (Canada), he explained that the last clauses of paragraph 1 of article 36 formed the basis of a considerable body of compromissory clauses. A glance at any yearbook of the International Court of Justice would show that a distinction was drawn between disputes submitted voluntarily to the Court by joint agreement between the States and cases which were brought to the Court on the basis of acceptance of compulsory jurisdiction, and thirdly, jurisdiction based upon treaties and conventions in force. The last-mentioned category composed the largest class of instruments conferring jurisdiction on the Court, and those clauses were recognized as a basis for jurisdiction without requiring new special agreements. Mr. PESCATORI (Italy) was not satisfied that the draft joint amendment would form a truly effective clause. The reference to the provisions of the Statute of the International Court of Justice only made it possible to refer to the Court, whereas the aim was to make such reference obligatory. An unambiguous text was therefore preferable and his delegation saw no reason for departing from the terms of article 8 of the draft convention.30

30

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Ninth Meeting, 21 August 1956, UN Doc E/CONF.24/SR.9, 13 November 1958, pp. 7–14.

Article 10 (Compromissory Clause)

595

At this point, the ninth meeting concluded, with consideration of Article 8 resuming at the next meeting with the floor being given to the representative of Canada: Mr. JAY (Canada) said that the representative of the General Legal Division had dispelled the confusion whether there were any essential differences between the existing text of article 8 (E/2824, Annex I) and the amendment submitted by the India and Czechoslovakia (E/CONF.24/L.15) by explaining that, under the generally accepted and by no means novel interpretation, the formulation in the amendment would mean that, when a dispute arose between the parties under the convention and where negotiations had been unsuccessful, either party could compel the other to accept the jurisdiction of the International Court on the question. On that basis, and on the understanding that that interpretation was accepted by the Conference, the Canadian delegation would be more favourably disposed towards the amendment, but would still prefer the more precise and clearer presentation in the text of article 8 as it stood, since the importance of precision and clarity could not be exaggerated in settling disputes among sovereign States. Miss GUTTERIDGE (United Kingdom) said that her delegation had given further consideration to the joint amendment. The result had been to increase its belief that the article should be retained in its present form. The discussion at the previous meeting had shown that the words ‘in conformity with the Statute of the Court’ might give rise to difficulty, and various different interpretations of that phrase had been suggested. The representative of the General Legal Division had stated that because Article 36 paragraph 1 of the Statute of the Court stated that the jurisdiction of the Court comprised all matter specially provided for in the treaties and conventions in force that would be sufficient to allow any dispute covered by article 8 of the present convention to be referred to the Court at the request of any one of the parties to the dispute, whether or not that was specifically provided for in the article itself. She would be inclined to place the same interpretation on the words quoted from the Statute of the Court, but had been advised that the mater was not completely free from doubt and that it could not be predicted with certainty that the Court itself would uphold that interpretation. It was true that under Article 36 paragraph 1 the Court had jurisdiction wherever treaties and conventions provided for reference of disputes to the Court, but the normal form of that clause which provided for such reference would be one which made it clear that the dispute might be referred to the Court at the request of any of the parties to the dispute. If that was not specifically provided and there was merely a general allusion to a reference to the Court in conformity with the Statute the Court, there appeared to be no authority placing it completely beyond all doubt that the phrase must be interpreted to mean possible reference of the dispute to the Court at the instance of one of the parties. It had indeed been suggested

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that it would be equally possible to interpret the words ‘in conformity with the Statute of the Court’ as meaning that unless the parties concerned had accepted the compulsory jurisdiction of the Court the matter would not be brought before the Court except as a result of agreement between both parties to the dispute. If the interpretation suggested by the representative of the General Legal Division was the correct one, there would seem to be no advantage in adopting the joint amendment. As the phrase ‘in conformity with the Statute of the Court’ evidently gave rise to some doubt, the United Kingdom delegation would prefer not to depart from the clear wording used in the existing text, which had been used in recent conventions, concluded under the auspices of the United Nations, notably the Convention concerning Genocide, Refugees and Narcotic Drugs. Mr. PADMANABHAN (India) observed that the debate had shown that the joint amendment raised difficulties. The intention had merely been to enable the Conference to adopt a better form of words, not that States should elude any responsibilities. The phrase in the original text ‘which cannot be settled by other means’ had been considered to be far too vague. The joint amendment, in his opinion, was identical in substance with the existing text, but if other delegations disagreed with him he would be prepared to withdraw it. The main aim should be to draw up a supplementary convention which would be as broad-based as possible. Mr. PAVLIC (Czechoslovakia) endorsed the Indian representative’s views. Mr. JURKIEWICZ (Poland) said that at the previous meeting the Argentine representative and others had stated that they could not accept an optional clause concerning the International Court of Justice. The best drafted clause would not necessarily be acceptable to the largest number of countries, but the most important point was to obtain the widest possible acceptance for the supplementary convention. He therefore supported the joint amendment. Mr. SCOTT-FOX (United Kingdom) appreciated the Indian representative’s explanation of the reasons for which he had sponsored the amendment and the way in which he had understood the difficulties faced by certain number of the Conference. To meet the difficulty raised by India, the original text (E/2824, annex 1) might be amended by the deletion of the phrase ‘which cannot be settled by other means, and the addition of the phrase ‘unless the parties concerned agree on another mode of settlement’ and the end of the article. Mr. GIRAUD (France) said that, in keeping with the conciliatory spirit displayed by the Indian representative, he would accept the amendment proposed by Czechoslovakia and India, provided that the words ‘at the request of any one of the parties to the dispute’ were retained. The solution was not, however, really a compromise, for everyone was apparently

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agreed on the solution of the problem. The only intention was to make it perfectly clear so that there might be no possibility of interpreting article 8 in two ways. Mr. PADMANABHAN (India) accepted the United Kingdom representative’s amendment. Mr. NIKOLAEV (Union of Soviet Socialist Republics) proposed that the phrase from the joint amendment ‘which is not settled by negotiation’ be substituted for ‘which cannot be settled by other means’. The reference to negotiation was an excellent idea and had not given rise to any objection. Mr. SCOTT-FOX (United Kingdom) accepted the Soviet Union amendment to the United Kingdom amendment in a spirit of compromise.31

The President of the Conference, Mr. Calderon Puig, then put the text of article 8 to a vote at first reading, wherein it was adopted, thirty-four to none, with three abstentions.32 Thus at first reading the provisions of Article 8 read: Any dispute between States Parties to this Convention relating to its interpretation or application, which is not settled by negotiation, shall be referred to the International Court of Justice at the request of any of the parties to the dispute, unless the parties concerned agree to another mode of settlement.33

During the twenty-second meeting, Article 8 was considered at second reading; the President noting that no amendments had been submitted called the vote wherein Article 8 was adopted without change by a vote of thirty-six in favour, one opposed, with four abstentions.34 At the twenty-

31

32 33

34

See Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Tenth Meeting, 21 August 1956, UN Doc E/CONF.24/SR.10, 14 November 1958, pp. 2–4. Id., p. 4. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Text of Articles of the Supplementary Convention adopted on First Reading, UN Doc E/CONF.24/14, 30 August 1956. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Twenty-Second Meeting, 31 August 1956, UN Doc E/CONF.24/SR.22, 20 November 1958, p. 12.

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fourth, and final meeting, of the Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Style Committee put forward changes which sought to make the draft Convention a coherent entity. Where Article 8 was concerned the Style Committee proposed that it be shifted and renumbered as Article 10.35 The overall report of the Style Committee including its proposal that Article 8 should appear as Article 10 was adopted by thirty-seven votes to none, with six abstentions.36

iv. Commentary on the Provisions of Article 10 of the Supplementary Convention Just as the Soviet Union had been at the forefront of negotiations with regard to reservations in advocating for complete liberty of the parties, so too were Representatives of the Union of Soviet Socialist Republics at the forefront of the call for a compromissory clause which did not compel obligatory dispute settlement. Thus, Mr. Nikolaev, seeing the issue as a challenge to State sovereignty, proposed that the 1954 British Draft Convention be modified so that reference to the International Court of Justice would require “agreement of all the parties to the dispute”. The most succinct challenge to this position came from the French Representative on the 1956 drafting Committee, Mr. Giraud, who said that the “sovereignty of States could not place them beyond the compass of international law”. While the Soviet proposal was not accepted by the drafting Committee, a less rigid compromissory clause emerged by the end of the negotiation process. Though, much of the discussion during the 1956 Conference touched on a proposal made jointly by India and Czechoslovakia which introduced new wording which while appearing to require obligatory

35

36

See Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Report of the Style Committee, UN Doc E/CONF.24/19, 3 September 1956. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Twenty-Fourth Meeting, 4 September 1956, UN Doc E/CONF.24/SR.24, 20 November 1958, p. 3.

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dispute settlement, was rather unclear in its wording or motivation. Mr. Giraud, for instance noted that the proposal “might look harmless”, but it was not and that ultimately, the French Representative “had the impression that the object of the amendment was to substitute a less clear formula for one that was commonly used and perfectly clear. That amounted to inserting a wedge in the system of compromissory clauses, thereby making a breach which would subsequently be gradually widened”. The less rigid compromissory clause which emerged requires obligatory dispute settlement, but gives room to the parties to decide the methods used. The compromissory clause of Article 10 of the 1956 Supplementary Convention requires that the International Court of Justice be seized of the matter, but only if the parties can not settle their difference by recourse to negotiation, or failing that, that other means of dispute settlement had not been agreed to by the parties. Where these two requirements are not met, the International Court of Justice could be seized unilaterally by a State seeking to settle a dispute as to the interpretation or application of the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery.

Article 11 (Consent to be Bound) 1. This Convention shall be open until 1 July 1957 for signature by any State Member of the United Nations or of a specialized agency. It shall be subject to ratification by the signatory States, and the instruments of ratification shall be deposited with the Secretary-General of the United Nations, who shall inform each signatory and acceding State. 2. After 1 July 1957 this Convention shall be open for accession by any State Member of the United Nations or of a specialized agency, or by any other State to which an invitation to accede has been addressed by the General Assembly of the United Nations. Accession shall be effected by the deposit of a formal instrument with the Secretary-General of the United Nations, who shall inform each signatory and acceding State.

Article 11 (Consent to be Bound)

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i. 1954 British Draft Convention ARTICLE 9 This Convention shall be open for signature by any State whether or not a member of the United Nations until [date]. It shall be ratified. Ratification shall be effected be deposited of a formal instrument with the Secretary-General of the United Nations who shall inform each signatory and acceding State. After [same date] this Convention shall be open to accession by any State whether or not a member of the United Nations. Accession shall be effected by the deposit of a formal instrument with the Secretary-General of the United Nations who shall inform each signatory and acceding State.1

On the basis of United Nations Economic and Social Council Resolution 475, the Secretary-General was requested, in April 1953, to hold consultations with States, both members and non-members of the UN Organisation, as to the desirability of establishing an instrument supplementing the 1926 Slavery Convention. In late 1955, the Economic and Social Council appointed a committee to consider the 1954 British Draft Convention put forward by United Kingdom with a look to preparing “a text of a draft supplementary convention for submission to the Council”.2 Neither the United Kingdom, in putting forward its 1954 Draft Convention, nor other States during the consultation process, commented on Article 9.3

1

2 3

Economic and Social Council, Slavery: Consultations Concerning the Desirability of a Supplementary Convention on Slavery and its Possible Contents, UN Doc. E/2540/Add.4, 12 April 1954, p. 5. Economic and Social Council, Resolution 564 (XIX), 7 April 1955. Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude Submitted by the Government of the United Kingdom and Comments Thereon (Memorandum by the Secretary-General), UN Doc. E/AC.43/L.1, 2 December 1955, p. 9.

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ii. 1956 Draft Supplementary Convention on Slavery and Servitude ARTICLE 9 1. This Convention shall be open for signature by any State whether or not a member of the United Nations until [date]. It shall be subject to ratification by the signatory States, and the instruments of ratification shall be deposited with the Secretary-General of the United Nations who shall inform each signatory and acceding State. 2. After [same date] this Convention shall be open to accession by any State whether or not a member of the United Nations. Accession shall be effected by the deposit of a formal instrument with the Secretary-General of the United Nations, who shall inform each signatory and acceding State.4

Resolution 564 (XIX) of the United Nations Economic and Social Council considered that it was “desirable to prepare a text of a draft supplementary convention which would deal with those practices resembling slavery not covered by the International Slavery Convention of 1926”.5 As such, it appointed a Committee on the Drafting of a Supplementary Convention on Slavery and Servitude which considered the provisions of the 1954 British Draft Convention.6 What would become Article 11 of the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, was considered by the Committee as Article 9 of the 1954 British Draft Convention which outlined the manner in which States 4

5 6

Economic and Social Council, Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, UN Doc. 2824, Annex I, 15 February 1956. See Economic and Social Council, Resolution 564 (XIX), 7 April 1955. Economic and Social Council, Slavery: Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery: Report of the Committee appointed by Resolution 564 (XIX), 7 April 1955, UN Doc. E/2824, 15 February 1956, p. 8. For the Secretary-General’s memorandum, see Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude Submitted by the Government of the United Kingdom and Comments Thereon (Memorandum by the Secretary-General), UN Doc. E/AC.43/L.1, 2 December 1955.

Article 11 (Consent to be Bound)

603

would bind themselves to a supplementary convention, either through ratification or accession. Article 9 of the British Draft Convention was considered by the Committee at its fifth meeting on 18 January 1956. The following are the discussions which took place: Mr. GIRAUD (France) said that the text of article 9 did not correspond to the usual form adopted in United Nations conventions. It was customary to specify that a convention would be open for signature by States Members of the United Nations, members of the specialized agencies, or parties to the Statute of the International Court of Justice. He proposed that a similar wording should be adopted for article 9 since the existing wording; ‘by any State whether or not a Member of the United Nations’ could lead to disputes concerning States or Governments which were not universally recognized. Mr. NIKOLAEV (Union of Soviet Socialist Republics) said he could not accept the French proposal to restrict accession to the convention to certain States only. The convention ought to be open to signature and accession by the greatest possible number of States. Thus the existing text of article 9 should have been acceptable to all members of the Committee. New States frequently appeared on the international scene, and it was undesirable that the convention should not be open to accession by them. The Sudan, a new independent State, was a case in point; there was no reason why, pending admission to the United Nations or its specialized agencies, the Sudan should not be in a position to accede to the proposed convention. Mr. RAJAN (India) expressed a preference for the original draft of article 9. He could not accept the idea that there should be a privileged list of countries to which accession to the convention would be limited. The list suggested by the French representative was unduly restrictive. The convention was intended to deal with certain reprehensible practices which were contrary to the dignity of man and it must therefore be open to signature or accession by all States of the world. Mr. HORVAT (Yugoslavia) supported the views of the USSR and Indian representatives. Mr. SCOTT-FOX (United Kingdom) said that the French proposal deserved careful consideration. The suggested list would leave very few parts of the world outside its scope. It would have the advantage of giving the SecretaryGeneral some guidance as to what might properly be considered a State for the purposes of accession to the convention. On a point of drafting, he proposed that the words ‘It shall be ratified’ should be replaced by the words ‘It shall be subject to ratification by the signatory States’.

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The CHAIRMAN, suggested that a reference to the necessity for ratification could perhaps be made at the beginning of the following sentence, which specified how ratification was to be effected. Speaking as representative of Australia, he said that he would need time to examine the practical implications of the French proposal before expressing any views on it. Mr. GIRAUD (France) said that the formula he proposed was the one usually employed by the United Nations conventions; only recently it had been recommended by the Assembly in connexion with the draft convention on statelessness. His proposal did not give rise to any difficulties in such cases as that of Sudan. The Sudan could, without difficulty, become a party to the Statute of the International Court of Justice. It was the text of article 9 proposed in document E/2540/Add.4 which constituted a new and undesirable departure, since it would be a source of dispute.7

At this point the fifth meeting came to a close, with consideration of Article 9 later resuming at the sixteenth meeting on 27 January 1956. The Chairman of the drafting Committee noted that amendments had been submitted by France: 1. Amended the first paragraph of article 9 to read: ‘This Convention shall be open until [date] for signature by Members of the United Nations, States members of a specialized agency and States parties to the Statute of the International Court of Justice . . . etc.’ 2. Amend the first sentence of the second paragraph to read: ‘After [same date] this Convention shall be open to accession by States falling within any of the categories specified in the foregoing paragraph . . . etc.’8

7

8

Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Fifth Meeting, 18 January 1956 UN Doc. E/AC.43/SR.5, 10 February 1956, pp. 9–11. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, France: amendments to articles 8, 9, 11, 12 of the Draft Convention on Slavery and Servitude (E/2540/Add.4), UN Doc. E/AC.43/L.17, 18 January 1956. Emphasis in the Original. The following was attached as a note to the French proposal: The proposed formula is similar to that adopted by the General Assembly in its resolution of 14 December 1955 (A/RES/363) concerning the Convention relating to the Status of Stateless Persons of 28 September 1954.

Article 11 (Consent to be Bound)

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and jointly by Australia and Turkey: Replace the last two sentence of the first paragraph by the following text: ‘It shall be subject to ratification by the signatory States, and the instruments of ratification shall be deposited with the Secretary-General of the United Nations who shall inform each signatory and acceding State.’9

The discussion which ensued was as follows: Mr. NIKOLAEV (Union of Soviet Socialist Republics) said that he would vote against the French amendment. If the categories of States entitled to become parties to the convention were limited to three, certain States, such as Sudan, the German Democratic Republic, the People’s Republic of China, the Democratic People’s Republic of Korea and the Democratic Republic of Viet-Nam, would be excluded without any reason. At the time of the preparation of the draft convention on the recognition and enforcement of foreign arbitral awards, a similar amendment had been submitted, also at the last moment. He took strong exception to that procedure and was surprised that the United Kingdom, as the sponsor of the original proposal, was apparently prepared to accept an amendment which radically altered the draft. Mr. SCOTT-FOX (United Kingdom) was afraid that the original text might place the Secretary-General in an embarrassing position by forcing him to take decisions, in some cases, on the validity of instruments of ratification or accession deposited by countries whose status was not clearly defined. He proposed that the representative of the Office of Legal Affairs should be asked to inform the Committee of the precedents with regard to ratification and accession clauses and to indicate whether his fears had any foundation. Mr. ABDEL-GHANI (Egypt) considered that a convention serving a humanitarian purpose should be open to all States; moreover, the United Nations was aiming at universality. His delegation would vote against the French amendment. Mr. NIKOLAEV (Union of Soviet Socialist Republics) was aware of the precedents that could be cited in support of the French amendment, but thought that they were unconvincing. The question before the Committee

9

Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Australia and Turkey: Amendments to Article 9 of the Draft Convention on the Abolition of Slavery and Servitude (E/2540/Add.4), UN Doc. E/AC.43/L.21, 19 January 1956.

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was a substantive one: why should certain States be deprived of the right to become parties to the convention? Mr. SCHREIBER (Secretariat) said that formulae similar to that used in the French amendment had often been employed in the United Nations practice. An example was Article VII of the draft convention on the recognition and enforcement of arbitral awards. He admitted that the Secretary-General might be place in a somewhat embarrassing situation, if he were obliged to decide on the admissibility of an instrument of ratification or accession submitted by a country whose international status was not generally recognized by the Members of the Organization. That was why it had been recognized in the past that decisions involving political considerations were properly a matter for organs such as the General Assembly and the Economic and Social Council. Mr. BOZOVIC (Yugoslavia), Rapporteur, said that he would vote against the French amendment and in favour of the original draft. Yugoslavia had always desired that the greatest possible number of States should become parties to humanitarian conventions; it had sometimes voted for clauses of the type proposed by France, but only because no other solution had been possible. With regard to the admissibility of disputed ratifications, he suggested that the Secretary-General should leave the decision of the contracting parties in each individual case. Mr. SCHIFF (Netherlands) thought that the Secretary-General should not be placed in the embarrassing position of being obliged to take political decisions. With a view to guiding the Secretary-General and at the same time opening the convention to the greatest possible number of States, he suggested that the first of the French amendments should be revised to read: ‘This Convention shall be open until [date] for signature by Members of the United Nations, States members of a specialized agency, States parties to the Statute of the International Court of Justice and to any State to which an invitation has been addressed by the General Assembly’. Mr. GIRAUD (France) admitted that a departure from precedent might be useful, but only when progress could be achieved thereby. That could not be said of the present case. United Nations practice, to which he hoped the Committee would adhere, was well-founded: it sought to avoid difficulties and to prevent the Secretary-General from being forced to take political decisions which fell outside his competence. He accepted the Netherlands representative’s proposal, under which the General Assembly, a political organ, would settle doubtful cases involving essentially political questions. That was quite proper, whereas it would be improper to extend indirectly, by means of the formal clauses, a form of international recognition to States not yet recognized by international agencies.

Article 11 (Consent to be Bound)

607

Mr. SCOTT-FOX (United Kingdom) considered that the statement of the representative of the Office of Legal Affairs dispelled any doubts that might remain with regard to the advisability of adhering to the formulae established by the United Nations usage. He approved the text proposed by the Netherlands representative and suggested that its scope should be further extended by redrafting it as follows: ‘This Convention shall be open until [date] for signature by States which are now or may hereafter become Members of the United Nations, members of a specialized agency or to parties to the Statute of the International Court of Justice and to any other State to which an invitation has been addressed by the General Assembly’. Mr. KAUL (India) said that he was opposed to any restriction and would vote against the French amendment. Mr. NIKOLAEV (Union of Soviet Socialist Republics) considered that, by twice expanding their formula, the supporters of the French amendment had themselves recognized the validity of this thesis. He was therefore surprised at their continued refusal to accept the original draft. He reiterated his protest against the political objective of the French amendment, which was to exclude from the convention young and free States, such as the Sudan.10

The French representative declined to accept the United Kingdom proposal, saying “that those modifications were unnecessary’ as the Netherlands proposal met his objectives, as it “would enable the General Assembly to add at will to the list of States which might become parties to the convention”. This led to the withdrawal of the British proposal. Before the Chairman put the French amendment to a vote, the Ecuador Representative, Mr. Apunte, stated that he would vote against the amendment, “because the convention with its essentially humanitarian objectives should be open to the largest possible number of States and should include all countries where such practices still persisted”. While the French proposal was rejected as the votes were even at five for and against; the Australian and Turkish amendment, which had generated no discussion, was adopted by positive votes by all ten representatives on the Committee.11 This was followed by the adoption of Article 9 as amended to read:

10

11

Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Sixteenth Meeting, 27 January 1956, UN Doc. E/AC.43/SR.16, 27 February 1956, pp. 9–12. Id., pp. 12–13.

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1. This Convention shall be open for signature by any State whether or not a member of the United Nations until [date]. It shall be subject to ratification by the signatory States, and the instruments of ratification shall be deposited with the Secretary-General of the United Nations who shall inform each signatory and acceding State. 2. After [same date] this Convention shall be open to accession by any State whether or not a member of the United Nations. Accession shall be effected by the deposit of a formal instrument with the Secretary-General of the United Nations, who shall inform each signatory and acceding State.12

The vote being six in favour, one opposed, and three abstentions. No further changed were made to the provisions of Article 9 during the work of the 1956 Committee on the Drafting of a Supplementary Convention on Slavery and Servitude.

iii. 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery ARTICLE 11 1. This Convention shall be open until 1 July 1957 for signature by any State Member of the United Nations or of a specialized agency. It shall be subject to ratification by the signatory States, and the instruments of ratification shall be deposited with the Secretary-General of the United Nations, who shall inform each signatory and acceding State. 2. After 1 July 1957 this Convention shall be open for accession by any State Member of the United Nations or of a specialized agency, or by any other State to which an invitation to accede has been addressed by the General Assembly of the United Nations. Accession shall be effected by the deposit of a formal instrument with the Secretary-General of the United Nations, who shall inform each signatory and acceding State.13

12

13

Economic and Social Council, Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, UN Doc. 2824, Annex I, 15 February 1956. United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Final Act and Supplementary Convention, UN Doc. E/CONF.24/23, 4 September 1956.

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As a result of the work of its drafting Committee, the Economic and Social Council decided, in April 1956, that “a conference of plenipotentiaries should be convened in order to complete the drafting of the Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices similar to Slavery”.14 That Conference mentioned Article 9 of the Draft Supplementary Convention as early as the third meeting, where the United States representative, Mr. Kotsching, noted that his delegation “did not propose to take an active part in the discussion of specific articles nor sign or ratify the convention” as slavery had been abandoned in the United States and the issues at hand were “matters of domestic jurisdiction”; yet his delegation “hoped to be of assistance on such issues as those raised by draft article 9, as it believed that the draft convention should be an instrument exclusively of the United Nations and its specialized agencies. If that principle were applied in full, undesirable political discussion, which was outside the scope of such a Conference, would be avoided”.15 The substance of Article 9 was first considered at the eleventh meeting of the Conference, on 22 August 1956, where the President, Mr. Calderon Puig of Mexico, drew attention to the following French amendment: 1. Replace the first sentence of paragraph 1 by the following text: ‘The Convention shall be open until [date] for signature by any State Member of the United Nations or of a specialized agency.’ 2. Replace the first sentence of paragraph 2 by the following text: ‘After [same date] the Convention shall be open for accession by any State Member of the United Nations or of a specialized agency.’16

What followed at the eleventh meeting, was a rather lengthy consideration of the provisions touching on the manner in which consent to be bound

14 15

16

Economic and Social Council, Resolution 608 (XXI), 30 April 1956. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Third Meeting, 15 August 1956, UN Doc. E/CONF.24/SR.3, 10 November 1958, p. 4. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, France: Amendments to articles 9, UN Doc. E/CONF.24/L.11, 17 August 1956.

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to the proposed supplementary convention would be expressed. The French delegation was called upon to introduce its amendment, wherein Mr. Giraud noted that the “proposal had already been submitted to the Drafting Committee in New York, and rejected”; that by the fact that the vote had been equal at five votes for and five votes against. The French Representative went on to say: The form of words used in article 9 of the draft was at variance with the normal practice of the United Nations and was prompted by special political considerations. Various members of the Conference would like to take advantage offered by its meeting to confer international recognition on certain States that were not members either of the United Nations or of the specialised agencies. The settlement of political questions of that sort was the function of United Nations organs and not of the present Conference. A point to be noted in that connexion was that the Economic and Social Council had confined invitations to States Members of the United Nations and the specialized agencies. The French delegation’s amendment was therefore in line with the Council’s decision. Mr. MIKHAILENKO (Ukrainian of Soviet Socialist Republics), supporting the original text of Article 9, considered that the convention should be open for signature by any State whether or not a member of the United Nations. He could not accept the French representative’s amendment which, he felt, was prompted by political motives and would permit only State Members of the United Nations or of a specialized agency to accede to the convention. The French representative had at an earlier meeting appealed to all States to intensify the anti-slavery campaign but appeared to have abandoned that idea in his amendment, which, if adopted, would preclude many States from taking part in the anti-slavery campaign and would increase the artificial difference between Members and non-member States. The International Court of Justice, in its advisory opinion of 28 May 1951 with regard to reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, had included the passage: ‘The object and purpose of the Genocide Convention imply that it is the intention of the General Assembly and of the States which adopted it that as many States as possible should participate. The complete exclusion from the Convention of one or more States would not only restrict the scope of its application, but would detract from the authority of the moral and humanitarian principles which are its basis’. He felt that the decision of the International Court of Justice should also apply to the convention now before the Conference, and that the present text of article 9 should therefore be retained. Mr. JAFRI (Pakistan), supporting the statement of the Ukrainian representative, was surprised at the amendment suggested by the French representative.

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He would have thought that in the case of a convention such as that before the Conference the largest measure of agreement would be sought to the abolition of slavery and similar practices. He agreed with the French representative that the Conference should confine its attention to slavery and urged representatives not to raise political questions relating to the recognition of States which were members neither of the United Nations nor of the specialized agencies. No State should be prevented from acceding to the proposed convention. Mr. ADEEL (Sudan), associating himself with the Pakistan representative’s remarks, said that the convention should be open for signature by all States and should be applicable to dependent as well as to metropolitan territories. Mr. OLTEANU (Romania) pointed out that article 9 as drafted by the Committee had the effect of ensuring a wide field of application for the supplementary convention, which was but right since the effectiveness of the instrument would depend precisely on the number of States acceding to it. The French amendment, on the other hand, narrowed the scope and effectiveness of the convention. His delegation would support the text of the draft, since it afforded every country an opportunity of acceding to the convention and constituted a means well adapted to the end pursued. Mr. STIBRAVY (United States of America) said that, despite the eloquent pleas made by certain delegations for universality in the application of humanitarian conventions the United States delegation would support the French representative’s amendment to article 9 as in its view the present text of that article raised difficult problems and clearly ran counter to the intention of the competent United Nations body under whose auspices the Conference was being held. As the French representative had pointed out, the present text was inconsistent with the intention of Economic and Social Council resolution 608(XXI), which provided for invitations being extended to all States which were Members of the United Nations and to those States non-members of the United Nations which were members of any of the specialized agencies. Presumably, the Council had felt that only such States as met those qualifications would be eligible to sign or to accede to whatever convention emerged from the present Conference. Otherwise, it would be reasonable to assume that invitations would have been extended to all States in order to give them an opportunity to participate in the preparation of the proposed convention. A plea had been made that the Conference should not be involved in the recognition or non-recognition of States. However, article 9 as it stood would open difficult and complex political issues involving questions of divided States and of regimes which had not been considered eligible for membership in the United Nations or the specialized agencies. Those were issues of a type which must be the concern of the highest forum of the

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United Nations, namely the General Assembly, and which could not be settled independently by a technical conference such as the present one. Mr. ABDEL-GHANI (Egypt) said the views of his delegation were the same as those it had expressed in the 1956 ad hoc Committee. Conventions dealing with any aspect of human rights should be universal in the sense that they should be open to all States for signature and accession. In the 1956 ad hoc Committee the only argument adduced in favour of restricting the right of signature and accession had been that the Secretary-General would thus be provided with a criterion as to what groups should or should not be regarded as States. There was nothing in the Charter, however, to indicate that statehood could be acquired only by membership in the United Nations. Seventeen States had become Members of the United Nations in December 1955, but no one had questioned their earlier possession of statehood. The opening of the convention for signature and accession by all States would not present the Secretary-General with any difficulty, because the relationship between the Secretary-General and the States parties was to be uni-directional: the States parties were to report to the Secretary-General, who in turn would circulate their reports to the States parties and the Council. His delegation supported the views expressed by the representative of Pakistan. Mr. TUNCEL (Turkey) said that he could not support the formula that directly or indirectly raised the question of the recognition of States. The Turkish delegation was by no means indifferent to humanitarian considerations. It shared the views of representatives who had spoken sincerely of such considerations; but it could not go so far as to agree to the indirect admission to the United Nations of the few States that had so far not been admitted. The supplementary convention which was the task of the Conference to prepare represented one facet of co-operation between States Members of the United Nations, as was confirmed in particular by the preamble to the draft in which the purposes of the United Nations were explicitly recalled. As to the idea of universality, the necessity for which had been stressed by certain representatives, he might recall, in passing, statements at earlier meetings to the effect that in some countries slavery and practices similar to slavery were unknown, by very reason of those countries political systems. That being so, there was much less need for a few countries which had a political system of that sort to accede to the Convention. On those various grounds, the Turkish delegation would support the French draft amendment. Mr. AMY (El Salvador) supported the French draft amendment. Mr. PADMANABHAN (India) said the views of his delegation were the same as those expressed by the representative of the Ukrainian of Soviet Socialist Republics, Pakistan and Egypt. Any instrument relating to human rights should be applicable universally. The text originally proposed by the

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delegation of the United Kingdom for consideration by the 1956 ad hoc Committee had provided for the applicability of the convention to all States, whether or not they were Members of the United Nations or specialized Agencies. The French delegation had submitted an amendment similar to its present amendment at the drafting stage, but its text had not been adopted. The Indian delegation was one of those which had voted against it. The only argument in favour of the amendment seemed to be that the Economic and Social Council had not provided for invitations to be sent to States which were not members of the United Nations or the specialized agencies. Council resolution 608(XXI), however, took note of the ad hoc Committee’s report and expressed appreciation of the Committee’s work. There was no reason to suppose that its appreciation did not also apply to article 9 of the present text. Furthermore, article 11 of the 1926 Convention had provided that the Secretary-General of the League of Nations could bring that Convention to the notice of States which had not signed it, including States which were not Members of the League.17 No arguments had been advanced against the principle thus propounded in 1926. The supplementary convention could not register a retrograde step as compared to the 1926 Convention. Miss LUNSINGH-MEIJER (Netherlands) supported the draft amendment for the reason mentioned by the French delegation. She wondered whether, for the sake of universality, it would not be possible to add after the words ‘specialized agencies’ the words ‘and by any States receiving an invitation from the General Assembly of the United Nations’. Mr. CHISTYAKOV (Union of Soviet Socialist Republics) said that no one would dispute the fact that much progress been made towards the preparation

17

Article 11 of the 1926 Convention reads: The present Convention, which will bear this day’s date and of which the French and English texts are both authentic, will remain open for signature by the States Members of the League of Nations until April 1st, 1927. The Secretary-General of the League of Nations will subsequently bring the present Convention to the notice of States which have not signed it, including States which are not Members of the League of Nations, and invite them to accede thereto. A State desiring to accede to the Convention shall notify its intention in writing to the Secretary-General of the League of Nations and transmit to him the instrument of accession, which shall be deposited in the archives of the League. The Secretary-General shall immediately transmit to all the other High Contracting Parties a certified true copy of the notification and of the instrument of accession, informing them of the date on which he received them.

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of a new convention, a task which, in the opinion of almost all delegations, was a mainly humanitarian undertaking. His delegation was unable to support the French amendment because it would render co-operation more difficult. Despite the understanding at the beginning of the Conference that political considerations should not intrude upon the discussion, the French amendment introduced a political factor. The preamble to the draft convention noted that the Universal Declaration of Human Rights had been proclaimed by the General Assembly of the United Nations as a common standard of achievement for all people and all nations, but the attempt to restrict accession to the convention for political reasons would make that aim more difficult to realize. The principle of universality had also been recognized in Council resolution 525(XVII), which repeated the Council’s urgent recommendation to all States, both Members and nonmembers of the United Nations, which had not already done so, to accede as soon as possible to the International Slavery Convention of 1926 in respect of their territories and Non-Self-Governing and Trust Territories for which they were responsible, in order that the said Convention might be given universal application. The representative of Turkey had pointed out that not all States had been invited to the Conference; but that in itself did not settle the question and should not preclude attempts to secure the co-operation of States which had not been invited. The Turkish representative had also observed that there was no need to secure the signature of States which were not Members of the United Nations or the specialized agencies, because slavery did not exist in their territories. That, however, was a ridiculous argument. There was no reason why States in whose territories slavery did not exist should be deprived of the right to co-operate in carrying out the convention. The French amendment was dictated solely by political considerations which were outside the purview of the Conference. He did not think the success of the convention should be jeopardized or delayed by amendments which were clearly based on political grounds. His delegation would support the draft article 9 as it appeared in the Annex to document E/2824. Mr. THIERFELDER (Federal Republic of Germany) supported the French amendment. While universality was obviously an ideal, especially in the field of human rights, there were circumstances in the present case which made it inadvisable to adhere to that principle unreservedly. The French amendment had not been introduced for political reasons: it merely drew attention to the fact that political difficulties would inevitably arise if the text of article 9 was adopted as it stood. Mr. JAY (Canada) said that purpose of the Conference was to cure social evils, not to create political ones. It was important to understand what universality meant. The fact was that there were some human groups which were not recognized by all States as States. The present text would place the Secretary-General in a difficult position if one of those groups asked to

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sign the convention. If the Secretary-General accepted its signature, those of the other signatories which had not recognized the group in question might have to withdraw from the convention lest the signature of that group should imply their recognition of it. Thus, instead of making the convention universal, the provision for unrestricted signature might result in a retreat from universality. The alternative was between supporting the original text on the grounds that it was non-political and aimed at universality, and rejecting that text and supporting the amendment for exactly the same reasons. The amendment was a good deal less political than the original, and his delegation would support it. Mr. DONNADIEU (Costa Rica) thought that inviting States not Members of either the United Nations or a specialized agency to accede to the convention would result, indirectly, in settling the problem of their membership of those organizations, which was a matter for the General Assembly. On those grounds, he supported the draft amendment submitted by the French delegation. Mr. LOPEZ (Philippines) said his delegation shared the views expressed at the beginning of the discussion by the representative of France. The Conference had worked in conditions which were not of its own making or choosing. In directing that a Conference should be convened the Economic and Social Council had specified that invitations should be sent only to Members of the United Nations and specialized agencies. It was hardly logical, and certainly improper, to alter those conditions. The delegations which had argued in favour of universality had professed to be ignoring political considerations in the interests of a great humanitarian undertaking. In its present form, however, article 9 would, in fact, create the greatest political difficulties for a number of States present at the Conference, merely in order to serve the interests of those States which were not present. The French amendment, on the other hand, sought to set aside political problems and difficulties by recommending adherence to standard United Nations practice, as evidenced in the existing treaties and conventions concluded under the United Nations auspices. The way to avoid political difficulties was to adhere to the decisions already adopted and policies that were already being followed. To make the convention open for signature by all States would raise the problem of what was to be done in the case of partitioned States and States which in the judgment of the majority of Members of the United Nations were ineligible for membership. The Conference would be ill-advised to embark upon the discussion of such contentious matters. There was a serious possibility that if the convention was opened for signature by all States a number of State Members who would otherwise have adhered to it would find themselves unable to do so because it was impossible for them to enter into any kind of treaty obligations with certain non-member States. The Conference should consider whether it was prepared

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to exclude such Member States from the convention merely in order to enable a much smaller number of non-members States to adhere. Mr. KACJAN (Yugoslavia) considered that to be effective the Convention must have universal appeal. It must make possible the complete abolition of the scourge of slavery. The Conference would be courting public criticism if it restricted the scope of the convention. The Yugoslav delegation would therefore vote against the French draft amendment. Mr. JURKIEWICZ (Poland) observed that two main arguments had been adduced in support of the French amendment. The first was that the Conference was bound by the decision of the Council that invitations should be sent only to Members of the United Nations and specialized agencies. He would be glad if the representative of the Secretary-General would inform him whether there had been any discussion of that point in the Council, because if there had been discussion it would mean that invitations had been restricted, not for the reasons advanced by the representatives of France and the United Kingdom, but on purely technical grounds which did not reflect any feeling on the matter on the part of the Council. Some of the countries represented at the Conference, for example, India and Egypt, were members of the Council and he could not imagine that if the problem had been raised in that forum it would have been extensively discussed. The second argument which had been advanced was that some States would find it difficult to adhere to the convention if it was open for signature by States which they did not recognize. The fact was, however, that international conventions were signed by many countries which did not have diplomatic relations with each other, and there were such countries even among the Members of the United Nations and the specialized agencies. It had been suggested that signature of the convention could with advantage be restricted to Members of the United Nations because they were more closely associated with each other than with other countries. That argument, however, would not stand, since the members of the specialized agencies were also to be allowed to sign. It had been stated that if the right to sign the convention were unrestricted difficulties would arise in the case of certain partitioned countries. One half of such a partitioned country might be recognized by some States while the other half was recognized by others. That problem, however, could arise for countries like Poland as well as for countries which had expressed support for the French amendment. Poland had not raised the point because it wished to avoid political discussions. In the spirit of compromise the same attitude should be adopted by all. Mr. HUMPHREY (Executive Secretary [Director, Human Rights Division]) said that the Council had not discussed the question of which States should be invited to attend the Conference.

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Mr. KUDRYAVTSEV (Byelorussian Soviet Socialist Republics) said that the French amendment was obviously based on political grounds and its limiting effect would weaken the convention. The discussion had clearly shown that the amendment was contrary to the views of a considerable number of delegations which believe that the Conference should give the convention the widest possible scope. A humanitarian convention dealing with such an important problem as slavery should be a universal instrument open to adherence by the greatest possible number of States. The millions of people who were awaiting the outcome of the Conference would not be in favour of any attempt to restrict the rights of signature. Mr. RECAIDE de VARGAS (Paraguay) warmly supported the draft amendment submitted by the French delegation because he considered that article 9 as worded in the draft convention raised a politico-legal problem the solution of which was a matter, not for the Conference, but for the General Assembly. The Conference would be going beyond its powers if it accepted articles 9 as it stood. Mr. SOMERHAUSEN (Belgium) said his delegation’s instructions contained no qualification with respect to article 9. He had been impressed by an extract read during the meeting from the opinion of the International Court of Justice on the question of reservations to the Genocide Convention. He added that during the preparation under United Nations auspices of a convention on the transport of goods by rail means had been found of ensuring that the instrument in question would have ample scope, for railways knew no frontiers. Accordingly, though a compromise solution should be possible, perhaps along the lines of the Netherlands suggestion that the French draft amendment should be supplemented by a provision allowing for accession by States not Members of the United Nations or of the specialized agencies on the invitation of the General Assembly. That compromise formula would be the more reasonable in that it was not an innovation. The Annex to the 1953 Protocol amending the International Slavery Convention of 1926 contained the passage: ‘The present Convention shall be open to accession by all States, including States which are not Members of the United Nations, to which the Secretary-General of the United Nations shall have communicated a certified copy of the Convention’ (General-Assembly resolution 794 (VIII)). That form of words might be generally acceptable and should be taken into consideration. Mr. PESCATORI (Italy) supported the amendment proposed by the French delegation. He was convinced that the absence of certain signatures would not for any practical purposes detract from the effectiveness of the convention. Mr. ADEEL (Sudan) said that while he had originally agreed unreservedly with the arguments adduced by the representative of Pakistan against the French amendment he had been much impressed by the Canadian

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representative’s reference to the difficulties in which certain States would be placed if a group which they did not recognize as a State asked for permission to sign the convention. Consequently, he was now inclined to support an amendment like the one suggested by the representative of the Netherlands and note with approval by the representative of Belgium. Such an amendment might help to avoid deadlock. Mr. SCOTT-FOX (United Kingdom) recalled that the United Kingdom delegation had been convinced by the arguments advanced in support of a similar amendment by the French representative in the 1956 ad hoc Committee, and had therefore voted for it. For the same reasons, it supported the present French amendment. He believed that delegations had refrained from commenting on the Netherlands suggestion because they had been waiting to hear whether or not it was acceptable to the French delegation. If the French delegation was satisfied with it, the United Kingdom delegation would be prepared to consider it sympathetically. Mr. JAFRI (Pakistan) said his delegation had been somewhat disturbed by the suggestion advanced by the representatives of Canada and the Philippines that some States might be deterred from signing a convention by the possibility of it being signed by States which they did not recognize. He believed, however, that if States approached the convention with no mental reservations and with a belief in the ideals expressed in the preamble, the difficulty would be merely imaginary. To the extent to which it did exist, it would indicate whether States attached greater importance to the aims expressed in the preamble or to political considerations. His delegation had no political axe to grind and saw no need for intrusion of politics into the discussion. It merely wished to express the view that no State should have any real difficulty in adhering to the convention. Mr. APOLLON (Haiti) expressed support for article 9 as drafted by the 1956 ad hoc Committee. He could not accept the amendment proposed by the French delegation, since it was more restrictive than the corresponding provision in the earlier Convention which had been in effect for thirty years. The preamble to the Draft supplementary convention was dominated by the principle of universality. Any departure from that principles would be dangerous and would not meet the approval of public opinion. It would be a pity to introduce anything into the convention that was capable of jeopardizing its future. The mere fact that a State in whose territory slavery was practised was not a Member of the United Nations was not reason for tolerating so objectionable an institution. Mr. PAVLIC (Czechoslovakia) did not see any reason why the text of article 9 as prepared by the 1956 ad hoc Committee should be changed. By restricting accessions the amendment proposed by the French delegation would weaken the scope of the convention, which, being of an essentially humanitarian nature, should be of universal application. His delegation would be unable to vote for the amendment.

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Mr. GIRAUD (France) repeated that his amendment was consistent with the established practice of the organs of the United Nations and the specialized agencies. Article 9 as drafted by the 1956 ad hoc Committee, on the other hand, proposed an entirely new practice. Some delegations which had supported it seemed to be motivated by eminently political considerations, their object being to obtain indirectly international recognition for two or three States which had not yet been admitted to any international organization. Inasmuch as some specialized agencies had as many as ninety members, the French amendment would give the convention practically universal scope. Humanitarian considerations should not, of course, be ignored, but the International Labour Organisation, for example, took account of other considerations. The representative of India had pointed out that the Convention of 1926 provided for invitations to accede to the Convention to be sent by the Secretary-General of the League of Nations to States and not Members of the League. It should, however, be added that that provisions had subsequently been recognized as injudicious and that a formula closely resembling the French delegation’s proposal had later been adopted by the League. The United Nations had subsequently taken over the same formula. The French delegation was not introducing a novel idea; it merely asked that the Conference should observe a well-established practice which was not the child of chance but a mature reflexion. The Conference should not, by the roundabout route of a final act, accord international recognition to States which could obtain it by admission as a Member either of the United Nations or of the specialized agencies. It must be remembered that access to the specialized agencies was relatively easy as the right of veto was unknown in them. There was one further point: the Secretary-General would be placed in an awkward position if States whose existence was in doubt sent him instruments of accession. The world was a world in flux and the situation immediately preceding the formation of a State and that following the disappearance of a State were often obscure. Hence the problem was much wider than the particular problem created by the existence at the present time of a few partitioned States. Mr. BELTRAMINO (Argentina) supported the French amendment; the Conference should leave problems relating to the recognition of States to the competent bodies. Miss KRACHT (Chile) also supported the French proposal. Mr. de la FUENTE (Peru) said that he would support the French proposal in order to avoid raising the juridical problem of the recognition of States. His delegation, however, placed great store by the principle of universality and did not wish in any way to limit the scope of the convention. The PRESIDENT, asked whether the Netherlands representative wished to present her suggestion as an amendment.

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Miss LUNSINGH-MEIJER (Netherlands) said she would not press her suggestion. She had made it merely because she thought it might be acceptable to States which could not support the French amendment. Mr. APOLLON (Haiti) said that his delegation was prepared to sponsor the suggestion of the representative of the Netherlands and to submit it to the Conference as a proposal. Mr. LOPEZ (Philippines) said that the representative of Pakistan had appealed to the Philippine delegation, among others, to abandon its support of the French amendment in the humanitarian interests of the convention. It was true that it was not necessary for States to have diplomatic relations with each other in order to enable them to co-operate in the abolition of slavery. It was not merely a question, however, of whether or not a State had diplomatic relations with other States, but also of its readiness to enter into certain treaty obligations with such a State. Article 3 of the draft convention, the text of which had not yet been agreed upon, involved the unusual and powerful right of visit, search an seizure. The USSR proposal relating to article 3 provided also for the exchange of information between signatory States. If article 3 was adopted, the Philippines would find it very difficult to enter into obligations in respect of such rights and duties with certain States which were not members of the United Nations or specialized agencies. Mr. SOMERHAUSEN (Belgium) referred to the passage from General Assembly resolution 794(VIII) which he had cited as a possible basis for a compromise solution. The Protocol to which that resolution related had been ratified by many States. A similar formula might therefore by used in the convention.18

After this Belgian suggestion, the eleventh meeting rose; with the discussion of Article 9 continuing at the start of the twelfth meeting of the United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery with a call, by the President, to the Haitian representative to introduce his delegations sub-amendment to the French proposal; which reads:

18

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Eleventh Meeting, 21 August 1956, UN Doc. E/CONF.24/SR.11, 14 November 1958, pp. 26–18.

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Add the following at the end of the second French amendment: ‘or by any other State to which an invitation to accede has been addressed by the General Assembly of the United Nations. A State which wishes to accede shall send notification of its intention in writing to the Secretary-General of the United Nations for transmission to the General Assembly’.19

The Haitian Representative, Mr. Apollon, noted that his sub-amendment was “based on the suggestion made at the previous meeting by the Netherlands representative”. Mr. Apollon continued: He pointed out that the word ‘non-member’ should be inserted before ‘State’ in the fourth line of the text he was proposing for article 9 paragraph 2. He believed that text represented a compromise solution which should be generally acceptable. While removing from the article the mandatory force to which the French representative had objected, it was closer to the text proposed by the 1956 ad hoc Committee. The question of slavery transcended political interests, which in any case were constantly changing. It was unthinkable that communities should still, in the twentieth century, be living in slavery. The target at which the Conference should aim should be to improve the living conditions still unfortunately inflicted on a section of mankind. While the convention was, of course, a very desirable instrument, yet it was for the peoples subject to slavery to shake off the yoke. His own country owed its freedom, not to the benevolence of the metropolitan Powers, but to the efforts made by the Haitians themselves to achieve freedom and independence. In considering his delegation’s amendment, participants in the Conference should remember that it was essential not to limit the scope of the convention. They should not forget the political situations might quickly change. Mr. JAFRI (Pakistan) observed that the Philippine representative had made it clear that his Government would be unable to accede to the convention if the original text of article 9 were retained. His own purpose in appealing to delegations who held similar positions had been to extend the scope of the convention and to enable as many States as possible to adhere to it. That purpose was likely to be defeated if many States were prevented from acceding by the retention of the original article. Accordingly, the Pakistan delegation was inclined to support the Haitian representative’s compromise solution.

19

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Haïti: Amendment to the amendment proposed by France to article 9 (UN Doc. E/CONF.24/L.11), UN Doc. E/CONF.24/L.21, 22 August 1956.

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Mr. GIRAUD (France) still thought his delegation’s wording should meet everybody’ wishes. It was, after all, easy for a State to gain admittance to one of the many specialized agencies. As a conciliatory gesture, however, he accepted the Netherlands representative’s proposal, now sponsored by the representative of Haiti, for the addition at the end of the second French amendment of the words: ‘or by any other State to which an invitation to accede has been addressed by the General Assembly of the United Nations’. It was, however unnecessary to add the sentence: ‘A non-member State which wishes to accede shall send notification of its intention in writing to the Secretary-General of the United Nations for transmission to the General Assembly’, since, if the addition proposed by the Netherlands representative was accepted, the United Nations General Assembly would have authority at any time to formulate new invitations. He agreed with the representative of Haiti that the convention should be universally applicable but that question should be considered from a practical angle. Slavery did not exist in the partitioned countries of which it was desired to confer international recognition by roundabout means; consequently, their accession would have mainly moral significance. What mattered was that the States in which vestiges of slavery subsisted should become parties to the convention. But, as everyone knew, those States were Members of the United Nations. The PRESIDENT said that the first part of the Haitian amendment having been accepted by the French delegation a vote would be taken on the text in document E/CONF.24/L.11. The remaining part of the Haitian amendment would be voted on separately. Mr. APOLLON (Haiti) said that to his regret he could not share the French representative’s views. The purpose of the Haitian amendment was to forestall any limitation on the scope of the convention. Accordingly, he wished the whole amendment to stand. No delegation could legitimately object to the ratification of the convention by any community whatsoever. Furthermore, the text he proposed was in line with the draft prepared by the committee of experts who had had all important information on slavery at their disposal. In reply to the French representative he pointed out that there was nothing revolutionary in the Haitian proposal since the text was taken from article 11 of the 1926 Slavery Convention. He could not understand why it should be more dangerous in 1956 than in 1926 to extend the benefit of the measures prescribed in the new convention to all human communities who might express the wish to enjoy it. And which were the communities to which the Conference was unwilling to extend the benefit of the convention? There would have been little point in convening the Conference if all it was going to do was to restrict the liberal provisions of the Slavery Convention of 1926. He was surprised that the representative of France, a country which had always been the champion of freedom and the torch-bearer of culture, should put forward an obscurantist proposal; he urged that representative to reconsider his position.

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Mr. JAY (Canada) thought that the Pakistan representative had wrongly interpreted the Canadian delegation’s position in asserting that it had been arrived at by placing political considerations before humanitarian objectives. The Canadian delegation considered that the political implications of the debate resided in the original text, and not in the amendment. He failed to see how, in practice, the adoption of the French amendment would lessen the opportunity of achieving the humanitarian objectives of the draft convention. Over ninety countries were now members of the United Nations and the specialized agencies, and the omission of a few groups and communities could have little bearing on the practical effects of the convention. Certain political implications were disguised under the cloak of the universality advocated by the partisans of the original text. The Canadian delegation had therefore favoured the French amendment and would now support it with the additional proposal by the Haitian representative. Mr. LOPEZ (Philippines) thanked the Pakistan representative for appreciating the difficulties of delegations which could not support the original text and for expressing himself in favour of the compromise formula. His delegation had two objections to the second part of the Haitian amendment. The first was a formal one; the term ‘A State which wishes to accede . . .’ included Member States, but it was obviously unnecessary for those States to notify the Secretary-General of their intentions. The second objection was more serious; it was redundant inasmuch as in actual practice the General Assembly must in every case take the initiative. If a non-member State wished to accede to the Convention, it was unnecessary for it to apply directly to the Secretary-General, since many Member States would gladly sponsor applications before the General Assembly. Mr. KAHANY (Israel) said there was little point in retaining in paragraph 2 the sentence ‘A State which wishes to accede shall send notification of its intention in writing to the Secretary-General of the United Nations . . .’. There was even some contradiction between that sentence and the preceding one which stated that ‘the Convention shall be open for accession . . . by any other State to which an invitation to accede has been addressed by the General Assembly of the United Nations’. The amendment first stated that the General Assembly would address the invitations to States and then added that States should notify their intentions to accede in writing to the Secretary-General. Mr. JAFRI (Pakistan) thought that the objection expressed by the Philippine representative was further substantiated by the wording of the first part of the Haitian amendment. An invitation to accede could be addressed to a non-member State only by States Members of the United Nations, and not by the Secretariat. The second part of the Haitian amendment therefore seemed to be redundant. Mr. APOLLON (Haiti) explained that only States not Members of the United Nations would notify the Secretary-General of their intention to

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accede to the convention. The provision patently would not apply in the case of Member States. The procedure to which the Philippine representative had referred, namely that non-member States might apply through a Member State for authority to accede, seemed all the more unsuitable inasmuch as it encouraged political influence, which was exactly what the Conference wished to avoid. It would be wiser to provide that each State was responsible for expressing its wish to accede to the convention. Mr. JURKIEWICZ (Poland) said that his delegation advocated the original text because, in the first place, there was no basis for the allegation that there had been a tendency in the Economic and Social Council to limit the number of accessions, and secondly, the argument that countries which did not recognize each other’s governments could not sign the same convention was also false. The question of unanimity had been raised. To attain unanimity it was essential to take the views of all delegations into account. The adoption of the French amendment would serve no purpose other than that of a manifestation of hostility against certain States. Moreover, the original text had been accepted by the Committee in which many of the countries attending the Conference had taken part. None of the arguments raised in the debate has caused the Polish delegation to alter its views. Mr. CHISTYAKOV (Union of Soviet Socialist Republics) considered that it would be in the interests of the supplementary convention to retain the original text of article 9. He was surprised by the Canadian representative’s assertion that those who urged the retention of the article were motivated by political considerations. Article 9 had not been drafted by private experts, but by a committee of representatives of State Members of the United Nation; it was unwarranted to suspect all those Governments of political motives. While he appreciated the Haitian representative’s desire to emerge from the deadlock, he could not agree with the compromise solution proposed. The position taken by delegations who asserted that they would not sign the convention if the original article were adopted was intransigent and unwise. No progress could be made if all members took that view. The Conference must endeavour to reach agreement, instead of stressing differences of opinion. Mr. TUNCEL (Turkey) noted with pleasure the generous attitude of the representative of Haiti, whose great concern seemed in the convention and who had even asked which communities the Conference did not wish to accede to the convention. The representative of Haiti could, no doubt, himself answer this own query. The countries in question were those which, for one reason or another, were now partitioned but which in 1926 had been sovereign political entities. Those countries were at the moment occupied or their populations were living under a regime not of their own choice. To invite them to accede to the convention would amount to placing the

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stamp of legality on that state of affairs, a step which might have serious repercussions on the future of such countries. The representative of Haiti had also explained that his intention had been to bestow the benefit of the convention on those countries. Some highly qualified speakers had, however, stated that slavery did not exist in countries which had a certain political system. As the countries whose accession was aimed at had that identical system the convention would not benefit them in any way. The truth was that the question involved was that of the recognition of those States in a disguised form. Mr. CHISTYAKOV (Union of Soviet Socialist Republics) took exception to the Turkish representative’s slanderous and inaccurate allegations against the Governments of certain States. It was inadmissible to allege that the regimes of certain countries had not been freely chosen. Mr. THIERFELDER (Federal Republic of Germany) said that his delegation was still in favour of the original text of the French amendment. Since many delegations seemed to favour the insertion of the Haitian proposal, he would not object to that text, but reserved his right to refer to the matter again in second reading. Mr. ABDEL-GHANI (Egypt) had been prepared to accept the original text because it seemed to provide for the universal application of the Convention. The political implications that had subsequently been raised in the debate inclined him to vote for the Haitian amendment, as a compromise between two divergent political attitudes. However, if the second part of the amendment were deleted the proposal would not serve as a compromise and he would therefore abstain from voting on the article. The Conference’s only responsibility to public opinion was to draft a humanitarian instrument, without political implications in any of its articles. Mr. NOELTING (Dominican Republic) thought that the text of the convention should be simplified as much as possible. The United Nations was an international organization and would no doubt one day become universal. Consequently, he felt that the French representative’s amendment was very pertinent. Perhaps, however, the words ‘of the United Nations’ should be added after the words ‘specialized agencies’. Mr. APOLLON (Haiti) thanked the Turkish representative for having openly expressed the concern which many delegations had been reluctant to voice. He repeated that the second sentence of the Haitian amendment was not prompted by any political motive. The Conference would, however, surely appreciate that the position of the delegation of Haiti was bound to be extremist. It was because of its realization of the facts that Haiti was urging the complete abolition of slavery in all its forms, even those still persisting in the countries regarded as most civilized. In proposing the insertion of the words ‘A non-member State which wishes to accede shall send notification of its intention in writing to the Secretary-General of the United Nations’,

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his delegation had merely wished to extend the benefit of the convention to all human communities. As many delegations were prepared to accept the first sentence but opposed the next sentence he asked that his amendment by put to a vote sentence by sentence. Mr. JAY (Canada) regretted that the USSR representative had seen fit to interpret his general remarks as a charge against specific States. He had merely pointed out that the political implications of the article resided in the original text rather than in the French amendment. He wished to dispel the impression that he had made any imputation against the experts who had drafted the text or against the delegations which had voted for it. Mr. STIBRAVY (United States of America) said that the United States delegation must oppose the Haitian amendment. It had been argued that the objective was humanitarian and that it would be desirable for the largest possible number of States to accede to the convention. No one would quarrel with that argument, but it was certainly not the Conference’s aim to provoke political disputes in an attempt to abolish slavery and analogous practices. The Philippine representative had well indicated the nature of the difficulties likely to be encountered by some governments if language such as that suggested in the Haitian amendment were included in article 9. The French amendment as originally submitted would have obviated those difficulties. There was no objection to the inclusion of the words ‘or by any other State to which an invitation to accede has been addressed by the General Assembly of the United Nations’, since such an invitation was entirely within the General Assembly’s competence, but the Haitian amendment would permit régimes not in good standing with the United Nations to apply for invitations from the General Assembly on their own initiative. That would open the door to debate in the General Assembly about the status of such régimes. Mr. GIRAUD (France), replying to the representative of Haiti, said that the League of Nations had been still in its infancy when it had adopted the Slavery Convention of 1926. The language used in article 11 of that Convention had been experimental. Later that form of words had been dropped, first by the League of Nation and then by the United Nations. There was therefore nothing sacrosanct about that old and unique precedent. Moreover, the ten experts who had met in New York to prepare the draft supplementary convention under consideration were just as liable to be mistaken as the members of the Conference. If it was permissible to criticise the text of article 3 adopted by the experts, it was equally permissible to criticise article 9 adopted by them. Lastly, in response to the moving appeal by the representative of Haiti, he affirmed that France had not relinquished its role as the champion of freedom, but was as anxious as he was for the abolition of slavery. For that reason it kept the purpose of the convention steadily in view and wished it to be applied in the countries where that was a necessity, that was to say

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those where slavery still existed. He would urge the representative of Haiti to use all his eloquence in persuading those countries in which slavery had not been completely abolished and which had not acceded to the 1926 Convention to do so and to sign and ratify the new convention. Mr. BAROODY (Observer for the Government of Saudi Arabia) remarked that he did not see why the French representative had asked the Haitian representative to intervene in order to persuade the Arab States to accede to the supplementary convention. He might have addressed those States directly. Mr. APOLLON (Haiti) agreed to withdraw the second sentence of his amendment which had led to a lengthy debate. Mr. ADEEL (Sudan) would abstain from voting as he had been equally impressed by the arguments on both sides.20

The President of the Conference proceeded to calling a number of votes. First, the French amendment to paragraph 1 (i.e.: replacing the first sentence with ‘The Convention shall open until [date] for signature by any State Member of the United Nations or of a specialized agency.’) was adopted by thirty-two votes to eight, with three abstentions. The second vote was on the French proposal that the first sentence in paragraph 2 of Article 9 of the 1956 Draft Convention be replaced with the following wording: ‘After [same date] the Convention shall be open for accession by any State Member of the United Nations or of a specialized agency.’ That amendment was adopted, thirty-one for, nine against, with two abstentions. This was followed by a third vote, on the Haitian sub-amendment which added ‘or by any other State to which an invitation to accede has been addressed by the General Assembly of the United Nations’. That provision was adopted by a narrower fifteen votes in favour, four against, with nineteen abstentions. The President then moved to put to a vote, at first reading, Article 9 as a whole, as amended. However, the Soviet Union Representative, Mr. Chistyakov, asked for the first time at the Conference that a vote be taken by roll-call. Article 9 was adopted by a vote of twenty-nine in favour, nine opposed, with five abstentions. The voting was a follows, with Panama, having been drawn by lot, voting first:

20

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Twelfth Meeting, 22 August 1956, UN Doc. E/CONF.24/SR.12, 17 November 1958, pp. 2–9.

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In favour:

Panama, Paraguay, Peru, Philippines, Portugal, Spain, Turkey, United Kingdom of Great Britain and Northern Ireland, the United States of America, Argentina, Australia, Belgium Canada, Chile, Costa Rica, Dominican Republic, Ethiopia, France, Federal Republic of Germany, Greece, Guatemala, Haiti, Italy, Liberia, Mexico, Netherlands, Norway, Pakistan.

Against:

Poland, Romania, Ukrainian of Soviet Socialist Republics, Union of Soviet Socialist Republics, Viet-Nam, Yugoslavia, Byelorussian Soviet Socialist Republics, Czechoslovakia, India.

Abstaining:

Sudan, China, Egypt, Iraq, Israel.21

Article 9, as adopted at first reading is as follows: 1. This Convention shall be open until [date] for signature by any State Member of the United Nations or of a specialized agency. It shall be subject to ratification by the signatory States, and the instruments of ratification shall be deposited with the Secretary-General of the United Nations, who shall inform each signatory and acceding State. 2. After [same date] this Convention shall open to accession by any State Member of the United Nations or of a specialized agency, or by any other State to which an invitation to accede has been addressed by the General Assembly of the United Nations. Accession shall be effected by the deposit of a formal instrument with the Secretary-General of the United Nations, who shall inform each signatory and acceding State.22

Mr. Cheng Paonan of China explained his abstention from voting, saying that: he had opposed the portion of the Haitian amendment that had been accepted by the French representative because, even in the absence of such a clause, the General Assembly might invite any State to become a party to the convention. The Economic and Social Council was also competent, and had, in fact, often issued such invitations in the past. Since he considered the inclusion of the clause unnecessary he had abstained from voting on the article as a whole.

21 22

Id., p. 10. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Text of Articles of the Supplementary Convention adopted on First Reading, UN Doc. E/CONF.24/14, 30 August 1956.

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Mr. Chistyakov of the Union of Soviet Socialist Republics, for his part explained that he had voted against Article 9 because “in his view, the amendments weakened the original text owing to the restrictions placed on the number of countries which might wish to co-operate in abolishing slavery, and had been submitted for political reasons”.23 Article 9 was considered at second reading, at the twenty-fourth meeting of the Conference, on 31 August 1956; wherein Pakistan had put forward the following amendment merely to “improve the drafting of the article as a whole”. 1. Omit the words ‘after same date from paragraph (2) of the present text’. 2. The whole article may also be redrafted as follows: ‘(1) The Convention shall be open for signature by States Members of the United Nations or of a specialized agency until 1 March 1957. (2) The Convention shall be open to accession by all States Members of the United Nations, specialized agency any other State to which an invitation to accede has been addressed by the General Assembly.’24

Mr. Jafri, the Pakistan Representative continued: The Secretariat had suggested (E/CONF.24/L.35) that dates should be fixed for signature of the convention, first at Geneva and then in New York. His delegation’s suggestion, however, that the convention should be open for signature until 1 March 1957, merely followed the procedure adopted at the time of the 1926 Convention, which also allowed a period of about six months for signature. To provide that the convention should be open to accession only after the time-limit for signature had expired was a somewhat unusual restriction. While it might be possible to find precedents in other conventions the 1926 Convention had contained no such limitation. He did not see why a brake should be placed on the process of applying the convention, and he

23

24

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Twelfth Meeting, 22 August 1956, UN Doc. E/CONF.24/SR.12, 17 November 1958, p. 10. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Pakistan: Amendments to Article 9, UN Doc. E/CONF.24/ L.39, 30 August 1956.

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did not think that that had been the intention of the original drafters. The convention should be open to accession immediately after signature. Paragraph 1 of article 9 as adopted at first reading referred to ‘ratification’, while paragraph 2 referred to ‘accession’. The use of those two terms was somewhat confusing, because they were sometimes used synonymously and sometimes with slightly different meanings. Article 9 had been materially altered after considerable debate in which it had been repeatedly affirmed that if the convention was open to accession by non-member States many Member States would be prevented from acceding. That point of view had been most forcefully expressed by the delegations of Canada, Turkey, the Philippines, and the United Kingdom. It had been said that to allow non-Member States to accede would introduce a political element and might lead to international complications since no agreement had been reached on the measures of international control originally provided for in article 3. In that connexion, he would recall that article 11 of the 1926 Convention, as amended by the Protocol of 1953, had contained no such limitation. It clearly stated that the Convention should be open to accession by all States, including States which were not Members of the United Nations, to which the Secretary-General had communicated a certified copy of the Convention. By 15 October 1955, the Protocol had been signed by twenty-seven States, including Canada, Egypt, the United Kingdom, Pakistan, Turkey, and the Philippines. States which were now unable to accept participation by nonmembers States without certain safeguards had at that time been able to co-operate with non-members States without difficulties. If the difficulties were political, they must also have been in existence before 7 December 1953 when the Protocol had been signed, and he was therefore unable to understand the reluctance to accept the free participation of non-member States.25

When the Pakistan representative had finished his explanation, the President moved that the discussion with regard to Article 9 be “postponed until the following meeting”. At that twenty-third meeting of the Conference, Mr. Jafri withdrew his proposed amendment in full, saying that: in submitting its amendments to articles 9, 10, and 11 his delegation had not intended to re-open issues that had already been exhaustively debated. Its sole purpose had been to improve the drafting and to remedy oversights that had occurred at the first reading. Paragraph 2 of the Pakistan amendment

25

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Twenty-Second Meeting, 31 August 1956, UN Doc. E/CONF.24/SR.22, 20 November 1958, pp. 14–15.

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to article 9 (E/CONF.24/L.39) was purely formal and now that the Style Committee had been set up there was no need to discuss it in plenary session. With regard to paragraph 1, his attention had been drawn to precedents for both alternatives and, as his delegation was opposed to change for its own sake, he would withdraw the whole amendment.26

The President “thanked the Pakistan representative for his conciliatory attitude”, suggested the latest date for signature should be 1 July 1957, and called the vote, at second reading, on Article 9, which was adopted by twenty-seven votes in favour, eight against, with five abstentions.27 At the twenty-fourth, and final meeting, the Conference accepted the revisions of the text proposed by the Style Committee which now shifted Article 9 to become the new Article 11. The following then are the provisions, as adopted by the Conference, of Article 11 of the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery: 1. This Convention shall be open until 1 July 1957 for signature by any State Member of the United Nations or of a specialized agency. It shall be subject to ratification by the signatory States, and the instruments of ratification shall be deposited with the Secretary-General of the United Nations, who shall inform each signatory and acceding State. 2. After 1 July 1957 this Convention shall be open for accession by any State Member of the United Nations or of a specialized agency, or by any other State to which an invitation to accede has been addressed by the General Assembly of the United Nations. Accession shall be effected by the deposit of a formal instrument with the Secretary-General of the United Nations, who shall inform each signatory and acceding State.

iv. Commentary on the Provisions of Article 11 of the Supplementary Convention What would otherwise be a standard clause in a treaty; the provisions of Article 11 raised a fundamental issue with regard to parties having the

26

27

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Twenty-third Meeting, 3 September 1956, UN Doc. E/CONF.24/SR.23, 20 November 1958, p. 2. Id.

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right to consent to be bound to the 1956 Supplementary Convention. This issue must be understood in light of the growing pains of a United Nations Organisation which was premised on universal membership, but was limited in that pursuit both by the Cold War and the hesitancy of the decolonisation process in the 1950s. During the early years of the Organisation, membership of the United Nations had been stalled in its quest to became a truly universal institution by the Cold War, wherein the United States of America and the Union of Soviet Socialist Republics utilised their Security Council veto with regard to recommendations for membership of States belonging to each other’s perceived camp. That logjam, however, was broken in 1955 when sixteen new members were invited to join, as a package deal, with an equal number of eight members across the Cold War divide being offered membership.28 The second dynamic was the decolonisation process which had started in earnest but had yet to reach a critical mass. As a result of these two dynamics, the question of which States should be invited to become a contracting party to the Convention was a live one. The 1954 British Draft Convention allowed for any State, whether member of the UN or otherwise, to become party to the supplementary convention. Yet during the deliberations of the 1956 drafting Committee, the French Representative, Mr. Giraud, noted that the provisions put forward “did not correspond to the usual form adopted in United Nations conventions”. He said that it was customary that instruments negotiated under the auspices of the UN should be open to Member States as well as States Parties to the Organizations’ specialized agencies and the Statute of the International Court of Justice. Where a State was not party to any of these institutions, the solution of France was an easy one: if a State wished to become party to the supplementary convention it need simply become party to the Statute of the International Court of Justice beforehand. This, one might imagine, was a rather unsatisfactory means of moving forward. Instead, the Soviet Union was unwilling to accept a proposal which limited the amount of parties which could accede to the Convention;

28

Note the role played in issues of United Nations membership by the International Court of Justice: Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter), 1947; and Competence of the General Assembly for the Admission of a State to the United Nations, 1949.

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the Indian Representative, Mr. Rajan, likewise stated that he “could not accept the idea that there should be a privileged list of countries” which might become parties to the Convention. For the United Kingdom, the issue was that of the UN Secretary-General acting as depository wherein, he might be placed “in an embarrassing position by forcing him to take decisions, in some cases, on the validity of instruments of ratification or accession deposited by countries” which had not been universally recognised as States by Members of the United Nations. This concern was also expressed by Office of Legal Affairs United Nations, which spoke of the Secretary-General being placed “in a somewhat embarrassing situation, if he were obliged to decide on the admissibility of an instrument of ratification or accession submitted by a country whose international status was not generally recognized by the Members of the Organization”. It was the Representative of the Netherlands, Mr. Schiff, who arrived at a conciliatory position which although not accepted during the phase of the drafting Committee, was ultimately accepted at the 1956 diplomatic Conference. “With a view to guiding the Secretary-General and at the same time opening the convention to the greatest possible number of States” he suggested, that it might fall to the General Assembly to invite States to accede, which did not fall into the categories which had been put forward in the French proposal. While the French proposal (with its Dutch sub-amendment) had been rejected by the drafting Committee, the French Representative once more introduced his proposal to the diplomatic Conference of 1956. There, it was met with a hostile reaction and accusations of political motives: as an attempt to limit the scope and effectiveness of the convention at the expense of the anti-slavery campaign. The Byelorussian Representative, noting that the discussions had made plain that the French amendment was opposed by a “considerable number of delegations”, it fell to the Representative of the Netherlands at the Conference to once more seek to reconcile the text to the wishes of the majority of the negotiating parties. Miss. Lunsingh-Meijer suggested that the French text be amended to allow, beyond those noted in the French proposal, States which were invited by the General Assembly to become party to the Convention. That suggestion was taken up by the Haitian Delegation which sponsored a formal proposal to that affect.

Article 12 (Overseas Territories) 1. This Convention shall apply to all non self-governing, trust, colonial and other non-metropolitan territories for the international relations of which any State Party is responsible; the Party concerned shall, subject to the provisions of paragraph 2 of this article, at the time of signature, ratification or accession declare the non-metropolitan territory or territories to which the Convention shall apply ipso facto as a result of such signature, ratification or accession. 2. In any case in which the previous consent of a non-metropolitan territory is required by the constitutional laws or practices of the Party or of the non-metropolitan territory, the Party concerned shall endeavour to secure the needed consent of the non-metropolitan territory within the period of twelve months from the date of signature of the Convention by the metropolitan State, and when such consent has been obtained the Party shall notify the SecretaryGeneral. This Convention shall apply to the territory or territories named in such notification from the date of its receipt by the Secretary-General. 3. After the expiry of the twelve-month period mentioned in the preceding paragraph, the States Parties concerned shall inform the Secretary-General of the results of the consultations with those non-metropolitan territories for whose international relations they are responsible and whose consent to the application of this Convention may have been withheld.

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i. 1954 British Draft Convention ARTICLE 10 Any State may at the time of its ratification or accession or at any time thereafter declare by notification addressed to the Secretary-General of the United Nations that the present Convention shall extend to all or any of the territories for whose international relations it is responsible. The SecretaryGeneral shall inform the other signatory and acceding States.1

In April 1953, the United Nations Economic and Social Council requested that the Secretary-General hold consultations as to the desirability of establishing an instrument supplementing the 1926 Slavery Convention.2 In February 1954, as part of that process, the United Kingdom put forward not only comments on a possible instrument, it also put forward a draft convention.3 The following month, the Economic and Social Council invited States and the International Labour Organisation to submit comments to the Secretary-General on the 1954 British Draft Convention.4 In late 1955, the Economic and Social Council appointed a committee of ten of its Members to consider the Draft Convention put forward by United Kingdom with a look to preparing “a text of a draft supplementary convention for submission to the Council”.5 In preparation for first meeting of this drafting Committee, the United Nations Secretary-General prepared a memorandum which included

1

2 3

4 5

Economic and Social Council, Slavery: Consultations Concerning the Desirability of a Supplementary Convention on Slavery and its Possible Contents, UN Doc E/2540/Add.4, 12 April 1954, p. 5. See Economic and Social Council, Resolution 475 (XV), 27 April 1953. For British comments see: Economic and Social Council, Slavery: Consultations concerning the Desirability of a Supplementary Convention on Slavery and its Possible Contents, UN Doc E/2540/Add.1, 3 March 1954. For the 1954 British Draft Convention see: Economic and Social Council, Slavery: Consultations Concerning the Desirability of a Supplementary Convention on Slavery and its Possible Contents, UN Doc E/2540/Add.4, 12 April 1954. See Economic and Social Council, Resolution 525 (XVII), 29 April 1954. Economic and Social Council, Resolution 564 (XIX), 7 April 1955.

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comments on the 1954 British Draft Convention received from States, inter-governmental and non-governmental organisations. With regard to Article 10, the Secretary-General noted that it followed from Article 9 of the 1926 Slavery Convention.6 The Secretary-General also noted that the Anti-Slavery Society had: pointed out that some States have territories for whose international relations they are responsible but in which they have no power to enact the legislation necessary to give effect to the convention. In the British Commonwealth, for instance, there are six territories in that category, namely, South Rhodesia, Gold Coast, Malta, Bermuda, Bahamas, and Barbados. The Society further expresses the view that it might be preferable to state in Article 10 that the convention shall extend to all the territories for whose international relations the signatory is responsible unless it declares to reserve the right to some of the territories concerned.7

In an addendum to his Memorandum, the Secretary-General communicated to the drafting Committee further comments pertaining to Article 10, those submitted by Pakistan: The Government of Pakistan are of the view that the provisions of the Convention should apply to all non-self-governing and trust territories also. Article 10 may, therefore, be redrafted as follows: The provisions of this Convention shall extend to or be applicable equally to a signatory metropolitan State and to all the territories, be they Non-Self-Governing, Trust, or Colonial Territories, which are being administered or governed by such metropolitan State.8

6

7

8

Article 9 of the 1926 Convention reads: At the time of signature or of ratification or of accession, any High Contracting Party may declare that its acceptance of the present Convention does not bind some or all of the territories placed under its sovereignty, jurisdiction, protection, suzerainty or tutelage in respect of all or any provisions of the Convention; it may subsequently accede separately on behalf of any one of them or in respect of any provision to which any one of them is not a party. Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude Submitted by the Government of the United Kingdom and Comments Thereon (Memorandum by the Secretary-General), UN Doc E/AC.43/L.1, 2 December 1955, p. 38. Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude Submitted by the Government of the United Kingdom and Comments Thereon (Memorandum by the Secretary-General) Addendum, UN Doc E/AC.43/L.1/Add.2, 25 January 1956, p. 2.

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ii. 1956 Draft Supplementary Convention on Slavery and Servitude ARTICLE 10 This Convention shall apply to all the non-self-governing, trust, colonial and other non-metropolitan territories for the international relations of which any State Party is responsible, except where the previous consent of a nonmetropolitan territory is required by the constitutional laws or practices of the Party or of the non-metropolitan territory. In such case the Party shall endeavour to secure the needed consent of the non-metropolitan territory within the shortest period possible and when that consent is obtained the Party shall notify the Secretary-General. This Convention shall apply to the territory or territories named in such notification from the date of its receipt by the Secretary-General. In those cases where the previous consent of the non-metropolitan territory is not required, the Party concerned shall, at the time of signature, ratification or accession, declare the non-metropolitan territory or territories to which this Convention applies.9

The Committee on the Drafting of a Supplementary Convention of Slavery and Servitude met in Geneva from 16 January to 6 February 1956, “for the purpose of preparing a text of a draft supplementary convention”.10 With regard to Article 10 of the British Draft Convention, the Committee considered its provision during its sixth meeting, held on 18 January 1956, though the Egyptian representative had suggested its consideration be deferred in light of its importance. The Chairman of the Committee, Mr. Cutts of Australia, thought it best that considerations of draft Article 10 should start forthwith, and thus asked Egypt to introduce its amendment submitted jointly with Ecuador and Yugoslavia; which reads:

9

10

The comments were aimed not only at Article 10, but also those of Article 7 and 11 of the 1954 Draft Article, as the proposal from Pakistan continued: “As a result of the modification suggested above, it will be necessary to omit the clause (3) of article 11 and also the words ‘or when making a notification under article 10’ appearing in the second and third lines article 7. Economic and Social Council, Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, UN Doc. 2824, Annex I, 15 February 1956. See Economic and Social Council, Resolution 564 (XIX), 7 April 1955.

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Replace the present text of Article 10 by the following: The provisions of the present Convention shall extend or be applicable equally to a contracting metropolitan State and to all the Territories, which are being administered or governed by such metropolitan State.11

The Egyptian Representative, Mr. Abdel-Ghani, noted that the proposal was a reproduction “almost word for word of Article 28 of the draft covenant on economic, social and cultural rights (Article 53 of the draft covenant on civil and political rights)”. The discussion that then ensued commenced with the Russian Representative Mr. Nikolaev stating that he “had already explained his attitude towards article 10 and the ‘colonial clause’”. Mr. Nikolaev was referring to his remarks during the opening general debate in which he noted that: Under article 10 of the draft, contracting States were free not to apply the convention to the territories for whose international relations they were responsible, in other words colonial territories. But it was in those territories that slavery and servitude were most widespread. His delegation, true to the position taken by the Soviet people long ago, would continue to support the national aspirations of the colonial peoples and would take a firm stand against the inclusion of a ‘colonial clause’ in the new convention.12

At the sixth meeting, Mr. Nikolaev continued: That article, by excluding from the sphere of application of the convention colonial territories, where slavery and similar practices were rife, would appreciably narrow the influence and scope of the new instrument. Two arguments were usually adduced in defence of the ‘colonial clause’. First, constitutional difficulties were emphasized. That argument was not valid in the case in point. The convention did not deal with any controversial question – it had a humanitarian goal whose merit no one questioned. Secondly, it was alleged that the colonial territories were not sufficiently advanced. It was precisely for that reason that the Powers administering such territories must introduce far-reaching reforms. They were, in any event, bound to do so under Article 76 (b) and (c) of the Charter.

11

12

Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Ecuador, Egypt and Yugoslavia: Amendment to Article 10 of the Draft Convention on the Abolition of Slavery and Servitude (E/2540/Add.4), UN Doc. E/AC.43/L.15, 18 January 1956. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Second Meeting, 16 January 1956, UN Doc. E/AC.43/SR.2, 8 February 1956, p. 5.

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The USSR delegation could not therefore accept article 10 of the draft. It had submitted an amendment (E/AC.43/L.13) suggesting the replacement of the text of that article by a text based mainly on article 28 of the draft covenant on economic, social and cultural rights (Article 53 of the draft covenant on civil and political rights). It was ready to associate itself with the Ecuadorian, Egyptian and Yugoslav delegations in submitting a new joint amendment.13 The CHAIRMAN, speaking as the Australian representative, said that the sponsor of the joint amendment, whatever the merits of the text, read into the provisions of article 10 a meaning which they did not possess. He did not consider that article 10 was a safeguard which the colonial Powers intended to maintain vis-à-vis the territories they administered. He doubted, moreover, whether slavery and similar practices were especially widespread in those territories. However that might be, the joint amendment had a serious disadvantage from a practical point of view. If it were adopted it would make it difficult even impossible, for countries such as South Rhodesia, the Gold Coast, Malta, Bermuda, the Bahamas, and Barbados, which did not come under any of the categories mentioned in the amendment, to accede to the convention.

13

The proposed USSR amendment reads in part: 3. Replace the text of Article 10 of the draft convention by the following new text: ‘The provisions of the present convention shall extend or apply equally to the signatory metropolitan State and to all Non-Self-Governing, Trust or colonial territories which the said metropolitan State governs or administers’. In consequence of this proposal, delete paragraph (3) of article 11 [which reads: Any Contracting State which has made a declaration under Article 10 of this Convention may, at an time thereafter, by notification to the SecretaryGeneral of the United Nations, declare that, one year after the date of the receipt by the Secretary-General of the aforesaid notification, the Convention shall cease to extend to a territory or territories named in the declaration], and in article 12 [which reads: This Convention shall enter into force on the date on which two States have become parties thereto and thereafter shall enter into forces in respect to each State and territory on the date of deposit of the instrument of ratification or accession of that State or notification of extension to that territory] delete the words ‘or notification of extension to that territory’. See Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Union of Soviet Socialist Republics: amendment to the draft convention on the abolition of slavery and servitude, UN Doc. E/AC.43/L.13, 18 January 1956.

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On the other hand, article 10 allowed those territories to accede to the convention through the State responsible for their foreign affairs. Mr. BOZOVIC (Yugoslavia), Rapporteur, agreed that slavery and similar practices were encountered in other countries besides Non-Self-Governing Territories, but noted that under Article 10 such Territories were not in principle covered by the convention. The draft thus imposed obligations on States in which certain practices existed resembling slavery but which did not administer Non-Self-Governing Territories, while it allowed colonial Powers, in which such practices were unknown, to shirk their responsibility toward those of their Non-Self-Governing Territories where such practices persisted. Article 10 would therefore have the effect of placing the contracting parties in a position of great inequality where their responsibilities towards the International community were concerned. Furthermore, the article was in contradiction with the provisions of the Charter relating to Non-SelfGoverning Territories. Under Article 73(a), in particular, the colonial Powers were bound to protect the inhabitants of those territories ‘against abuses’, and thus against slavery and similar practices. The position of countries such as South Rhodesia and the Gold Coast, delicate as it was, in no way justified the inclusion of a general clause exempting the Contracting States from their obligations towards all the territories for whose international relations they were responsible. States responsible for the international relations of the countries in question could persuade the local authorities to authorize them to accede to the convention on their behalf. Mr. SCOTT-FOX (United Kingdom) said that he would discuss the joint amendment (E/AC.43/L.15) later, after he had been able to study it more carefully. He wished, however, to reply now to the criticisms of article 10 of the draft convention, which some members apparently construed as a device to avoid applying the convention to certain territories. The opposite was true. Certain colonies which had reached an advanced stage of development enjoyed a large measure of self-government and the metropolitan government could not compel them to assume obligations which were unacceptable to them. As the Yugoslav representative had pointed out, it could admittedly advise them and encourage them to do so. But for that purpose, consultations, sometime prolonged consultations, were necessary. A clause whereby a State would automatically undertake obligations for all of the territories associated with it, would actually defeat its own purpose, for States would be unable to ratify the convention until the consultation with their colonies and dependent territories had been completed. He was surprised that the USSR should criticize the Administrating Powers in this matter when it had not adhered to the 1926 Convention during the thirty years that the instrument had been in existence. The CHAIRMAN said that the two texts before the Committee were not necessarily mutually exclusive and that an effort might be made to combine them.

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Mr. NIKOLAEV (Union of Soviet Socialist Republics) said that while he did not want to revert to the substance of the question, he wished to reply to the United Kingdom representative’s last remark. The Soviet Union’s attitude was well-known. It was dictated by the sympathy which that country had entertained, ever since its conception, for the peoples of the colonial and Non-Self-Governing Territories. The reason why it had not acceded to the 1926 Convention was not that its views had changed, but that the instrument had always been ineffective. The current attitude and amendments of the USSR were still dictated by its desire to draft an instrument which would be useful in the fight against slavery.14

The Committee at this point moved on to consider provisions of another article. The discussion of Article 10 was later picked up at the seventeenth meeting, on 30 January 1956, wherein the Chairman reminded the members of the Committee that two proposed amendments (one the joint-amendment by Ecuador, Egypt and Yugoslavia, the other proposed by the Soviet Union) remained under consideration. Discussion with regard to Article 10 thus continued: Mr. ABDEL-GHANI (Egypt) pointed out that the joint amendment took the same form as article 28 of the draft covenant on economic, social and cultural rights (Article 53 of the draft covenant on civil and political rights). That article had been drafted, not by the Commission on Human Rights, but by the General Assembly, which had invited the Commission to include it in the draft covenants. As it had not yet adopted the latter, the Assembly could, of course, reconsider its decision and reject the article; but it had already given its support to the same text when, in its resolution 630 (VII), it had urged States to become parties to the Convention on the International Right of Correction, which contained that text (article IX). On that occasion the General Assembly had expressly rejected the ‘colonial clause’ embodied in the original draft. The Egyptian delegation took the view that all conventions concerning human rights should contain an article for which the General Assembly had twice expressed a decided preference. The Egyptian delegation had not the least intention of promoting the adoption of a clause which might prevent or delay ratification by some States. When the French amendment to article 9 had been put to the vote it had given a clear demonstration of its adherence to the principles of universality; nor did it seek to minimize the constitutional obstacles which some States would have to surmount in order to ratify the instrument on behalf of all

14

Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Sixth Meeting, 18 January 1956 UN Doc. E/AC.43/SR.6, 10 February 1956, pp. 3–7.

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the territories administered or governed by them. Indeed, it could not but rejoice that some of those territories were progressing toward self-government and independence. Having said that, his delegation felt that the interests of the peoples concerned would be ill-served if, by the adoption of a clause of the type embodied in article 10 of the draft convention, they were denied the protection from slavery enjoyed by the rest of mankind. He compared article 10 of the draft convention (E/2540/Add.4) with article 9 of the 1926 Convention15 and pointed out that they were based on opposing conceptions. In the former case, extension to non-metropolitan territories was the exception inasmuch as it could be brought about only through a formal declaration by the State concerned; in the latter case, it was the rule. In the former case, a State which wished to apply the convention only in its metropolitan territories would merely ratify the instrument; in the latter case, it had to specify in a formal declaration which territories were excluded from scope of the convention, thus making it possible for the competent United Nations organ (the Trusteeship Council or the Fourth Committee, according to whether a Trust Territory or a Non-Self-Governing Territory was involved) to ascertain, first, the grounds for the exclusion of a particular territory and, secondly, what steps the State concerned intended to take to remedy the situation. On that point, therefore, the draft convention was retrograde in comparison with the 1926 Convention, article 9 of which was better suited to present-day conditions. The CHAIRMAN feared that the effect of the joint amendment would be to prevent the extension of the convention to territories for whose international relations a Contracting State was responsible but which did not fall within any of the categories mentioned in the convention. Mr. NIKOLAEV (Union of Soviet Socialist Republics) said that the joint amendment, even better than the Soviet amendment, met the USSR delegation’s desire to see the text adopted which came as close as possible to the wording used in the draft covenants on human rights. He would therefore vote for the joint amendment and withdraw his own.16

15

16

Article 9 of the 1926 Convention reads: At the time of signature or of ratification or of accession, any High Contracting Party may declare that its acceptance of the present Convention docs not bind some or all of the territories placed under its sovereignty, jurisdiction, protection, suzerainty or tutelage in respect of all or any provisions of the Convention; it may subsequently accede separately on behalf of any one of them or in respect of any provision to which any one of them is not a party. For the USSR amendment see Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to

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The wording used in the draft convention was unacceptable, for it would enable some Powers to avoid assuming any obligations in their colonial territories, the very areas where slavery and similar practices were the greatest scourge. To justify the exclusion of these territories from the scope of the convention it was alleged that there were technical difficulties. That argument was of doubtful validity, as was shown by the fact that in 1926 it had not been considered necessary to provide for a specific declaration by States wishing to extend the convention to their colonies: extension had been the rule. It was also said that there were constitutional difficulties. From the legal standpoint the situation was clear: the State responsible for a territory’s international relations could and should assume, on that territory’s behalf, the obligations provided for by the convention, because the territory itself had no direct contact with the international community. Furthermore it would not be understood if the Committee rejected a clause which the General Assembly had formally approved for inclusion in the draft covenants on human rights. Mr. SCOTT-FOX (United Kingdom) welcomed the moderation shown by the Egyptian and USSR representatives. Article 28 of the draft covenant on economic, social and cultural rights and article 53 of the draft covenant on civil and political rights had not yet been finally approved by the General Assembly. It was true that article IX of the Convention on the International Right of Correction had been approved by the Assembly, but the fact that only a very few States had been able to ratify that Convention in the course of eight years should prompt the Committee not to take it as an example. The United Kingdom had accepted article 9 of the 1926 Convention – and, incidentally, had never made use of it: the instrument had been applied in all colonial territories of the United Kingdom. Since that time, however, those territories had progressed so far in the direction of self-government that the United Kingdom could no longer enter into undertakings on their behalf without their previous consent; hence article 10 of the draft convention, and not article 9 of the 1926 Convention as the Egyptian representative maintained, was the better suited to present-day conditions. In the absence of the ‘colonial clause’ the United Kingdom would be unable to ratify the convention on behalf of the territories administered by it until all those territories without exception had given their consent. That clause was the more necessary since the draft convention provided that the Contracting States should take all appropriate legislative measures necessary to give effect to it. The United Kingdom could persuade the territories in question to take such measures, but to compel them to do so against their will would

Slavery, Union of Soviet Socialist Republics: amendment to the draft convention on the abolition of slavery and servitude, UN Doc. E/AC.43/L.13, 18 January 1956.

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be entirely contrary to the United Kingdom’s policy of prompting self-government in the territories. He urged the supporters of the joint amendment to realize that article 10 of the draft convention, far from being imputable to dubious motives, was merely designed to solve a practical problem arising from the increasing self-government of the territories administered by the United Kingdom. It would surely be regrettable if the Committee, unanimously resolved to abolish slavery, should prove unable to prepare a text which the greatest possible number of States could accept. Mr. KAUL (India) felt that any convention of a humanitarian character ought to be applicable to all States and territories without exception, and that in the case of the present Convention, its extension to Non-Self-Governing, Trust or Colonial Territories was all the more necessary as some of the institutions and practices which it was intended to abolish apparently persisted there. His delegation would therefore support the joint amendment, especially as the General Assembly had already on two occasions approved a similar text. He was opposed to article 10 of the draft; he did not mean to say that certain States would necessarily take advantage of the latitude thus afforded them to deny their Territories the benefit of the Convention, but he could not fail to note that as the article stood it was open to them to do so. In opposing the joint amendment, some maintained that in certain cases the State lacked the power to introduce the legislation necessary for the application of the Convention in a territory for whose international relations it was responsible. In answer to the argument it could be said that in such territories there were elected bodies which were competent to adopt the appropriate legislation and whose consent or approval was all that the mother country needed before proceeding to ratify the convention. Such a procedure would, of course, entail delay but that would be better than leaving the metropolitan country as the final authority in the matter, as would be the case if article 10 were adopted. The Indian delegation had considered drafting a third text the terms of which would limit the freedom of action of the metropolitan country; as it had appeared unlikely, however, that such a text would win wide support, it had given up the idea and would vote for the joint amendment. Mr. SCHIFF (Netherlands) agreed with the United Kingdom representative that the sponsors of the joint amendment ran the risk of overshooting the mark. Far from enlarging the scope of the Convention, it could lead to the postponement of ratification, perhaps for a long time, by certain of the States which administered Colonial Territories. Vast areas of the world would thus be excluded from the application of the Convention. He therefore urged the Committee not to adopt the joint amendment, as it would prevent the Government which had sponsored the draft from becoming one of the first signatories to it and was tantamount to denying the progress made towards self-government in a number of quondam

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colonies. The amendment was the less necessary in that, whatever text was adopted, States administering Territories which were partially self-governing could not compel them to accept the Convention. Mr. BOZOVIC (Yugoslavia), reminded the Committee of the inequality between the contracting parties which would result from the adoption of article 10. States which did not administer Non-Self-Governing Territories and in which certain practices connected with slavery remained would assume obligations towards the international community, while the colonial Powers, in whose countries such practices did not exist, could evade their duties towards those of their Non-Self-Governing Territories in which such practices might still be found. It would be only fair for all States, whether or not they administer Non-Self-Governing Territories, equally to assume all the obligations flowing from the Convention. In support of his argument he quoted the second part of the Belgian Government’s observations in document E/AC.43/L.1/Corr.1; he admitted that the case of the Territories which were partially self-governing between those Territories and the metropolitan countries would enable the latter to intervene when measures adopted by the local legislatures ran counter to human rights and the principles of civilization. In South Rhodesia, for example, the United Kingdom retained the right and the duty to protect the indigenous inhabitants. For those reasons his delegation would vote against the text of article 10 in the draft and would vote for the joint amendment which reproduced an article from the draft covenant which the General Assembly had in fact, contrary to what certain speakers had asserted, approved. Mr. GIRAUD (France) denied the USSR representative’s allegation that slavery and similar practices were still deep-rooted in the colonial territories. He would quote only the case of France. That country had endeavoured to eradicate every vestige of such practices, which conflicted with its every ideal and legal principle. Slavery had been abolished as early as 1848, the slave trade and the movement of slavers into and out of African colonial territories were covered by the decree of 12 December 1905. Debt bondage and serfdom were prohibited and made punishable by the Degree of 19 November 1947. The Mandel Decree of 15 June 1939 and the Jacquinot Decree of 14 September 1951 had made the validity of marriage conditional upon the consent of the parties. The truth of the matter – persistently disregarded for political reasons – was that slavery proper and various practices similar to slavery were still rife, as traditional institutions, not in the colonial territories but in certain under-developed countries. The idea put forward that a metropolitan country acceding to the convention might assume the obligations only for itself was theoretical, even absurd. The only question was whether it might exclude a particular territory for certain good reasons. One such reason was the need to respect such internal

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self-government as certain territories might enjoy. Self-government had both advantages and disadvantages, and the ones could not be acquired without the others. Even to enforce the application of the convention, a metropolitan Power could not, without a breach of its undertakings, infringe the internal self-government it had granted to certain territories. Although it was easy to adopt conventions it was much more difficult to obtain their ratification by a large number of States. In preventing States from excluding certain territories from the scope of the convention the Committee might force them to refrain from ratifying it, a consequence which would frustrate the very purpose of the sponsors of the joint amendment. Mr. BENLER (Turkey) observed that his country’s interest in the abolition of slavery and other such practices was purely juristic and humanitarian, for they did not exist in Turkey, where they were prohibited by law. The Turkish delegation unhesitatingly supported any measure designed to bring about the abolition of slavery. It had no objection in principle to the joint amendment, since it was in favour of the widest possible extension of a Convention which was bound to facilitate social progress. However, it had been clearly stated by the representative of the United Kingdom, on more than one occasion, that his Government was not in a position, for constitutional reasons, to enter into such contractual obligations on behalf of all the territories for whose international relations it was responsible. In other words, if those amendments were adopted, it would become necessary, at least for one metropolitan State, to enter into a contractual obligation on behalf of some territories without their prior consent. That, in the opinion of the Turkish delegation, would constitute an infringement upon the acquired status of various dependent territories whose advancement towards self-government and ultimate independence the United Nations was pledged to ensure; it would indeed be a step backward. It was principally for that reason that the Turkish delegation could not support either the three-Power or the Soviet amendments to article 10 of the draft convention. In reaching that decision, the Turkish delegation had also taken into consideration the statement made by the representative of the United Kingdom, who had declared in substance that, with a view to securing the widest possible application of the provisions of the convention, his Government would without delay enter into such negotiations as might be necessary with those territories whose political status required prior consent. The delegation of Turkey would therefore vote in favour of article 10, as contained in the supplementary draft convention, and against the two amendments. Mr. NIKOLAEV (Union of Soviet Socialist Republics) maintained that the General Assembly had approved the article from the draft covenants which was reproduced in the joining amendment, while it had categorically rejected the ‘colonial clause’ when drafting the Convention on the Political Rights of Women.

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If it was true, as had been claimed, that the colonial territories had made real progress in the cultural and social fields, they could not possibly oppose the Convention. No one had suggested consulting those territories or adopting a ‘colonial clause’ when the Atlantic Pact and the Paris Agreement had been concluded, even though they were a direct threat to those territories. The argument based on the need to consult was thus not valid; in any case, such consultations could take place before ratification. The Soviet delegation would therefore vote for the joint amendment and against article 10 as it appeared in the draft (E/2540/Add.4). Mr. BOZOVIC (Yugoslavia), thought that the Administrating Powers could easily accept the joint amendment without being obliged to apply the Convention immediately in all their territories, for they could invoke article 1 which required them only to abolish slavery ‘progressively and as soon as possible’ (E/AC.43/L.30/Add.1). Mr. APUNTE (Ecuador) agreed with the representative of Egypt and Yugoslavia. Article 10 of the United Kingdom draft would create an inequality between States, depending on whether or not they administered Non-SelfGoverning Territories: the Convention would be optional for those which did and compulsory for those that did not. The CHAIRMAN, speaking as the representative of Australia, said that his delegation, like all others which were represented in the Committee, felt that the Convention should be applicable to all territories without exception. He recognized, however, that it could be applied in certain territories only after the adoption of certain constitutional measures. It was for that reason that he was opposed to the joint amendment. There was another reason, too: the text proposed, like the similar wording introduced into the draft covenants on human rights, had the character of an anti-colonial slogan and would colour the Convention in a way which had no relevance to the problem of slavery and the other practices covered by the Convention. The Committee should not underestimate the difficulties with which the United Kingdom representative had said his Government would be confronted if there was no provision in the Convention similar to article 10 of the original draft. By applying the 1926 Convention, which nevertheless contained an analogous reservation, to its territories, the United Kingdom had given proof of its good faith and could be counted on to apply the present Convention to its territories with the least possible delay. However, where territorial governments had acquired the right to be consulted on all questions affecting their territories, the Administrating Authority could not be expected to apply the Convention to such territories without full consultation with the local authorities. This might take some time and meanwhile the Administrative Authority would not be able to sign the Convention. The Yugoslav representative had maintained that those constitutional difficulties would not be as great as the United Kingdom appeared to think. Even if

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this were so, it was doubtful whether it would be an act of political wisdom on the part of the United Kingdom to make the Convention applicable in its territories without consent of the local authorities. It was true that the provisions of the Convention should be applicable universally, but they must be applied with due consideration for the constitutional law and practice in the territories concerned. He was convinced that all members of the Committee, would, on reflection, admit the justice of that argument. He personally would vote against the joint amendment and in favour of the United Kingdom draft. Mr. BOZOVIC (Yugoslavia) said that in his earlier remarks on the granting of self-government in internal affairs to dependent territories, he had raised the question of the extent of such self-government and of the relations between the legislative bodies of those territories and the parliaments of the metropolitan countries. He would allow himself to be swayed by the Chairman’s arguments, if he could be certain that, once made, the grant of self-government to the dependent territories was complete and final. If that were the case, he would be ready to vote in favour of the United Kingdom draft, but he was not yet convinced, since there had been several instances where self government, after being granted, had been later withdrawn or restricted in certain respects by the Administrative Powers. Mr. BENLER (Turkey), without making a formal proposal, suggested, in a spirit of conciliation and compromise, that, as a solution which would provide a way out of the deadlock, the formula used in article 20 of the Opium Protocol of 1953 might be adopted.17 The advantage of that article lay in its specific reference to the ‘previous consent’ of the territories concerned, which was in conformity with the views expressed regarding the importance of the political status of the dependent territories. The Protocol of 1953 had been signed by most States represented in the Committee; the United Kingdom had not agreed to it, but he hoped that it would now accept article

17

Article 20 of the 1953 Opium Protocol reads: This Protocol shall apply to all the non-self-governing, trust, colonial and other nonmetropolitan territories for the international relations of which any Party is responsible, except where the previous consent of a non-metropolitan territory is required by the Constitution of the Party or of the non-metropolitan territory, or required by custom. In such case the Party shall endeavour to secure the needed consent of the non-metropolitan territory within the shortest period possible and when that consent is obtained the Party shall notify the Secretary-General. This Protocol shall apply to the territory or territories named in such notification from the date of its receipt by the SecretaryGeneral. In those cases where the previous consent of the non-metropolitan territory is not required, the Party concerned shall, at the time of signature, ratification or accession, declare the non-metropolitan territory or territories to which this Protocol applies.

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20, which, if embodied in the present convention, would ensure the widest possible application of the latter, as the Committee desired. Mr. NIKOLAEV (Union of Soviet Socialist Republics) saw little difference between the article suggested by the Turkish representative and that proposed by the United Kingdom; both, in fact, treated the application of the convention to certain territories as an exceptional measure. He would therefore vote against the Turkish representative’s suggestion, if it were presented as a formal proposal. Mr. GIRAUD (France) was ready to accept the Turkish representative’s suggestion, although it did not entirely satisfy him, if a unanimous vote could thereby be obtained. Mr. BOZOVIC (Yugoslavia) said that he could not accept the Turkish representative’s suggestion. Yugoslavia was a party to the Opium Protocol, but he was not sure that it had accepted article 20.18

Having discussed the provisions of Article 10 and the amendment put forward jointly by Ecuador, Egypt and Yugoslavia, the Chairman of the Committee called a vote. With regard to that amendment, it was not adopted, as there was an equal number of five votes for and against. It should be recalled that the Soviet Union Representative had decided to associate himself with the joint amendment and thus had tacitly withdrawn his proposed article. The next vote was for the Article 10 of the 1954 British Draft Convention. That draft article was also not adopted, with votes being equal at five, both for and against. At the following meeting, the Turkish Representative, Mr. Benler, “recalled that at the previous afternoon’s meeting the draft convention had been left with no article 10, although his delegation had suggested a text”. Mr. Benler presented his formal proposal which would have Article 10 utilize the same wording as the 1953 Protocol on Opium.19 The proposal reads: This Convention shall apply to all the non-self-governing, trust, colonial and other non-metropolitan territories for the international relations of which any Party is responsible, except where the previous consent of the

18

19

See Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Seventeenth Meeting, 30 January 1956, UN Doc. E/AC.43/SR.17, 6 March 1956, pp. 3–12. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Eighteenth Meeting, 31 January 1956, UN Doc. E/AC.43/SR.18, 29 February 1956, p. 19.

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non-metropolitan territory is required by the Constitution of the Party or of the non-metropolitan territory, or required by custom. In such case the Party shall endeavour to secure the needed consent of the non-metropolitan territory within the shortest period possible and when that consent is obtained the party shall notify the Secretary-General. This Convention shall apply to the territory or territories named in such notification from the date of its receipt by the Secretary-General. In those cases where the previous consent of the non-metropolitan territory is not required, the Party concerned shall, at the time of signature, ratification or accession, declare the non-metropolitan territory or territories to which the Convention applies.20

Mr. Bozovic, the Representative of Yugoslavia, then proposed a number of amendments to that text: In the first sentence, the phrase ‘of the Party or’ after the word ‘constitution’, should be deleted, as well as the concluding words ‘or required by custom’. In the second sentence, the words ‘in writing’ should be added after ‘secure’; after the phrase ‘needed consent’, the words ‘competent organ of that’ should be inserted before the expression ‘non-metropolitan territory’; and the phrase ‘and transmit the text to him’ should be added after the words ‘Secretary-General’. He reserved his position on the last sentence of the proposed text.21

At the nineteenth meeting of the Committee, Mr. Bozovic, stated that “he would refrain from submitting any amendments to that text if the Turkish representative gave him satisfactory explanations on certain points”. The Chairman, for his part “observed that the Turkish representative might not be in a position to supply such explanations, since the text in question had been taken from the 1953 protocol on opium”. The Representative of Yugoslavia proceeded with his questions: Mr. BOZOVIC (Yugoslavia), asked what Constitutions of Member States and of non-metropolitan territories stipulated that application of a convention to a non-metropolitan territory required the latter’s previous consent. He also wanted to know the meaning of the words ‘or required by custom’. He further asked the Turkish representative whether he intended to propose that article 11 [denunciation] should contain a provision to the effect that where the consent of a non-metropolitan territory was necessary before a

20

21

Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Turkey: Proposed new Article 10, UN Doc. E/AC.43/L.38, 31 January 1956. Id., p. 20.

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convention could be applied to it, its consent would also be required before denunciation of the convention on its behalf. Mr. BENLER (Turkey) said that he was unable to answer those questions, as Turkey did not administer any non-metropolitan territory. He reminded Mr. Bozovic that at the time of drafting the protocol from which the new text had been taken, the Yugoslav representative, who had been Chairman of the drafting committee, had raised no objection to the article in question, which had been accepted without discussion. The CHAIRMAN, pointed out that the Yugoslav representative was not in any way bound by the position taken by the Yugoslav delegation at the Opium Conference. So far as he was aware, no Member State had a Constitution stipulating that the previous consent of the non-metropolitan territories was required before a convention could be applied to them. On the other hand, stipulations of that kind abounded in the Constitutions of non-metropolitan territories. With regard to the words ‘or required by custom’, he recalled that in many territories custom demanded that previous consent of the territory before a convention could be applied to it. Lastly, he thought that if consent were required for the application of a convention, it should also be required for denunciation. Mr. SCOTT-FOX (United Kingdom) pointed out that in the United Kingdom there was no written Constitution. Its place was taken, in accordance with British political tradition, by constitutional practice. The words ‘required by custom’ were intended to cover that concept, but perhaps a better expression could be found. The United Kingdom constitutional practice was to consult the non-metropolitan territories before taking a decision concerning them. The United Kingdom Government attached prime importance to that practice and had no intention of reversing its policy of granting an increasingly larger measure of self-government to territories dependent upon the United Kingdom. The Yugoslav representative’s suggestion concerning article 11 [denunciation] merited serious consideration. The CHAIRMAN, thought that the words ‘required by custom’ referred to constitutional laws and practices. Mr. NIKOLAEV (Union of Soviet Socialist Republics) regretted that the Turkish representative had at the last moment presented a text based upon article 10 of the original draft (E/2540/Add.4) which the Committee had rejected after long debate. The new text was more complicated and less precise than the old, but its meaning was the same: in fact, the mother country remained the sole judge of whether or not the convention should be applied in the non-metropolitan territories, where slavery and similar practices were rampant.

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Although it had signed and ratified many instruments dealing with the control of narcotic drugs, the Soviet Union was not a party to the 1953 Opium Protocol. He stressed that the previous speakers had given vague answers to the Yugoslav representatives’ questions; none of them had succeeded in providing that there was any Constitution containing a provision on ‘previous consent’, the term used in the new text. He therefore concluded that until proof to the contrary was furnished the text was pointless. The Committee had refused to adopt a text similar to that approved by the General Assembly for the draft covenants on human rights. A last moment attempt was being made to adopt an article which was worse than the article in the original draft. Those who had new suggestions to make should present them to the Economic and Social Council at a later stage. The CHAIRMAN, observed that since the original text of article 10 had been rejected, it was quite legitimate to endeavour until the last moment to formulate a new text. Mr. ABDEL-GHANI (Egypt) asked the United Kingdom representative whether the constitutional difficulties to which he had referred could not be overcome by adopting a convention containing no provision with regard to its territorial application. He recalled that the Convention on Political Rights of Women in its draft form had contained a ‘colonial clause’ which the General Assembly, at its seventh session, had decided to delete from the final text. The decision had not prevented some forty States from signing that Convention. Apparently the United Kingdom had not signed it for a different reason: it had objected to the provision that women should be entitled to hold public office on equal with men. Mr. SCOTT-FOX (United Kingdom) wished to dispel any understanding regarding the ‘colonial clause’. He was aware that the Convention on Political Rights of Women did not contain that clause, but he was under the impression that that was the very reason why the United Kingdom had not signed it. If the present convention contained no provision on its territorial application, the United Kingdom Government would probably either not sign it because the constitutional difficulties proved insuperable – or else sign with the proviso that the signature was valid only for the metropolitan territory and such other territories as it would specify. Despite its keen desire to sign the convention and to extend it to all its territories as early as possible, it felt that any other course of action might infringe upon the self-government of the territories concerned. The United Kingdom delegation would accept the article proposed by Turkey if the word ‘custom’ were replaced by the expression ‘constitutional convention’ or ‘constitutional practice’.

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The CHAIRMAN suggested that in the text proposed by the Turkish delegation, the words ‘is required by the Constitution of the Party or of the non-metropolitan territory, or required by custom’ should be replaced by the words ‘is required by the constitutional laws or conventions of the Party or of the non-metropolitan territory’. Mr. SCOTT-FOX (United Kingdom) asked whether, in the opinion of the Secretary-General’s representative, the word ‘convention’ in the English text should be used in the singular or in the plural. Mr. SCHWELB (Secretariat) stated that in the countries of the British Commonwealth the expression ‘constitutional convention’ signified constitutional practice having almost the force of law. He thought that in the case in question the words ‘constitutional laws or convention(s)’ would be appropriate, but he observed that in some countries, including the United States of America, there was a fundamental difference between ‘law’ and ‘constitution’, and the former term was not applicable to constitutional provisions. Mr. SCHREIBER (Secretariat) thought that the expression ‘constitutional laws and practices’ would adequately reflect the concept which the sponsors of the amendment desired to express. Mr. SCOTT-FOX (United Kingdom) accepted that formula. Mr. BENLER (Turkey) also accepted it and pointed out that the only object of his amendment was to enable the Committee to agree upon a wording. Mr. APUNTE (Ecuador) considered that in Spanish the word ‘convenciones’ would be inexact; he preferred the term ‘practicas’. Mr. GIRAUD (France) also thought that ‘constitutional conventions’ was a specifically English term which was found, for example, in Dicey; he preferred the expression ‘constitutional laws and practices’, which was perfectly clear and meant written and unwritten constitutions. Mr. BOZOVIC (Yugoslavia) felt that the replies of the United Kingdom representative had not clarified the text. While United Kingdom constitutional practice amounted in fact to a written constitution, that was not always the case in the colonies and Non-Self-Governing Territories, where constitutional practice was much less uniform. There did not seem to be any Constitutions (metropolitan or otherwise) which required the previous consent referred to in the Turkish text. The only exception was the Charter of the Kingdom of the Netherlands, which was not strictly a constitution: it stipulated that the previous consent of Surinam and the Netherlands Antilles was required, but only in respect of economic treaties or trade agreements.

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The United Kingdom representative had stated that if the convention did not include a territorial clause, his Government would be unable to sign it. But several provisions of the draft prepared by the Committee were not satisfactory for countries where slavery continued to exist; those countries perhaps would not sign either, but none had thought of saying that for that reason the provisions in question should be deleted. The Yugoslav delegation would vote against the new text, because it was not clear. Mr. NIKOLAEV (Union of Soviet Socialist Republics) recalled that he had asked the representative of the Secretary-General to quote the exact constitutional texts, metropolitan or otherwise, which included the provisions in question. As he had not received a reply, he presumed that such texts did not exist. Mr. SCHWELB (Secretariat) explained that it took some time to obtain the necessary information; it was often contained in the local ordinances and other texts which were not readily available. The CHAIRMAN suggested that while waiting for that information the Committee should continue consideration of the draft of article 10 submitted by Turkey. In could then take a decision on article 7 [re: reservations]. Mr. SCOTT-FOX (United Kingdom) said he would vote for the Turkish draft. It appeared less satisfactory then the initial text but it was essential that the convention should contain a territorial clause. Mr. NIKOLAEV (Union of Soviet Socialist Republics) said he would vote against the draft as he had voted against the similar text which the Committee had studied previously. He did not believe that the constitutional difficulties invoked by the United Kingdom representative were genuine. There were several important treaties which did not include territorial clauses. Mr. KAUL (India) said that although, in his delegation’s view, the convention should apply to all territories without exception, he did not object to a provision enabling metropolitan States to make a declaration in the case of territories with an elected legislature. He had not submitted a formal proposal along those lines because the majority of the Committee had not seemed to favour such a solution. The Turkish text did not deal with the question from that point of view. Moreover the exact meaning of the expression ‘constitutional laws and practices’, which the Turkish representative had just accepted, was not clear. For those reasons the Indian delegation would abstain from voting on the Turkish draft. Mr. GIRAUD (France) thought that the few practical examples which might be quoted were not very material, for the Committee was drawing up a convention to meet the future as well as the present situation. It was easy to see what was understood by constitutional practices. It could not

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be denied, moreover, that in some cases the previous consent of certain territories was essential. Mr. SCOTT-FOX (United Kingdom) said that, even where there was no written constitutional provision requiring the previous consent of a British territory, his Government, as it had done for several years already and as it intended to do increasingly consulted on numerous questions and particular on conventions like the one before the Committee. [. . .] Mr. SCHWELB (Secretariat) said that he could now quote a precise example, that of the General Convention on 3 June 1955 between France and Tunisia, article 8 of which stipulated that the French Government should undertake to consult the Bey during international negotiations concerning exclusively Tunisian interests and should keep him informed of all other international negotiations concerning Tunisia. No such precise provisions were available in respect of the British Commonwealth. The position of the various territories, from the point of view of legislative autonomy, had a long history whose origins were to be found in the ‘Colonial Laws Validity Act’ of 1865 and which culminated in the Statute of Westminster of 1931 granting legislative independence to Canada, Australia, New Zealand, etc. Between those two dates and since 1931 constitutional positions had varied very widely. Mr. NIKOLAEV (Union of Soviet Socialist Republics) said that he was still convinced that article 10 was pointless. In the particular case quoted by Mr. Schwelb France had, in fact, retained the supreme authority.22

The Turkish proposal, with amendments was then put to a vote and adopted by four votes in favour, two against and four abstentions.23 Mr. Bozovic, the Yugoslav Representative, stated after the vote that: the provision adopted had the same effect for certain States as a reservation clause. The right to make reservations had been rejected by the vote of article 7. In that case of non-metropolitan territories, metropolitan States had acquired an opportunity not open to other States which might find themselves in a similar situation in their own territory. He therefore reserved his delegation’s position on the matter when it came before the Economic and Social Council.24

22 23 24

Id., pp. 3–10. Id., p. 10. Id.

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At the twentieth meeting, Article 10 was adopted unanimously, the only modification to the text transpiring on the basis of a proposal by Mr. Brown of the United Kingdom who thought the word ‘Party’ in the first sentence should be replaced by the words ‘State Party’.25 Thus the provisions of Article 10 adopted by the Committee on the Drafting of a Supplementary Convention on Slavery and Servitude read as follows: This Convention shall apply to all the non-self-governing, trust, colonial and other non-metropolitan territories for the international relations of which any State Party is responsible, except where the previous consent of a nonmetropolitan territory is required by the constitutional laws or practices of the Party or of the non-metropolitan territory. In such case the Party shall endeavour to secure the needed consent of the non-metropolitan territory within the shortest period possible and when that consent is obtained the Party shall notify the Secretary-General. This Convention shall apply to the territory or territories named in such notification from the date of its receipt by the Secretary-General. In those cases where the previous consent of the non-metropolitan territory is not required, the Party concerned shall, at the time of signature, ratification or accession, declare the non-metropolitan territory or territories to which this Convention applies.26

On 27 April 1956, the Report of the Committee on the Drafting of a Supplementary Convention on Slavery and Servitude as well as a draft resolution put forward by Ecuador, France, Netherlands, and United Kingdom called for the convening of conference of plenipotentiary to “complete the drafting of Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery” was considered by the United Nations Economic and Social Council.27 At that meeting, the Idonesian Representative, Mr. Munandar, said that while the Draft Convention was a “useful basic working document”, it had

25

26

27

See Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Twentieth Meeting, 6 February 1956, UN Doc. E/AC.43/SR.20, 9 March 1956, p. 5. Economic and Social Council, Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, UN Doc. 2824, Annex I, 15 February 1956. Economic and Social Council, Egypt: Amendments to the joint draft resolution by Ecuador, France, Netherlands and the United Kingdom of Great Britain and Northern Ireland (E/L.710) Twenty-first Session, Agenda Item 12 – Slavery, UN Doc E/L.711, 27 April 1956.

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shortcomings: “The Indonesian delegation regretted the insertion of the provisions which might considerably restrict the scope of the convention, particularly the so-called territorial clause in Article 10”. The Ecuadorian Representative, Mr. Apunte, for his part, said that “Article 10 as it stood still fell short of the Ecuadorian delegation’s expectations but represented a compromise”.28

iii. 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery ARTICLE 12 1. This Convention shall apply to all non self-governing, trust, colonial and other non-metropolitan territories for the international relations of which any State Party is responsible; the Party concerned shall, subject to the provisions of paragraph 2 of this article, at the time of signature, ratification or accession declare the non-metropolitan territory or territories to which the Convention shall apply ipso facto as a result of such signature, ratification or accession. 2. In any case in which the previous consent of a non-metropolitan territory is required by the constitutional laws or practices of the Party or of the non-metropolitan territory, the Party concerned shall endeavour to secure the needed consent of the non-metropolitan territory within the period of twelve months from the date of signature of the Convention by the metropolitan State, and when such consent has been obtained the Party shall notify the Secretary-General. This Convention shall apply to the territory or territories named in such notification from the date of its receipt by the Secretary-General. 3. After the expiry of the twelve-month period mentioned in the preceding paragraph, the States Parties concerned shall inform the Secretary-General of the results of the consultations with those non-metropolitan territories for whose international relations they are responsible and whose consent to the application of this Convention may have been withheld.29

28

29

Economic and Social Council, Official Record, Twenty-first Session, Agenda Item 12 – Slavery, 916 Meeting, 27 April 1956, p. 92. United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Final Act and Supplementary Convention, 4 September 1956, UN Doc. E/CONF.24/23.

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The United Nations Economic and Social Council decided, on 30 April 1956, that “a conference of plenipotentiaries should be convened in order to complete the drafting” of a supplementary convention.30 The United Nations Conference of Plenipotentiaries on the Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices similar to Slavery opened in mid-August 1956 and considered the substantive provisions of draft Article 10, at first reading, during its thirteenth, fourteenth, fifteenth, and sixteenth meetings. The Yugoslav delegation felt strongly about the provisions of Article 10 of the Draft Supplementary Convention on Slavery and Servitude, thus it singled it out during the first, general, debate of the Conference, saying that it “would support the draft convention, but had some objections to raise, particularly to draft article 10, which restricted the scope of the instrument, for it was certain that the problem was most acute in non-self-governing and colonial territories”.31 At the thirteenth meeting of the Conference held on 23 August 1956, the President asked that the delegations consider draft article 10 as well as a number of amendments which had been submitted. India proposed that in the second sentence that “the words ‘within the shortest period possible’, substitute the words ‘within the period of twelve months from the date of signature of the Convention by the metropolitan State’”.32 For its part, Egypt and Sudan propose the suppression of the compromise text adopted by the drafting Committee: Replace the present text of article 10 by the following: The provisions of the present Convention shall extend or be applicable equally to a contracting metropolitan State and to all the territories, be

30 31

32

Economic and Social Council, Resolution 608 (XXI), 30 April 1956. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Third Meeting, 15 August 1956, UN Doc. E/CONF.24/SR.3, 10 November 1958, p. 8. See Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, India: Amendments to Articles 10, UN Doc. E/CONF.24/ L.18, 21 August 1956.

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they Non-Self-Governing, Trust or Colonial Territories, which are being administered or governed by such metropolitan States.33

Portugal proposed a sub-amendment to the provision put forward by Egypt and Sudan: 1. Delete the word ‘metropolitan’ between the words ‘contracting’ and ‘State’ in the second line. 2. Insert after ‘to all the territories’ the words ‘in accordance with the practice and constitutional provisions of each contracting party and of each territory’; 3. In the last line, replace the words ‘such metropolitan’ by the words ‘that’. Article 10 would then read as follows: The provisions of the present Convention shall extend or be applicable equally to a contracting State and to all the territories, in accordance with the practice and constitutional provisions of each contracting party and of each territory, be they Non-Self-Governing, Trust or Colonial Territories, which are being administered or governed by that States.34

The Egyptian Representative, Mr. Abdel-Ghani opened discussions on Article 10 by introducing his proposed amendment, saying that it: had been stressed by many delegations, a humanitarian convention should cover all nations and all territories without exception, and, specifically in the matter of slavery, Non-Self-Governing Territories inasmuch as practices similar to slavery persisted in some, although by no means all, of them. In order to avoid misunderstanding on the part of the representative of the Administering Powers, he stressed that in mentioning the continued existence of slavery in some dependent territories he was not accusing the Administering Powers of introducing or condoning the evil. It was to be recognized that the Administering Powers were trying to fight slavery in such territories in the face of deep-rooted traditions and beliefs and backward educational systems, and the convention would undoubtedly strength their hand.

33

34

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Egypt and Sudan: Amendments to Articles 10, UN Doc. E/CONF.24/L.17, 21 August 1956. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Portugal: Sub-amendments to the amendment by Egypt and Sudan (E/CONF.24/L.17), UN Doc. E/CONF.24/L.22, 23 August 1956.

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Article 10 as it stood was restrictive, inasmuch as it created inequalities among States. With the present text the abolition of slavery would be compulsory for States which had no dependent territories and optional in the case of dependent territories for the States administering them. He was not of course, suggesting that the Administrative Powers would take advantage of the latitude of the wording of article 10 to deny to their dependent territories the benefits of the convention, but there was some danger that local authorities might take advantage of it for reasons quite alien to the humanitarian purposes of the convention. The present text of article 10 provided that if a metropolitan country could not obtain the consent of a non-metropolitan territory it must endeavour to do so with the shortest period possible. That phrasing was vague, but would be remedied by an amendment submitted by India (E/CONF.24/ L.18). Article 10 as it stood suffered from a further defect: it provided that the Secretary-General should be notified of the consent obtained from non-metropolitan territory, but made no provision for the event that such a territory might not consent, nor for the Secretary-General to be notified of the reasons why the metropolitan country had been unable to obtain such consent. That conflicted with the accepted United Nations rules on reporting social conditions, including conditions concerning human rights, in dependent territories. There was an even graver shortcoming in the last sentence. It failed to deal with the case of non-metropolitan territories whose previous consent was required, but made an exception for those whose consent was not required. If exceptions were made for territories whose constitutional relations with metropolitan powers provided for a form of local self-government, it was hard to see why other non-metropolitan territories not having such local self-government should not be exempt from the automatic application of the convention. The last sentence of article 10, in fact, appeared to contradict the first. The joint amendment had been modelled on the territorial application clause in the draft covenants on human rights, instruments which, because of their broad scope, had in practice become the basis of United Nations conventions on all aspects of human rights. Slavery itself had been dealt with in the draft covenant on political and civil rights. The draft covenants had had more time and effort expended on them than any other United Nations instrument. The Commission on Human Rights had spent several years drafting them and they had been discussed both by the Economic and Social Council and the General Assembly, whereas the draft supplementary convention on the abolition of slavery had merely been discussed by an ad hoc Committee of ten members and had never even been submitted to the Economic and Social Council. The territorial application clause in the draft covenants has been drafted, not by the Commission on Human Rights, but by the General Assembly itself at its sixth session and had been adopted by a large majority. Admittedly, the covenants on human rights

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were still in draft form, but the specific territorial application clause had already been approved by the General Assembly. Furthermore, the present text of article 10 of the draft supplementary convention on the abolition of slavery had been adopted in the ad hoc Committee by a vote of 4 in favour and 2 against, with 4 abstentions. The text proposed by the Egyptian delegation in that Committee had not been adopted only owing to a tied vote. The Egyptian draft therefore actually obtained more votes than the text finally adopted. Mr. ADEEL (Sudan) fully endorsed the Egyptian representative’s views. Mr. JAFRI (Pakistan) thought that the joint amendment, subject to certain changes, should be acceptable to the Administering Powers. His delegation believed that the convention should be universal in application. Slavery or practices similar to slavery did not necessarily exist specifically in the NonSelf-Governing and Trust Territories, but vestiges of such practices certainly lingered in under-developed areas and those Territories were unquestionably under-developed. Eager as the Administering Powers undoubtedly were to eradicate those practices, they might plead constitutional difficulties they were likely to face if the joint amendment was adopted rather than shelter behind the somewhat vague wording of article 10. Once the difficulties were clearly stated and the territories defined, some formula might be found to achieve the purpose intended by the joint amendment. The Conference should find some way of learning about the problems of the people in dependent territories who could not address the Conference directly. The Indian amendment was acceptable since it was an effort to ensure that the period for extension of the convention to the dependent territories was not left indefinite. Mr. SCOTT-FOX (United Kingdom) had been much encouraged by the moderate and constructive way in which the Egyptian and Sudanese representatives had presented their amendment. The question of the dependent territories had often been discussed. It was very difficult one and gave rise to genuine misunderstandings. Powers with dependent territories which they had led a long way towards independence would find it very hard to accept any alternative to article 10. He was sure that all participants in the Conference would wish to see the application of the convention extended to all areas where the evils of practices similar to slavery were a real problem. The only way in which the Administering Powers could extend the application of the convention to their dependent territories in the shortest possible period would be to adopt a formula like the present text of article 10. It had been suggested that dependent territories were the chief repositories of slavery itself. The United Kingdom could not accept such a view, but it would admit, quite sincerely and openly, that in the territories for which it was responsible many of the practices discussed by the Conference did in some measure exist. The United Kingdom had been trying for years to eradicated them and asked for nothing better than the adoption of a

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convention which would strengthen its hands in bringing those practices to an end as soon as possible. If the speakers who were opposed to the article really believed that the situation against which the convention was directed was worse in dependent or colonial territories, they must wish to see it put right. In that case, in so far as dependent territories were dependent and responsibility for their foreign relations, and therefore for acceding to conventions on their behalf, rested with the Administrative Powers, they must wish the Administrative Powers to accede to the particular convention. It was there that the difficulty arose, and it was there that he could not avoid the impression that some of the opponents of the article as it stood might perhaps not really be anxious to see the convention applied as widely as possible, but had some other objectives. The Administrative Powers were constantly encouraged and pressed, in the United Nations and outside it, to grant self-government, and ultimately independence, to their dependent territories. The United Kingdom Government had always done its best, and would continue to do its best, conscientiously to conform with that general desire. The case of individual territories should be considered in the light of all the economic, political and sociological factors involved. The United Kingdom administered more than forty-five separate territories, which were in vastly different states of economic, political and social advancement and had vastly different problems. The United Kingdom was supremely conscious of those problems and of its responsibility for dealing with them. The important fact was, however, that in conformity with the desires of those peoples, with the United Kingdom’s obligations under the United Nations Charter, with its own desires and principles, and indeed with the express desire of those delegations which had spoken against article 10, the United Kingdom had made much progress in granting self-government and independence to the territories for which it had been responsible. A large proportion of the territories remaining under United Kingdom administration had a very wide measure of self-government. By and large, and with the exception in some cases of domestic security, that measure of self-government covered all internal affairs, including all the matters dealt with in the convention. The self-rule exercised by the governments of those territories was in many cases exercised in accordance with political practices and institutions similar to those existing in the United Kingdom. There were elected assemblies which, in keeping with democratic practice, had to be consulted. The territorial governments could not act without consulting them. Far less could the metropolitan Power act independently in matters which were in practice reserved to the parliaments and governments of the territories concerned. He was sure that all the representatives who had displaced such an interest in the problem must have followed the history of the United Kingdom’s recent relationship with the territories such as the Gold Coast, Malta, the Caribbean Federation, the Central African Federation and Malaya, most of which would before long, it was to be hoped, be quite independent. The

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fact remained, however, that for the time being the United Kingdom was still responsible for their foreign relations. There were many other territories in less advanced stages of self-government but which nonetheless had completed responsibility for the problems dealt with in the draft supplementary convention. If the United Kingdom was being asked to repudiate the grant of that responsibility – which was how the United Kingdom Government would interpret a universal application article – it would feel bound to withhold its signature. It might be that those who opposed the type of territorial application clause in article 10 genuinely doubted the good intentions of the United Kingdom and might feel that, for some special reason, the United Kingdom, which from the outset had been the leading advocate of the draft convention, would not strive to obtain the agreement of as many of the governments of its dependent territories as possible and apply it in those territories. If such doubts existed, his delegation could only regret it, and could only point to the United Kingdom’s record in the application of similar convention and treaties in its dependent territories. He doubted very much whether any example could be cited of the United Kingdom’s failing to ensure the application of an important convention of the kind in every territory of which it was responsible. The very few exceptions which existed would be found to have their cause in some practical or constitutional difficulty. There had been instances where, in one or two territories, the government had decided that practical or constitutional difficulties made accession undesirable. That had been the case, for example, with the decision of the Government of Hong Kong not to accede to a recent UNESCO convention. If there was a universal application clause, the effect in such cases would be to deny the application of the convention to all the territories for which foreign affairs the United Kingdom was responsible. That was surely not what was wanted, but that would be the practical effect. The United Kingdom would not be able to sign the convention until it had consulted the territories for which it was responsible and until it had obtained their prior consent in every instance where such was the constitutional practice. Under a universal application clause, if one territory declined, it would prevent the accession of all the others. Such a clause must therefore in all probability produce an effect precisely opposite to that which its proponents presumably had in mind. The United Kingdom believed that it was making progress and that its eyes were fixed on the future. The Conference should beware of gazing backwards into the past and of being swayed by purely emotional considerations. The Conference should eschew reaction; a universal application clause such as that in the Egyptian and Sudanese amendment would certainly be an instrument of reaction. It would be inspired by motives quite other than those realism and practicability and would give expression to something which could be described only as reactionary anti-colonialism. It would also ensure that the United Kingdom Government could not become a party to the convention,

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or at least could not become party until it has consulted and obtained the approval of each one of its dependent territories which had sufficient measure of self-government to render that necessary – a process which might oblige it to defer its accession for years, or indeed perhaps indefinitely. The issue was simple. The United Kingdom had led many of its dependent territories a long way on the road to self-government and was not prepared to put that process into reserve for the sake of a convention such as that under discussion. The present draft of article 10 already resulted from a compromise in the 1956 ad hoc Committee and provided the minimum which the United Kingdom could accept to enable it to obtain, wherever necessary, the consent of those territories to which it had granted a measure of self-government, and in particular those territories, which might have to enact legislation to give effect to the convention. Those delegations, therefore, which were sincerely anxious to see the United Kingdom accede to the convention and to see it applied as widely as possible in the territories for whose foreign relations it was responsible would, he felt sure, support the existing text, or rather the text as amended by the Indian delegation (E/CONF.24/L.18). The United Kingdom would be glad to accept that amendment, as it would certainly not wish to delay as long as twelve months in endeavouring to obtain, and indeed in warmly urging, the application of the convention in all the territories for which it was responsible. If the Indian amendment made it easier for some delegations to accept article 10 his delegation would wholeheartedly commend it to the Conference. Mr. TUNCEL (Turkey) said that the text of article 10 which was causing so much controversy had been proposed to the 1956 ad hoc Committee in New York by the Turkish representative. It took into account the diverse forms of political organization existing in the territories in question. In some cases the metropolitan Powers had to obtain the consent of a territory under its administration for the application of an international convention in that territory. In other cases such prior consent was not necessary and the accession of a metropolitan Power automatically entailed that of its Non-Self-Governing territories. During the discussion it had been said that the metropolitan Powers were not under a duty to apply the provisions of the convention to one or other of their Non-Self-Governing Territories. In his opinion the text of article 10 was not open to that interpretation; it clearly stated not only that the convention should apply to all the Non-Self-Governing, Trust, colonial, and other non-metropolitan territories for the international relations of which any State Party was responsible but also that in those cases where the previous consent of the non-metropolitan territory was not required by the Party concerned should, at the time of signature or ratification, declare the non-metropolitan territory or territories to which the convention applied. Mr. BELTRAMINO (Argentina) suggested that the last sentence of draft article 10 was unnecessary in view of the references to all types of territories

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in the first and second sentences. The convention should be automatically applied to any part of the national territory, even though some parts of it were separated by a expanse of land or sea. There was no need to refer to such territories separately when it was taken for granted that an international instrument signed by a State applied ipso facto to them. He could agree that certain territories in course of development and with an indigenous population were entitled to be consulted as a step forward towards their full independence, but to accept the idea that the principle of consultation should extend to every kind of territory would mean ultimately asking the opinion of territories such as Alaska. The Argentine delegation therefore preferred the Egyptian and Sudanese amendment, which was clear, concise and included all types of colonial territory. Article 10 reproduced almost exactly article 20 of the 1953 Opium Protocol, but that was not an adequate argument in favour of repeating it in the present convention, since there was no standard formula for the application of conventions. Mr. CASSELL (Liberia) supported the Egyptian and Sudanese amendment. All international conventions on human rights matters should be universal in application. If the 1926 Convention had been strictly applied and the evil attacked at the source there would have been no need for another convention thirty years later, because the Administering Powers would have eliminated slavery by then. The Administering Powers should have no objection to the application of article 10 to all territories alike. Mr. NOGUEIRA (Portugal) believed that the Egyptian and Sudanese delegations had been sincere in their intentions in submitting their amendments, the text of which was clearer than the text of article 10 as it stood. It did, however, raise real difficulties connected with signature and ratification. Admittedly, universality should be the aim of the convention, but the convention would be useless if it were not applied to many territories or were not ratified by many States. A compromise should therefore be sought. He agreed with the Egyptian representative that article 10 had defects and might give rise to misunderstandings, but the amendment also was not very clear, especially in its reference to metropolitan States. The latter were quite recent concepts, to which no reference had been made in the 1926 Convention. It was doubtful whether it could be correctly applied to States which had no dependent territories. Strictly speaking, such States would be unable to sign the convention. Portugal was composed of various territories separated geographically but comprising a single unit juridically and culturally, and had no strong objection to the term ‘metropolitan’ but would not be bound by it. He was therefore summiting an amendment (E/CONF.24/L.22) to the Egyptian and Sudanese amendment (E/CONF.24/L.17). The Indian amendment (E/CONF.24/L.18) was acceptable. Mr. APOLLON (Haiti) said that his delegation could not approve article 10 in the form in which it appeared in the draft convention, since it granted the metropolitan States a discretionary power which was unacceptable.

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All territories should enjoy the benefit of the measures provided for in the convention. The argument that the consent of the non-self-governing committee had to be obtained was not tenable in the case of the abolition of slavery. One might as well say that the consent of a sick man must be obtained before treating him. He could not agree that a State administering a Non-Self-Governing Territory should tolerate in that territory’s legislation a provision permitting slavery and related customs. The Egyptian representative had pointed out that the draft convention was based on the draft covenant on human rights; the latter proclaimed general principles which should not be limited in any way by a convention on the abolition of slavery. Any such limitation would bear out those who disparaged Western civilization, for their charge was precisely that Westerners enunciated high-sounding principles and then failed to put them into practice. It was the duty of the metropolitan States to convey to the peoples of the territories they administered that barbarous customs such as cannibalism and slavery should disappear. Slavery was not a luxury but an economic factor, and as such it retarded the raising of the standards of living of the peoples among whom it was practiced. The abolition of the custom would result in improving the economic, hygienic and cultural circumstances of those peoples. In his view, the United Kingdom representative had not answered squarely the question asked by the Pakistan representative regarding the constitutional reasons which prevented the metropolitan Powers from ratifying the convention on behalf of certain territories. Accordingly, he (Mr. Apollon) supported the joint draft amendment proposed by the representatives of Egypt and Sudan without, however, accepting the compromise proposed by the Portuguese representative. On the other hand, he suggested the addition at the end of the joint draft amendment of the text proposed by the Indian representative reading: ‘within the period of twelve months from the date of signature of the Convention by the metropolitan State’. Mr. GIRAUD (France) said that the attitude of the opponents of article 10 was inconsistent. The anti-colonialists were asking the metropolitan States to leave the territories they were administering and to allow the peoples of those territories to govern themselves. The metropolitan Powers were complying with that request and granting a measure of self-government to some of their colonial territories. But having done so they must respect the independence of those territories; hence, they could not order the communities concerned to apply a convention on the abolition of slavery which might require a change in their laws or customs governing personal status. It was unhappily true that self-government which was a step towards complete independence, was not always propitious to the observance of human rights. Ancestral customs would sometimes be more difficult to reform and progress would be impeded. But that was the price of self-government. And, in any case it was impossible for the metropolitan Powers to grant certain territories self-government while at the same time imposing on them obligations that would be a violation of their independence.

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Mr. CHISTYAKOV (Union of Soviet Socialist Republics) said that his delegation did not consider article 10 to be satisfactory and regretted that its attempts to improve the text in the Drafting Committee had been unsuccessful. He thought that the Egyptian and Sudanese amendment provided a good alternative. The Conference should bear in mind that there were precedents for including such provisions in humanitarian conventions. In 1950, the General Assembly had adopted a similar article for insertion in the draft international covenants on human rights and such a provision was included in the Convention on the Traffic in Persons. Mr. JOCKEL (Australia) did not think that the wording of the Egyptian and Sudanese amendment was quite clear. The provision that the convention should ‘extend or be applicable’ to the metropolitan States and all its dependent territories led to the assumption that the mere adoption of the article would make the that obligation mandatory without the normal ratification processes. However, the general intention of the amendment was obvious. It was regrettable that the difficulties of certain Administering Powers were not taken into account. The Government of the United Kingdom, for example, was not empowered to enter into an obligation to apply the convention to all its dependent territories because in some cases the power to enact the necessary legislation resided in the territory itself. If one of those territories were unwilling to accept the obligation the United Kingdom and all the others dependent territories would be automatically prevented from acceding to the convention. Mr. ADEEL (Sudan) expressed his appreciation of the frankness and sincerity that had prevailed in the debate. His delegation would be prepared to delete the word ‘metropolitan’ as the Portuguese representative had suggested. The insertion of the proposed phrase, however, was not acceptable because it introduced the discretionary power to which the sponsor of the amendment took exception. Moreover, he did not see how an attempt to abolish slavery in dependent territories could retard their constitutional or political progress. Mr. JAY (Canada) thought that the objective of all delegations was to make the convention applicable to as many peoples as possible. Three kinds of peoples were concerned; in the first place, there were the sovereign States which were fully qualified both to sign the convention and to enact the necessary legislation for its implementation; the second group had the right to pass the necessary legislation but was not yet empowered to sign international instruments; the third group had no power either to sign the convention or pass the necessary legislation. Article 10 seemed to be a satisfactory means of achieving the greatest possible measures of universality, as ninety states could both sign the convention and pass legislation, while provision was made to ensure application to the third group, in respect of which the Administering Powers were bound

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to fulfil their obligations immediately. The only outstanding question was that of a few territories which had made considerable advances towards autonomy and in effect held all the necessary powers except that of signature. The Powers responsible for those territories were obliged to consult them in view of the legislation to be adopted. Canada had not always been an independent State with full powers to sign international agreements. He was sure that during the intermediate stage before full independence had been reached the Canadian Government would have resented any attempt by the metropolitan State to usurp the right to enact legislation. The objective of full universality could best be achieved by adopting the original text of article 10. Departures from that text seemed to be prompted by a lack of confidence in the good faith of the Administering Powers. However, those Powers had been the prime movers of the draft convention and freely admitted that their main reason for promoting it was that vestiges of slavery and similar practices existed in some of their dependent territories. Moreover, any doubts that remained concerning possible delays of implementation would be dispelled by the Indian amendment, which seemed to be acceptable to the Administering Powers. It was not enough to pay lip service to the principle of universality. Delegations must recognize that all the participants in the Conference had the same honourable intentions. Mr. TSAO (China) said that his delegation’s position on the general question of the territorial application clause was that international instruments should be applicable to dependent territories as soon and as widely as possible. Nevertheless, China appreciated the difficulties of metropolitan States responsible for territories which had advanced towards self-government. Article 10 was concise and clear and the only exception to the general rules pertaining to territorial application was that the consent of certain territories should be sought. The Indian amendment further clarified the text; the Chinese delegation would therefore support article 10 as amended thereby. He appreciated the intentions and anxiety that had led the Egyptian and Sudanese delegations to submit their amendment, but thought that it showed a total disregard of constitutional difficulties and thus would not serve the purpose of the supplementary convention. If the amendment were adopted some countries which were the initiators of the struggle against slavery might be unable to accede to the convention. He would therefore be unable to vote for the joint amendment. Mr. KAHANY (Israel) suggested that perhaps the United Kingdom representative might specify the Non-Self-Governing, Trust and colonial Territories represented internationally by the United Kingdom Government whose previous consent was required for the application of the convention. Inasmuch as at the time of signing the convention the United Kingdom Government would have to state to which non-metropolitan territories the convention would apply, it was presumably possible to indicate their names now.

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Mr. OLTEANU (Romania) said that it had been repeatedly emphasized that the convention should be as broad in scope as possible. Article 10 as it stood was not broad enough since under its provisions certain territories were free not to accede to the convention. He accordingly supported the joint draft amendment of Egypt and Sudan, which would make the provisions of the convention more effective. Miss LUNSINGH-MEIJER (Netherlands) said that while her delegation understood that the Egyptian and Sudanese amendment was inspired by the wish to secure the widest possible participation in a humanitarian convention it doubted the wisdom of calling for automatic application to dependent territories. A growing number of territories now had complete autonomy in their internal affairs and metropolitan States had no power to legislate on their behalf. Prior consultation with those territories was essential. The metropolitan States concerned might be precluded from adhering to the convention if the joint amendment were adopted and its effects would therefore be to restrict rather than extend participation. Moreover, it might lead to pressure by metropolitan States to obtain the necessary legislation and hence to delaying the constitutional development of the territories concerned. The Netherlands delegation would vote for the present text of article 10 as amended by the Indian delegation. Mr. BAROODY (Observer for the Government of Saudi Arabia), speaking at the invitation of the President, drew attention to the precedents established in the United Nations organs with regard to the territorial application clause. In connexion with the draft international covenants on human rights the question had been discussed in the Commission on Human Rights and in the Third Committee of the General Assembly and a text similar to that proposed in the Egyptian and Sudanese amendment had been adopted by a large majority of the General Assembly. The Conference should ponder the consequences of tampering with a decision of the supreme body of the United Nations. The metropolitan Powers had alluded in their statements to the independence that had been ‘granted’ to certain territories. It should be borne in mind, however, that independence was almost invariably achieved by national movements. Although some Powers had wisely acceded to the claims of so-called ‘rebels’, it was unusual for the fact of independence to be accepted only after much fighting and bloodshed. The Indian amendment, which had been hailed by many delegations as a clarification of article 10, was in fact liable to lead to confusion. Under the second sentence of the article the party concerned was to ‘endeavour’ to secure the needed consent of the non-metropolitan territory. There was no guarantee of what would happen if the endeavours of the metropolitan States were to fail. The territorial application clause had a direct connexion with the alleged slave trade in the area defined in article 3. Metropolitan Powers had had ample time to abolish the slave trade in their territories in the thirty years

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that had elapsed since the signing of the Geneva Convention. However, those Powers insisted that the slave trade still existed while other States held that the source of that trade lay in some of the dependent territories. If the Egyptian and Sudanese amendment were adopted there would be no excuse for requiring inspection of vessels on the high seas or in territorial waters. Mr. JAFRI (Pakistan) thought that the United Kingdom representative had gone too far in expressing the fear that if the Egyptian and Sudanese amendment was adopted the adherence of the United Kingdom itself and of all its territories would be indefinitely delayed. The danger seemed to be imaginary; the United Kingdom representative, who had urged realism in the debate, should point to a specific dependant territory which would decline to accede to the convention. The purpose of the Egyptian and Sudanese amendment was that the supplementary convention, unlike the Convention of 1926, should be applicable to the widest possible area. There could be no doubt that the United Kingdom delegation shared that objective; nevertheless, some delegations still seemed to fear that the vague terms of article 10 would provided the metropolitan Powers with an opportunity to delay the application of the convention to all their territories. It was true that the Indian amendment provided a time limit, but, as the observer for Saudi Arabia had pointed out, that applied only to the metropolitan Powers’ endeavours to secure consent without insisting that such endeavours must be successful. One of the motives that had prompted the joint amendment was the fear that owing to the delay it would never be clear which dependent territories had been precluded from applying the convention. The Conference would be better able to understand the position of the metropolitan Powers if they would give details of the constitutional difficulties of each individual territory. The metropolitan Powers should not object if the Secretary-General of the United Nations were to send the territories certified copies of the convention after it had been ratified, asking them to accede to it through their own constitutional process. If the difficulties involved were indeed constitutional the metropolitan Powers should facilitated approach to the dependent territories. No effort should be spared to ensure that the provisions of the convention become applicable throughout the world and that metropolitan Powers should make their good offices available to that end. For example, one of them might suggest an amendment to the sentence in article 10 to which the observer for Saudi Arabia had taken exception. The last sentence of the article, also, did not specify whether in the case of territories whose consent was not needed that metropolitan Power should automatically sign the convention on their behalf, or whether that Power should merely declare at the time of signature the territories to which the convention was applicable.

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Mr. SCOTT-FOX (United Kingdom) assured the Pakistan representative that his Government would spare no effort to persuade its dependent territories to accede to the convention in due constitutional manner, if the United Kingdom itself was able to do so, though it could not oblige them to accede in cases where they had already achieved a measure of self-government. It had been said that the term ‘shall endeavour to secure the needed consent’ was too loose and that it might provide an escape clause for the metropolitan Powers. Nothing could be further from the intentions of the Powers and he would be glad if a more satisfactory expression could be found. There was nothing sinister about the United Kingdom’s motives. It was quite prepared to try to overcome the constitutional hurdles but not to knock them down. He had been asked to name a specific territory which might decline to accede to the convention. That question might be countered by asking whether any Government participating in the Conference would decline to sign the convention. It was just as impossible to give a reply in advance in respect of a dependent territory as it was in respect of a sovereign State. Several speakers had referred to the discretionary powers conferred on metropolitan States by article 10. It should be borne in mind, however, that such powers would not in fact really reside with the metropolitan Government but with the Governments of the dependent territories in question. The United Kingdom could not promise to override those powers, which rested in the measures of self-government that had been granted. Many examples could be cited of occasions on which the United Kingdom had consulted dependent territories before ratifying economic, social and cultural international instruments. The Federation of Rhodesia and Nyasaland had been consulted, under the Federation of Rhodesia and Nyasaland (Constitution) Order-in-Council of 1953, in connexion with the future ratification of the 1949 Geneva conventions on the relief of the wounded and sick, treatment of prisoners of war and protection of civilians persons in time of war, since legislation by the Federal Legislature would be required for the implementation of those conventions. Other colonies had been consulted on such instruments as the Council of Europe Human Rights Convention and the Convention on the Importation of Educational, Scientific and Cultural Materials. The United Kingdom delegation would be glad of any suggestions for the improvement of the last sentence of article 10 which had been criticized. The constitutional obligations of the United Kingdom were based more on practices and precedents than on written provisions. It was the practice of the United Kingdom Government to consult each dependent territory individually in every case involving its internal affairs before any international instrument were signed. To depart from that practice would be a retrograde step. The consent of territories with their own legislatures must be sought since they might be obliged to legislate independently to ensure the application of the convention. In reply to the Israel representative’s question, he

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said that the approximate number of territories involved would be half of forty-five territories for which the United Kingdom was responsible. In conclusion, he was sure that if all the delegations which sought the widest and most rapid application of the Convention were to reflect on the views of the supporters of article 10 they would realize that the adoption of that article would best serve their purpose, while the adoption of the joint amendment would have the opposite effect.35

The meeting rose at this point for the weekend, with discussion of draft Article 10 continuing at the fourteenth meeting of Monday, 27 August 1956: Mr. GIRAUD (France) said that after long insistence on the need for enabling States not Members of the United Nations or of specialized agencies, to accede to the convention the intention was now apparently to make accession as difficult as possible for States Members of the United Nations which desired to become parties to it. It was unthinkable that a metropolitan Power which had yielded legislative powers to certain territories should withdraw the grant and try to impose participation in a convention which might involved legislative reforms. If the Conference entertained any such idea certain Western Powers would be unable to become parties to the convention. Answering the Pakistan representative, he pointed out that during the negotiations of a convention such as that under consideration which was intended to apply for an indefinite period, representatives should not limit their vision to the present moment but should also look ahead to the future. The position of the so-called Non-Self-Governing Territories would certainly undergo change. As far as France was concerned, the provisions of article 10 regarding the territories whose consent was required had no application at the moment, but might apply later. The Statement of the observer of Saudi Arabia to the effect that the slave trade had its sources in countries controlled by Western Powers had no basis whatever. Surveillance was exercised in those territories to prevent the slave trade even in its clandestine forms. Admittedly, it was impossible to supervise each individual and to guess guilty intent when no misdeed had actually been committed. In that connexion he might mention a fact which demonstrated the susceptibilities of the authorities of French public opinion in all matters to do with the slave trade. In a report to the Assembly of the French Union (1954 No.362–1955/56 No. 75) Pastor de la Gravière had

35

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Thirteenth Meeting, 23 August 1956, UN Doc E/CONF.24/SR.13, 17 November 1958, pp. 2–18.

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stated that some pilgrims had taken with them a Moslem Frenchman who was their servant and that the latter was alleged to have been sold into slavery in Saudi Arabia. That report had excited deep feeling in France and demands had been made for strict control in order to prevent such misdoing. He wished to put certain questions to the observer of Saudi Arabia. In his report on slavery (E/2673) Mr. Hans Engen mentioned, in the passage relating to Saudi Arabia, that on 2 October 1936 King Ibn Saud had issued a decree entitled ‘Instructions Concerning Traffic in Slaves’. The decree prohibited the importation of slaves into Saudi Arabia ‘unless the importer produces a Government document confirming that the person imported was recognized as a slave in the country from which he is imported . . .’. The implication was that under certain conditions the slave trade was authorized by the decree. Article 2 of the decree provided that a slave had the right to be fed, clothed, housed and well-treated by his owner. Without doubt, those instructions were a welcome beginning since their aim was to restrict the traffic in slaves and improve their conditions. They represented a first step towards the abolition of slavery. The abolition of the slave trade was bound to be a gradual process, as it had been, for example, in Ethiopia, where an enlightened and progressive ruler had carried through a great humanitarian reform. He would be interested to know whether further progress had been made in Saudi Arabia since 1936. Information which the observer to Saudi Arabia might be able to give on that point would be of much greater interest to the members of the Conference than the vague statements and baseless accusations they had heard hitherto. Mr. ABDEL-GHANI (Egypt) said that he had been representing his country at the Economic and Social Council when Mr. Engen’s report (E/2673) had been presented; Mr. Engen had stated unequivocally that he was not responsible for the accuracy and authenticity of the information in the report, which merely constituted a compilation of data submitted to the United Nations by various governments and organizations, including the Anti-Slavery Society. With regard to article 10, the United Kingdom representative had said that if the Egyptian/Sudanese amendment (E/CONF.24/L.17) were adopted, his Government might be obliged to defer its accession for many years or even indefinitely, since the political status of some of its dependents territories was such that it could not sign the convention without their prior consent. The Egyptian and Sudanese delegations had no desire whatsoever to introduce a provision which would make it difficult to any State to accede to the convention; they were anxious to have that instrument signed and ratified on universal basis, especially by those countries in whose territories slavery existed in any form. Nevertheless, the precedents established by the United Nations organs with regard to the territorial application of conventions relating to human rights must be taken into account.

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The United Nations had used a positive and negative approach in achieving the aim of making such conventions automatically applicable to dependent territories. An example of a positive method was the General Assembly’s action at its seventh session, when it had adopted the Convention on the International Right of Correction. Article IX of that Convention, which corresponded closely to the Egyptian and Sudanese amendment, stated that the provision of the Convention were to extend to or be applicable equally to a contracting metropolitan State and to all the territories, be they Non-Self-Governing, Trust, or colonial Territories, which were being administered or governed by such metropolitan States. The article had been adopted by a large majority of Member States and had in fact received more votes than the Convention itself. It was noteworthy that the French delegation had not voted against the article; its commendable attitude had been praised at the time. He wondered what had happened to cause the French delegation to alter its position; the draft supplementary convention could hardly be regarded as less necessary and useful in so far as dependent territories were concerned. An example of the General Assembly’s negative method of achieving automatic territorial application had occurred at the same session in connexion with the Convention on the Political Rights of Women. The original draft of the Convention had contained a so-called colonial clause, but the Assembly in plenary session had deleted the article. In the absence of any restrictive provisions, the Convention applied automatically to all dependent territories. The Conference could therefore choose between adopting the positive approach of including the text of the Egyptian and Sudanese amendment and the negative method of deleting Article 10. The Pakistan representative had made an important new suggestion in his amendment (E/CONF.24/L.26) to the effect that the Secretary-General of the United Nations should enter into direct contact with the territories whose consent was constitutionally required. He hoped that the United Kingdom representative would comment on that suggestion since, in the event of a favourable response, the Egyptian and Sudanese delegations would consider either adding the provision to their amendment or even withdrawing their text in favour o the Pakistan proposal.36

While the Egyptian Representative, Mr. Abdel-Ghani continued with his consideration of article 10, it might be timely at this point to introduce the text of the amendment proposed by Pakistan, which reads:

36

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Fourteenth Meeting, 27 August 1956, UN Doc E/CONF.24/SR.14, 18 November 1958, pp. 2–4.

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Replace the present text of article 10 by the following: (a) The provisions of the present Convention shall extend or be applicable equally to a State Party to this Convention and to all non-self-governing, trust, colonial and other non-metropolitan territories for the international relations of which any State Party is responsible. However, in respect of the territories whose previous consent is required by the constitutional laws or practices of the Party or of the territory before they formally accede to the Convention, the State Party concerned shall enter their names in a schedule attached to this Convention at the time of its signature and in respect of such territories the Convention will be binding only after and from the date on which the consent of the territory concerned had been received by the Secretary-General. (b) The State Party to this Convention concerned shall make its best endeavours and take all necessary steps to secure the consent of all the territories entered in the schedule referred to in paragraph (a) furnished by it and shall communicate the results of its endeavours to the SecretaryGeneral within twelve months of its signature. Meanwhile immediately after the signature of the State Party concerned, the Secretary-General shall also address the Government of the territories mentioned in the schedule furnished by it under intimation to the Party concerned and while endorsing a certified copy of this Convention shall also invite them to accede to it in a manner permitted by their constitutional practice. (c) In cases where the previous consent of the non-self-governing territories is not required, the State Party to this Convention concerned shall declare the names of such territory or territories as the time of signature, ratification or accession and the Convention shall ipso facto apply in respect of the territories so named.37

Continuing with Mr. Abdel-Ghani’s comments: On the other hand, he failed to see how the Turkish amendment (E/ CONF.24/L.24) differed from or improved the original text of article 10. The main short-coming of the original text was still there and the question of what should be done if the consent of the territories concerned was not obtained remained unsolved. Moreover, under both the original text and the Turkish amendment the metropolitan State had to declare the territories to which the convention was applicable. The meaning of the words ‘declare’ was not clear. The Turkish representative might consider adding a third

37

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Pakistan: Amendment to article 10, UN Doc E/CONF.24/L.26, 27 August 1956.

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paragraph to his amendment, providing that the metropolitan State should supply the Secretary-General with the names of territories refusing to accede and a statement of the reasons for their refusal.38

Here again, it is worth introducing the text of, in this case, the Turkish proposed amendment to draft article 10: Replace the present text of article 10 by the following: (a) This Convention shall apply to all non-self-governing, trust, colonial and other non-metropolitan territories for the international relations of which any State Party is responsible; the Party concerned shall, subject to the provisions of paragraph (b) of this article, at the time of signature, ratification or accession declare the non-metropolitan territory or territories to which the Convention applies. (b) In any case in which the previous consent of a non-metropolitan territory is required by the constitutional laws and practices of the Party or of the non-metropolitan territory, the Party concerned shall endeavour to secure the needed consent of the non-metropolitan territory within the period of twelve months from the date of signature of the Convention by the metropolitan State, and when such consent is obtained the Party shall notify the Secretary-General. This Convention shall apply to the territory or territories named in such notification from the date of its receipt by the Secretary-General.39

The Egyptian representative having finished his statement, the President turned to the Turkish delegation to introduce its amendment: Mr. TUNCEL (Turkey) explained it was in the light of statements made at the previous meeting that he had proposed an amendment to article 10 (E/CONF.24/L.24). Apart from the substance of the Indian amendment the text he was proposing contained nothing new. It divided the original text of article 10 into two paragraphs in order to bring out more clearly the two situations which might arise.

38

39

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Fourteenth Meeting, 27 August 1956, UN Doc E/CONF.24/SR.14, 18 November 1958, p. 5. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Turkey: Amendment to article 10, UN Doc E/CONF.24/L.24, 24 August 1956.

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The English text needed correction: in the second line of paragraph (b) the word ‘or’ should be substituted for ‘and’. If necessary, the Spanish and Russian texts should be rectified accordingly. With regard to the amendment submitted by the Sudan and Egypt, he observed that the Egyptian representative had said that the article of the covenant on human rights, reproduced in the amendment, constituted a precedent. If all the international instruments already drafted were examined, no doubt a text would also be found similar to that which the Turkish delegation was proposing. Reference to precedent was not a satisfactory answer; each case had its own features and should be dealt with on its merits. The problem under consideration had been represented as being that of colonialism. Such an approach put him in a difficult position, because his amendment might be interpreted as a defence of colonialism. That was not, however, the intention. The purpose of his amendment was not to defend the colonial system but to protect the domestic sovereignty of every State Member of the United Nations which had entered into the undertaking not to intervene in the domestic affairs of every other Member State. Accordingly, he invited the Conference to examine his formula objectively and in the requisite spirit of understanding. In that connexion it might be helpful to point out that the draft convention contained no clause obliging the unitary State to accede to the convention. There was a serious consideration which should be borne in mind by all who sought to ensure the universal application of the convention’s provisions. Mr. BELTRAMINO (Argentina) pointed out that the last sentence in article 10 as it stood was confusing. Parts of the national territory of some States were situated within the political frontiers, but, owing to some particular geographical distribution of land an sea were separated physically from the national territory properly so-called. That was true of the Argentine national territory, which extended from the twenty-second parallel south latitude to the South Pole. Whenever Argentina signed a multilateral convention it ipso facto extended its application to its entire national territory. On the other hand, there were territories which were still colonial in status and whose consent was not asked when the State on which they were dependent signed a convention. The last sentence in paragraph 1 placed parts of the national territory or certain States on the same footing as the colonial territories; that was an untenable concept. The convention should apply automatically in both cases. Conventions dealing with human rights should apply to all territories, including those with colonial status. Admittedly, there were colonial territories at various stages of political development, and some needed to be consulted, others not. Such consultation should be carried out where required. The colonial Powers had a special system of relations with each single territory or each group of territories, and the convention should be

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applied in accordance with that system; but there was no need to state that expressly in the text. The Turkish amendment (E/CONF.24/L.24) and the Portuguese [sub-] amendment (E/CONF.24/L.22) would not in any way promote the speediest possible application of the Convention in the colonies. It was hard to understand why a simpler formula, such as that proposed by Egypt and Sudan, was causing so much difficulty, since other conventions with similar formulas had been adopted. The Argentine delegation would support the Egyptian and Sudanese amendment. Mr. LOPEZ (Philippines) recalled his delegation’s unfailing support of the principle that, where conventions for the wider observance of human rights and fundamental freedoms were concerned, it was essential to ensure that the provisions extended equally to Member States and to the territories under their jurisdiction. The corresponding provisions had been included in the draft covenants on human rights and in the Convention on the International Right of Correction. The origin of that principle lay not in the Charter but also in the preamble of the Universal Declaration of Human Rights. Although the Declaration was not a binding instrument, its enunciation of the general principle was important, since it gave no indication of the hair-splitting arguments which had subsequently developed in connexion with territorial application. The authors of the Declaration had thought it enough to distribute obligations equally between Member States and dependent territories, and the majority of Members States had supported the thesis that observance of human rights should be promoted throughout the world irrespective of the political status of territories. However, the Philippines had also consistently supported the principle of self-determination. It had supported all measures enabling Non-Self-Governing Territories to achieve self-government or independence as rapidly as possible. The United Kingdom representative had asked whether in the light of their consistent support of the right self-determination certain delegations would wish the United Kingdom and other metropolitan Powers to take a retrograde step of depriving peoples of the measure of self-government that they had achieved, in the alleged interest of humanitarian objectives. The dilemma seemed to be obvious to the partisans of the Egyptian and Sudanese amendment. The United Kingdom and the other metropolitan Powers should not doubt the good faith of those delegations which were unable to support a colonial clause owing to their adherence to the principle of universality; on the other hand, there could be no doubt of the good faith of the United Kingdom in its support of article 10. It must be borne in mind that the United Kingdom had prepared and submitted the original draft of the present convention and had actively participated in the preparatory work of the Conference. Furthermore, the United Kingdom and the other metropolitan Powers had an admirable record of combating slavery in their territories. Accordingly, since the United Kingdom’s difficulties seemed to arise from genuine constitutional problems, any doubt that it would try to

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secure the objectives of the supplementary convention for all its territories was unwarranted. He therefore appealed to the delegations holding opposing views to make every effort to achieve a compromise. The Egyptian representative’s remarks on the Turkish amendment had shown promise of conciliation. That amendment divided article 10 into two parts, the first stating the general principle of applicability to metropolitan States and dependent territories alike, and the second recognizing the exception, which, according to the United Kingdom representative, were absolutely necessary if all territories were to be brought under the convention. It was made perfectly clear, however, that those territories were to be treated as an exception of the general rule. The United Kingdom would undoubtedly strive to make the second paragraph applicable to a minimum number of dependent territories. No delegation could expect to achieve all that it wanted in the draft convention; the Turkish amendment seemed to be the best way of reconciling two opposing points of view. Mr. KACJAN (Yugoslavia) said that article 10 in its present form considerably restricted the scope of the convention and might be so misinterpreted as to exclude some dependent territories. Similar misgivings had been expressed in the 1956 ad hoc Committee. The reasons given for accepting the text as it stood had not persuaded his delegation that the text in the Egyptian and Sudanese amendment was not preferable, reproducing as it did the wording adopted by the General Assembly for the draft covenants on human rights. After ample deliberation, the General Assembly had decided that a universal application clause should be included, and, in his view, the joint amendment was far more suited to the real needs of the situation. Mr. BAROODY (Observer for the Government of Saudi Arabia), speaking at the invitation of the President, said that, despite his wish not to impede the work of the Conference by being drawn into argument, he had no choice but to exercise his right to reply to the allegations made by the French representative. The Egyptian representative had already answered those allegations in part with regard to the Rapporteur’s work on the subject. He (Mr. Baroody) must, however, take exception to a certain derogatory reference by the French representative to a so-called Moslem Frenchman. He resented the implied aspersions thus cast on the Moslem religion, especially when the question of the pilgrimage to Mecca was also dragged in. Such allusions to religion were highly improper; the French representative would surely never use the expression ‘a French Protestant smuggler’. The pilgrimage to Mecca was one of the pillars of Islam, and it was a most thorny matter to make any imputations about it. It was not the first time that such imputations had been made in United Nations bodies; denials that they had been made would not hold water because the record stood and copies of it existed in Saudi Arabia for the Saudi Arabian Government’s information.

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In reply to earlier remarks by the French representative he had referred to certain Non-Self-Governing Territories as the source of slavery and the slave trade, but he had not named territories governed by France simply in order to avoid disputes. He had in his possession documents from the Saudi Arabian Ministry of Foreign Affairs explaining the campaign against Saudi Arabia in the French and United Kingdom Press, attacking in particular the way in which the Saudi Arabian Government was spending its money. The Press campaigns by the so-called free papers had been deliberately synchronized when the Saudi Arabian Government had submitted the question of Algeria to the United Nations and when difficulties with the United Kingdom had arisen about the Buraimi Oasis [re: territorial disputed between the Sultanate of Muscat and Oman and the Trucial Sheikdom of Abu Dhabi]. But although the Anti-Slavery Society had referred to the existence of 11 million slaves or serfs in Latin American countries – admittedly Mr. Greenidge had later subtracted 3 million – the British and French Press had not subjected those countries to a barrage of abuse as they had Saudi Arabia. The PRESIDENT asked the Observer for the Government of Saudi Arabia to confine the use of his right to reply strictly to allusions by previous speakers. He appreciated the Saudi Arabian Observer’s wish to expedite the work of the Conference and hoped that he would do so by confining his remarks to the subject under discussion – article 10 and the amendments thereto. Mr. BAROODY (Observer for the Government of Saudi Arabia), speaking at the invitation of the President, replied that he was only too willing to expedite the Conference’s work but he had not raised the matter in the first place and Saudi Arabia had no Press in which to defend itself. He would therefore continue to exercise his right to reply because he had been subject to allegations and insinuations from the very outset of the Conference. He was exercising his right to reply rather than addressing himself to a particular article. The so-called champions of freedom might still be worthy of the term if they desisted from fighting people who were called ‘rebels’ in Algeria but who were in fact Moslems trying to secede from France. Mr. JAFRI (Pakistan) thanked the United Kingdom representative for the way in which he had tried to allay the Pakistan delegation’s misgivings at the previous meeting. The conciliatory tone of the discussion at the present meeting had been most encouraging; except the unfortunate approach adopted by the French representative whose accusations and insinuations against the Moslem religion had been aptly dealt with by the Saudi Arabian observer. It was to be hoped that no similar insinuations would be made in the future. It was heartening to find that the Egyptian and Philippines representatives were eager to arrive at some formula which would give expression to the general desire to see conventions dealing with human rights applied as widely as possible and, at the same time, to take into account the genuine

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difficulties confronting certain delegations. The Pakistan delegation had therefore submitted a new amendment (E/CONF.24/L.26).40 In paragraph (a) it had tried to take account of both points of view advanced in the discussion: the universal application of human rights conventions and an appreciation of the real difficulties due to constitutional laws and practices of metropolitan States and the colonial territories governed by them. Paragraph (b) was an attempt to improve the original text by making the term ‘shall endeavour’ in the original draft more precise and by laying the onus on the States Parties. The clause had been made more specific by the reference to the schedule mentioned in paragraph (a), and in order to remove misgivings that a State Party might delay in applying the convention the initiative was given to the Secretary-General. Admittedly, that was open to the objection from an unduly legalistic point of view that it would be derogatory to a metropolitan State and infringe its sovereignty for the Secretary-General to deal directly with a dependent territory, but in view of the arguments adduced by the French and United Kingdom representatives about the need to forgo sovereignty in the interests of humanity and of obtaining the largest possible measure of agreement it was to be hoped that that objection would not be pressed. In paragraph (c) an attempt had been made to remove doubts about the meaning of the last sentence in the present text of article 10. The intention was the same but it had been expressed more clearly. The good faith of all parties concerned must be credited. He was convinced that the Egyptian and Sudanese representatives had been actuated by the highest motives in submitting an amendment aiming at universality of application, but he was certain too that the United Kingdom representative was genuinely anxious about what would occur if the constitutional difficulties were not taken into account. It would be wiser, however, to include safeguards in the convention itself. The Egyptian representative had referred to precedents where the text submitted in the Egyptian and Sudanese amendment had previously been adopted by the United Nations. He had not so far received an answer to his question how metropolitan States might be able to implement conventions such as the draft covenants on human rights and the Convention on the Political Rights of Women if the formula adopted by the General Assembly was maintained. It could hardly be contended that the General Assembly had acted irresponsibly and had made it impossible for the colonial Powers

40

See above, but also: Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Pakistan: Amendment to article 10, UN Doc E/CONF.24/L.26, 27 August 1956.

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to accede to any humanitarian convention. If those humanitarian conventions were none the less being applied some way could probably be found to avoid the constitutional difficulties. The Pakistan delegation had tried to meet both points of view in submitting its amendments, but still placed the greater weight on the desire for universal application, as it had been with regard to articles 3 [slave trade] and 9 [reservations]. If the suggestions in its amendment were not accepted by the colonial Powers, the Pakistan delegation would have to support the Egyptian and Sudanese amendment. Mr. GIRAUD (France), in reply to the Egyptian representative, said that France had been able to accept in the Convention concerning the International Right of Correction a formula which it was unable to accept now in the convention under consideration. There was every reason to foresee the likelihood of changes, in the position of the Non-Self-Governing Territories. If self-government were granted them in matters of legislation there could be no question of non-observance of that right or imposing participation in the convention upon them. He vigorously protested against the allegations by the observer for Saudi Arabia. In his earlier reference to a Moslem Frenchman he had simply meant to say that the man who had disappeared was a Moslem. If he had said that Jewish Frenchmen had been deported to Hitler’s Germany, that French Protestants has gone to an Oecumenical congress or that French Catholics had gone on a pilgrimage to Rome, would he in employing that terminology have been making a discrimination with regard to members of a religious sect? Would he have been guilty of insulting the Jewish, Protestant or Catholic religion? He failed to understand how the observer for Saudi Arabia dared interpret the words he had used as an insult to the Mohammedan religion. He could only ascribe such an interpretation to systematic and perfidious policy of stirring up the Mohammedans against France. He pointed out that though it was true that Mr. Engen’s report was no more than a collection of documents it was nevertheless true that when it expressed no opinion but reproduced a legal text word for word it was legitimate to reply on that text. If the text was incorrect or had been mistranslated it was easy for the government concerned, to which, as to may other United Nations Members at the same time, a number of questionnaires has been sent, to correct it, if need be, and state that the text reproduced did not represent the present state of the law. The PRESIDENT, said that if delegations were going to continue to level accusations and counter-accusations the Conference would never have time to fulfil its real function of drafting international anti-slavery legislation. All representatives, of course, had the right to defend their countries when aspersed, but they should bear the main purpose of the Conference in mind. Mr. SCOTT-FOX (United Kingdom) welcomed the strong indication of the President’s wishes, but could not pass over completely in silence the Saudi

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Arabian Observer’s reference to the Buraimi Oasis and the alleged Press campaign against Saudi Arabia. Those remarks had been quite improper and were completely irrelevant to the discussion of Article 10, or even to any reply to the French representative. His delegation warmly welcomed the Philippine representative’s generous and constructive statement. It would be well if all delegations were similarly moved by a spirit of moderation and compromise in seeking a generally acceptable text. The United Kingdom delegation would require some time to ponder the amendment just submitted by the Pakistan representative, as it raised some new and complex problems, particularly in the light of the revised phraseology in paragraph (a). There were also some difficulties about paragraph (b); if the intention was that metropolitan States should be obliged to instruct dependent territories to accede to the convention he could not agree, as that would raise the same constitutional difficulties; many dependent territories were autonomous in respect of all matters covered by the convention. The word ‘appropriate’ might perhaps be substituted for the word ‘necessary’. The second sentence in paragraph (b) raised even greater difficulties in suggesting that the Secretary-General should be instructed to address himself directly to the territorial government concerned. That would be an incorrect procedure; all the United Kingdom’s dependent territories without exception were subject to the United Kingdom Government in the conduct of their foreign relations and might perhaps be addressed through Government, but not otherwise. He hoped that he was not being unnecessarily legalistic, but the constitutional point was very important. It should now be quite clear that a universal acceptance clause would preclude the United Kingdom from any early accession of the convention. The Pakistan representative had recalled that the clause suggested by the Egyptian and Sudanese representatives had been included in previous international instruments and had regarded such inclusion as implying that there might be some way of evading the constitutional difficulties. The United Kingdom had been unable to sign those instruments precisely because it could not accede unless and until each dependent territory had given its consent. He was sure that the real desire of those who were trying to persuade the United Kingdom delegation to accept a universal application clause could not be to oblige the United Kingdom to defer accession to a convention to which it attached such great importance and which it had done so much to promote. He was equally sure that they would not wish to exclude a large number of dependent territories from the benefits of the convention.41

41

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions

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With the end of the British representative’s speech, the fourteenth meeting of the Conference rose. The fifteenth meeting, like the two previous meetings, was taken up in its entirety with a discussion of the provisions of draft Article 10: Mr. ADEEL (Sudan) said that despite the expense and effort involved, his country had decided to take part in the Conference, not in order to influence the vote in favour of any particular bloc or clique, or in response to solicitation by any such bloc or clique, not yet with any desire to exploit the Conference as a phase in the struggle against colonialism, but because, as a newcomer to the international scene, it had felt unable to hold aloof from what was a purely humanitarian endeavour, particularly when that endeavour was being made under the auspices of the United Nations. In that spirit, his delegation had advocated the principle of universality in discussing article 9 [reservations], and it had submitted, jointly with Egypt, an amendment to article 10 with the same purpose of ensuring the realization of universality as speedily as possible. The best way of doing that was to extend the effects of the convention to the dependent territories. It was in a quite undogmatic spirit that his delegation sponsored the amendment, for which it advanced no claim of perfection. The United Kingdom representative, however, had said that the amendment would unleash the forces of reaction and that it represented an anticolonialist attitude, while the Turkish representative had affirmed that the amendment was based on propagandistic motives. Such allegations were groundless. His country appreciated the possible constitutional difficulties arising from the difference between the legislative competence of metropolitan States and non-metropolitan territories, but it felt that such difficulties could always be surmounted. The territories which had attained a working constitutional system under the guidance of a metropolitan Power would respond favourably and promptly to a humanitarian appeal. He agreed with the Pakistan representative in thinking that the difficulties feared by the United Kingdom were more imaginary than real. The United Kingdom representative’s warning that if article 10 of the original draft was not maintained his country’s accession to the convention might be deferred indefinitely was unconvincing. In 1927 Sudan had been a dependent territory whose position was further complicated by the existence of the condominium. On 19 May 1927, however, it had been invited by the Secretary-General of the League of Nations to accede to the 1926 Slavery Convention, and on 14 June, less than one month later, it had responded to that invitation.

and Practices Similar to Slavery, Summary Record of the Fourteenth Meeting, 27 August 1956, UN Doc E/CONF.24/SR.14, 18 November 1958, pp. 5–13.

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The decision to convene the Conference had been taken by the Council in April 1956 and invitations had been sent out immediately afterwards. He asked whether any of the metropolitan Powers had made any effort to ascertain the reactions to the proposed convention in their dependent territories. He felt that had they done so the metropolitan Powers would in most cases have been given full freedom to accede to the convention on the dependent territories’ behalf. The Indian amendment (E/CONF.24/L.18) introduced a useful element by suggesting a time-limit of twelve months for securing the consent of non-metropolitan territories but the amendment was robbed of much of its efficacy by the use of the word ‘endeavour’ in the preceding line. So far as concerned the Portuguese sub-amendment (E/CONF.24/L.22) to the amendment submitted jointly by Egypt and the Sudan, he would accept the deletion of the word ‘metropolitan’ suggested in paragraph (1) of the subamendment, but could not agree to the insertion of the words ‘in accordance with the practice and constitutional provisions of each contracting party and of each territory’ as suggested in paragraph 2. The insertion of those words would defeat the effort to circumscribe the dilatory and discretionary power by which the purpose of the convention were impeded. The Turkish amendment (E/CONF.24/L.24) was elegant as a draft since it divided a long and consequently confusing article into two sections. It also included the idea of the twelve month time-limit first suggested in the Indian amendment. But it still did not represent an appreciable improvement on the original. At the preceding meeting, the Turkish representative had expressed the view that the joint Egyptian-Sudanese amendment was anathema because it sanctioned intervention in matters within the jurisdiction of States. He found it difficult to reconcile that view with the Turkish delegation’s attitude in the matter of the right to search and visit vessels on the high seas. Mr. CERNIK (Czechoslovakia) said that in his delegation’s view the article proposed in the original draft was not satisfactory since it contained the so-called colonial clause, which excluded Non-Self-Governing and other territories from the field of application of the convention. His delegation therefore, supported the proposal in the joint Egyptian-Sudanese amendment that the present wording be replaced by a text similar to that adopted in the case of the draft covenants on human rights and approved by the General Assembly. Such a course would also be in accordance with the injunction to Members States in Assembly resolution 540 (VI) of 4 February 1953 to intensify their efforts for the observance of human rights and freedoms, not only in their own territories, but in the Non-Self-Governing and Trust Territories. That resolution had been adopted by 41 votes to none, with 12 abstentions. The joint Egyptian-Sudanese amendment was obviously supported by a majority of the States represented at the Conference and his delegation consequently considered that it represented the most satisfactory solution.

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Mr. NOGUEIRA (Portugal) said his delegation could be quite objective in its remarks since it was not directly affected by the convention. Once the convention had been signed and ratified it would be immediately applicable and enforced in all Portuguese territories. All the delegations which had spoken on the subject of article 10 were convinced of the paramount importance of ensuring the largest measure of universality for the convention: hence the division of opinion on article 10 was somewhat surprising. A practical approach, not the discussion of legal technicalities and political implications, was essential, and in that connexion the primary consideration was the need for including in the convention some expression of the idea that it should be generally applicable and enforceable. On that point, he agreed with the representative of the Philippines. Due regard must also be had to the real difficulties encountered by certain delegations. Those who had spoken against the original draft of article 10 had no doubt been motivated by a high sense of humanitarian value on the convention; but the United Kingdom has also been sincere in informing the Conference of the various difficulties which would be encountered if article 10 was not included in its present form. An important point with some bearing on that issue was deserving of greater attention and general application. The Canadian representative if at an earlier stage of his country’s development the United Kingdom had acceded to such a convention on Canada’s behalf without consulting the Canadian authorities his Government would have resented such a procedure as constituting an attempt to interfere in the internal affairs of Canada. All delegations were concerned with the freedom of the dependent territories and the best way of ensuring that freedom would be to accept article 10 as it stood. Any other course would represent a limitation on the competence of the legislative bodies in the dependent territories and consequently the cause which the objectors to article 10 claimed to have espoused would be defeated. In the interest of securing an acceptable text, his delegation would be prepared to withdraw or to refrain from pressing its own amendment. The Turkish amendment went far to meet the various points of view which had been expressed and he therefore suggested that it should be given further consideration. The PRESIDENT asked the Portuguese representative whether he withdrew his amendment in favour of the Turkish amendment. Mr. NOGUEIRA (Portugal) replied in the negative. He would suggest, however, that priority of consideration should be given to the Turkish amendment, even though it had been submitted after the Portuguese amendment. Mr. ABDEL-GHANI (Egypt) said that in submitting, jointly with the Sudanese delegation, its amendment to article 10 his delegation had not

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intended to make it more difficult for any Government to accede to the convention. It had introduced the amendment, which represented a solution that had already been adopted by the General Assembly by a large majority, because it thought that the course suggested therein might be the least dangerous one. He recalled that the delegations of the following countries had voted for the General Assembly resolution (422 (v)) to which he had alluded: Guatemala, Haïti, India, Indonesia, Iran, Iraq, Israel, Lebanon, Liberia, Mexico, Pakistan, the Philippines, Poland, Saudi Arabia, Syria, the Ukrainian Soviet Socialist Republics, the Union of Soviet Socialist Republics, Uruguay, Venezuela, Yemen, Yugoslavia, Burma, the Byelorussian Soviet Socialist Republics, Chile, Cuba, Czechoslovakia, Egypt and Ethiopia. The Turkish proposal suffered from the defect of the original, namely, that it made no reference to territories whose consent might be requested and refused. He had considered that point together with the Sudanese representative and the two delegations were prepared to submit an amendment suggesting that the following paragraph should be added to the Turkish and Pakistan proposals: In the case of a non-metropolitan territory mentioned in the previous paragraph refusing to give such consent, the Party concerned shall, within the period of twelve months from the date of its signature of the Convention stipulated in the preceding paragraph, inform the SecretaryGeneral of the United Nations of the reasons, including the texts of the corresponding constitutional laws, for the refusal of this territory to give its consent. The amendment did not suggest that the dependent territories should directly approach the Secretary-General. It merely asked that the State concerned should inform him which the territories in question had refused to accede. The amendment implied a kind of recognition of the constitutional difficulties to which the representative of the United Kingdom had referred. He was very grateful to the United Kingdom representative for the examples he had given of the constitutional relations between his country and some territories under its administration; and hoped the representative of other Administering Powers would provide similar information. When asked why the French delegation had not objected three or four years previously to a proposal similar to that which the Egyptian and Sudanese delegations were now advancing, the French representative had said that much progress had been made during those three or four years but had not provided concrete examples. It would be interesting, for instance, to know what progress had been made in the constitutional relationships between France and Madagascar and between France and the Trust Territory of the Cameroons. During the Trusteeship Council’s discussion of conditions in the latter Territory earlier in the year, the question of slavery there had been raised, not by the representative of Egypt or any other Arab State but by the representative of the United States of America.

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The Egyptian delegation was proposing its amendment because it felt the United Nations could in that way help territories which failed to accede to the convention. For example, if a Trust Territory failed or refused to accede and the Administrative Authority reported the fact, the Trusteeship Council might perhaps examine the reasons for such a failure or refusal and find ways of helping the Territory in question. Similarly, the case of a Non-Self-Governing Territories could be considered by the General Assembly and its subsidiary organs. The members of the Conference should remember that they were dealing not with the colonial question but with a humanitarian matter. The Egyptian delegation was striving to ensure that the convention should be based as firmly as possible on purely humanitarian considerations. Mr. BAROODY (Observer for the Government of Saudi Arabia), speaking at the invitation of the President, said that the institution of slavery was disappearing not only in Saudi Arabia but in may parts of the world under the impact of dynamic economic and social developments. The French representative had referred to the documents compiled by the Rapporteur and had already been answered by the representative of Egypt. He wondered, however, why the French representative had made no reference to the May 1956 declaration of the Council of Ministers of Saudi Arabia which he (Mr. Baroody) had read in the Economic and Social Council Committee on Non-Governmental Organizations (E/C.2/SR.159). That decree superseded all other bilateral and multilateral agreements made in the area. Under that decree, no traffic in slaves would be permitted or condoned. At the meeting of the 1956 ad hoc Committee in New York, the representative of Saudi Arabia had drawn attention to the danger of using certain expressions in connexion with the pilgrimages to Mecca. It was necessary to bear in mind the conclusions that would be drawn from such statements by people in Moslem countries throughout the world. He still maintained that discrimination was being exercised against his country in that it had been made the target of the convention, and in particular of article 3. The representatives of other States present at the Conference had admitted that vestiges of slavery and serfdom still existed in their territories. In deference to the President’s request for brevity, however, he would refrain from giving chapter and verse, though he could have produced material from the Saudi Arabian Government’s archives relating to the slave trade and slavery in dependent territories. A country like Saudi Arabia, which had only an insignificant Press, could hardly listen unmoved to derogatory remarks and suggestions that its fishing trawlers should be subject to military inspection. He asked what there was to prevent a trawler of some other nation from hoisting the flag of Saudi Arabia when engaged in illicit traffic. If such a vessel was intercepted, the search party would inspect its papers, but how would it distinguish the bogus

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from the authentic? If such a right of visit and search were recognized it would involve interference with the fishing industry of Saudi Arabia. Mr. JOCKEL (Australia) replying to the Sudanese representative’s question whether Administering Powers had referred the draft convention to their dependent territories, said that in the case of Australia that had been done. The dependent territories had commented on the draft, making detailed points, and were awaiting the Australian Government’s reply. It was sometimes hard to say whether a particular dependent territory belonged to the category whose consent to accession would have to be obtained or to the category on whose behalf accession could be effected without consent. Any attempt to divide all dependant territories into those two categories represented an artificial exercise and reflected a concept which, as the Canadian representative had pointed out, went back to the days of direct rule. That was no longer the situation. Nowadays, there were many mixed authorities, and the situation was changing all the time. Territories were gaining more authority and the constitutional machinery developed. His Government would be reluctant to say in advance of consultation into which of the two categories implied in, for example, the Pakistan amendment a particular territory fell for the purpose of an international convention. The answer would depend on all kinds of factors, including the nature of the convention. The most probable consequences of a system such as that suggested in the Pakistan amendment would be that the metropolitan territories would list all their dependent territories. A compromise course would be to accept the Turkish proposal, which had the advantage of being flexible and workable. Mr. GIRAUD (France) said that so far as he was concerned he could accept the Egyptian proposal requiring States to specify the constitutional provisions by virtue of which non-self-governing territories were authorized to withhold their assent to the convention. As things stood at the moment France could, he believed, commit itself on behalf of the generality of the dependent territories. Still the situation might change, and what was true to-day might cease to be so in a little while. On the other hand, just as it would not be possible to force States to give their reasons for not acceding to the convention, so the authorities of dependent territories which were legislatively self-governing could not be compelled to state the reasons for their refusal. With regard to his remarks at the previous meetings he had legitimately regarded as reliable the legislative text concerning Saudi Arabia published in Mr. Engen’s report (E/2673). That report invited comments from governments, but no denial or rectification had been forthcoming from Saudi Arabia and Mr. Baroody himself had been unable to state that the Decrees reproduced by Mr. Engen was bogus or incorrectly quoted. If reforms had been introduced through a Declaration of the Council of Ministers since

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1956, they could easily been brought to the notice of the world. A powerful Press was not needed for that; the Declaration could merely have been forwarded to the Secretary-General. In that way all the Governments and all the delegates attending this Conference would have had an opportunity to learn about it and to appraise its nature and scope. He desired to reiterate his protest against the ludicrously perfidious charge that he had insulted the Mohammadan religion. He had, he thought, scotched it at the previous meeting. Mr. BAROODY (Observer for the Government of Saudi Arabia), speaking at the invitation of the President, emphasized in reply to the French representative that certain documents in the possession of many delegations pointed to the fact that slavery was still prevalent in some dependent territories. He reminded the French representative that Saudi Arabia, like the United Kingdom, had no written constitution, but was governed by Islamic Law which was based on the Koran. The declaration made by the Council of Ministers of Saudi Arabia on the question of slavery, which he had read on 17 April 1956 to the 159th meeting of the Council Committee on NonGovernmental Organizations (E/C.2/SR.159), had been made in pursuance of Islamic Law. With regard to the French representative’s statement that the Government of Saudi Arabia had not replied to the Secretary-General’s questionnaire on slavery, he pointed out that many questionnaires on other subjects had been left unanswered by Member States and that no one had taken exception to their silence. He emphasized that the report submitted by the Rapporteur appointed under Economic and Social Council resolution 525A(XVIII) (E/2673 and Add.1-6), which had been quoted by the French representative, contained certain fictional statements about Saudi Arabia made by a certain society which had taken part in the present Conference and which had quoted from books written by missionaries who had resided on the mere fringes of that State. Mr. JURKIEWICZ (Poland) suggested the deletion of the phrase ‘or practices’ in the second line of paragraph (b) of the Turkish amendment and in the fifth line of paragraph (a) of the Pakistan amendment, as the convention must be worded as clearly as possible and must not contain any phrase which would allow of delay in its application. The word ‘progressively’ in article 1 covered those metropolitan countries which had stated that they would be unable in the case of their dependent territories to take forthwith the action required under the convention owing to certain problems to which such action might give rise. In view of the Australian representative’s statement, he thought that a clear distinction should be made in the draft supplementary convention between dependant territories in which the right to accede to a convention

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was guaranteed by their constitution and territories in which that right was not so guaranteed. He would prefer the Egyptian representative’s oral amendment to apply to the Pakistan amendment which he believed would meet with more general agreement then the Turkish representative’s proposal. Mr. LOPEZ (Philippines) referring to the Egyptian representative’s proposal, said he understood that under the United Nations procedure Non-Self-Governing Territories did not communicate directly with the Secretary-General; the information requested must therefore be supplied to the metropolitan Power concerned. With regard to the stipulation in the Egyptian representative’s oral amendment that the Secretary-General must be informed of the reasons why a non-metropolitan country had refused to accede to the convention within twelve months from the date of signature of the convention by the metropolitan State, he felt that it should be worded in a less mandatory tone, as no metropolitan Power should be asked to explain why a certain territory administered by it had refused its consent to the convention any more than a sovereign State should be asked to explain why it refused to ratify or accede to it. Referring to the Egyptian representative’s suggestion that the texts of relevant constitutional provisions should be submitted to the United Nations, he said that the representative of France had rightly explained that the constitutional situation was constantly changing in many non-metropolitan territories, while the United Kingdom delegation stated that the relations between his Government and the territories under its administration were often regulated by constitutional practices with no basis in written law. He therefore thought that it might be unprofitable to demand that the constitutional provisions in question be sent to the Secretary-General. He felt sure that no metropolitan Power would deliberately try to bar a territory administered by it from the operation of a humanitarian convention like that under consideration. Turning to the Pakistan amendment, he said that although excellent, it was too detailed, and he felt that it might create unnecessarily onerous if not embarrassing obligations for certain Members States. He agreed with the Polish representative that the word ‘progressively’ in article 1 would ensure that metropolitan Powers took action to see that the benefits of the convention were gradually applied to the territories they administered. However, the inclusion of the word would not solve the difficulties which according to the United Kingdom representative were faced by his Government in relation to certain territories under its control. Moreover, the concept of the progressive application of the convention, which presumably would permit the metropolitan Power concerned to extend the convention according to the circumstances in each Territory, would apply only to practices similar to slavery and not to slavery proper or to the slave trade. He therefore suggested the addition to the Turkish

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amendment of the paragraph forming the subject of his sub-amendment (E/CONF.24/L.28).42

The proposal put forward by the Philippines delegation reads: Add the following after paragraph (b) (c) After the expiry of the twelve-month period mentioned in the preceding paragraph, the States Parties concerned shall inform the SecretaryGeneral of the result of the consultations with all the non-metropolitan territories for whose international relations they are responsible and whose consent to the application of this Convention is necessary.43

The discussion during the fifteenth meeting of the United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery now started to draw to a close: Mr. SCOTT-FOX (United Kingdom) felt that most representatives now appreciated the difficulties which would arise if the convention was made universally applicable. He wished to repeat that it was the earnest desire of the United Kingdom Government to accede to the convention, as one of its prime movers, and to see that as many as possible of its dependent territories did so with minimum possible delay. He was grateful for the Egyptian representative’s statement from which he understood that he was now prepared to withdraw the amendment standing in his name and in that of the representative of Sudan. He felt that the Turkish representative’s amendment and the Indian subamendment thereto gave the most helpful answer to the problems faced by the Conference with regard to article 10. He hoped that the representative of Pakistan, whose helpful spirit he nevertheless appreciated, would not insist on his compromise text which would raise certain difficulties for the United Kingdom delegation and perhaps for some others. Rather than accept the new paragraph proposed orally by the Egyptian representative for insertion in the Turkish representative’s amendment,

42

43

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Fifteenth Meeting, 27 August 1956, UN Doc E/CONF.24/SR.15, 18 November 1958, pp. 2–11. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Philippines: Sub-amendment to amendment by Turkey (E/CONF.24/L.24) to article 10, UN Doc E/CONF.24/L.28/Rev.1, 27 August 1956.

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since some delegations might be very unwilling to agree to it, he would prefer to consider the text along the lines suggested by the Philippines representative. Referring to the Polish representative’s remarks on the word ‘progressively’ in article 1 and his proposed appointment, he pointed out that there were no constitutional laws which obliged an administering Power such as the United Kingdom Government to consult the Non-Self-Governing Territories before acceding to a convention of the type now before the Conference. But as he had explained at the earlier meetings, the United Kingdom Government felt obliged, for reasons both of practice and courtesy, to consult its dependent territories before it acceded on their behalf to conventions of the type now before the Conference, and no exceptions were made to that practice. Mr. JAFRI (Pakistan) emphasized that the only reason why he had submitted his amendment was to provide a compromise solution for two opposing viewpoints, which, after listening to various statements, he was convinced were both bona fide. He felt that the latest amendment suggested by the Egyptian representative offered a way out of what appeared to be an impasse and that it had been prompted by an earnest desire to achieve a solution satisfactory to all concerned. His delegation would be very willing to withdraw its amendment provided that either the Egyptian or the Philippine text commended itself to the Conference. Mr. ABDEL-GHANI (Egypt) was grateful for the favourable comments made on the oral amendment he had proposed and suggested that the vote on the various amendments and article 10 be deferred until the next meeting in order to allow of consultations between the delegations. The PRESIDENT suggested that the Secretariat should prepare a new text for article 10 embodying the amendments suggested by the Turkish representative and the oral amendments made by the representatives of Egypt and the Philippines. Mr. JURKIEWICZ (Poland) asked for an alternative text to be prepared by the Secretariat to take account of the amendment he had suggested, namely the deletion of the words ‘and practices’ in the texts proposed by the Pakistan and Turkish representatives. The PRESIDENT assured the Polish representative that he could request a separate vote on each part of the new text to be prepared by the Secretariat.44

44

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and

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This brought to an end the fifteenth meeting of the Conference. At the following meeting the President started by noting that all amendments except those proposed by Turkey and the Philippines had been withdrawn and no mention was made of a text prepared by the Secretariat. This appeared to be at variance with what had transpired at the last meeting and would raise a number of procedural issues. The Turkish amendment, with the Philippine sub-amendment which was now under consideration reads: (a) This Convention shall apply to all non-self-governing, trust, colonial and other non-metropolitan territories for the international relations of which any State Party is responsible; the Party concerned shall, subject to the provisions of paragraph (b) of this article, at the time of signature, ratification or accession declare the non-metropolitan territory or territories to which the Convention applies. (b) In any case in which the previous consent of a non-metropolitan territory is required by the constitutional laws of the Party or of the non-metropolitan territory, the Party concerned shall endeavour to secure the needed consent of the non-metropolitan territory within the period of twelve months from the date of signature of the Convention by the metropolitan State, and when such consent is obtained the Party shall notify the Secretary-General. This Convention shall apply to the territory or territories named in such notification from the date of its receipt by the Secretary-General. (c) After the expiry of the twelve-month period mentioned in the preceding paragraph, the States Parties concerned shall inform the Secretary-General of the result of the consultations with all the non-metropolitan territories for whose international relations they are responsible and whose consent to the application of this Convention is necessary.

The discussion at the sixteenth meeting started with Mr. Tuncel, the Turkish Representative, saying that “he would be prepared in principle to accept the additional proposal by the Philippine representative but would like first to hear the views of the delegations most directly concerned”. The following are some of those views: Mr. SCOTT-FOX (United Kingdom) said that he had not yet received definite instruction from his Government with regard to the Philippine amendment (E/CONF.24/L.28), but expected that it would be found acceptable. He would have no objection to voting for it at the first reading on the

Practices Similar to Slavery, Summary Record of the Fifteenth Meeting, 27 August 1956, UN Doc E/CONF.24/SR.15, 18 November 1958, pp. 11–13.

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understanding that he might have to modify his position at second reading. He would suggest a drafting change at the end of the Philippine amendment: that the words ‘for whose international relations they are responsible and whose consent to the application of this Convention is necessary’ be substituted for the words ‘under their administration whose consent to this Convention is necessary.’ Mr. LOPEZ (Philippines) accepted the United Kingdom amendment. Mr. ABDEL-GHANI (Egypt) said that the Sudanese and Egyptian delegations had withdrawn their amendment (E/CONF.24/L.17) in favour of the Philippine amendment, but their vote would have to be tentative for the same reason as that given by the United Kingdom representative.45

At this point the Polish Representative, Mr. Jurkiewicz, “observed that the situation with regard to the amendments was somewhat confused”. He continued: At the close of the previous meeting, the President had suggested that the Secretariat prepare a compromise text based on the joint Egyptian oral amendment, on the one hand, and the Philippine amendment to the Turkish amendment on the other. That document had not be forthcoming and the vote would probably be taken only on the Philippine amendment. The usual practice was for a delegation to refrain from moving an amendment if some other delegation had moved one very similar in content, but the situation changed when such an amendment was withdrawn. If the Philippine amendment alone was now before the Conference, the Polish delegation must move an amendment to it similar to the Egyptian oral amendment moved at the previous meeting, which had apparently now been withdrawn. The Polish amendment (E/CONF.24/L.30) was, first, to delete from the Turkish amendment (E/CONF.24/L.24) the words ‘and practices’ in the second line of paragraph (b), for the reasons he had explained at the previous meeting, and, second, to add the following sentence to the Philippine amendment (E/CONF.24/L.28): To such information there shall be annexed the texts of the corresponding constitutional laws of the State concerned and of the non-metropolitan territory as well as the text of the motivated decision about the refusal to apply the Convention to this territory taken by the administrative organ of the non-metropolitan territory. In submitting the second amendment he had taken into account the objections raised at the previous meeting by the United Kingdom representative to the Egyptian oral amendment, especially to the part which had dealt

45

Id., p. 2.

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with giving the reasons for refusal by the territory concerned. The United Kingdom representative had agreed with the Philippine representative in objecting to the idea that the metropolitan country should be bound to give reasons for the dependent territory’s refusal to apply the convention as that would be too complicated. That part of the amendment had therefore been dropped. What remained was the requirement to give formal reasons why a special procedure had been adopted and to quote the corresponding constitutional law and the motivated decisions. That would not be very complicated and would give the other contracting parties an assurance that there were formal grounds to the special procedures used in certain cases. Mr. SCOTT-FOX (United Kingdom) regretted that further complications had arisen after agreement seemed almost to have been reached. He would be prepared to go so far to meet the Polish representative’s difficulties as to accept the insertion of the words ‘constitutional’ before the word ‘practices’, repetitious though that might seem. But further he could not go. The United Kingdom’s position with regard to constitutional practices was rather a special one because the United Kingdom had no written constitution. The constitutional relationship between the United Kingdom and its dependent territories was not laid down in writing, but was governed by what lawyers termed the conventions of the constitution, which formed part of the corpus of constitutional law and could not be disregarded nor dispensed with. The use of the words ‘progressively’ in article 1 had not sufficed to meet the difficulty. For the same reason he could not accept the Polish addition to the Philippine amendment. The cases which the United Kingdom was anxious to see covered were precisely those where there were no constitutional laws as such but where it was an invariable and sacred practice to consult the territories concerned. The fact that the text of constitutional laws could not be quoted in no way weakened the necessity to respect constitutional practices. Were the words ‘and practices’ to be omitted and the Polish addition to the Philippine amendment adopted, the result would be that the strenuous efforts made to find a compromise would be frustrated. The PRESIDENT did not think that the situation was quite as confused as the Polish representative had stated. The Conference had decided at the previous meeting to try to present a single text covering the substance of the Egyptian, Turkish and Philippine amendments. The Egyptian representative had, however, said that he would not press his amendment. The Turkish representative had accepted the Philippine amendment, so that at that stage there had been only one amendment before the Conference. The Polish amendment had introduced a new element. At the previous meeting the Polish representative had suggested that a separate vote be taken on the words ‘and practices’ in the Turkish amendment. If the Polish representative did not press his amendment and accepted the United Kingdom representative’s suggestion that the word ‘constitutional’ be inserted before

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‘practices’ the vote could be taken immediately. If the Polish representative pressed for a vote on his amendment that vote would be taken as soon as the amendment had been circulated in writing. Mr. JURKIEWICZ (Poland) said that when he had moved that a separate vote to be taken on the words ‘and practices’ the Egyptian amendment had still been before the Conference and so there had been no need for him to move another similar amendment. Several other delegations besides the Polish had supported the Egyptian amendment and would find it hard to decide how to vote now that the Egyptian representative had withdrawn it. That was why the Polish delegation had moved a new amendment, which in itself was a compromise because the controversial parts had been excluded. The United Kingdom representative’s suggestion made the situation clear, but the proposed addition to the Philippine amendment was the most important part of the Polish amendment. All delegations should preferably be enabled to express their real views at the first reading rather than simply support a compromise proposal and a vote should therefore be taken on the Polish amendment.46

This was followed by the following narrative in the Summary Record of the Sixteenth Meeting of the Conference: “After a procedural discussion in which Mr. ADEEL (Sudan), Mr. JAFRI (Pakistan), Mr. CASSELL (Liberia) and Mr. SMOQUINA (Italy) took part, Mr. SCOTT-FOX (United Kingdom) said that he had now received instructions to accept the Philippine amendment and there would therefore be no obstacle, so far as he was concerned, to voting on the amendment to article 10 as soon as the Polish amendment was circulated”. Discussions regarding draft article 10 then continued apace with the Belgium representative being give the floor: Mr. SOMERHAUSEN (Belgium) explained that he had not taken part in the discussion on article 10 because the text dealing with self-governing nonmetropolitan territories did not directly affect Belgium. Belgium’s signature would automatically make the convention applicable to the territories it administered. He was very glad, however, that a compromise supported almost unanimously had been reached at the previous meeting. It was the more surprising that the Polish representative should now be proposing an amendment the effect of which would be to place the metropolitan countries under a duty to explain the decisions made by the self-governing territories which they represented internationally. It was not the custom of States which did not ratify a convention to offer any explanation; it would therefore be

46

Id., pp. 2–5.

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illogical and wrong to make it obligatory for metropolitan States to set forth in writing the reasons for the withholding of consent to accession on the part of a self-governing non-metropolitan territory which they represented internationally. Any such provision would constitute a form of discrimination against which several representatives had repeatedly protested. Another consideration to be borne in mind was that whatever clause the Conference adopted might in the future be cited as a precedent. In effect, the Polish amendment would tend to retard advancement towards self-government in non-metropolitan territories, for if metropolitan States encountered excessive difficulties through the granting of self-government to territories administered by them and if they had to account for decisions made by such territories when once the latter had become selfgoverning – whereas they were under no such duty if they did not grant self-government – then there was really no inducement for hastening the progress of those territories towards self-government. The adoption of the Polish amendment would actually therefore be prejudicial to the interests of the peoples for which everybody expressed so much concern. Accordingly, he suggested that perhaps the Polish representative might wish to withdraw his amendment. If it was not withdrawn, the Conference should realize the implications of its adoption. Mr. JURKIEWICZ (Poland) observed that the Belgian representative’s statement had convinced him how right he had been to omit from the Polish amendment the passage to which objection had been taken. It was unfortunate that that amendment had not yet been distributed because the Belgian representative’s remarks would have then been seen to be completely irrelevant. All that the Polish amendment now suggested was that the dependent territories should report in the same way as independent States. It should therefore be generally acceptable. Mr. TUNCEL (Turkey) said that he agreed to the addition of the text submitted by the Philippine representative and the end of the Turkish amendment. The Polish amendment was a most astonishing last-minute move. He wondered what could be the motives which impelled the Polish representative at time when a compromise solution had been accepted by the delegations most closely concerned to propose an amendment which resurrected differences of opinion. It almost seemed as if certain representatives wanted to obstruct general agreement. Mr. NIKOLAEV (Union of Soviet Socialist Republics) regretted that he was obliged to take exception to the tone assumed by the Turkish representative which was not in keeping with the spirit of the Conference. It did not befit a representative to a conference of plenipotentiaries to criticize the initiatives taken by other delegations. Referring to the substance of the Turkish representative’s remarks, he said that the Polish amendment, in requesting that the texts of constitutional

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laws and of motivated decisions should be provided in the event of refusal to accede to the convention, seemed to meet the wishes of many delegations. Under that amendment, the States responsible for the international relations of dependent territories would merely be obliged to name the constitutional laws concerned and not give reasons for refusal. It had been averred that the request for texts of motivated decisions was an innovation; but such a request was justified by the fact that an exception was being made in the case of certain territories. The purpose of the convention was to combat slavery, vestiges of which still existed in certain Non-Self-Governing Territories. Accordingly, if the legislative organs of those territories refused to accede to the convention the international community was entitled to be informed of the reason for refusal. The United Kingdom delegation’s objections to the suggested procedure were not readily understandable. If the United Kingdom, inspired by the wish to abolish practices similar to slavery, received a refusal to accede to the convention from one of its dependent territories, there could be no difficulty in informing the Secretary-General of the United Nations, as the depository of the convention, of that fact. The Polish amendment was complementary to the Philippine proposal and served the same ends. Moreover, the fact that the Polish delegation had made considerable efforts towards reaching a compromise seemed to have been disregarded. The Belgian representative had asked why dependant territories should be expected to supply information which was not required of sovereign States. The answer to that question was obvious: dependent territories had no outlet to international relations and the Administering Powers therefore bore a special responsibility in that respect. The purpose of the Polish amendment was not to cast aspersions on the constitutional laws of the metropolitan Powers or of the dependent territories but to obtain information for the enlightenment of the international community. Mr. SCOTT-FOX (United Kingdom) said that his strong objections to the Polish amendment remained unchanged. The USSR and Polish representatives seemed to disregard the fact that there were no constitutional texts to which reference could be made, as the relations between the United Kingdom and its dependent territories were governed by practice and precedent. As the Polish amendment referred specifically to laws, he was unable to accept it.47

At this point, the Philippines representative moved that the meeting should be suspended “to enable the delegations to study the text of the Polish amendment”, as it had now been circulated. When the meeting resumed twenty minutes later, the Polish Representative said “that he would not

47

Id., pp. 5–7.

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insist on a vote”, with regard to his proposed amendment. This allowed the President to call a vote on the Turkish amendment to draft article 10, supplemented by the sub-amendment proposed by the Philippines. Article 10, as amended was adopted at first reading by a vote of thirtyone in favour, none opposed, with fourteen abstentions; and reads thus: 1. This Convention shall apply to all non-self-governing, trust, colonial and other non-metropolitan territories for the international relations of which any State Party is responsible; the Party concerned shall, subject to the provisions of paragraph 2 of this article, at the time of signature, ratification or accession declare the non-metropolitan territory or territories to which the Convention applies. 2. In any case in which the previous consent of a non-metropolitan territory is required by the constitutional laws or practices of the party or of the non-metropolitan territory, the Party concerned shall endeavour to secure the needed consent of the non-metropolitan territory within the period of twelve months from the date of signature of the Convention by the metropolitan State, and when such consent is obtained the Party shall notify the Secretary-General. This Convention shall apply to the territory or territories named in such notification from the date of its receipt by the Secretary-General. 3. After the expiry of the twelve-month period mentioned in the preceding paragraph, the States Parties concerned shall inform the Secretary-General of the result of the consultations with all the non-metropolitan territories for whose international relations they are responsible and whose consent to the application of this Convention is necessary.48

At second reading, during the twenty-third meeting of the Conference on 3 September 1956, the Pakistan Representative introduced a proposed amendment saying that with regard to the first and third paragraphs these constituted drafting changes which could be referred to the Style Committee – which considered the overall presentation of the draft Convention –; and continued:

48

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, Articles of the Supplementary Convention adopted on First Reading (28 August 1956), UN Doc E/CONF.24/L.29/ Add.1, 28 August 1956, p. 2. Note that a footnote was added to this text which reads: ‘In the present document the paragraphs of the articles are numbered instead of being designated by letters. This change is submitted for the consideration of the Conference in order to achieve a uniform presentation of the various articles.’

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Paragraph 2, however, proposed the inclusion of certain phrases which might alter the emphasis of the article and render it unacceptable to some delegations. In deference to the spirit of compromise that had led to the adoption of the article at first reading and in order to avoid raising further controversy at that stage the Pakistan delegation would withdraw paragraph 2 while reserving its right to assert its views on the matter in connexion with other international instruments.49

Mr. Jafri then spoke about remarks the French representative at the fourteenth meeting to which he and the Observer for Saudi Arabia had taken exception to “on the grounds that they contained unwarranted insinuations against the Moslem religion”. Mr. Jafri then stated “that as the result of subsequent private conversations with the French representative all misunderstandings on that score had been cleared up”. This cleared the way for a vote on draft Article 10; wherein it was adopted at second reading by a vote of thirty-one in favour, none opposed, with eleven abstentions. At the third reading, when the Conference considered the Report of the Style Committee, it accepted the changes to draft Article 10 without comment, the most obvious being its re-numbering, so as to become Article 12. Article 12 of the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery thus reads: 1. This Convention shall apply to all non self-governing, trust, colonial and other non-metropolitan territories for the international relations of which any State Party is responsible; the Party concerned shall, subject to the provisions of paragraph 2 of this article, at the time of signature, ratification or accession declare the non-metropolitan territory or territories to

49

Paragraph 2 of the proposed Pakistan amendment read: In any case in which the previous consent of non-metropolitan territory is required by the constitutional laws or practices of the Party or of the non-metropolitan territory, the Party concerned shall make its best endeavour and take all appropriate steps to secure the needed consent of the non-metropolitan territory within the period of twelve months from the date of signature of the Convention by the metropolitan State, and when such consent has been obtained the Party shall notify the Secretary-General as soon thereafter as possible. This Convention shall apply to the territory or territories named in such notification form the date of its receipt by the Secretary-General. See Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Pakistan: Amendments to Articles 10, UN Doc E/CONF.24/L.44, 31 August 1956.

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which the Convention shall apply ipso facto as a result of such signature, ratification or accession. 2. In any case in which the previous consent of a non-metropolitan territory is required by the constitutional laws or practices of the Party or of the non-metropolitan territory, the Party concerned shall endeavour to secure the needed consent of the non-metropolitan territory within the period of twelve months from the date of signature of the Convention by the metropolitan State, and when such consent has been obtained the Party shall notify the Secretary-General. This Convention shall apply to the territory or territories named in such notification from the date of its receipt by the Secretary-General. 3. After the expiry of the twelve-month period mentioned in the preceding paragraph, the States Parties concerned shall inform the Secretary-General of the results of the consultations with those non-metropolitan territories for whose international relations they are responsible and whose consent to the application of this Convention may have been withheld.

iv. Commentary on the Provisions of Article 12 of the Supplementary Convention The negotiations of Article 12 of the Supplementary Convention agitated the raw nerve which existed within the United Nations system in the mid-1950s. While one might be remised for thinking that the issue was specifically related to the Cold War (though, as with almost all which transpired at the United Nations during the era, it was), in fact it was the decolonisation process. Decolonisation had begun by the time negotiations had started with regard to the supplementary convention, its most obvious manifestation having been the April 1955 Bandung Conference. But it had yet to reach a critical mass, and thus much agitation was transpiring within the United Nations by States such as Egypt, Indonesia, and Pakistan; backed often times by the Socialist/Soviet States (The Soviet Union Representative saying to the drafting Committee that true to its “position taken by the Soviet people long ago, [it] would continue to support the national aspirations of the colonial peoples and would take a firm stand against the inclusion of a ‘colonial clause’ in the new convention”). This raw nerve was exposed with regard to the negotiations of Article 12 as, one the one hand, States (primarily Western in orientation) which sought to have a ‘territorial clause’ which made a distinction between consent to be bound for the metropolitan territory and for overseas territories;

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and on the other hand, by States which opposed such a ‘colonial clause’, seeking instead a provision which applied to all territories, whether metropolitan or overseas. These lines of argument were apparent from the start of the negotiation process, with the 1954 British Draft Convention proposing that the metropolitan Power notify the Secretary-General when various overseas territories had become bound by a supplementary convention. This was countered by a proposal put forward by Ecuador, Egypt, and Yugoslavia, to replace that 1954 Draft Article by a provision which made the Convention applicable “equally to a contracting metropolitan State and to all the Territories which are being administered or governed by such metropolitan State”. Although it was argued that it was precisely in these territories that slavery and servitude were “rife”, “most widespread” or even “the greatest scourge”; the degree of exploitation was challenged but not its existence in the territories. The Yugoslav Representative, Mr. Bozovic set out the issue for those who spoke of a colonial clause. The provision of the 1954 British Draft Convention: “imposed obligations on States in which certain practices existed resembling slavery but which did not administer Non-Self-Governing Territories, while it allowed colonial Powers, in which such practices were unknown, to shirk their responsibility toward those of their Non-SelfGoverning Territories where such practices persisted”. Mr. Bozovic went on to say that the proposed provision had “the effect of placing the contracting parties in a position of great inequality where their responsibilities towards the International community were concerned”. To strengthen this argument, the Egyptian Representative noted that the General Assembly had recently twice “expressly rejected the ‘colonial clause’” as embodied in the proposed 1954 British Draft Convention. This understanding was now countered by the United Kingdom, the State most effected by (and in need of ) a territorial clause. The clause was not, Mr. Scott-Fox said, “a device to avoid applying the convention to certain territories. The opposite was true. Certain colonies which had reached an advanced stage of development enjoyed a large measure of self-government and the metropolitan government could not compel them to assume obligations which were unacceptable to them”. As a result, the United Kingdom had to consult with its overseas territories to get their agreement. If a distinction was not made between the metropolitan and overseas territories, the United Kingdom “would be unable to ratify the

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convention on behalf of the territories administered by it until all those territories without exception had given their consent”. This, Mr. Scott-Fox would argue later at the 1956 Conference, might oblige the United Kingdom to “defer its accession for years, or indeed perhaps indefinitely”. As far as the rejection of such territorial clauses by the General Assembly was concerned, Mr. Scott-Fox noted that it was his impression that the failure to include such a clause in the 1953 Convention on Political Rights of Women was the reason why the United Kingdom was not a signatory. It fell to the Turkish Representative on the drafting Committee, Mr. Benler, in a “spirit of conciliation and compromise” to “provide a way out of the deadlock” by proposing the formula used in the 1953 Opium Protocol. This formula, though considered in depth and amended heavily, was adopted by the 1956 Drafting Committee. Despite this, during the United Nations diplomatic Conference negotiating the Supplementary Convention, Egypt and Sudan proposed the suppression of that provision in favour of a clause which once more was to be applicable equally in the metropole and in the territories. The Egyptian Representative at the Conference, Mr. Abdel-Ghani, in introducing the joint-proposal indicated that there was wide support for the concept that “a humanitarian convention should cover all nations and all territories without exception, and, specifically in the matter of slavery, Non-Self-Governing Territories inasmuch as practices similar to slavery persisted in some, although by no means all, of them”. In the midst of the Suez Crisis, this “moderate and constructive way” in which Egypt had presented the case was welcomed by the British Representative, who acknowledged that the issue “was a very difficult one and gave rise to genuine misunderstandings”. For Mr. Scott-Fox, “the issue was simple. The United Kingdom had led many of its dependent territories a long way on the road to self-government and was not prepared to put that process into reserve for the sake of a convention such as that under discussion”. Such a reversal would take place, the United Kingdom argued, if it was forced to chose between ratifying without gaining permission of overseas territories which benefited from a measure of autonomy, or the more likely scenario: waiting until all such territories had consented before the United Kingdom become party to the supplementary convention. The French Representative for his part, noted in the argument of those that were against the 1956 draft Convention proposal an attitude of inconsistency:

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The anti-colonialists were asking the metropolitan States to leave the territories they were administering and to allow the peoples of those territories to govern themselves. The metropolitan Powers were complying with that request and granting a measure of self-government to some of their colonial territories. But having done so they must respect the independence of those territories; hence, they could not order the communities concerned to apply a convention on the abolition of slavery which might require a change in their laws or customs governing personal status. It was unhappily true that self-government which was a step towards complete independence, was not always propitious to the observance of human rights. Ancestral customs would sometimes be more difficult to reform and progress would be impeded. But that was the price of self-government. And, in any case it was impossible for the metropolitan Powers to grant certain territories self-government while at the same time imposing on them obligations that would be a violation of their independence.

Shortly after these comments, the discussion at the United Nations Conference turned somewhat acrimonious, with the Observer of Saudi Arabia (where slavery was acknowledged to exist) turning to the issue of colonialism. He stated that a number of Powers had “alluded in their statements to the independence that had been ‘granted’ to certain territories. It should be borne in mind, however, that independence was almost invariably achieved by national movements. Although some Powers had wisely acceded to the claims of so-called ‘rebels’, it was unusual for the fact of independence to be accepted only after much fighting and bloodshed”. The French Representative responded asking the Observer of Saudi Arabia about a 1936 decree which controlled but did not abolish slavery in the Arabian Kingdom. For his part, Mr. Baroody pointed to a press campaign which he said had been “deliberately synchronized” as a result of the Saudi Arabian Government’s conflict with the United Kingdom over the oil-rich Buraimi Oasis and its support for Algeria in the United Nations. Some of the flavour of the discussion is captured in the following words of Mr. Baroody directed against France: “The so-called champions of freedom might still be worthy of the term if they desisted from fighting people who were called ‘rebels’ in Algeria but who were in fact Moslems trying to secede from France”. At this point the President of the Conference noted that “if delegations were going to continue to level accusations and counter-accusations the Conference would never have time to fulfil its real function of drafting international anti-slavery legislation”. The Philippine’s Representative for his part “appealed to the delegations holding opposing views to make

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every effort to achieve a compromise”. After further discussion, Mr. Scott-Fox, stated that he felt that “most representatives now appreciated the difficulties which would arise if the convention was made universally applicable”. At the sixteenth meeting of the UN diplomatic Conference, a compromise text, put forward by Turkey with sub-amendments by the Philippines was ultimately the basis of agreement on Article 12 of the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery.

Article 13 (Entry into Force) 1. This Convention shall enter into force on the date on which two States have become Parties thereto. 2. It shall thereafter enter into force with respect to each State and territory on the date of deposit of the instrument of ratification or accession of that State or notification of application to that territory.

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i. 1954 British Draft Convention ARTICLE 12 This Convention shall enter into force on the date on which two States have become parties thereto and thereafter shall enter into force in respect to each State and territory on the date of deposit of the instrument of ratification or accession of that State or notification of extension to that territory. ARTICLE 13 In accordance with paragraph 1 of Article 102 of the Charter of the United Nations and regulations pursuant thereto adopted by the General Assembly the Secretary-General of the United Nations is authorised to effect registration of the present convention and to publish it as soon as possible after registration.1

On the basis of United Nations Economic and Social Council Resolution 475, the Secretary-General was requested to hold consultations with States, both members and non-members of the UN Organisation, during 1954 and 1955, as to the desirability of establishing an instrument supplementing the 1926 Slavery Convention. As part of that process, the United Kingdom put forward its 1954 Draft Convention for consideration which included the above provisions at Articles 12 and 13. As these articles related to the procedural aspects of the convention, neither the United Kingdom nor other States felt compelled to comment on their content.2

1

2

Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude Submitted by the Government of the United Kingdom and Comments Thereon (Memorandum by the Secretary-General), UN Doc. E/AC.43/L.1, 2 December 1955, pp. 39–40. Id., p. 9.

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ii. 1956 Draft Supplementary Convention on Slavery and Servitude ARTICLE 12 This Convention shall enter into force on the date on which two States have become Parties thereto and thereafter shall enter into force in respect of each State and territory on the date of deposit of the instrument of ratification or accession of that State.3

On 7 April 1955, the United Nations Economic and Social Council decided, by way of Resolution 564 (XIX), that it was “desirable to prepare a text of a draft supplementary convention which would deal with those practices resembling slavery not covered by the International Slavery Convention of 1926”.4 As a result, the Council appointed a Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, consisting of ten Members of the Council which considered the provisions of the 1954 British Draft Convention.5 With regard to Articles 12 and 13 of the British Draft Convention, these were examined at first reading during the drafting Committee’s sixth meeting, on 18 January 1956: Mr. NIKOLAEV (Union of Soviet Socialist Republics) proposed that article 12 should be amended to provide that the convention should enter into force ‘ . . . in respect of each State and territory on the date of deposit of the instrument of ratification or accession of that State’, the rest of the article, beginning with the words ‘or notification of extension’, being deleted. The CHAIRMAN said that the amendment was the logical consequence of the amendments already submitted by the Soviet Union.

3

4 5

Economic and Social Council, Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, UN Doc. 2824, Annex I, 15 February 1956. See Economic and Social Council, Resolution 564 (XIX), 7 April 1955. Economic and Social Council, Slavery: Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery: Report of the Committee appointed by Resolution 564 (XIX), 7 April 1955, UN Doc. E/2824, 15 February 1956, p. 8.

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Mr. GIRAUD (France) thought that accession by two States was not sufficient to make the convention come into force. As the convention was a general instrument, the number should be increased to five or ten. Mr. NIKOLAEV (Union of Soviet Socialist Republics) did not share that view. A humanitarian convention such as the Committee was drafting should come into force as soon as possible. Hence the number of contracting States required for it entry into force should be set at the minimum. Moreover, there were precedents for such an arrangement, such as the Geneva Convention [read: 1949 Geneva Conventions related to humanitarian law]. Mr. GIRAUD (France) thought that there were no United Nations precedents for fixing at two the number of ratifications and accessions necessary for putting the convention into effect. A general convention, to be really effective, should have a wide range of application. Accordingly, the number should be more than two. The CHAIRMAN, speaking as the Australian representative, proposed that the Committee should ask the Office of Legal Affairs for its views on the point; the solution of the question was a matter of precedent and not principle.6

The President, seeing that discussion regarding draft Article 12 had finished noted that as “no representative had any comment to make on article 13 or 14, he declared the study of the draft in first reading had been concluded”. During the following meeting, Mr. Schrieber, the Deputy Director of the General Legal Division of the United Nations in Geneva was asked by the Chairman to give an opinion on various legal questions which had arisen thus far during the Committee’s deliberations. Where the minimum number of parties was concerned with regard to bringing a treaty into force, Mr. Schrieber had the following to say: The French representative has also criticized the provisions of article 12 whereby the convention was to enter into force on the date on which two States had become parties to it, on the grounds that the usual number of signatures required was much larger. There were few conventions requiring such a small number of accessions to enter into force; he could only cite the Convention concerning the declaration of death of missing persons and a number of protocols of a special character making provision for the assumption by the United Nations of certain responsibilities of the former League of Nations. More often, five or six or even more signatures were

6

Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Sixth Meeting, 18 January 1956 UN Doc. E/AC.43/SR.6, 10 February 1956, p. 7.

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required, the number varying greatly according to the special circumstances of each particular convention.7

As a result of this, the French Representative submitted the following proposed amendment to Article 12, that it should read: “This Convention shall enter into force on the date on which five States have become parties thereto . . . etc.”8 At second reading, during the seventeenth meeting of the drafting Committee, draft Article 13 was adopted unanimously and without comment. As for draft Article 12, it was also considered at the same meeting, the Chairman noting that as a result of changes in the draft Article 10, a proposed USSR amendment “no longer had any point”.9 Thus remained only the draft article itself, with the proposed French amendment. Mr. Nicolaev “said that he had already pointed out that the French amendment weakened the convention by delaying the date of its entry into force, since it made that date dependent on the accession of five States instead of two. He would therefore vote against it”. The discussion continued: Mr. BOZOVIC (Yugoslavia) admitted that a provision whereby only two accessions were required for the convention’s entry into force might have rather strange results; it might well be asked, for example, what action two

7

8

9

Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Seventh Meeting, 19 January 1956, UN Doc. E/AC.43/SR.7, 17 February 1956, p. 6. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, France: amendments to articles 8, 9, 11 and 12 of the Draft Convention on Slavery and Servitude (E/2540/Add.4), UN Doc. E/AC.43/L.17, 18 January 1956. Emphasis in the original. The USSR proposal read in part: 3. Replace the text of Article 10 of the draft convention by the following new text: The provisions of the present convention shall extend or apply equally to the signatory metropolitan State and to all Non-Self-Governing, Trust or colonial territories which the said metropolitan State governs or administers. In consequence of this proposal, delete paragraph (3) of article 11, and in article 12 delete the words ‘or notification of extension to that territory’. See Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Union of Soviet Socialist Republics: amendment to the draft convention on the abolition of slavery and servitude, UN Doc. E/AC.43/L.13, 18 January 1956, paragraph 2.

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States, alone, could take. On the other hand, it was desirable that the convention should come into force as soon as possible because of the psychological effect on other States. That psychological advantage should outweigh any drawbacks the United Kingdom draft might have. He would therefore vote against the French amendment and for the United Kingdom draft. If absolutely necessary, he might be willing to agree that the minimum number of accessions required should be raised to three or four States, but not to five. Mr. GIRAUD (France) cited in support of the procedure he was proposing the precedent of the Convention on Genocide, which provided that twenty ratifications or accessions were required for its entry into force. That procedure would have the additional advantage that it would avoid making the entry into force of the convention contingent upon the accession of States whose participation would give little more than moral support, because slavery did not exist in their territories. Lastly, it was necessary to provide for more than two ratifications or accessions, because certain provisions of the convention, paragraph (c) of article 2 for example [re: visit at sea], could not operate properly unless a certain number of States were parties to the convention. In reply to the USSR representative, who had sharply criticized his proposal, he pointed out that if the Soviet Union wished to bring the convention into force quickly it could do so easily in view of its great influence on several East European countries. Mr. BOZOVIC (Yugoslavia) pointed out that if the second argument invoked by the French representative was correct, it would justify fixing the minimum number of accessions required at an even higher figure. Mr. NIKOLAEV (Union of Soviet Socialist Republics) recalled that the Committee wished the convention to enter into force as quickly as possible, since the time factor was of great psychological importance. From a practical point of view, there was no objection to adopting the system proposed in the United Kingdom text, which has already been used in a number of conventions. The CHAIRMAN, speaking as the representative of Australia, did not think the question had any great practical importance; it mattered little whether there were two States or five. He would abstain in the vote on the French amendment.10

10

Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Seventeenth Meeting, 30 January 1956, UN Doc. E/AC.43/SR.17, 6 March 1956, pp. 15–16.

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The Chairman then called the vote, the French amendment being defeated with three votes for and three votes against, with four abstentions. Draft Article 12 was then put to the vote and adopted unanimously.11 With regard to draft Article 13, at third reading the Secretariat had suggested that the “inclusion of this article in the Convention is not necessary in view of the existing regulation governing registration and publication of treaties under which the Secretary-General registers and publishes all conventions of which he is the depository. The Committee may wish therefore to delete Article 13”.12 When considering this proposal, the Yugoslav Representative, Mr. Bozovic “wanted to know, before making any decision on that paragraph, what had been done in previous conventions”? Mr. Schreiber, the Deputy Director of the General Legal Division, stated that: the practice was not uniform. Some conventions contained a provision similar to the proposed article 13. But many contained no such reference, because under article 4 of the regulations governing the registration of treaties, the registration and publication of all conventions of which the Secretary-General was the depository were compulsory.

To this statement, Mr. Bozovic replied that he would accept the suggestion of the Secretariat to delete Article 13. Mr. Nicolaev added that he too would accept the proposal, as did Mr. Cutts. That suggestion was adopted and draft Article 13 was no more.

iii. 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery ARTICLE 13 1. This Convention shall enter into force on the date on which two States have become Parties thereto.

11 12

Id., p. 16. See Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude, Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices similar to Slavery (Third Reading), Suggestions by the Secretariat, UN Doc. E/AC.43/L.41, 2 February 1956, p. 4.

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2. It shall thereafter enter into force with respect to each State and territory on the date of deposit of the instrument of ratification or accession of that State or notification of application to that territory.13

In April 1956, the Economic and Social Council decided that “a conference of plenipotentiaries should be convened in order to complete the drafting of the Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices similar to Slavery”.14 The United Nations Conference of Plenipotentiaries considered Article 12 of the 1956 Draft Convention at first reading, during its eighteenth meeting: Mr. SCOTT-FOX (United Kingdom) pointed out that, when the article had been discussed in the 1956 ad hoc Committee, no text had at the time been adopted for article 10 [overseas territories], and it had therefore been appropriate to omit any reference to notification of the application of the convention to dependent territories. Article 12 should now be modified in accordance with Article 10 paragraph (b). That could be done either by adding the words ‘or notification of application to that territory’ at the end of the article or by omitting the words ‘and territory’ from the third line. Mr. GIRAUD (France) said that in the 1956 ad hoc Committee in New York he had proposed that article 12 should be amended to read: ‘This Convention shall enter into force on the date on which five States have become parties thereto . . .’. In his opinion a convention like that under discussion could only have appreciable effect if a certain number of States had become parties to it, and for that reason he had thought that the number of States that had ratified should be fixed at five. He would confine himself, however, to reminding the Conference of the amendment he had proposed without formally re-submitting it.

Mr. Jafri, the Pakistani Representative then took the floor saying that he “thought that the additional phrase proposed by the United Kingdom representative was preferable to deleting the words ‘and territory’. With

13

14

United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Final Act and Supplementary Convention, 4 September 1956, UN Doc. E/CONF.24/23. Economic and Social Council, Resolution 608 (XXI), 30 April 1956.

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this, the President called a vote, wherein Article 12, as amended, was adopted by thirty-nine votes to none, with two abstentions.15 At the twenty-third meeting of the United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Article 12 was adopted at second reading without comment by a vote of thirty-one in favour, one against, with nine abstentions.16 At the subsequent meeting – the final meeting of the Conferences – consideration turned to the Report of the Style Committee. That Report, where it concerned Article 12 engendered some discussion. It should be noted that the Style Committee recommended that the provisions of Article 12 should come under a new Article 13 of the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery; this was accepted by the Conference. However, Mr. Nogueira, the Portuguese Representative then “suggested that article 13 be divided into two paragraphs, paragraph 1 reading: ‘This Convention . . . become Parties thereto.’, and paragraph 2: ‘And thereafter . . . to that territory’”.17 This amendment was also accepted by the Conference, thus concluding the drafting of Article 13 of the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery.

15

16

17

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Eighteenth Meeting, 29 August 1956, UN Doc. E/CONF.24/SR.18, 19 November 1958, pp. 6–7. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Twenty-third Meeting, 3 September 1956, UN Doc. E/CONF.24/SR.23, 20 November 1958, p. 3. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Twenty-Fourth Meeting, 4 September 1956, UN Doc. E/CONF.24/SR.24, 20 November 1958, p. 4.

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iv. Commentary on the Provisions of Article 13 of the Supplementary Convention The negotiations which led to the provisions of Article 13 of the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery shows an international system which had yet to come to grips with an emerging regime of international human rights law. Some States had yet to internalise the 1950 advisory opinion of the International Court of Justice, the Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide18 which emphasised the balance in favour universality of membership in human rights instrument being advanced within the United Nations system. Thus, the French Representative to the 1956 drafting Committee “thought that accession by two States was not sufficient to make the convention come into force”. The Deputy Director of General Legal Division of the United Nations, Mr. Schrieber, for his part said that there were few conventions with such a low threshold of State party accessions allowing for the coming into force of an instrument. As a result of what the legal advisor of the United Nations noted, the French Representative, Mr. Giraud, proposed that the convention would come into force when five States had become party. The proposed amendment was opposed however; as the Soviet Representative argued that it would delay the entry into force of the supplementary convention. The proposal was not accepted by the drafting Committee, and although Mr. Giraud mentioned his proposal once more at the negotiation Conference, he did not put forward a formal proposal and thus, the number of States acceding to the Supplementary Convention required to bring it into force remained two.

18

See International Court of Justice, Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, 1950. Note also an advisory opinion of the Inter-American Court of Human Rights some 32 years later: The Effect of Reservations on the Entry into Force of the American Convention on Human Rights (Arts. 74 and 75), Series A No. 2(OC-2/82), 24 September 1982.

Article 14 (Denunciation) 1. The application of this Convention shall be divided into successive periods of three years, of which the first shall begin on the date of entry into force of the Convention in accordance with paragraph I of article 13. 2. Any State Party may denounce this Convention by a notice addressed by that State to the Secretary-General not less than six months before the expiration of the current three-year period. The Secretary-General shall notify all other Parties of each such notice and the date of the receipt thereof. 3. Denunciations shall take effect at the expiration of the current three-year period. 4. In cases where, in accordance with the provisions of article 12, this Convention has become applicable to a non-metropolitan territory of a Party, that Party may at any time thereafter, with the consent of the territory concerned, give notice to the Secretary-General of the United Nations denouncing this Convention separately in respect of that territory. The denunciation shall take effect one year after the date of the receipt of such notice by the SecretaryGeneral, who shall notify all other Parties of such notice and the date of the receipt thereof.

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i. 1954 British Draft Convention ARTICLE 11 (1) Any Contracting State may denounce the present Convention by a written notification addressed by that State to the Secretary-General of the United Nations, who shall notify all other Contracting States of each such notification and the date of the receipt thereof. (2) The denouncement shall take effect one year after the receipt of the notification by the Secretary-General of the United Nations, and shall operate only as regards the State effecting the denunciation. (3) Any Contracting State which has made a declaration under Article 10 of this Convention may, at any time thereafter, by notification to the Secretary-General of the United Nations, declare that, one year after the date of the receipt by the Secretary-General of the aforesaid notification, the Convention shall cease to extend to a territory or territories named in the declaration.1

In the context of a call by the United Nations Economic and Social Council for the UN Secretary-General to consult with Member States as to the desirability of drafting a supplementary convention dealing with slavery, the United Kingdom put forward a draft convention.2 Included in that 1954 British Draft Convention was a denunciation clause at Article 11. In April 1954, the Economic and Social Council requested that States provide comments on the British Draft Convention.3 That request was repeated once more in April 1955, when the Economic and Social Council decided to appoint a drafting committee “for the purpose of preparing a text of a draft supplementary convention”.4 The only com-

1

2

3 4

Economic and Social Council, Slavery: Consultations Concerning the Desirability of a Supplementary Convention on Slavery and its Possible Contents, UN Doc E/2540/Add.4, 12 April 1954, p. 6. See Economic and Social Council, Slavery: Consultations Concerning the Desirability of a Supplementary Convention on Slavery and its Possible Contents, UN Doc E/2540/Add.4, 12 April 1954. Economic and Social Council, Resolution 525 (XVII), 29 April 1954. Economic and Social Council, Resolution 564 (XIX), 7 April 1955.

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ment received was somewhat tangential to draft Article 11 of the 1954 British Draft Convention, as Pakistan had made comments with regard to draft Article 10 (re: overseas territories) which would necessitate the deletion of paragraph 3 of Article 11.5

ii. 1956 Draft Supplementary Convention on Slavery and Servitude ARTICLE 11 1. Any State Party may denounce this Convention by a written notification addressed by that State to the Secretary-General of the United Nations, who shall notify all other Parties of each such notification and the date of the receipt thereof. 2. The denunciation shall take effect one year after the receipt of the notification by the Secretary-General of ’ the United Nations, and shall operate only as regards the State effecting the denunciation. 3. In cases where, in accordance with the provisions of Article 10, this Convention has become applicable to a non-metropolitan territory of a Party, that Party may, at any time thereafter, with the consent of the territory concerned, give notice to the Secretary-General of the United Nations denouncing this Convention separately in respect of that territory. The denunciation shall take effect one year after the date of the receipt of such

5

The Pakistani comments in full read: The Government of Pakistan are of the view that the provisions of the Convention should apply to all non-self-governing and trust territories also. Article 10 may, therefore, be redrafted as follows: The provisions of this Convention shall extend to or be applicable equally to a signatory metropolitan State and to all the territories, be they Non-Self-Governing, Trust, or Colonial Territories, which are being administered or governed by such metropolitan State As a result of the modification suggested above, it will be necessary to omit the clause (3) of article 11 and also the words ‘or when making a notification under article 10’ appearing in the second and third lines article 7. See Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude Submitted by the Government of the United Kingdom and Comments Thereon (Memorandum by the Secretary-General) Addendum, UN Doc E/AC.43/L.1/Add.2, 25 January 1956, p. 2.

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notice by the Secretary-General who shall notify all other Parties of such notice and the date of the receipt thereof.6

The drafting committee, entitled the Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, met in New York in January and February 1956. Consisting of ten members of the Economic and Social Committee, it considered the provisions of Article 11 of the 1954 British Draft Convention at its sixth meeting where, as a result of discussions touching on the overseas territorial clause found in draft Article 10, the Representative of the Soviet Union stated that “he would propose a new text of article 11, deleting paragraph 3”. For his part, the French Representative, Mr. Giraud: noted that the article provided that the convention should remain in force indefinitely, subject to denunciation with one year’s notice. He proposed instead the system adopted for the Convention on Genocide. The Convention would be concluded for a definite period – three or five years – with extensions by tacit reconduction for periods of the same length. The denunciation would take effect at the end of the given period. That system would have the advantage of ensuring stability of contracts by making the denunciation less easy.7

Consideration of Article 11 of the 1954 British Draft Convention was taken up once more on 30 January 1956, at the seventeenth meeting of the drafting Committee. The Chairman noted that as a result of the vote taken on Article 10 related to overseas territories, the provisions of paragraph 3 of draft Article 11 had become moot. The Chairman, Mr. Cutts of Australia, also noted a number of proposed changes to the provisions of Article 11 of the 1954 British Draft Convention. This included an

6

7

Economic and Social Council, Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, UN Doc. 2824, Annex I, 15 February 1956. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Sixth Meeting, 18 January 1956 UN Doc. E/AC.43/SR.6, 10 February 1956, p. 6.

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amendment by the Soviet Union8 and a sub-amendment by the Netherlands,9 which in light of the result of the vote on draft Article 10, “no longer had any point” in the estimation of the President. What remained a live option then, was a proposal by France which reads: Redraft article 11 as follows: 1. This Convention shall have effect for a period of three years from the date on which it enters into force. It shall remain in force thereafter for consecutive periods of three years in respect of Contracting Parties which have not denounced it at least six months prior to the expiration of the current period of three years. Denunciation shall be effected by a written notification addressed to the Secretary-General of the United Nations. 2. If, as a result of denunciation, the number of parties to the Convention is reduced to less than (two), the Convention shall cease to apply on the date on which the last such denunciation comes into effect.10

The relevant part of the Netherlands sub-amendment to the French amendment, for its part, reads:

8

9

10

The Soviet Union’s proposal touched on Article 11, as a result of the wish to amend Article 10 by replacing the text of Article 10 by the following: ‘The provisions of the present convention shall extend or apply equally to the signatory metropolitan State and to all Non-Self-Governing, Trust or colonial territories which the said metropolitan State governs or administers’; and as a consequence, proposed the ‘delete paragraph (3) of article 11’. See Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Union of Soviet Socialist Republics: amendment to the draft convention on the abolition of slavery and servitude, UN Doc. E/AC.43/L.13, 18 January 1956. The Netherlands proposed, inter alia, that ‘After paragaraph 2, insert a third paragraph as originally drafted in document E/AC.43/L.1, page 39, article 11, paragraph 3)’. See Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, PaysBas: Amendment à l’amendement de la France (E/AC.43/L.17) à l’article 11, UN Doc. E/AC.43/L.29, 23 January 1956. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, France: amendments to articles 8, 9, 11 and 12 of the Draft Convention on Slavery and Servitude (E/2540/Add.4), UN Doc. E/AC.43/L.17, 18 January 1956, p. 2.

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1956 United Nations Supplementary Convention

In the first sub-paragraph of paragraph 1, after the words ‘which it’ insert the word ‘first’; and in the third sub-paragraph of the same paragraph, after ‘United Nations’ insert ‘who shall inform each signatory and acceding State’.11

The discussions on the proposed French amendment with its Dutch subamendment started with the French Representative, Mr. Giraud, agreeing to the Netherlands’ sub-amendment. The following are the discussions which took place: Mr. NIKOLAEV (Union of Soviet Socialist Republics) considered the United Kingdom text to be perfectly satisfactory; it provided that the convention would remain in force indefinitely and that denunciation could not take effect until one year after the receipt of notification by the Secretary-General. That was the right solution, since it was impossible to set any term to the struggle against slavery. On the other hand, the French amendment was not acceptable since it would restrict the scope of the convention. He feared public opinion would find it surprising that ten jurists should have met under the United Nations auspices to prepare a convention with a lifetime of only three years. He would therefore vote against the French amendment, because it would weaken the convention. Mr. GIRAUD (France) failed to understand how the USSR representative could accuse him of weakening the convention, when it fact his amendment would have the effect of imposing more extensive obligations on the State parties. As the draft text stood the convention would remain in force indefinitely, but a State might denounce it at any time by giving a year’s notice. In any case, if the number of parties to the convention fell below two, the instrument would not longer be in force. Under the system he proposed, States would not longer be free to terminate their undertaking at any time. The life of the convention was divided into successive periods of three years and, while States might denounce it, such denunciation would take effect only at the end of the current three-year period. Thus the duration of their undertaking was extended, and States could divest themselves of them only by a date which would be the same

11

See Economic and Social Council, Slavery: Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery: Report of the Committee appointed by Resolution 564 (XIX), 7 April 1955, UN Doc E/2824, 15 February 1956, p. 55, which is an English translation of Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Pays-Bas: Amendment à l’amendement de la France (E/AC.43/L.17) à l’article 11, UN Doc. E/AC.43/L.29, 23 January 1956.

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for all. A convention thus renewed every three years was to all intents and purposes of indefinite duration. The Soviet representative had considered the mention of ‘three years’ would have an unfortunate effect, but the Committee must face the facts and not be led astray by appearances. Mr. BOZOVIC (Yugoslavia) said he would have been able to accept the French amendment, if it had been submitted first, because it contributed an element of stability and solidity to the convention. But the original text, which had provided for indefinite duration, had the same practical advantages without the apparent drawbacks. Mr. SCOTT-FOX (United Kingdom) was sure that the French amendment would not have the effect of weakening the text of article 11; he would nevertheless vote against it and would maintain the text submitted by his own delegation which had psychological advantages. The Committee should avoid giving the impression that it wanted to draft a convention for three years only. The usual formula providing for indefinite duration was better. Mr. GIRAUD (France) recalled that there were precedents of the procedure he was proposing: it had been adopted not only by the General Act of Arbitration of 1928, but by the Convention on Genocide, which the Soviet Union had accepted. Mr. NIKOLAEV (Union of Soviet Socialist Republics) pointed out that the Convention on Genocide had been concluded for a period of ten years, whereas the French amendment provided for a period of only three years. In any case, even if a ten-year period were selected for the convention of slavery, he would prefer the original United Kingdom text. The CHAIRMAN, speaking as the representative of Australia, said that he could accept either. He believed that the French amendment, far from weakening the convention, strengthened it and limited the right of denunciation. He would, however, abstain in the vote on that proposal and would support the United Kingdom draft. Mr. SCHIFF (Netherlands) endorsed the Chairman’s opinion of the French amendment. He personally considered it excellent and would vote for it, although he had no objection to the original text.12

A vote was then called on the French amendment, as modified by the Netherlands sub-amendment; the proposal was rejected with equal votes of two for and against being cast, with six abstentions. A vote was then

12

Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Seventeenth Meeting, 30 January 1956, UN Doc. E/AC.43/SR.17, 6 March 1956, pp. 13–15.

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taken on paragraphs 1 and 2 of Article 11 as found in the 1954 Draft Convention: these being adopted unanimously.13 At the nineteenth meeting of the drafting Committee, the Chairman “recalled that, during the discussion of article 11, it had been decided that paragraph 3 was superfluous as the draft convention did not at that moment contain article 10. Having now adopted a new article 10, the Committee would have to reconsider that decision”. And reconsider it did: Mr. BOZOVIC (Yugoslavia) felt that paragraph 3 was necessary but would have to be supplemented by the following provisions: ‘In the case where the previous consent of a non-metropolitan territory is required for application of this convention in respect of that territory, such consent shall be necessary for its denunciation’. Mr. GIRAUD (France) supported that text but, as it raised a question of substance, thought it might be better to put it at the end of article 10. Article 11 dealt solely with the manner in which denunciations were submitted. Mr. SCHREIBER (Secretariat) said that the text of paragraph 3 would have to be slightly amended to bring it into line with the text of the new article 10.14

At this point, the British Representative suggested that the Secretariat be asked to draft a text for consideration. The following text was provided later in the same meeting, having been drafted by the Secretariat “in consultation with the United Kingdom and Yugoslav representatives”: In cases where, in accordance with the provisions of Article 10, the Convention has become applicable to a non-metropolitan Territory of a Contracting Party, that Contracting Party may, at any time thereafter, with the consent of the Territory concerned, give notice to the Secretary-General of the United Nations denouncing this Convention separately in respect of that Territory. The denunciation shall take effect one year after the date of the receipt of such notice by the Secretary-General who shall notify all other Contracting Parties of such notice and the date of the receipt thereof.

13

14

Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Seventeenth Meeting, 30 January 1956, UN Doc. E/AC.43/SR.17, 6 March 1956, p. 15. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Nineteenth Meeting, 2 February 1956, UN Doc. E/AC.43/SR.19, 9 March 1956, p. 10.

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Mr. BROWN (United Kingdom) said that the addition of the words ‘with the consent of the Territory concerned’ seemed logical. It might happen that between the time at which the Convention became applicable to a non-metropolitan Territory, the consent of that Territory being unnecessary, and the time when denunciation was contemplated, a system of consultation with the Territory might have been set up and the latter’s consent would then become necessary. The phrase in question provided for such a case. Mr. ABDEL-GHANI (Egypt) asked whether a similar clause appeared in the Opium Protocol from which the Committee had taken the text of article 10. Mr. SCHREIBER (Secretariat) replied in the negative.15

The Chairman then put the proposed paragraph 3 of Article 11 to a vote, which was adopted by six votes to none, with three abstentions. Mr. Bozovic then asked to take the floor saying that: on principle he ought to vote against the paragraph, but as the Committee had decided to adopt as article 10 a corresponding provision must appear in article 11. He interpreted the text which had just been adopted as meaning that the convention could not be denounced in respect of any non-metropolitan Territory without previous agreement. The CHAIRMAN said that the International Court of Justice would have to interpret that text should the need arise. Mr. BROWN (United Kingdom) said that the United Kingdom delegation had voted in favour of the text ad referendum and reserved its right to take a different position in the Economic and Social Council should any unforeseen difficulties arise. The CHAIRMAN said that the last remark applied to all delegations. Mr. NIKOLAEV (Union of Soviet Socialist Republics) said that he had voted against the text for the reasons which had impelled him to vote against article 10.16

At the twentieth meeting of the Committee, draft Article 11, as amended, was adopted both at first and second reading by a vote of six in favour, none opposed, with four abstentions. At third reading, Mr. Brown suggested that “in any every article where the question arose, the first sentence

15

16

Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Nineteenth Meeting, 2 February 1956, UN Doc. E/AC.43/SR.19, 9 March 1956, p. 14. Id., p. 15.

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should be the ‘State(s) Party(ies)’, with the addition, where necessary, of ‘to this Convention’, while the rest of the article should refer simply to the ‘Parties’”.17 This was accepted. The provisions on denunciation of Article 11, as prepared by the drafting Committee, thus reads: 1. Any State Party may denounce this Convention by a written notification addressed by that State to the Secretary-General of the United Nations, who shall notify all other Parties of each such notification and the date of the receipt thereof. 2. The denunciation shall take effect one year after the receipt of the notification by the Secretary-General of ’ the United Nations, and shall operate only as regards the State effecting the denunciation. 3. In cases where, in accordance with the provisions of Article 10, this Convention has become applicable to a non-metropolitan territory of a Party, that Party may, at any time thereafter, with the consent of the territory concerned, give notice to the Secretary-General of the United Nations denouncing this Convention separately in respect of that territory. The denunciation shall take effect one year after the date of the receipt of such notice by the Secretary-General who shall notify all other Parties of such notice and the date of the receipt thereof.

iii. 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery ARTICLE 14 1. The application of this Convention shall be divided into successive periods of three years, of which the first shall begin on the date of entry into force of the Convention in accordance with paragraph I of article 13. 2. Any State Party may denounce this Convention by a notice addressed by that State to the Secretary-General not less than six months before the expiration of the current three-year period. The Secretary-General shall notify all other Parties of each such notice and the date of the receipt thereof. 3. Denunciations shall take effect at the expiration of the current threeyear period.

17

Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Twentieth Meeting, 6 February 1956, UN Doc. E/AC.43/SR.20, 9 March 1956, pp. 5 and 7.

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4. In cases where, in accordance with the provisions of article 12, this Convention has become applicable to a non-metropolitan territory of a Party, that Party may at any time thereafter, with the consent of the territory concerned, give notice to the Secretary-General of the United Nations denouncing this Convention separately in respect of that territory. The denunciation shall take effect one year after the date of the receipt of such notice by the Secretary-General, who shall notify all other Parties of such notice and the date of the receipt thereof.18

In April 1956, as a result of the work done by the Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, the United Nations Economic and Social Council decided that a conference should “be convened in order to complete the drafting” of a supplementary convention.19 The United Nations Conference of Plenipotentiaries on the Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices similar to Slavery opened on 13 August 1956 and considered the provisions of draft Article 11 at its eighteenth meeting on 29 August 1956; wherein Mr. Giraud, the French Representative introduced his proposed amendment which reads: 1. The application of this Convention shall be divided into consecutive periods of three years, of which the first shall begin on the date of entry into force of the Convention. 2. Any State Party may denounce this Convention by a notice addressed by that State to the Secretary-General not less than six months before the expiration of the current three-year period. The Secretary-General shall notify all other Parties of each such notice and the date of the receipt thereof. 3. Denunciations shall take effect at the expiration of the current threeyear period. 4. In cases where, in accordance with the provisions of article 10, this Convention has become applicable to a non-metropolitan territory of a Party, that Party may at any time thereafter, with the consent of the territory concerned, give notice to the Secretary-General of the United Nations

18

19

United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Final Act and Supplementary Convention, 4 September 1956, UN Doc E/CONF.24/23. Economic and Social Council, Resolution 608 (XXI), 30 April 1956.

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denouncing this Convention separately in respect of that territory. The denunciation shall take effect one year after the date of the receipt of such notice by the Secretary-General, who shall notify all other Parties of such notice and the date of the receipt thereof.20

Mr. Giraud noted that in light of the rather heated discussions which had transpired with regard to draft Article 10, his proposed amendment to draft Article 11 “was very simple and had no political implication, either direct or indirect”. He explained: In its present form article 11 allowed any party to terminate its undertaking with one year’s notice. His amendments had two purposes in view: first, to increase from one year to three the period during which States could not terminate their obligations, and secondly, they set up three year periods, which would be identical for all parties. Thus, for the duration of each period no party would be able to release itself, a provision which would make for greater clarity and stability in the relations between the parties. The obligations established by the convention were not so very onerous and under the elastic terms used in article 1 they were to be applied progressively and only brought into effect as soon as possible. Hence the extension of the period of obligation should not, he thought, give rise to objection. An incident might occur or a dispute arouse sudden passions which might cause governments to take a precipitate decision to denounce the convention. The extension of the period of obligation would necessitate time for reflexion and would so diminish that danger. He submitted to the ad hoc Committee a similar proposal which had obtained two votes against two, with six abstentions. Some members of the Committee had stated that they had abstained because they had not had time to receive instructions. Those against the amendment, which had fixed the duration of the convention at three years renewable by tacit consent for further periods of the same duration, had criticized it on the ground that it weakened the convention because it made it look as if it were a temporary instrument. It the new text allowance was made for that objection. It did not lay down three years for the duration of the convention. It simply divided its life into fixed three-year periods and said: ‘The application of this Convention shall be divided into consecutive periods of three years, of which the first shall begin on the date of entry into force of the Convention.’ He pointed out that when he had drafted his amendment he had not known what text the Conference would finally adopt for article 10. The

20

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, France: Amendment to article 11, UN Doc E/CONF.24/L.20, 22 August 1956.

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fourth paragraph was therefore intended to be regarded as purely provisional. Should it arouse any objections, he would be quite ready to drop it. Mr. JAFRI (Pakistan) said that although his delegation did not doubt the motives of the French amendment he could not agree with the proposal. The adoption of the text might serve to defeat the very objectives that the French representative had in mind. The amendment seemed to be prompted by the feeling that certain States might wish to avoid their obligations under the convention if its operation gave rise to any difficulties and by the consequent wish to prevent such States from denouncing the convention lightly. It should be borne in mind, however, that the responsibility for giving effect to all the articles, even the controversial article 3 [slave trade], was laid entirely on the States parties themselves. In the original text of article 3 some responsibility had been laid on other States and if that text had been retained it might have been advisable to provide for a three-year period before denunciation was possible. As matters stood now, however, there was no longer any advantage in obliging States to accede to the convention if they did so unwillingly. Any State which had rashly adhered to the convention and then decided that it wished to denounce it would certainly be prevented by the amendment from so doing; in that event, however, the convention would become a dead letter in that particular State. It therefore seemed wiser to start from the basic assumption that no State would accede to the convention unless it honestly wished to do so after full deliberation and consideration. If that premise was adopted, the French amendment would be redundant. The very mention of a three-year period gave an unsatisfactory impression of limitation and of suspicion that some States would not do their best to give effect to all the provisions of the Convention. The Pakistan delegation therefore thought it advisable to retain the original article, which was not controversial. Mr. NIKOLAEV (Union of Soviet Socialist Republics) recalled the amendment to the article that had been submitted by the French delegation in the ad hoc Committee. That text (E/AC.43/l.17) had been even stronger than the new amendment. The USSR delegation to the ad hoc Committee had then questioned the advisability of imposing the limitation as the introduction of the idea that after three years a State could reconsider whether it should continue to combat slavery was incompatible with the spirit of the supplementary convention. Such provisions were perfectly suitable to commercial treaties whereby States undertook to supply each other with goods for a limited period and wished to leave the door open for any change in the economic situation; but the position with regard to humanitarian instruments was obviously quite different. The new French amendment was less categorical than the one submitted to the ad hoc Committee in that it did not provide for automatic review of the convention. However, the new text was still restrictive; the purpose of the convention would best be served by the freer provisions of the original article.

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1956 United Nations Supplementary Convention

The simple and time-honoured formula that any State could denounce the convention whenever it wished to do so and that its denunciation would become effective after one year, as stated in the draft article, should give rise to no objection. He could see no reason why temporarily strained relations, to which the French representative had referred, should result in the denunciation of a humanitarian convention by any State. Accordingly, the Soviet delegation would vote for the original text of article 11. Mr. VITANYI (Hungary) thought that the order of articles 11 and 12 should be reversed. It would be more logical of the clause concerning the entry into force of a convention to precede that dealing with its denunciation. Referring to the French amendment, he said that to divide the convention’s application into three-year periods might make the instrument appear ephemeral and precarious. He thought it preferable therefore not to alter the text suggested by the 1956 ad hoc Committee. Mr. NOGUEIRA (Portugal) said that he would vote for the French amendment. Careful study of that text showed that its effect would be to make the convention more lasting and applicable to the greatest number of States. Mr. JURKIEWICZ (Poland), speaking on the original text of article 11, said that his delegation objected to paragraph 3 which provided that a metropolitan State might at any time denounce the convention separately in respect of a dependent territory. According to that provision the initiative for denunciation rested not with the territory but with the metropolitan States, whose only obligation was to obtain the consent of the territory concerned. The paragraph had two disadvantages. In the first place, it was illogical to provide metropolitan States with the opportunity of denouncing the convention in respect of some territories. Secondly, the provision failed to take into account the principle of the autonomy of some dependent territories. If such territories were to be placed on an equal footing with the contracting parties in acceding to or denouncing the convention, the article should provide for the possibility that a territory might wish to withdraw from its obligations under the convention and should set forth the necessary procedure. It should be made clear, however, that such an eventuality would be considered only when the initiative came from the dependent territory and also that the metropolitan State would take all the necessary steps to persuade the territory against denunciation. If its endeavours were unsuccessful the metropolitan State should notify the Secretary-General, attaching the text of the decision of the administrative organ concerned, a report on the steps it had taken and the texts of the constitutional laws enabling the territory to denounce the convention. He would not move that suggestion, which was similar to the Polish amendment to article 10, as a formal proposal, but wished it to serve as a explanation of his request for a separate vote on paragraph 3. His delegation would vote against that paragraph.

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Mr. SCOTT-FOX (United Kingdom) considered that the French amendment had some advantages. That text or the original article would be acceptable to the United Kingdom. Mr. ABDEL-GHANI (Egypt) asked whether the French representative wished to withdraw the last paragraph of his amendment and whether, in that case, paragraph 1, 2 and 3 of the amendment were intended to replace the whole text of the original article, or only the first two paragraphs. Mr. GIRAUD (France) confessed that he entirely failed to grasp the subtleties of the Soviet Union representative’s argument. That representative criticized the French amendment on the ground that it weakened the convention, whereas its effect would be to make denunciation more difficult. The life of an undertaking often hung on a thread. Numerous examples could be cited of denunciations of very important treaties for trifling reasons such as a foreign minister’s wounded vanity. The minister might move a few months or year later but the denunciation would still be effective. The object of the amendment, which aimed not at preventing denunciation but at making it less easy by extending the time-limits, was precisely to obviate drawbacks of the sort. In reply to the Egyptian representative, he said that the purpose of the French proposal was solely to extend the period of notice to three years, so that denunciation would become effective simultaneously at the end of three years. He considered it preferable, however, to retain article 11 provisions matching those of article 10 with regard to non-metropolitan territories: hence his suggested final paragraph. Miss LUNSINGH-MEIJER (Netherlands) said that although her delegation had no grave objections to the original text of article 11 it preferred the French amendment because it provided for greater stability in the relations of the contracting parties. However, the wording of the last part of paragraph 1 was somewhat ambiguous since it was not clear whether the date of entry into force of the convention related to the date of its general entry into force or to the date of the accession of an individual States. Mr. GIRAUD (France) concurred and suggested the addition of the words ‘in accordance with article 12’ at the end of paragraph 1 of his amendment.21

The discussions having ended with regard to draft Article 11, the President, at the request of the Egyptian representative, called for a separate

21

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Eighteenth Meeting, 29 August 1956, UN Doc E/CONF.24/SR.18, 19 November 1958, pp. 2–6.

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vote on paragraph 4 of the French amendment. That vote was in the affirmative, paragraph 4 being adopted twenty-three to one, with eighteen abstentions. Paragraphs 1, 2 and 3 were then voted on and adopted by a margin of twenty in favour, eight opposed, with twelve abstentions. Finally the French amendment to Article 11 as a whole was adopted by twenty votes to two, with nineteen abstentions. At second reading, the Pakistan delegation had prepared the following amendment to Article 11: Rewrite article 11 as follows: ‘1. This Convention shall be subject to ratification by the signatory States. Accession or ratification shall be effected by the deposit of a formal instrument of ratification with the Secretary-General of the United Nations who shall inform all the parties mentioned in article 9. 2. This Convention shall come into operation on the date on which two States have ratified it and thereafter shall enter into force in respect of each State and territory on the date of deposit of the instrument of ratification or accession of that State or notification of application to that territory’.22

Mr. Jafri, the Pakistani Representative introduced his proposed amendment saying that it had “incorporated a reference to the parties mentioned in article 9 in the belief that although the convention would be a contract between the signatories only there would be no harm in drawing it to the attention of States which had not acceded to it.” He went on to say he thought that the provision was beyond the Style Committee, implying that, as a substantive change, it should be considered by the Conference; but he continued saying “his delegation would not insist on the amendment”. With nobody wishing to take the issue further, draft Article 11 without the newly proposed amendment was put to a vote at second reading and adopted forty votes to none, with two abstentions.23

22

23

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Pakistan: Amendments to Article 11, UN Doc E/CONF.24/ L.40, 30 August 1956. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and

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733

At third reading, the Style Committee moved draft Article 11 to become the new provisions of Article 14. Miss Lunsingh-Meijer, the Representative of the Netherlands, said that “her delegation felt that article 14 of the revised text should show clearly that the convention would enter into force immediately when two States acceded to it, and suggested that the words ‘on which the first two States have become parties thereto’ should be substituted for the phrase beginning ‘of entry into force . . .’ in paragraph 1. Mr. Scott Fox suggested that, new Article 14 (1) should read: The application of this Convention shall be divided into successive periods of three years, of which the first shall begin on the date on which the Convention first enters into force according to article 13.

Mr. Nogueira then “suggested that article 13 be divided into two paragraphs, paragraph 1 reading: ‘This Convention . . . become Parties thereto.’, and paragraph 2: ‘And thereafter . . . to that territory’. Article 14 should then be amended to refer to paragraph 1 of article 13”. The President asked if the United Kingdom supported this amendment, which was answered in the affirmative so that Article 14 of Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery agreed to by the 1956 Conference reads: 1. The application of this Convention shall be divided into successive periods of three years, of which the first shall begin on the date of entry into force of the Convention in accordance with paragraph I of article 13. 2. Any State Party may denounce this Convention by a notice addressed by that State to the Secretary-General not less than six months before the expiration of the current three-year period. The Secretary-General shall notify all other Parties of each such notice and the date of the receipt thereof. 3. Denunciations shall take effect at the expiration of the current threeyear period. 4. In cases where, in accordance with the provisions of article 12, this Convention has become applicable to a non-metropolitan territory of a Party, that Party may at any time thereafter, with the consent of the territory concerned, give notice to the Secretary-General of the United Nations denouncing this Convention separately in respect of that territory. The

Practices Similar to Slavery, Summary Record of the Twenty-third Meeting, 3 September 1956, UN Doc E/CONF.24/SR.23, 20 November 1958, p. 43.

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1956 United Nations Supplementary Convention

denunciation shall take effect one year after the date of the receipt of such notice by the Secretary-General, who shall notify all other Parties of such notice and the date of the receipt thereof.

iv. Commentary on the Provisions of Article 14 of the Supplementary Convention While the 1954 British Draft Convention allowed for denunciation to take effect one year after notification, the French Representative on the drafting Committee moved an amendment which would see the Convention function on a three-year cycle wherein denunciations would only take effect at the end of each cycle. The Representative of the Soviet Union, Mr. Nikolaev, was leery of the proposal as he believed it “would restrict the scope of the convention”, not the least because what was being proposed was that the supplementary convention itself would function on threeyear renewable cycles. Mr. Nikolaev “feared public opinion would find it surprising that ten jurists should have met under the United Nations auspices to prepare a convention with a lifetime of only three years”. The proposed amendment was defeated at the stage of the drafting Committee by equal votes of two for and against, with six abstentions. As opposed to his unwillingness to reintroduce a proposed amendment touching on Article 13 (Entry into force) at the stage of the United Nations Conference; the French Representative, Mr. Giraud, did in fact move that his proposal for a three-year cycle for denunciation of the Convention be again considered, this time by the United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery. It should be emphasised that the new proposal of Mr. Giraud omitted the provision that the Convention itself would function on a three-year basis, instead focusing on this period exclusively with regard to denunciation. At the Conference, Mr. Nikolaev, raised few objections, instead saying that he would vote against the proposal as it would prefer the ‘simple and time-honoured formula” which was found in the 1954 British Draft Convention. Mr. Giraud for his part said that he wanted to introduce a time of reflection into the denunciation process as consent to be bound to a treaty “often hung on a thread”:

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Numerous examples could be cited of denunciations of very important treaties for trifling reasons such as a foreign minister’s wounded vanity. The minister might move a few months or year later but the denunciation would still be effective. The object of the amendment, which aimed not at preventing denunciation but at making it less easy be extending the timelimits, was precisely to obviate drawbacks of the sort.

Ultimately, that argument won the day, with the French amendment being accepted; while being brought into line with the agreement reached on Article 12 regarding non-metropolitan territories.

Article 15 (Final Clause) This Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations Secretariat. The Secretary-General shall prepare a certified copy thereof for communication to States Parties to this Convention, as well as to all other States Members of the United Nations and of the specialized agencies. IN WITNESS WHEREOF the undersigned, being duly authorized thereto by their respective Governments, have signed this Convention on the date appearing opposite their respective signatures. DONE at the European Office of the United Nations at Geneva, this seventh day of September one thousand nine hundred and fifty-six.

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i. 1954 British Draft Convention ARTICLE 14 The present Convention, of which the Chinese, English, French, Russian, and Spanish texts are equally authentic, shall be deposited in the Archives of the United Nations Secretariat. The Secretary-General shall prepare a certified copy thereof for communication to States parties to the Convention as well as to all other States members of the United Nations. In witness whereof the undersigned, being duly authorised thereto by their respective Governments, have signed the present Convention on the date appearing opposite their respective signatures. Done in the Headquarters of the United Nations, New York, this . . . . date of . . . . . . . . . . . 19. . . . .1

In April 1953, the United Nations Economic and Social Council requested the Secretary-General “to consult the Governments of all States, both Members and non-members of the United Nations, concerning the desirability of a supplementary convention and its possible contents”.2 In March 1954, the United Kingdom put forward its comments as well as a draft convention meant to supplement the 1926 Slavery Convention.3 One month later, the Economic and Social Council requested States provide comments on the British Draft Convention.4 As draft Article 14 did not touch on any substantive issue, neither the United Kingdom in March 1954, nor other States, in the following months, commented on its content.5

1

2 3

4 5

Economic and Social Council, Slavery: Consultations Concerning the Desirability of a Supplementary Convention on Slavery and its Possible Contents, UN Doc. E/2540/Add.4, 12 April 1954, p. 6. See Economic and Social Council, Resolution 475 (XV), 27 April 1953. See Economic and Social Council, Slavery: Consultations Concerning the Desirability of a Supplementary Convention on Slavery and its Possible Contents, UN Doc. E/2540/ Add.4, 12 April 1954. Economic and Social Council, Resolution 525 (XVII), 29 April 1954. Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude Submitted by the Government of the United Kingdom and Comments Thereon

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1956 United Nations Supplementary Convention

ii. 1956 Draft Supplementary Convention on Slavery and Servitude6 ARTICLE 13 This Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations Secretariat. The Secretary-General shall prepare a certified copy thereof for communication to States Parties to this Convention, as well as to all other States Members of the United Nations. IN WITNESS WHEREOF the undersigned, being duly authorized thereto by their respective Governments, have signed this Convention on the date appearing opposite their respective signatures. Done in the Headquarters of the United Nations, New York,

this . . . . . . . . . . . day of . . . . . . . . . . . 19 . . . . .7

In April 1955, the United Nations Economic and Social Council established an ad hoc Committee of ten of its member “for the purpose of preparing a text of a draft supplementary convention”.8 With regard to Article 14 of the British Draft Convention, throughout the work of the Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, no amendments were made to its substance. Thus for instance, the President noted at first reading that “no representative had any comment to make on article 13 or 14”;9 whereas at second reading Articles 12, 13 and 14 “were read without comment”.10 At the suggestion

6 7

8 9

10

(Memorandum by the Secretary-General), UN Doc. E/AC.43/L.1, 2 December 1955, p. 9. Economic and Social Council, Economic and Social Council, Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, UN Doc. 2824, Annex I, 15 February 1956. See Economic and Social Council, Resolution 564 (XIX), 7 April 1955. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Sixth Meeting, 18 January 1956 UN Doc. E/AC.43/SR.6, 10 February 1956, p. 7. Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Twentieth Meeting, 6 February 1956, UN Doc. E/AC.43/SR.20, 9 March 1956, p. 6.

Article 15 (Final Clause)

739

of the Secretariat, the only change which did take place with regard to Article 14, beyond the obvious cosmetic ones, was to make it draft Article 13 of the Draft Supplementary Convention on Slavery and Servitude.

iii. 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery ARTICLE 15 This Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations Secretariat. The Secretary-General shall prepare a certified copy thereof for communication to States Parties to this Convention, as well as to all other States Members of the United Nations and of the specialized agencies. IN WITNESS WHEREOF the undersigned, being duly authorized thereto by their respective Governments, have signed this Convention on the date appearing opposite their respective signatures. DONE at the European Office of the United Nations at Geneva, this seventh day of September one thousand nine hundred and fifty-six.11

In April 1956, the Economic and Social Council decided that “a conference of plenipotentiaries should be convened in order to complete the drafting of the Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices similar to Slavery”.12 That Conference considered draft Article 13 of the Draft Supplementary Convention for the first time at its eighteenth meeting of 29 August 1956, when the President, Mr. Calderon Puig of Mexico, stated that the last sentence of draft Article 13 should read ‘Done in the European Office of the United Nations, Geneva”. As the Belgium Representative, Mr. Somerhausen,

11

12

United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Final Act and Supplementary Convention, 4 September 1956, UN Doc. E/CONF.24/23. Economic and Social Council, Resolution 608 (XXI), 30 April 1956.

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pointed out, while Article 9 allowed for communication of accession not only to State Members of the United Nations but also of its specialized agencies, Article 13 only required the convention be communicated to State Members of the United Nations. To this, the President suggested that the phrase ‘and of specialized agencies’ be added at the end of paragraph 1.13 This was agreed to and Article 13 was adopted as amended by a vote of forty in favour, none opposed, with one abstention. At second reading, draft Article 13 was adopted without comment by the same vote of forty in favour, none against and one abstention.14 The Style Committee proposed moving draft Article 13 so that it would become Article 15 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery: and the Conference so agreed.

iv. Commentary on the Provisions of Article 15 of the Supplementary Convention Other than the move by the President of the 1956 United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery to adjust the form of Article 15 so that it would reflect the fact that the Conference took place in Geneva, the provisions of Article 15 only elicited comments from the Belgian representative who noted that the phrase ‘and of specialized agencies’ should be added to draft Article 13 to bring it into line with Article 9.

13

14

Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Eighteenth Meeting, 29 August 1956, UN Doc. E/CONF.24/SR.18, 19 November 1958, p. 7. Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Twenty-third Meeting, 3 September 1956, UN Doc. E/CONF.24/SR.23, 20 November 1958, p. 3.

Appendices

1925 British Draft Protocol1 Having considered the report of the Temporary Committee on Slavery; Whereas the signatories of the General Act of the Brussels Conference of 1889–90 declared that they were equally animated by the firm intention of putting an end to the traffic in African slaves; Whereas the signatories of the Convention of Saint Germain-en-Laye of 1919, to revise the General Act of Berlin of 1885 and the General Act and Declaration of Brussels of 1890 affirmed their intention of securing the complete suppression of slavery in all its forms and of the slave trade by land and sea; Desiring to complete and extend the work accomplished under the Brussels Act and to find a means of giving practical effect throughout the world to such intentions as were expressed in regard to slave trade and slavery by the signatories of the Convention of Saint Germain-en-Laye; and Being further of opinion that it is desirable to regulate the employment of forced labour so as to prevent conditions analogous to those of slavery arising therefrom: Decide to open the attached Protocol immediately for signature by all States, and expresses the desire that the greatest possible number of States may adhere thereto as soon as possible. The Assembly further invites the Council to consider whether any additional measures may be practicable for carrying out the purposes of the annexed Protocol and to furnish the Seventh Assembly with a report. A record of the signatures to and ratification of the annexed Protocol will also be placed on the agenda of that Assembly. 1

League of Nations, Journal of the Sixth Assembly of the League of Nations, Geneva 1925, No. 3, 9 September 1925, p. 25.

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1925 Draft Protocol

ARTICLE 1 For the purpose of the present Protocol, the slave trade and slavery are defined as follows: 1) The slave trade consists in the capture or purchase of persons with the object of selling or bartering them as slaves; the sale of persons acquired for this purpose by capture, purchase or barter, together with the transport operation involved by this traffic. 2) Slavery is a status in which one person exercises a right of property over another. ARTICLE 2 The signatory States shall: (a) Suppress all forms of the slave trade; (b) Provide for the eventual emancipation of all slaves in their respective territories, and also for as speedy an elimination of domestic and other slavery as social conditions will allow. ARTICLE 3 The signatory States, recognising the grave evils that may result from the employment of forced labour, except for essential public services, engage that, where it is necessary for special reasons to admit the employment of forced labour, they will take all necessary precautions, particularly where the labourers belong to the less advanced races, to prevent conditions analogous to these of slavery from resulting from such employment. ARTICLE 4 The signatory States undertake to enact legislation, if not already existing, whereby persons subject to their jurisdiction who reduce any person to the state of slavery, or engage in the slave trade, shall be liable to substantial penalties.

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745

ARTICLE 5 The act of conveying slaves on the high seas shall be deemed to be an act of piracy, and the public ships of the signatory States shall have the same rights in relation to vessels and persons engaged in such act as over vessels and persons engaged in piracy. Vessels and slaves captured in accordance with this article shall be brought before the courts of the country whose ship effected the capture and dealt with in accordance with its laws. Persons on board such vessels who are engaged in the act of conveying slaves on the high seas shall be handed over to the authorities of their own country to be brought before its courts. The slaves shall in all cases be set at liberty. ARTICLE 6 The signatory States engage to use their best endeavours to induce all other States to conform to and adopt the principles of this Protocol. ARTICLE 7 Any State signing or acceding to the present Protocol may declare, at the moment either of its signature, ratification, or accession, that its acceptance of Articles 2 and 3 of the present Protocol does not include any or all of its colonies, overseas possessions, protectorates, areas not under direct administration, or overseas territories under its sovereignty or authority, or in respect of which it has accepted a mandate on behalf of the League of Nations, and may subsequently accede on behalf of any such colony, overseas possession, protectorate or territory excluded by such declaration. ARTICLE 8 The present Protocol, which shall remain open for signature by all States, shall be ratified. The ratification shall be deposited with the SecretaryGeneral of the League of Nations, who shall notify such ratifications and such accessions as may be made under Article 7 to the signatory States and to the Members of the League. It shall come into force for each State three months after the date on which its ratification is deposited with the Secretary-General of the League of Nations.

1925 Draft Convention1 Whereas the signatories of the General Act of the Brussels Conference of 1889–90 declared that they were equally animated by the firm intention of putting an end to the traffic in African slaves; Whereas the signatories of the Convention of Saint Germain-en-Laye of 1919, to revise the General Act of Berlin of 1885 and the General Act and Declaration of Brussels of 1890 affirmed their intention of securing the complete suppression of slavery in all its forms and of the slave trade by land and sea; Desiring to complete and extend the work accomplished under the Brussels Act and to find a means of giving practical effect throughout the world to such intentions as were expressed in regard to slave trade and slavery by the signatories of the Convention of Saint Germain-en-Laye, Have decided to conclude a Convention and have accordingly appointed as their Plenipotentiaries: ........................................................................... Who, having communicated their full powers, have agreed as follows: ARTICLE 1 For the purpose of the present Convention, the following definitions are agreed upon:

1

League of Nations, Annex: Draft Convention, League of Nations Official Journal (Special Supplement 33) Records of the Sixth Assembly: Text of Debates, 26 September 1925, p. 439.

Appendices

747

1. 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. [ . . .] 2. The slave trade includes all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging him; all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged, and in general, every action of trade or transport of slaves. ARTICLE 2 The High Contracting Parties undertake, each in respect of the territories placed under its sovereignty, jurisdiction, protection or tutelage, so far as they have not already taken the necessary steps: (a) To prevent and suppress the slave trade; (b) To bring about progressively and as soon as possible the disappearance of slavery in every form, notably in the case of domestic slavery and similar conditions. ARTICLE 3 The High Contracting Parties undertake to adopt all appropriate measures with a view of preventing and suppressing the embarkation, disembarkation and transport of slaves in their territorial waters and upon all vessels flying their respective flags. The High Contracting Parties further recognise the value of separate agreements between the Powers concerned conferring on their warships, in certain zones in which they may consider the existence of traffic in slaves to be a possibility, special rights enabling them to prevent and suppress the said traffic on vessels flying the flag of any of the Powers which are parties to such agreements. The High Contracting Parties undertake to communicate to each other agreements which may be concluded for this purpose.

748

1925 Draft Convention

ARTICLE 4 The High Contracting Parties shall give to one another every assistance with the object of securing the abolition of slavery and the slave trade. ARTICLE 5 Those of the High Contracting Parties whose laws do not at present make adequate provision for the punishment of infractions of laws and regulations enacted with a view to giving effect to the purposes of the present Convention undertake to adopt or to propose for adoption by their respective legislatures the necessary measures in order that severe penalties may be imposed in respect of such infractions. ARTICLE 6 The High Contracting Parties recognise that recourse to compulsory or forced labour may have grave consequences and undertake, each in respect of the territories placed under its sovereignty, jurisdiction, protection or tutelage, to take all necessary measures to prevent conditions analogous to those of slavery from resulting from compulsory or forced labour. It is agreed that: (1) In principle, compulsory and forced labour may be only exacted for public purposes; (2) In territories in which compulsory or forced labour for other than public purposes still survives, the High Contracting Parties shall endeavour progressively and as soon as possible to put an end to the practice. So long as such forced or compulsory labour exists, this labour shall invariably be of an exceptional character, shall always receive adequate remuneration, and shall not involve the removal of the labourers from their usual place of residence. (3) In all cases, the responsibility for any recourse to compulsory or forced labour shall rest with the central authorities of the territories concerned.

Appendices

749

ARTICLE 7 The High Contracting Parties undertake to communicate to each other and to the Secretary-General of the League of Nations any laws and regulations which they may enact with a view to the application of the provisions of the present Convention. ARTICLE 9 Any of the High Contracting Parties may declare that its signature, ratification or adhesion shall not be binding as regard enforcement of the provisions of certain Articles of this Convention either upon the whole or upon any of the territories place under its sovereignty, jurisdiction or protection. Any High Contracting Party which has made such a declaration may subsequently and in conformity with the provisions of Article 10 adhere unreservedly to the present Convention in respect of any of the excluded territories; it shall endeavour to ensure such adhesion with the least possible delay in respect of all the excluded territories. ARTICLE 10 The High Contracting Parties shall make every effort to induce other States to adhere to the present Convention. Such adhesion shall be notified to the Secretary-General of the League of Nations and through him to all the signatory or adherent States. ARTICLE 11 The present Convention, the French and English texts of which shall both be deemed authentic, shall be ratified. It shall bear this day’s date. The instruments of ratification shall be deposited at the office of the Secretary-General of the League of Nations, who shall immediately notify the signatory or adherent Powers of such deposit.

750

1925 Draft Convention

The Convention shall come into force in respect to each signatory Powers three months after the date on which such Power has deposited its ratification.

1926 Slavery Convention1 Whereas the signatories of the General Act of the Brussels Conference of 1889–90 declared that they were equally animated by the firm intention of putting an end to the traffic in African slaves; Whereas the signatories of the Convention of Saint Germain-en-Laye of 1919, to revise the General Act of Berlin of 1885, and the General Act and Declaration of Brussels of 1890, affirmed their intention of securing the complete suppression of slavery in all its forms and of the slave trade by land and sea; Taking into consideration the report of the Temporary Slavery Commission appointed by the Council of the League of Nations on June 12th, 1924; Desiring to complete and extend the work accomplished under the Brussels Act and to find a means of giving practical effect throughout the world to such intentions as were expressed in regard to slave trade and slavery by the signatories of the Convention of Saint Germain-en-Laye, and recognising that it is necessary to conclude to that end more detailed arrangements than are contained in that Convention; Considering, moreover, that it is necessary to prevent forced labour from developing into conditions analogous to slavery, Have decided to conclude a Convention and have accordingly appointed as their Plenipotentiaries:

1

League of Nations, Slavery Convention, Geneva, September 25th, 1926, C.586. M.223.1926.VI, 16 October 1926; as found in Publications of the League of Nations, VI.B.Slavery.1926. VI.B.7.

752

1926 Slavery Convention

The President of the Supreme Council of Albania: Dr. D. Dino, Envoy Extraordinary and Minister Plenipotentiary to His Majesty the King of Italy. The President of the German Reich: Dr. Carl von Schubert, Secretary of the State of Foreign Affairs. The President of the Federal Austrian Republic: M. Enerich von Pflügl, Envoy Extraordinary and Minister Plenipotentiary, representative of the Federal Government accredited to the League of Nations. His Majesty the King of Belgians: M.L. de Brouckère, member of the Senate, first delegate of Belgium to the Seventh Ordinary Session of the Assembly of the League of Nations. His Majesty the King of the United Kingdom of Great Britain and Ireland and of the British Dominions beyond the Seas, Emperor of India: The Right Honorable Viscount Cecil of Chelwood, K.C., Chancellor of the Dutchy of Lancaster. For the Dominion of Canada: The Right Honorable Sir George E. Foster, G.C.M.G., P.C., LL.D., Senator, Member of the King’s Privy Council of Canada. For the Commonwealth of Australia: The Honorable J.G. Latham, C.M.G., K.C., M.P., Attorney-General of the Commonwealth. For the Union of South Africa: Mr. Jacobus Stephanus Smit, High Commissioner of the Union in London. For the Dominion of New Zealand: The Honorable Sir James Parr, K.C.M.G., High Commissioner in London. And for India: Sir William Henry Hoare Vincent, G.C.I.E., K.C.S.I., member of the Council of the Governor-General of India. His Majesty the King of the Bulgarians: M. D. Milkoff, Chargé d’Affaires at Berne, permanent representative of the Bulgarian Government accredited to the League of Nations. The Chief Executive of the Chinese Republic: M. Chao-Hsin Chu, Envoy Extraordinary and Minister Plenipotentiary at Rome. The President of the Republic of Colombia: Dr. Francisco José Urrutia, Envoy Extraordinary and Minister Plenipotentiary to the Swiss Federal Council, representative of Colombia on the Council of the League of Nations. The President of the Republic of Cuba: M. A. de Agüero y Bethancourt, Envoy Extraordinary and Minister Plenipotentiary to the President of the German Reich and to the President of the Austrian Federal Republic. His Majesty the King of Denmark and Iceland: M. Herluf Zahle, Envoy Extraordinary and Minister Plenipotentiary to the President of the German Reich. His Majesty the King of Spain: M. M. Lopez Roberts, Marquis de la Torrehermosa, Envoy Extraordinary and Minister Plenipotentiary to the Swiss Federal Council.

Appendices

753

The President of the Estonian Republic: General Johan Laidoner, Member of Parliament, President of the Committee for the Foreign Affairs and National Defence. Her Majesty the Empress and Queen of the Kings of Abyssinia and his Imperial and Royal Highness the Prince Regent and Heir to the Throne: Debjazmatch Guetatchou, Minister of the Interiror; Lidj Makonnen Endelkatchou, Kentiba Gebrou, Ato Tasfae, Secretary of the Imperial League of Nations Department at Addis-Abeba. The President of the Republic of Finland: M. Rafael W. Erich, Envoy Extraordinary and Minister Plenipotentiary to the Swiss Federal Council, permanent delegate of Finland accredited to the League of Nations. The President of the French Republic: Count B. Clauzel, Minister Plenipotentiary, head of the French League of Nations Department. The President of the Hellenic Republic: M.D. Caclamanos, Envoy Extraordinary and Minister Plenipotentiary, Chargé d’Affaires at Berne, permanent delegate accredited the League of Nations. His Majesty the King of Italy: Professor Vittorio Scialoja, Minister of State, Senator, representative of Italy on the Council of the League of Nations. The President of the Republic of Latvia: M. Charles Duzmans, permanent representative accredited to the League of Nations. The President of the Republic of Liberia: Baron Rodolphe A. Lehmann, Envoy Extraordinary and Minister Plenipotentiary to the President of the French Republic, permanent delegate accredited to the League of Nations. The President of the Republic of Lithuania: M. V. Sidzikauskas, Envoy Extraordinary and Minister Plenipotentiary to the President of the German Reich. His Majesty the King of Norway: Dr. Fridtof Nansen, Professor at the University of Oslo. The President of the Republic of Panamá: Dr. Eusebio A. Moralses, Professor of Law at the Panamá National Faculty, Finance Minister. Her Majesty the Queen of the Netherlands: Jonkheer W.F. van Lennep, Chargé d’Affaires a.i of the Netherlands at Berne. His Majesty the Emperor of Persia: His Highness Prince Arfa, Ambassador, delegate of Persia accredited to the League of Nations. President of the Polish Republic: M. Auguste Zaleski, Minister for Foreign Affairs. President of the Republic of Portugal: Dr. A. de Vasconcellos, Minister Plenipotentiary, in charge of the League of Nations Department at the Ministry of Foreign Affairs. His Majesty the King of Roumania: M.N. Tiulesco, Professor at the University of Bucharest, Envoy Extraordinary and Minister Plenipotentiary to His Britannic Majesty, representative of Roumania on the Council of the League of Nations.

754

1926 Slavery Convention

His Majesty the King of the Serbs, Croats and Slovenes: Dr. M. Jovanovitch, Envoy Extraordinary and Minister Plenipotentiary to the Swiss Federal Council, permanent delegate accredited to the League of Nations. His Majesty the King of Sweden: M. Einar Hennings, Envoy Extraordinary and Minister Plenipotentiary to the Swiss Federal Council. President of the Czechoslovak Republic: M. Ferdinand Veberka, Envoy Extraordinary and Minister Plenipotentiary to the Swiss Federal Council. The President of the Republic of Uruguay: M.B. Fernandez y Medina, Envoy Extraordinary and Minister Plenipotentiary to his Majesty the King of Spain.

Who, having communicated their full powers, have agreed as follows: ARTICLE 1 1. 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. 2. The slave trade includes all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging him; all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged, and, in general, every act of trade or transport in slaves. ARTICLE 2 The High Contracting Parties undertake, each in respect of the territories placed under its sovereignty, jurisdiction, protection, suzerainty or tutelage, so far as they have not already taken the necessary steps: (a) To prevent and suppress the slave trade; (b) To bring about, progressively and as soon as possible, the complete abolition of slavery in all its forms. ARTICLE 3 The High Contracting Parties undertake to adopt all appropriate measures with a view to preventing and suppressing the embarkation, disembarkation and transport of slaves in their territorial waters and upon all vessels flying their respective flags.

Appendices

755

The High Contracting Parties undertake to negotiate as soon as possible a general Convention with regard to the slave trade which will give them rights and impose upon them duties of the same nature as those provided for in the Convention of June 17th, 1925, relative to the International Trade in Arms (Articles 12, 20, 21, 22, 23, 24, and paragraphs 3, 4 and 5 of Section II of Annex II), with the necessary adaptations, it being understood that this general Convention will not place the ships (even of small tonnage) of any High Contracting Parties in a position different from that of the other High Contracting Parties. It is also understood that, before or after the coming into force of this general Convention the High Contracting Parties are entirely free to conclude between themselves, without, however, derogating from the principles laid down in the preceding paragraph, such special agreements as, by reason of their peculiar situation, might appear to be suitable in order to bring about as soon as possible the complete disappearance of the slave trade. ARTICLE 4 The High Contracting Parties shall give to one another every assistance with the object of securing the abolition of slavery and the slave trade. ARTICLE 5 The High Contracting Parties recognise that recourse to compulsory or forced labour may have grave consequences and undertake, each in respect of the territories placed under its sovereignty, jurisdiction, protection, suzerainty or tutelage, to take all necessary measures to prevent compulsory or forced labour from developing into conditions analogous to slavery. It is agreed that: (1) Subject to the transitional provisions laid down in paragraph (2) below, compulsory or forced labour may only be exacted for public purposes. (2) In territories in which compulsory or forced labour for other than public purposes still survives, the High Contracting Parties shall

756

1926 Slavery Convention

endeavour progressively and as soon as possible to put an end to the practice. So long as such forced or compulsory labour exists, this labour shall invariably be of an exceptional character, shall always receive adequate remuneration, and shall not involve the removal of the labourers from their usual place of residence. (3) In all cases, the responsibility for any recourse to compulsory or forced labour shall rest with the competent central authorities of the territory concerned. ARTICLE 6 Those of the High Contracting Parties whose laws do not at present make adequate provision for the punishment of infractions of laws and regulations enacted with a view to giving effect to the purposes of the present Convention undertake to adopt the necessary measures in order that severe penalties may be imposed in respect of such infractions. ARTICLE 7 The High Contracting Parties undertake to communicate to each other and to the Secretary-General of the League of Nations any laws and regulations which they may enact with a view to the application of the provisions of the present Convention. ARTICLE 8 The High Contracting Parties agree that disputes arising between them relating to the interpretation or application of this Convention shall, if they cannot be settled by direct negotiation, be referred for decision to the Permanent Court of International Justice. In case either or both of the States Parties to such a dispute should not be parties to the Protocol of December 16th, 1920 relating to the Permanent Court of International Justice, the dispute shall be referred, at the choice of the Parties and in accordance with the constitutional procedure of each State either to the Permanent Court of International Justice or to a court of arbitration constituted in accordance with the Convention of October 18th, 1907, for the Pacific Settlement of International Disputes, or to some other court of arbitration.

Appendices

757

ARTICLE 9 At the time of signature or of ratification or of accession, any High Contracting Party may declare that its acceptance of the present Convention does not bind some or all of the territories placed under its sovereignty, jurisdiction, protection, suzerainty or tutelage in respect of all or any provisions of the Convention; it may subsequently accede separately on behalf of any one of them or in respect of any provision to which any one of them is not a party. ARTICLE 10 In the event of a High Contracting Party wishing to denounce the present Convention, the denunciation shall be notified in writing to the SecretaryGeneral of the League of Nations, who will at once communicate a certified true copy of the notification to all the other High Contracting Parties, informing them of the date on which it was received. The denunciation shall only have effect in regard to the notifying State, and one year after the notification has reached the Secretary-General of the League of Nations. Denunciation may also be made separately in respect of any territory placed under its sovereignty, jurisdiction, protection, suzerainty or tutelage. ARTICLE 11 The present Convention, which will bear this day’s date and of which the French and English texts are both authentic, will remain open for signature by the States Members of the League of Nations until April 1st, 1927. The Secretary-General of the League of Nations will subsequently bring the present Convention to the notice of States which have not signed it, including States which are not Members of the League of Nations, and invite them to accede thereto. A State desiring to accede to the Convention shall notify its intention in writing to the Secretary-General of the League of Nations and transmit to

758

1926 Slavery Convention

him the instrument of accession, which shall be deposited in the archives of the League. The Secretary-General shall immediately transmit to all the other High Contracting Parties a certified true copy of the notification and of the instrument of accession, informing them of the date on which he received them. ARTICLE 12 The present Convention will be ratified and the instruments of ratification shall be deposited in the office of the Secretary-General of the League of Nations. The Secretary-General will inform all the High Contracting Parties of such deposit. The Convention will come into operation for each State on the date of the deposit of its ratification or of its accession. In faith whereof the Plenipotentiaries have signed the present Convention. DONE at Geneva the twenty-fifth day of September, one thousand nine hundred and twenty-six, in one copy, which will be deposited in the archives of the League of Nations. A certified copy shall be forwarded to each signatory State.

Protocol Amending the Slavery Convention Signed At Geneva on 25 September 1926; December 7, 19531 The States Parties to the present Protocol, Considering that under the Slavery Convention signed at Geneva on 25 September 1926 (hereinafter called “the Convention”) the League of Nations was invested with certain duties and functions, and Considering that it is expedient that these duties and functions should be continued by the United Nations, Have agreed as follows: Article I The States Parties to the present Protocol undertake that as between them selves they will, in accordance with the provisions of the Protocol, attribute full legal force and effect to and duly apply the amendments to the Convention set forth in the annex to the Protocol. Article II 1. The present Protocol shall be open for signature or acceptance by any of the States Parties to the Convention to which the Secretary-General has communicated for this purpose a copy of the Protocol. 2. States may become Parties to the present Protocol by:

1

See United Nations General Assembly, Resolution 794 (VIII), ‘Transfer to the United Nations of functions and powers exercised by the League of Nations under the Slavery Convention of 25 September 1926’, 23 October 1953.

760

1953 Protocol

(a) Signature without reservation as to acceptance; (b) Signature with reservation as to acceptance, followed by acceptance; (c) Acceptance. 3. Acceptance shall be effected by the deposit of a formal instrument with the Secretary-General of the United Nations. Article III 1. The present Protocol shall come into force on the date on which two States shall have become Parties thereto, and shall thereafter come into force in respect of each State upon the date on which it becomes a Party to the Protocol. 2. The amendments set forth in the annex to the present Protocol shall come into force when twenty-three States shall have become Parties to the Protocol, and consequently any State becoming a Party to the Convention, after the amendments thereto have come into force, shall become a Party to the Convention as so amended. Article IV In accordance with paragraph 1 of Article 102 of the Charter of the United Nations and the regulations pursuant thereto adopted by the General Assembly, the Secretary-General of the United Nations is authorized to effect registration of the present Protocol and of the amendments made in the Convention by the Protocol on the respective dates of their entry into force and to publish the Protocol and the amended text of the Convention as soon as possible after registration. Article V The present Protocol, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations Secretariat. The texts of the Convention to be amended in accordance with the annex being authentic in the English and French languages only, the English and French texts of the annex

Appendices

761

shall be equally authentic, and the Chinese, Russian and Spanish texts shall be translations. The Secretary-General shall prepare certified copies of the Protocol, including the annex, for communication to States Parties to the Convention, as well as to all other States Members of the United Nations. He shall likewise prepare for communication to States, including States not Members of the United Nations, upon the entry into force of the amendments as provided in article III, certified copies of the Convention as so amended. IN WITNESS WHEREOF the undersigned, being duly authorized thereto by their respective Governments, signed the present Protocol on the date appearing opposite their respective signatures. DONE at the Headquarters of the United Nations, New York, this seventh day of December one thousand nine hundred and fifty-three. ANNEX TO THE PROTOCOL AMENDING THE SLAVERY CONVENTION SIGNED AT GENEVA ON 25 SEPTEMBER 1926 In article 7 “the Secretary-General of the United Nations” shall be substituted for “the Secretary-General of the League of Nations”. In article 8 “the International Court of Justice” shall be substituted for “the Permanent Court of International Justice”, and “the Statute of the International Court of Justice” shall be substituted for “the Protocol of December 16th, 1920, relating to the Permanent Court of International Justice”. In the first and second paragraphs of article 10 “the United Nations” shall be substituted for “the League of Nations”. The last three paragraphs of article 11 shall be deleted and the following substituted: “The present Convention shall be open to accession by all States, including States which are not Members of the United Nations, to which the Secretary-General of the United Nations shall have communicated a certified copy of the Convention.

762

1953 Protocol

“Accession shall be effected by the deposit of a formal instrument with the Secretary-General of the United Nations, who shall give notice thereof to all States Parties to the Convention and to all other States contemplated in the present article, informing them of the date on which each such instrument of accession was received in deposit.” In article 12 “the United Nations” shall be substituted for “the League of Nations”.

Slavery Convention, signed in Geneva on 25 September 1926 and amended by the Protocol open for signature or acceptance at the Headquarters of the United Nations, New York, on 7 December 19531 Whereas the signatories of the General Act of the Brussels Conference of 1889–90 declared that they were equally animated by the firm intention of putting an end to the traffic in African slaves; Whereas the signatories of the Convention of Saint Germain-en-Laye of 1919, to revise the General Act of Berlin of 1885, and the General Act and Declaration of Brussels of 1890, affirmed their intention of securing the complete suppression of slavery in all its forms and of the slave trade by land and sea; Taking into consideration the report of the Temporary Slavery Commission appointed by the Council of the League of Nations on June 12th, 1924; Desiring to complete and extend the work accomplished under the Brussels Act and to find a means of giving practical effect throughout the world to such intentions as were expressed in regard to slave trade and slavery by the signatories of the Convention of Saint Germain-en-Laye, and recognising that it is necessary to conclude to that end more detailed arrangements than are contained in that Convention; Considering, moreover, that it is necessary to prevent forced labour from developing into conditions analogous to slavery,

1

See United Nations, United Nations Treaty Series, Volume 212, Number 2861.

764

1926 Slavery Convention as amended (1955)

Have decided to conclude a Convention and have accordingly appointed as their Plenipotentiaries: The President of the Supreme Council of Albania: Dr. D. Dino, Envoy Extraordinary and Minister Plenipotentiary to His Majesty the King of Italy. The President of the German Reich: Dr. Carl von Schubert, Secretary of the State of Foreign Affairs. The President of the Federal Austrian Republic: M. Enerich von Pflügl, Envoy Extraordinary and Minister Plenipotentiary, representative of the Federal Government accredited to the League of Nations. His Majesty the King of Belgians: M.L. de Brouckère, member of the Senate, first delegate of Belgium to the Seventh Ordinary Session of the Assembly of the League of Nations. His Majesty the King of the United Kingdom of Great Britain and Ireland and of the British Dominions beyond the Seas, Emperor of India: The Right Honorable Viscount Cecil of Chelwood, K.C., Chancellor of the Dutchy of Lancaster. For the Dominion of Canada: The Right Honorable Sir George E. Foster, G.C.M.G., P.C., LL.D., Senator, Member of the King’s Privy Council of Canada. For the Commonwealth of Australia: The Honorable J.G. Latham, C.M.G., K.C., M.P., Attorney-General of the Commonwealth. For the Union of South Africa: Mr. Jacobus Stephanus Smit, High Commissioner of the Union in London. For the Dominion of New Zealand: The Honorable Sir James Parr, K.C.M.G., High Commissioner in London. And for India: Sir William Henry Hoare Vincent, G.C.I.E., K.C.S.I., member of the Council of the Governor-General of India. His Majesty the King of the Bulgarians: M.D. Milkoff, Chargé d’Affaires at Berne, permanent representative of the Bulgarian Government accredited to the League of Nations. The Chief Executive of the Chinese Republic: M. Chao-Hsin Chu, Envoy Extraordinary and Minister Plenipotentiary at Rome. The President of the Republic of Colombia: Dr. Francisco José Urrutia, Envoy Extraordinary and Minister Plenipotentiary to the Swiss Federal Council, representative of Colombia on the Council of the League of Nations. The President of the Republic of Cuba: M.A. de Agüero y Bethancourt, Envoy Extraordinary and Minister Plenipotentiary to the President of the German Reich and to the President of the Austrian Federal Republic. His Majesty the King of Denmark and Iceland: M. Herluf Zahle, Envoy Extraordinary and Minister Plenipotentiary to the President of the German Reich.

Appendices

765

His Majesty the King of Spain: M.M. Lopez Roberts, Marquis de la Torrehermosa, Envoy Extraordinary and Minister Plenipotentiary to the Swiss Federal Council. The President of the Estonian Republic: General Johan Laidoner, Member of Parliament, President of the Committee for the Foreign Affairs and National Defence. Her Majesty the Empress and Queen of the Kings of Abyssinia and his Imperial and Royal Highness the Prince Regent and Heir to the Throne: Debjazmatch Guetatchou, Minister of the Interiror; Lidj Makonnen Endelkatchou, Kentiba Gebrou, Ato Tasfae, Secretary of the Imperial League of Nations Department at Addis-Abeba. The President of the Republic of Finland: M. Rafael W. Erich, Envoy Extraordinary and Minister Plenipotentiary to the Swiss Federal Council, permanent delegate of Finland accredited to the League of Nations. The President of the French Republic: Count B. Clauzel, Minister Plenipotentiary, head of the French League of Nations Department. The President of the Hellenic Republic: M.D. Caclamanos, Envoy Extraordinary and Minister Plenipotentiary, Chargé d’Affaires at Berne, permanent delegate accredited the League of Nations. His Majesty the King of Italy: Professor Vittorio Scialoja, Minister of State, Senator, representative of Italy on the Council of the League of Nations. The President of the Republic of Latvia: M. Charles Duzmans, permanent representative accredited to the League of Nations. The President of the Republic of Liberia: Baron Rodolphe A. Lehmann, Envoy Extraordinary and Minister Plenipotentiary to the President of the French Republic, permanent delegate accredited to the League of Nations. The President of the Republic of Lithuania: M.V. Sidzikauskas, Envoy Extraordinary and Minister Plenipotentiary to the President of the German Reich. His Majesty the King of Norway: Dr. Fridtof Nansen, Professor at the University of Oslo. The President of the Republic of Panamá: Dr. Eusebio A. Moralses, Professor of Law at the Panamá National Faculty, Finance Minister. Her Majesty the Queen of the Netherlands: Jonkheer W.F. van Lennep, Chargé d’Affaires a.i of the Netherlands at Berne. His Majesty the Emperor of Persia: His Highness Prince Arfa, Ambassador, delegate of Persia accredited to the League of Nations. President of the Polish Republic: M. Auguste Zaleski, Minister for Foreign Affairs. President of the Republic of Portugal: Dr. A. de Vasconcellos, Minister Plenipotentiary, in charge of the League of Nations Department at the Ministry of Foreign Affairs. His Majesty the King of Roumania: M.N. Tiulesco, Professor at the University of Bucharest, Envoy Extraordinary and Minister Plenipotentiary

766

1926 Slavery Convention as amended (1955)

to His Britannic Majesty, representative of Roumania on the Council of the League of Nations. His Majesty the King of the Serbs, Croats and Slovenes: Dr. M. Jovanovitch, Envoy Extraordinary and Minister Plenipotentiary to the Swiss Federal Council, permanent delegate accredited to the League of Nations. His Majesty the King of Sweden: M. Einar Hennings, Envoy Extraordinary and Minister Plenipotentiary to the Swiss Federal Council. President of the Czechoslovak Republic: M. Ferdinand Veberka, Envoy Extraordinary and Minister Plenipotentiary to the Swiss Federal Council. The President of the Republic of Uruguay: M.B. Fernandez y Medina, Envoy Extraordinary and Minister Plenipotentiary to his Majesty the King of Spain

Who, having communicated their full powers, have agreed as follows: ARTICLE 1 1. 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. 2. The slave trade includes all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging him; all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged, and, in general, every act of trade or transport in slaves. ARTICLE 2 The High Contracting Parties undertake, each in respect of the territories placed under its sovereignty, jurisdiction, protection, suzerainty or tutelage, so far as they have not already taken the necessary steps: (a) To prevent and suppress the slave trade; (b) To bring about, progressively and as soon as possible, the complete abolition of slavery in all its forms. ARTICLE 3 The High Contracting Parties undertake to adopt all appropriate measures with a view to preventing and suppressing the embarkation, disembarkation

Appendices

767

and transport of slaves in their territorial waters and upon all vessels flying their respective flags. The High Contracting Parties undertake to negotiate as soon as possible a general Convention with regard to the slave trade which will give them rights and impose upon them duties of the same nature as those provided for in the Convention of June 17th, 1925, relative to the International Trade in Arms (Articles 12, 20, 21, 22, 23, 24, and paragraphs 3, 4 and 5 of Section II of Annex II), with the necessary adaptations, it being understood that this general Convention will not place the ships (even of small tonnage) of any High Contracting Parties in a position different from that of the other High Contracting Parties. It is also understood that, before or after the coming into force of this general Convention the High Contracting Parties are entirely free to conclude between themselves, without, however, derogating from the principles laid down in the preceding paragraph, such special agreements as, by reason of their peculiar situation, might appear to be suitable in order to bring about as soon as possible the complete disappearance of the slave trade. ARTICLE 4 The High Contracting Parties shall give to one another every assistance with the object of securing the abolition of slavery and the slave trade.2 ARTICLE 5 The High Contracting Parties recognise that recourse to compulsory or forced labour may have grave consequences and undertake, each in respect of the territories placed under its sovereignty, jurisdiction, protection, suzerainty or tutelage, to take all necessary measures to prevent compulsory or forced labour from developing into conditions analogous to slavery.

2

League of Nations, Annex: Draft Convention, League of Nations Official Journal (Special Supplement 33) Records of the Sixth Assembly: Text of Debates, 26 September 1925, p. 439.

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1926 Slavery Convention as amended (1955)

It is agreed that: (1) Subject to the transitional provisions laid down in paragraph (2) below, compulsory or forced labour may only be exacted for public purposes. (2) In territories in which compulsory or forced labour for other than public purposes still survives, the High Contracting Parties shall endeavour progressively and as soon as possible to put an end to the practice. So long as such forced or compulsory labour exists, this labour shall invariably be of an exceptional character, shall always receive adequate remuneration, and shall not involve the removal of the labourers from their usual place of residence. (3) In all cases, the responsibility for any recourse to compulsory or forced labour shall rest with the competent central authorities of the territory concerned. ARTICLE 6 Those of the High Contracting Parties whose laws do not at present make adequate provision for the punishment of infractions of laws and regulations enacted with a view to giving effect to the purposes of the present Convention undertake to adopt the necessary measures in order that severe penalties may be imposed in respect of such infractions. ARTICLE 7 The High Contracting Parties undertake to communicate to each other and to the Secretary-General of the League of Nations any laws and regulations which they may enact with a view to the application of the provisions of the present Convention. ARTICLE 8 The High Contracting Parties agree that disputes arising between them relating to the interpretation or application of this Convention shall, if they cannot be settled by direct negotiation, be referred for decision to the International Court of Justice. In case either or both of the States Parties to such a dispute should not be parties to the Statute of the

Appendices

769

International Court of Justice the dispute shall be referred, at the choice of the Parties and in accordance with the constitutional procedure of each State either to the International Court of Justice or to a court of arbitration constituted in accordance with the Convention of October 18th, 1907, for the Pacific Settlement of International Disputes, or to some other court of arbitration. ARTICLE 9 At the time of signature or of ratification or of accession, any High Contracting Party may declare that its acceptance of the present Convention does not bind some or all of the territories placed under its sovereignty, jurisdiction, protection, suzerainty or tutelage in respect of all or any provisions of the Convention; it may subsequently accede separately on behalf of any one of them or in respect of any provision to which any one of them is not a party. ARTICLE 10 In the event of a High Contracting Party wishing to denounce the present Convention, the denunciation shall be notified in writing to the SecretaryGeneral of the United Nations, who will at once communicate a certified true copy of the notification to all the other High Contracting Parties, informing them of the date on which it was received. The denunciation shall only have effect in regard to the notifying State, and one year after the notification has reached the Secretary-General of the United Nations. Denunciation may also be made separately in respect of any territory placed under its sovereignty, jurisdiction, protection, suzerainty or tutelage. ARTICLE 11 The present Convention, which will bear this day’s date and of which the French and English texts are both authentic, will remain open for signature by the States Members of the League of Nations until April 1st, 1927.

770

1926 Slavery Convention as amended (1955)

The present Convention shall be open to accession by all States, including States which are not Members of the United Nations, to which the Secretary-General of the United Nations shall have communicated a certified copy of the Convention. “Accession shall be effected by the deposit of a formal instrument with the Secretary-General of the United Nations, who shall give notice thereof to all States Parties to the Convention and to all other States contemplated in the present article, informing them of the date on which each such instrument of accession was received in deposit. ARTICLE 12 The present Convention will be ratified and the instruments of ratification shall be deposited in the office of the Secretary-General of the United Nations. The Secretary-General will inform all the High Contracting Parties of such deposit. The Convention will come into operation for each State on the date of the deposit of its ratification or of its accession. In faith whereof the Plenipotentiaries have signed the present Convention. DONE at Geneva the twenty-fifth day of September, one thousand nine hundred and twenty-six, in one copy, which will be deposited in the archives of the United Nations. A certified copy shall be forwarded to each signatory State.

1954 British Draft Convention1 THE DRAFT SUPPLEMENTARY CONVENTION ON SLAVERY AND SERVITUDE The States signatories of the present Convention, Considering that article 4 of the Universal Declaration of Human Rights proclaims as one of the aims of the United Nations that no one shall be held in slavery or servitude, Recognizing that the International Convention with the Object of Securing the Abolition of Slavery and the Slave Trade signed in Geneva on September 25, 1926 represented the widest undertaking upon which agreement could be reached at that time, Considering that further progress has been made towards elimination of slavery and practices of a similar nature from the world, Believing that the provisions of the aforementioned Convention of 1926, which remains fully operative and the custody of which by the Secretary-General of the United Nations has been confirmed in a Protocol dated December 7, 1953, can now appropriately be augmented by the conclusions of a supplementary convention, Have agreed as follows:

1

Economic and Social Council, Slavery: Consultations Concerning the Desirability of a Supplementary Convention on Slavery and its Possible Contents, UN Doc E/2540/Add.4, 12 April 1954.

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1954 Draft Convention

ARTICLE 1 All practicable and necessary measures, including legislation where appropriate, shall be taken to bring about, progressively and as soon as possible, the complete abolition or abandonment of the following institutions and practices, where they still exist: (a) debt bondage, i.e., the status or condition arising from a pledge by a debtor of his personal services or those of a third person under his control as a security for a debt where the value of those services rendered is not applied towards the liquidation of the debt and the person pledged has to serve the creditor until the debt is repaid. (b) serfdom, i.e., the servile hereditary tenure of land whereby the tenant is by law, custom and agreement bound to live and labour on land belonging to another person and render some determinate service to his landlord whether for reward or not and is not free to change his status. (c) any institution or practice whereby: (i) a women, without the right to refuse, is given in marriage on payment or a consideration in money or in kind to her parents, guardian, family or clan; or (ii) the husband of a woman, his family or his clan has the right to transfer her in his lifetime to another person for value received; or (iii) the woman on the death of her husband is liable to be inherited by his heir-at-law. (d) any institution or practice whereby a child or young person is delivered by either or both his natural parents or his guardian to another person, whether for reward or note, under conditions which permit that person to exploit the child or young person or his or her labour; except that this Article shall not be construed so as to prohibit or hinder bona fide adoptions intended to promote the welfare of children or young persons.

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ARTICLE 2 (a) The act of conveying slaves on the high seas or slave raiding shall be deemed to be an act of piracy, and subject to appropriate penalties. (b) Public vessels under the control of parties to this Convention shall have the same rights in relation to vessels or persons engaged in such act as they have in relation to vessels and persons engaged in acts of piracy. (c) All slaves so captured shall be set at liberty. ARTICLE 3 In a country where the abolition of servile status is not yet complete, any person who mutilates, brands or otherwise marks another person to indicate that status, and any person accessory to such an act, shall be guilty of a criminal offence and liable to punishment. ARTICLE 4 Any person shall be guilty of a criminal offence and liable to punishment who attempts, or is an accessory to an attempt, or takes part in a conspiracy, to enslave another person or to induce another person to give himself, or a person dependent upon his, into slavery or any other form of servitude. ARTICLE 5 With a view to bringing to an end the institutions and practices mentioned in Article 1(c) of this Convention the Contracting Parties undertake to prescribe where appropriate a minimum age of consent in marriage and to encourage the use of facilities whereby the consent of both parties to a marriage may be freely expressed in the presence of a recognised marriage officer who shall register such marriage. ARTICLE 6 The contracting parties undertake to co-operate with each other to give effect to the forgoing provisions, and to communicate to each

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1954 Draft Convention

other through the Secretary-General of the United Nations copies of any laws and regulations enacted to implement the provisions of this Convention. ARTICLE 7 Any State may when signing this Convention or when depositing its instrument of ratification or accession, or when making a modification under Article 10, make a reservation in respect to any particular provision of the Convention to the extent that any law then in force in its territory or territories is not in conformity with the provisions thereof. Reservations of a general character shall not be permitted. Any reservation made under this Article shall contain a brief statement of the law concerned. ARTICLE 8 (1) Any question or dispute concerning the interpretation or application of this Convention which arises between Contracting States both or all of which are parties to the Statute of the International Court of Justice shall be referred to the International Court of Justice, unless in any specific case it is agreed by the parties to have recourse to another mode of settlement. (2) If the Contracting States between which a dispute has arisen are not parties, or any one of them is not a party, to the Statute of the International Court of Justice, the dispute shall, if the State concerned so desires, be submitted, in accordance with the constitutional rules of each of them, to an arbitral tribunal established in conformity with the Convention for the Pacific Settlement of International Disputes signed at The Hague on October 18, 1907, or to any other arbitral tribunal. ARTICLE 9 This Convention shall be open for signature by any State whether or not a member of the United Nations until [date]. It shall be ratified. Ratification shall be effected be deposited of a formal instrument with the Secretary-General of the United Nations who shall inform each signatory and acceding State.

Appendices

775

After [same date] this Convention shall be open to accession by any State whether or not a member of the United Nations. Accession shall be effected by the deposit of a formal instrument with the Secretary-General of the United Nations who shall inform each signatory and acceding State. ARTICLE 10 Any State may at the time of its ratification or accession or at any time thereafter declare by notification addressed to the Secretary-General of the United Nations that the present Convention shall extend to all or any of the territories for whose international relations it is responsible. The Secretary-General shall inform the other signatory and acceding States. ARTICLE 11 (1) Any Contracting State may denounce the present Convention by a written notification addressed by that State to the Secretary-General of the United Nations, who shall notify all other Contracting States of each such notification and the date of the receipt thereof. (2) The denouncement shall take effect one year after the receipt of the notification by the Secretary-General of the United Nations, and shall operate only as regards the State effecting the denunciation. (3) Any Contracting State which has made a declaration under Article 10 of this Convention may, at any time thereafter, by notification to the Secretary-General of the United Nations, declare that, one year after the date of the receipt by the Secretary-General of the aforesaid notification, the Convention shall cease to extend to a territory or territories named in the declaration. ARTICLE 12 This Convention shall enter into force on the date on which two States have become parties thereto and thereafter shall enter into force in respect to each State and territory on the date of deposit of the instrument of ratification or accession of that State or notification of extension to that territory.

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ARTICLE 13 In accordance with paragraph 1 of Article 102 of the Charter of the United Nations and regulations pursuant thereto adopted by the General Assembly the Secretary-General of the United Nations is authorised to effect registration of the present convention and to publish it as soon as possible after registration. ARTICLE 14 The present Convention, of which the Chinese, English, French, Russian, and Spanish texts are equally authentic, shall be deposited in the Archives of the United Nations Secretariat. The Secretary-General shall prepare a certified copy thereof for communication to States parties to the Convention as well as to all other States members of the United Nations. In witness whereof the undersigned, being duly authorised thereto by their respective Governments, have signed the present Convention on the date appearing opposite their respective signatures. Done in the Headquarters of the United Nations, New York, this . . . . . . . . . . . . . date of . . . . . . . . . . . 19 . . . . .

1956 Draft Supplementary Convention on Slavery and Servitude1 PREAMBLE The States Parties to the present Convention, Mindful that the peoples of the United Nations reaffirmed in the Charter their faith in the dignity and worth of the human person; Considering that the Universal Declaration of Human Rights, proclaimed by the General Assembly of the United Nations as a common standard of achievement for all peoples and all nations, states that no one shall be held in slavery or servitude and that slavery and the slave trade shall be prohibited in all their forms; Recognizing that, since the conclusion of the Slavery Convention signed at Geneva on the 25th of September 1926, which was designed to secure the abolition of slavery and of the slave trade, further progress has been made towards this end; Being aware, however, that slavery, the slave trade and institutions and practices similar to slavery have not yet been eliminated in all parts of the world; Having decided, therefore, that the Convention of 1926, which remains operative should now be augmented by the conclusion of a supplementary convention designed to intensify national as well as

1

Economic and Social Council, Draft Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, UN Doc 2824, Annex I, 15 February 1956.

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1956 Draft Supplementary Convention

international efforts toward the abolition of slavery, the slave trade end institutions and practices similar to slavery; Have agreed as follows: SECTION I INSTITUTIONS AND PRACTICES SIMILAR TO SLAVERY ARTICLE 1 Each of the States Parties to this Convention shall take all practicable and necessary legislative and other measures to bring about progressively and as soon as possible the complete abolition or abandonment of the following institutions and practices, where they still exist and whether or not they are covered by the definition of slavery contained in article 1 of the Slavery Convention signed at Geneva on 25 September 1926: (a) Debt bondage, i.e. the status or condition. arising from a pledge by a debtor of his personal services or those of a third person under his control as a security for a debt, where the value reasonably assessed of those services rendered is not applied towards the liquidation of the debt or the length and nature of those services are not respectively limited and defined; (b) Serfdom, i.e., the tenure of land whereby the tenant is by law, custom or agreement bound to live and labour on land belonging to another person and render some determinate service to his landlord, whether for reward or not, and is not free to change his status; (c) Any institution or practice whereby: (i) A woman, without the right to refuse, is promised or given in marriage on payment of a consideration in money or in kind to her parents, guardian, family or to any other person or group; (ii) The husband of a woman, his family, or his clan, has the right to transfer her to another person for value received or otherwise; or (iii) The woman on the death of her husband is liable to be inherited by another person;

Appendices

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(d) Any institution or practice whereby a child or young person under the age of 18 years is delivered by either or both his natural parents or his guardian to another person, whether for reward or not, for the purpose of exploiting the child or young person, or his or her labour. ARTICLE 2 With a view to bringing to an end the institutions and practices mentioned in Article 1(c) of this Convention, the States Parties undertake to prescribe, where appropriate, suitable minimum ages of marriage, to encourage the use of facilities whereby the consent of both parties to a marriage may be freely expressed in the presence of a competent civil or religious authority, and to encourage the registration of marriages. SECTION II THE SLAVE TRADE ARTICLE 3 (a) The act of conveying or of attempting to convey slaves on the high seas, or being accessory thereto, shall be a criminal offence under the laws of the States Parties to this Convention and persons convicted thereof shall be liable to penalties as severe as those generally applied to acts of piracy. (b) While on the high seas in the area of the Indian ocean, including the Red Sea and the Persian Gulf, bounded on the south by the twenty-sixth degree south latitude and on the east by the sixty-second degree east longitude, warships or military aircraft under the control of Parties to this Convention shall have the same right of visit, search and seizure in relation to vessels of Parties to this Convention suspected on reasonable grounds of being engaged in the act of conveying slaves as they have in relation to vessels so suspected of being engaged in acts of piracy. (c) (i) Any vessel seized in accordance with this article shall be brought in for adjudication by a court of the State which has made the seizure. This State, may, however, request any other State Party to this Convention, or to the Slavery Convention of 1926, to refer

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1956 Draft Supplementary Convention

the case to one of its courts if, in its view, practical or other reasons make this advisable. (ii) Any slave who is found on board a vessel shall be immediately be at liberty. (iii) Any person found on board any vessel searched in accordance with this article who is reasonably suspected of having committed any of the offences specified in paragraph (a) of this article shall be handed over for trial to the authorities of the State of which he is a national or, if practical or other reasons make this advisable, he may be brought to trial by the authorities of the capturing State, or, subject to the consent of the State of which he is a national, by the authorities of any other State Party to this Convention or to the slavery Convention of 1926. (d) In this article “slave” means any person over whom any or all powers attaching to the right of ownership are exercised and includes any person intended to be dealt with as a slave. SECTION III SLAVERY AND INSTITUTIONS AND PRACTICES SIMILAR TO SLAVERY ARTICLE 4 (a) In a country where the abolition or abandonment of slavery, or of the institutions or practices mentioned in Article 1 of this Convention, is not yet complete, the act of mutilating, branding or otherwise marking another person of servile status in order to indicate that status, or as a punishment, or for any other reason, or of being accessory thereto, shall be a criminal offence under the laws of the States Parties to this Convention and persons convicted thereof shall be liable to punishment. (b) In this article “person of servile status” means any slave or any person who has a servile status resulting from any of the institutions or practices mentioned in Article 1 of this Convention.

Appendices

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ARTICLE 5 The act of enslaving another person or of inducing another person to give himself or a person dependent upon such other person into slavery or any other form of servitude, or of attempting these acts, or being accessory thereto, or being a party to a conspiracy to accomplish any such acts, shall be a criminal offence under the laws of the States Parties to this Convention and persons convicted thereof shall be liable to punishment. SECTION IV CO-OPERATION BETWEEN STATES PARTIES AND COMMUNICATION OF INFORMATION ARTICLE 6 1. The States Parties to this Convention undertake to co-operate with each other to give effect to the foregoing provisions. 2. The Parties undertake to communicate to the Secretary-General of the United Nations copies of any laws, regulations and administrative measures enacted or put into effect to implement the provisions of this Convention. 3. The Secretary-General shall communicate this information to the other Parties and to the Economic and Social Council as part of the documentation for any discussion which the Council might undertake with a view to making further recommendations for the abolition of slavery, the slave trade or the institutions and practices which are the subject of this Convention. SECTION V FINAL CLAUSES No reservations may be made to this Convention. ARTICLE 8 Any dispute between States Parties to this Convention relating to its interpretation or application, which cannot be settled by other means,

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1956 Draft Supplementary Convention

shall be referred to the International Court of Justice at the request of any one of the parties to the dispute. ARTICLE 9 1. This Convention shall be open for signature by any State whether or not a member of the United Nations until [date]. It shall be subject to ratification by the signatory States, and the instruments of ratification shall be deposited with the Secretary-General of the United Nations who shall inform each signatory and acceding State. 2. After [same date] this Convention shall be open to accession by any State whether or not a member of the United Nations. Accession shall be effected by the deposit of a formal instrument with the SecretaryGeneral of the United Nations, who shall inform each signatory and acceding State. ARTICLE 10 This Convention shall apply to all the non-self-governing, trust, colonial and other non-metropolitan territories for the international relations of which any State Party is responsible, except where the previous consent of a non-metropolitan territory is required by the constitutional laws or practices of the Party or of the non-metropolitan territory. In such case the Party shall endeavour to secure the needed consent of the nonmetropolitan territory within the shortest period possible and when that consent is obtained the Party shall notify the Secretary-General. This Convention shall apply to the territory or territories named in such notification from the date of its receipt by the Secretary-General. In those cases where the previous consent of the non-metropolitan territory is not required, the Party concerned shall, at the time of signature, ratification or accession, declare the non-metropolitan territory or territories to which this Convention applies. ARTICLE 11 1. Any State Party may denounce this Convention by a written notification addressed by that State to the Secretary-General of

Appendices

783

the United Nations, who shall notify all other Parties of each such notification and the date of the receipt thereof. 2. The denunciation shall take effect one year after the receipt of the notification by the Secretary-General of ’ the United Nations, and shall operate only as regards the State effecting the denunciation. 3. In cases where, in accordance with the provisions of Article 10, this Convention has become applicable to a non-metropolitan territory of a Party, that Party may, at any time thereafter, with the consent of the territory concerned, give notice to the Secretary-General of the United Nations denouncing this Convention separately in respect of that territory. The denunciation shall take effect one year after the date of the receipt of such notice by the Secretary-General who shall notify all other Parties of such notice and the date of the receipt thereof. ARTICLE 12 This Convention shall enter into force on the date on which two States have become Parties thereto and thereafter shall enter into force in respect of each State and territory on the date of deposit of the instrument of ratification or accession of that State. ARTICLE 13 This Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations Secretariat. The Secretary-General shall prepare a certified copy thereof for communication to States Parties to this Convention, as well as to all other States Members of the United Nations. IN WITNESS WHEREOF the undersigned, being duly authorized thereto by their respective Governments, have signed this Convention on the date appearing opposite their respective signatures. Done in the Headquarters of the United Nations, New York, this . . . . . . . . . . day of . . . . . . . . . . 19 . . . . .

1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery1 PREAMBLE The States Parties to the present Convention, Considering that freedom is the birthright of every human being; Mindful that the peoples of the United Nations reaffirmed in the Charter their faith in the dignity and worth of the human person; Considering that the Universal Declaration of Human Rights, proclaimed by the General Assembly of the United Nations as a common standard of achievement for all peoples and all nations, states that no one shall be held in slavery or servitude and that slavery and the slave trade shall be prohibited in all their forms; Recognizing that, since the conclusion of the Slavery Convention signed at Geneva on 25 September 1926, which was designed to secure the abolition of slavery and of the slave trade, further progress has been made towards this end; Having regard to the Forced Labour Convention of 1930 and to subsequent action by the International Labour Organisation in regard to forced or compulsory labour;

1

United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Final Act and Supplementary Convention, 4 September 1956, UN Doc E/CONF.24/23.

Appendices

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Being aware, however, that slavery, the slave trade and institutions and practices similar to slavery have not yet been eliminated in all parts of the world; Having decided, therefore, that the Convention of 1926, which remains operative, should now be augmented by the conclusion of a supplementary convention designed to intensify national as well as international efforts towards the abolition of slavery, the slave trade and institutions and practices similar to slavery; Have agreed as follows: SECTION I INSTITUTIONS AND PRACTICES SIMILAR TO SALVERY ARTICLE 1 Each of the States Parties to this Convention shall take all practicable and necessary legislative and other measures to bring about progressively and as soon as possible the complete abolition or abandonment of the following institutions and practices, where they still exist and whether or not they are covered by the definition of slavery contained in article 1 of the Slavery Convention signed at Geneva on 25 September 1926: (a) Debt bondage, that is to say, the status or condition arising from a pledge by a debtor of his personal services or of those of a person under his control as security for a debt, if the value of those services as reasonably assessed is not applied towards the liquidation of the debt or the length and nature of those services are not respectively limited and defined; (b) Serfdom, that is to say, the condition or status of a tenant who is by law, custom or agreement bound to live and labour on land belonging to another person and to render some determinate service to such other person, whether for reward or not, and is not free to change his status; (c) Any institution or practice whereby:

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1956 Supplementary Convention

(i) A woman, without the right to refuse, is promised or given in marriage on payment of a consideration in money or in kind to her parents, guardian, family or any other person or group; or (ii) The husband of a woman, his family, or his clan, has the right to transfer her to another person for value received or otherwise; or (iii) A woman on the death of her husband is liable to be inherited by another person; (d) Any institution or practice whereby a child or young person under the age of 18 years is delivered by either or both of his natural parents or by his guardian to another person, whether for reward or not, with a view to the exploitation of the child or young person or of his labour. ARTICLE 2 With a view to bringing to an end the institutions and practices mentioned in article 1 (c) of this Convention, the States Parties undertake to prescribe, where appropriate, suitable minimum ages of marriage, to encourage the use of facilities whereby the consent of both parties to a marriage may be freely expressed in the presence of a competent civil or religious authority, and to encourage the registration of marriages. SECTION II THE SLAVE TRADE ARTICLE 3 1. The act of conveying or attempting to convey slaves from one country to another by whatever means of transport, or of being accessory thereto, shall be a criminal offence under the laws of the States Parties to this Convention and persons convicted thereof shall be liable to very severe penalties. 2. (a) The States Parties shall take all effective measures to prevent ships and aircraft authorized to fly their flags from conveying slaves and to punish persons guilty of such acts or of using national flags for that purpose.

Appendices

787

(b) The States Parties shall take all effective measures to ensure that their ports, airfields and coasts are not used for the conveyance of slaves. 3. The States Parties to this Convention shall exchange information in order to ensure the practical co-ordination of the measures taken by them in combating the slave trade and shall inform each other of every case of the slave trade, and of every attempt to commit this criminal offence, which comes to their notice. ARTICLE 4 Any slave who takes refuge on board any vessel of a State Party to this Convention shall ipso facto be free. SECTION III SLAVERY AND INSTITUTIONS AND PRACTICES SIMILAR TO SALVERY ARTICLE 5 In a country where the abolition or abandonment of slavery, or of the institutions or practices mentioned in article 1 of this Convention, is not yet complete, the act of mutilating, branding or otherwise marking a slave or a person of servile status in order to indicate his status, or as a punishment, or for any other reason, or of being accessory thereto, shall be a criminal offence under the laws of the States Parties to this Convention and persons convicted thereof shall be liable to punishment. ARTICLE 6 1. The act of enslaving another person or of inducing another person to give himself or a person dependent upon him into slavery, or of attempting these acts, or being accessory thereto, or being a party to a conspiracy to accomplish any such acts, shall be a criminal offence under the laws of the States Parties to this Convention and persons convicted thereof shall be liable to punishment.

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1956 Supplementary Convention

2. Subject to the provisions of the introductory paragraph of article 1 of this Convention, the provisions of paragraph 1 of the present article shall also apply to the act of inducing another person to place himself or a person dependent upon him into the servile status resulting from any of the institutions or practices mentioned in article 1, to any attempt to perform such acts, to being accessory thereto, and to being a party to a conspiracy to accomplish any such acts. SECTION IV DEFINITIONS ARTICLE 7 For the purposes of the present Convention: (a) “Slavery” means, as defined in the Slavery Convention of 1926, the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, and “slave” means a person in such condition or status; (b) “A person of servile status” means a person in the condition or status resulting from any of the institutions or practices mentioned in article 1 of this Convention; (c) “Slave trade” means and includes all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging him; all acts of disposal by sale of exchange of a person acquired with a view to being sold or exchanged; and, in general, every act of trade or transport in slaves by whatever means of conveyance. SECTION V CO-OPERATION BETWEEN STATES PARTIES AND COMMUNICATION OF INFORMATION ARTICLE 8 1. The States Parties to this Convention undertake to co-operate with each other and with the United Nations to give effect to the foregoing provisions.

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789

2. The Parties undertake to communicate to the Secretary-General of the United Nations copies of any laws, regulations and administrative measures enacted or put into effect to implement the provisions of this Convention. 3. The Secretary-General shall communicate the information received under paragraph 2 of this article to the other Parties and to the Economic and Social Council as part of the documentation for any discussion which the Council might undertake with a view to making further recommendations for the abolition of slavery, the slave trade or the institutions and practices which are the subject of this Convention. SECTION VI FINAL CLAUSES ARTICLE 9 No reservations may be made to this Convention. ARTICLE 10 Any dispute between States Parties to this Convention relating to its interpretation or application, which is not settled by negotiation, shall be referred to the International Court of Justice at the request of any one of the parties to the dispute, unless the parties concerned agree on another mode of settlement. ARTICLE 11 1. This Convention shall be open until 1 July 1957 for signature by any State Member of the United Nations or of a specialized agency. It shall be subject to ratification by the signatory States, and the instruments of ratification shall be deposited with the Secretary-General of the United Nations, who shall inform each signatory and acceding State. 2. After 1 July 1957 this Convention shall be open for accession by any State Member of the United Nations or of a specialized agency, or by any other State to which an invitation to accede has been addressed by the General Assembly of the United Nations. Accession shall be effected

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1956 Supplementary Convention

by the deposit of a formal instrument with the Secretary-General of the United Nations, who shall inform each signatory and acceding State. ARTICLE 12 1. This Convention shall apply to all non self-governing, trust, colonial and other non-metropolitan territories for the international relations of which any State Party is responsible; the Party concerned shall, subject to the provisions of paragraph 2 of this article, at the time of signature, ratification or accession declare the non-metropolitan territory or territories to which the Convention shall apply ipso facto as a result of such signature, ratification or accession. 2. In any case in which the previous consent of a non-metropolitan territory is required by the constitutional laws or practices of the Party or of the non-metropolitan territory, the Party concerned shall endeavour to secure the needed consent of the non-metropolitan territory within the period of twelve months from the date of signature of the Convention by the metropolitan State, and when such consent has been obtained the Party shall notify the Secretary-General. This Convention shall apply to the territory or territories named in such notification from the date of its receipt by the Secretary-General. 3. After the expiry of the twelve-month period mentioned in the preceding paragraph, the States Parties concerned shall inform the Secretary-General of the results of the consultations with those nonmetropolitan territories for whose international relations they are responsible and whose consent to the application of this Convention may have been withheld. ARTICLE 13 1. This Convention shall enter into force on the date on which two States have become Parties thereto. 2. It shall thereafter enter into force with respect to each State and territory on the date of deposit of the instrument of ratification or accession of that State or notification of application to that territory.

Appendices

791

ARTICLE 14 1. The application of this Convention shall be divided into successive periods of three years, of which the first shall begin on the date of entry into force of the Convention in accordance with paragraph I of article 13. 2. Any State Party may denounce this Convention by a notice addressed by that State to the Secretary-General not less than six months before the expiration of the current three-year period. The Secretary-General shall notify all other Parties of each such notice and the date of the receipt thereof. 3. Denunciations shall take effect at the expiration of the current three-year period. 4. In cases where, in accordance with the provisions of article 12, this Convention has become applicable to a non-metropolitan territory of a Party, that Party may at any time thereafter, with the consent of the territory concerned, give notice to the Secretary-General of the United Nations denouncing this Convention separately in respect of that territory. The denunciation shall take effect one year after the date of the receipt of such notice by the Secretary-General, who shall notify all other Parties of such notice and the date of the receipt thereof. ARTICLE 15 This Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations Secretariat. The Secretary-General shall prepare a certified copy thereof for communication to States Parties to this Convention, as well as to all other States Members of the United Nations and of the specialized agencies. IN WITNESS WHEREOF the undersigned, being duly authorized thereto by their respective Governments, have signed this Convention on the date appearing opposite their respective signatures. DONE at the European Office of the United Nations at Geneva, this seventh day of September one thousand nine hundred and fifty-six.

Index Accession Article 11 of Slavery Convention (1926) 155–161 British Draft Protocol (1925) 156 definition according to Slavery Convention (1926) 155–161 Draft Convention (1925) 156–157 Slavery Convention (1926) 157–160 Ad Hoc Committee on Slavery drafting of Article 10 (Compromissory Clause) of 1956 Supplementary Convention 576 drafting of Article 11 (Consent to be Bound) of 1956 Supplementary Convention 613, 618–619, 621 drafting of Article 8 (Cooperation and Communication) of 1956 Supplementary Convention 531–532, 549 drafting of Article 6 (Criminal Offence) of 1956 Supplementary Convention 476–477 drafting of Article 7 (Definition) of 1956 Supplementary Convention 493–495, 499, 510, 513, 521, 523, 528 drafting of Article 2 (Marriage) of 1956 Supplementary Convention 327–328, 332 drafting of Article 5 (Mutilation) of 1956 Supplementary Convention 462–463 drafting of Article 1 (Servitudes) of 1956 Supplementary Convention 249–251, 267, 269, 274–275, 284–286 drafting of Article 4 (Slaves at Sea) of 1956 Supplementary Convention 446 drafting of Article 3 (Slave Trade) of 1956 Supplementary Convention 351 drafting of Supplementary Convention (1956) 210–213, 215–218, 234

Afghanistan party to 1953 Protocol amending Slavery Convention 16 party to 1926 Slavery Convention as of 1 Jan 2008 12 party to 1956 Supplementary Convention 23 Africa, slavery in 1922 31 Albania party to 1926 Slavery Convention as of 1 Jan 2008 14 party to 1956 Supplementary Convention 23 Algeria 22 comment on/drafting of Article 12 (Overseas Territories) of 1956 Supplementary Convention 705 party to 1926 Slavery Convention as of 1 Jan 2008 14 party to 1956 Supplementary Convention 23 Antigua and Barbuda party to 1926 Slavery Convention as of 1 Jan 2008 12 party to 1956 Supplementary Convention 23 Anti-Slavery Society 233, 251, 255, 265, 275, 277, 287, 289, 302, 307, 323–325, 330–331, 354–357, 359, 361, 446–447, 459, 464, 466–467, 470, 474, 498, 510, 534–535, 552, 577, 636, 673 Argentina comment on/drafting of Article 10 (Compromissory Clause) of 1956 Supplementary Convention 589 comment on/drafting of Article 11 (Consent to be Bound) of 1956 Supplementary Convention 619 comment on/drafting of Article 12 (Overseas Territories) of 1956 Supplementary Convention 664–665, 677–678

794

Index

comment on/drafting of Article 9 (Reservations) of 1956 Supplementary Convention 560–561, 571 party to 1956 Supplementary Convention 23 arbitration, see Article 8 (Compromissory Clause) of the Slavery Convention (1926) Arms Trafficking Convention 89–91 Atlantic Pact 647 Atomic Energy Agency 590, 592 Australia comment on/drafting of Article 10 (Compromissory Clause) of 1956 Supplementary Convention 583–584, 590 comment on/drafting of Article 11 (Consent to be Bound) of 1956 Supplementary Convention 607 comment on/drafting of Article 8 (Cooperation and Communication) of 1956 Supplementary Convention 536, 538, 541 comment on/drafting of Article 6 (Criminal Offence) of 1956 Supplementary Convention 483–484, 486 comment on/drafting of Article 14 (Denunciation) of 1956 Supplementary Convention 723 comment on/drafting of Article 13 (Entry into Force) of 1956 Supplementary Convention 710, 712 comment on/drafting of Article 2 (Marriage) of 1956 Supplementary Convention 343–344, 348 comment on/drafting of Article 12 (Overseas Territories) of 1956 Supplementary Convention 637, 639, 647, 655, 667, 689–691 comment on/drafting of Article 9 (Reservations) of 1956 Supplementary Convention 556 comment on/drafting of Article 1 (Servitudes) of 1956 Supplementary Convention 258, 263, 271–272, 310, 317 comment on/drafting of Article 3 (Slave Trade) of 1956 Supplementary Convention 359, 370–371, 390, 403, 425

declaration made (Article 12 of 1956 Convention) as to overseas territories 25 drafting of 1925 Convention 63–64 party to 1953 Protocol amending Slavery Convention 16 party to 1926 Slavery Convention as of 1 Jan 2008 12 party to 1956 Supplementary Convention 23 proposal on preamble of Supplementary Convention (1956) 243 Austria party to 1953 Protocol amending Slavery Convention 16 party to 1926 Slavery Convention as of 1 Jan 2008 12 party to 1956 Supplementary Convention 23 Azerbaijan party to 1953 Protocol amending Slavery Convention 17 party to 1926 Slavery Convention as of 1 Jan 2008 12 party to 1956 Supplementary Convention 23 Bahamas party to 1953 Protocol amending Slavery Convention 17 party to 1926 Slavery Convention as of 1 Jan 2008 12 party to 1956 Supplementary Convention 23 Bahrain party to 1926 Slavery Convention as of 1 Jan 2008 14 party to 1956 Supplementary Convention 23 reservations made to 1926 Slavery Convention by 14–15 Bangladesh party to 1953 Protocol amending Slavery Convention 17 party to 1926 Slavery Convention as of 1 Jan 2008 12 party to 1956 Supplementary Convention 23 Barbados party to 1953 Protocol amending Slavery Convention 17 party to 1926 Slavery Convention as of 1 Jan 2008 12

Index

party to 1956 Supplementary Convention 23 Belarus party to 1926 Slavery Convention as of 1 Jan 2008 14 party to 1956 Supplementary Convention 23 Belgium 73–74 comment on Article 4 of Draft Convention (1925) 99–100 comment on Article 2 of 1926 Slavery Convention 75–77 comment on Draft Convention (1925) 54, 57 comment on/drafting of Article 11 (Consent to be Bound) of 1956 Supplementary Convention 617, 620 comment on/drafting of Article 6 (Criminal Offence) of 1956 Supplementary Convention 483–484, 486–488, 490 comment on/drafting of Article 7 (Definition) of 1956 Supplementary Convention 504, 506, 519, 525 comment on/drafting of Article 15 (Final Clause) of 1956 Supplementary Convention 739 comment on/drafting of Article 12 (Overseas Territories) of 1956 Supplementary Convention 645, 697–698 comment on/drafting of Article 1 (Servitudes) of 1956 Supplementary Convention 293, 317, 321 comment on/drafting of Article 4 (Slaves at Sea) of 1956 Supplementary Convention 457 comment on/drafting of Article 3 (Slave Trade) of 1956 Supplementary Convention 354, 422, 424–425, 427–429, 432–435, 439, 443 comment on Draft Protocol of the Secretary-General (1953) 184 comment on preamble of Supplementary Convention (1956) 242, 245–246 comment on title of Supplementary Convention (1956) 226, 228 on Draft Resolution of the United Kingdom (1953) 193, 197–198, 200

795

on Nansen Proposal (Article 7 of 1956 Convention) 134–136 on Nansen Proposal (Article 8 of 1926 Slavery Convention) 142 party to 1953 Protocol amending Slavery Convention 17 party to 1926 Slavery Convention as of 1 Jan 2008 12 party to 1956 Supplementary Convention 23 proposal on preamble of Supplementary Convention (1956) 243 proposed amendments to Article 5 of the 1926 Slavery Convention 117 Benin, party to 1926 Slavery Convention as of 1 Jan 2008 12 Bolivia party to 1953 Protocol amending Slavery Convention 17 party to 1926 Slavery Convention as of 1 Jan 2008 12 party to 1956 Supplementary Convention 23 Bosnia and Herzegovina party to 1953 Protocol amending Slavery Convention 17 party to 1926 Slavery Convention as of 1 Jan 2008, 14 party to 1956 Supplementary Convention 23 branding a person, see Article 5 of Supplementary Convention (1956) Brazil, party to 1956 Supplementary Convention 23 British Draft Convention (1954) 771–776 Article 1 (Servitudes) of 1956 Supplementary Convention 248–326 Introductory Paragraph 248–266 Paragraph (a) 266–268 Paragraph (b) 273–276 Paragraph (c) 287–288, 298, 301 Paragraph (d) 304–308 Article 2 (Marriage) of 1956 Supplementary Convention 327–332 Article 3 (Slave Trade) of 1956 Supplementary Convention 351–357 Article 4 (Slaves at Sea) of 1956 Supplementary Convention 446–447

796

Index

Article 5 (Mutilation) of 1956 Supplementary Convention 462–464 Article 6 (Criminal Offence) of 1956 Supplementary Convention 475–491 Article 7 (Definition) of 1956 Supplementary Convention 493–498, 513–514, 523 Article 8 (Cooperation and Communication ) of 1956 Supplementary Convention 531–533 Article 9 (Reservations) of 1956 Supplementary Convention 551–554 Article 10 (Compromissory Clause) of 1956 Supplementary Convention 601 Article 11 (Consent to be Bound) of 1956 Supplementary Convention 446–447 Article 12 (Overseas Territories) of 1956 Supplementary Convention 635–636 Article 13 (Entry into Force) of 1956 Supplementary Convention 708 Article 14 (Denunciation) of 1956 Supplementary Convention 718–719 Article 15 (Final Clause) of 1956 Supplementary Convention 737 commentary on Article 1 (Servitudes) of 1956 Supplementary Convention 322–325 Compromissory Clause 576–577 Consent to be Bound 601 Cooperation and Communication 531–533 Criminal Offence 476–478 definition of a person of servile status 513–514 definition of slavery 493–498 definition of slave trade 523 Denunciation 718–719 Entry into Force 708 Final Clause 737 Marriage 327–332 Mutilation 462–464 overall provisions of Article 1 (Servitudes) of 1956 Supplementary Convention 318–322

overseas territories 635–636 preamble of 1956 Supplementary Convention 232–234 Reservations 551–554 Servitudes 249–252, 266–268, 273–276, 287–288, 298, 301, 304–308 Slaves at Sea 446–447 Slave Trade 351–357 title of 1956 Supplementary Convention 219 British Draft Proposal (1925) 35, 37 Accession 156 Appendix 743–745 Compromissory Clause 139 definition of slavery 51 definition of slave trade 60–61 Denunciation 152 Entry into Force 163 Forced Labour 102–103 Laws and Regulations 131 mutual assistance 96 Overseas Territories 146 Penalties 126 preamble of 1926 Slavery Convention 40–41 Slave Trade at Sea 81–82 suppression of slavery and slave trade 70 British Draft Protocol (1925) 62, 96, 131, 139 Article 1 of 51, 60 Article 2 of 70 Article 3 of 102 Article 4 of 126 Article 5 of 81 Article 6 of 156 Article 7 of 146 Article 8 of 163 Brussels Act 82, 84 Bulgaria party to 1926 Slavery Convention as of 1 Jan 2008 12, 17 party to 1956 Supplementary Convention 23 Buraimi Oasis 683, 705 Burma comment on/drafting of Article 7 (Definition) of 1956 Supplementary Convention 498 comment on/drafting of Article 2 (Marriage) of 1956 Supplementary Convention 328–329

Index

party to 1926 Slavery Convention as of 1 Jan 2008 12 reservations made to 1926 Slavery Convention by 15 Byelorussian Soviet Socialist Republic comment on/drafting of Article 11 (Consent to be Bound) of 1956 Supplementary Convention 617, 633 comment on preamble of Supplementary Convention (1956) 241 Cambodia, party to 1956 Supplementary Convention 23 Cameroon party to 1953 Protocol amending Slavery Convention 17 party to 1926 Slavery Convention as of 1 Jan 2008 12 party to 1956 Supplementary Convention 23 Canada comment on Article 1 (Servitudes) of 1956 Supplementary Convention 261, 280, 317 comment on/drafting of Article 10 (Compromissory Clause) of 1956 Supplementary Convention 590, 592–593, 595 comment on/drafting of Article 11 (Consent to be Bound) of 1956 Supplementary Convention 614–615, 623, 626, 630 comment on/drafting of Article 8 (Cooperation and Communication) of 1956 Supplementary Convention 547 comment on/drafting of Article 7 (Definition) of 1956 Supplementary Convention 505–508, 519, 525 comment on/drafting of Article 2 (Marriage) of 1956 Supplementary Convention 340, 342 comment on/drafting of Article 5 (Mutilation) of 1956 Supplementary Convention 471 comment on/drafting of Article 12 (Overseas Territories) of 1956 Supplementary Convention 655, 667–668, 686, 689 comment on/drafting of Article 9 (Reservations) of 1956

797

Supplementary Convention 552 comment on/drafting of Article 3 (Slave Trade) of 1956 Supplementary Convention 436, 438 comment on Draft Protocol of the Secretary-General (1953) 182 comment on title of Supplementary Convention (1956) 226–227 party to 1953 Protocol amending Slavery Convention 16 party to 1926 Slavery Convention as of 1 Jan 2008 12 party to 1956 Supplementary Convention 23 Central African Republic party to 1926 Slavery Convention as of 1 Jan 2008 13 party to 1956 Supplementary Convention 23 Ceylon, comment on/drafting of Article 2 (Marriage) of 1956 Supplementary Convention 328–329 child exploitation see also Article 1 (Servitudes) of 1956 Supplementary Convention Article 1 of 1956 Supplementary Convention 18, 59 child marriage see also Article 1 (Servitudes) of 1956 Supplementary Convention in Nigeria 332 Chile 207 comment on/drafting of Article 11 (Consent to be Bound) of 1956 Supplementary Convention 619 comment on/drafting of Article 9 (Reservations) of 1956 Supplementary Convention 565–566 comment on/drafting of Article 3 (Slave Trade) of 1956 Supplementary Convention 439 comment on title of Supplementary Convention (1956) 223 party to 1953 Protocol amending Slavery Convention 17 party to 1926 Slavery Convention as of 1 Jan 2008 13 party to 1956 Supplementary Convention 23 proposal on preamble of Supplementary Convention (1956) 243

798

Index

China comment on/drafting of Article 10 (Compromissory Clause) of 1956 Supplementary Convention 590–591 comment on/drafting of Article 6 (Criminal Offence) of 1956 Supplementary Convention 488 comment on/drafting of Article 7 (Definition) of 1956 Supplementary Convention 518 comment on/drafting of Article 2 (Marriage) of 1956 Supplementary Convention 346 comment on/drafting of Article 12 (Overseas Territories) of 1956 Supplementary Convention 668 comment on/drafting of Article 9 (Reservations) of 1956 Supplementary Convention 566 comment on/drafting of Article 1 (Servitudes) of 1956 Supplementary Convention 261–263, 279, 315–316, 325 comment on/drafting of Article 3 (Slave Trade) of 1956 Supplementary Convention 439 party to 1953 Protocol amending Slavery Convention 16 party to 1926 Slavery Convention as of 1 Jan 2008, 13 party to 1956 Supplementary Convention 23 proposal on preamble of Supplementary Convention (1956) 243 Colonial Clause 6 Article 9 of Slavery Convention (1926) 11 Article 2 of Supplementary Convention (1956) 22 Columbia 590 Compromissory Clause Article 8 of Slavery Convention (1926) 138–144 Article 10 of Supplementary Convention (1956) 575–599 British Draft Convention (1954) 576–577 British Draft Protocol (1925) 139 Convention (1956) 587–598 definition according to Slavery Convention (1926) 138–144

Draft Convention (1925) 139–141 Draft Convention (1956) 578–586 Slavery Convention (1926) 141–143 Supplementary Convention (1956) 575–599 compulsory labour, see Article 5 (Forced Labour) of the Slavery Convention (1926) Congo party to 1926 Slavery Convention as of 1 Jan 2008, 13 party to 1956 Supplementary Convention 23 Congo Basin, slave trade forbidden (1885) 48 Consent to be Bound Article 11 of Supplementary Convention (1956) 600–633 British Draft Convention (1954) 601 Convention (1956) 608–631 Draft Convention (1956) 602–608 Supplementary Convention (1956) 600–633 Convention for the Control of the International Trade in Arms, Munitions and Implements of War 90–91 Convention of Saint Germain-en-Laye (1919) 46, 48–49, 369, 412 Convention of the World Meteorological Organization 590 Convention on Political Rights of Women 652, 681, 704 Convention on the Importation of Educational, Scientific and Cultural Materials 671 Convention on the International Right of Correction 641, 678 Convention on the Traffic in Persons 667 Conventions on the Traffic of Women and Obscene Publications 192–193, 203 Convention to Suppress the Slave Trade and Slavery (1926) 36–37 Cooperation and Communication Article 8 of Supplementary Convention (1956) 530–549 British Draft Convention (1954) 531–533 commentary on Article 8 of Supplementary Convention (1956) 548–549

Index

Convention (1956) 545–548 Draft Convention (1956) 534–545 Costa Rica comment on/drafting of Article 11 (Consent to be Bound) of 1956 Supplementary Convention 615 comment on/drafting of Article 3 (Slave Trade) of 1956 Supplementary Convention 421 Cote d’Ivoire party to 1926 Slavery Convention as of 1 Jan 2008, 13 party to 1956 Supplementary Convention 23 Council of Europe Human Rights Convention 671 Criminal Offence Article 6 of Supplementary Convention (1956) 458, 475–491 British Draft Convention (1954) 476–478 Convention (1956) 480–490 Draft Convention (1956) 478–479 Supplementary Convention (1956) 475–491 Croatia party to 1953 Protocol amending Slavery Convention 17 party to 1926 Slavery Convention as of 1 Jan 2008 13 party to 1956 Supplementary Convention 23 Cuba comment on/drafting of Article 7 (Definition) of 1956 Supplementary Convention 506–519, 525 comment on/drafting of Article 9 (Reservations) of 1956 Supplementary Convention 569, 571 comment on Article 1 (Servitudes) of 1956 Supplementary Convention 316 comment on/drafting of Article 3 (Slave Trade) of 1956 Supplementary Convention 427 on Draft Resolution of the United Kingdom (1953) 195 party to 1953 Protocol amending Slavery Convention 16

799

party to 1926 Slavery Convention as of 1 Jan 2008 13 party to 1956 Supplementary Convention 23 proposal on preamble of Supplementary Convention (1956) 243 Czechoslovakia comment on/drafting of Article 10 (Compromissory Clause) of 1956 Supplementary Convention 587–588, 590–593, 595–596, 598 comment on/drafting of Article 11 (Consent to be Bound) of 1956 Supplementary Convention 618–619 comment on/drafting of Article 12 (Overseas Territories) of 1956 Supplementary Convention 685 comment on/drafting of Article 9 (Reservations) of 1956 Supplementary Convention 560, 567 comment on Article 1 (Servitudes) of 1956 Supplementary Convention 258 comment on/drafting of Article 3 (Slave Trade) of 1956 Supplementary Convention 396–397, 408, 410 Czech Republic party to 1926 Slavery Convention as of 1 Jan 2008 13 party to 1956 Supplementary Convention 23 Cyprus party to 1926 Slavery Convention as of 1 Jan 2008 14 party to 1956 Supplementary Convention 23 D’Andrade, Gen Freire on Nansen Proposal (Article 7 of 1926 Slavery Convention) 133 on Nansen Proposal (Article 8 of 1926 Slavery Convention) 140 debt bondage 248, 266, 269, 271, 272, 321 see also Article 1 (Servitudes) of Supplementary Convention (1956) Article 1 of 1956 Supplementary Convention 18–19, 59 Declaration Relative to the Slave Trade (1885) 48–49

800

Index

definitions Article 1 of Slavery Convention (1926) 50–68 Article 7 of Supplementary Convention (1956) 492–529 Democratic Republic of Congo, party to 1956 Supplementary Convention 23 Denmark 590 party to 1953 Protocol amending Slavery Convention 16 party to 1926 Slavery Convention as of 1 Jan 2008 13 party to 1956 Supplementary Convention 23 Denunciation Article 10 of Slavery Convention (1926) 11, 151–154 Article 14 of Supplementary Convention (1956) 22, 717–735 definition according to Slavery Convention (1926) 151–154 British Draft Convention (1954) 718–719 British Draft Protocol (1925) 152 Convention (1956) 726–734 Draft Convention (1925) 152 Draft Convention (1956) 719–726 Slavery Convention (1926) 152–153 Supplementary Convention (1956) 717–735 dispute/s, see Article 10 of the 1956 Supplementary Convention dispute settlement see also Article 10 of the 1956 Supplementary Convention Article 8 of Slavery Convention (1926) 11, 138–144 Djibouti, party to 1956 Supplementary Convention 23 domestic slavery 78–79 Dominica party to 1953 Protocol amending Slavery Convention 17 party to 1926 Slavery Convention as of 1 Jan 2008 13 party to 1956 Supplementary Convention 23 Dominican Republic 590 comment on/drafting of Article 11 (Consent to be Bound) of 1956 Supplementary Convention 625 party to 1956 Supplementary Convention 23

Draft Convention (1925) 35–37 Accession 156–157 Appendix 746–750 Article 1 of 52, 61 Article 2 of 71 Article 3 of 82 Article 4 of 96, 99 Article 5 of 126 Article 6 of 103–104 Article 7 of 131 Article 9 of 146–148 Article 10 of 156 Article 11 of 163–164 Compromissory Clause 139–141 definition of slavery 52–54 definition of slave trade 61–64 Denunciation 152 Entry into Force 163–164 Forced Labour 103–114 Laws and Rregulations 131–133 mutual assistance 96–99 OverseasTerritories 146–148 Penalties 126–127 preamble of 41–43 Slave Trade at Sa 82–86 suppression of slavery and slave trade 71–74 Draft Convention (1956) Article 1 (Servitudes) of 1956 Supplementary Convention 248–326 Introductory Paragraph 252–257 Paragraph (a) 269–272 Paragraph (b) 276–278 Paragraph (c) 288–292, 298–300, 301–303 Paragraph (d) 308–315 Article 2 (Marriage) of 1956 Supplementary Convention 332–339 Article 3 (Slave Trade) of 1956 Supplementary Convention 358–399 Article 4 (Slaves at Sea) of 1956 Supplementary Convention 447–453 Article 5 (Mutilation) of 1956 Supplementary Convention 464–469 Article 6 (Criminal Offence) of 1956 Supplementary Convention 478–479

Index

Article 7 (Definition) of 1956 Supplementary Convention 499–501, 514–516, 524 Article 8 (Cooperation and Communication) of 1956 Supplementary Convention 534–545 Article 9 (Reservations) of 1956 Supplementary Convention 554–558 Article 10 (Compromissory Clause) of 1956 Supplementary Convention 578–586 Article 11 (Consent to be Bound) of 1956 Supplementary Convention 602–608 Article 12 (Overseas Territories) of 1956 Supplementary Convention 637–657 Article 13 (Entry into Force) of 1956 Supplementary Convention 709–713 Article 14 (Denunciation) of 1956 Supplementary Convention 719–726 Article 15 (Final Clause) of 1956 Supplementary Convention 738–739 Compromissory Clause 578–586 Consent to be Bound 602–608 Cooperation and Communication 534–545 Criminal Offence 478–479 definition of a person of servile status 514–516 definition of slavery 499–501 definition of slave trade 524 Denunciation 719–726 Entry into Force 709–713 Final Clause 738–739 Marriage 332–339 Mutilation 464–469 Overseas Territories 637–657 preamble of 1956 Supplementary Convention 234–239 Reservations 554–558 Servitudes 252–257, 269–272, 276–278, 288–292, 298–300, 301–303, 308–315 Slaves at Sea 447–453 Slave Trade 358–399 title of 1956 Supplementary Convention 219–221

801

Draft Protocol (1925) 37 Article 5 of 81 Draft Protocol of the Ad Hoc Committee on Slavery (1951) 173–180 Draft Protocol of the Secretary-General (1953) 180–186 Draft Resolution of the United Kingdom (1953) 186–201 Draft Supplementary Convention on Slavery and Servitude (1956) Appendix 777–783 preamble to 1956 Supplementary Convention 234–240 Ecuador comment on/drafting of Article 10 (Compromissory Clause) of 1956 Supplementary Convention 586 comment on/drafting of Article 11 (Consent to be Bound) of 1956 Supplementary Convention 607 comment on/drafting of Article 8 (Cooperation and Communication) of 1956 Supplementary Convention 538, 541, 543 comment on/drafting of Article 12 (Overseas Territories) of 1956 Supplementary Convention 637–639, 641, 647, 649, 653, 656–657, 703 comment on/drafting of Article 9 (Reservations) of 1956 Supplementary Convention 556 comment on/drafting of Article 1 (Servitudes) of 1956 Supplementary Convention 254, 276–278, 286 comment on/drafting of Article 3 (Slave Trade) of 1956 Supplementary Convention 393–394, 403 party to 1953 Protocol amending Slavery Convention 17 party to 1926 Slavery Convention as of 1 Jan 2008 13 party to 1956 Supplementary Convention 23 Egypt comment on/drafting of Article 10 (Compromissory Clause) of 1956 Supplementary Convention 584 comment on/drafting of Article 11 (Consent to be Bound) of 1956 Supplementary Convention 605, 612, 625

802

Index

comment on/drafting of Article 8 (Cooperation and Communication) of 1956 Supplementary Convention 536–538, 540–542, 549 comment on/drafting of Article 6 (Criminal Offence) of 1956 Supplementary Convention 480–482, 490 comment on/drafting of Article 14 (Denunciation) of 1956 Supplementary Convention 725, 731 comment on/drafting of Article 2 (Marriage) of 1956 Supplementary Convention 335–338, 346 comment on/drafting of Article 5 (Mutilation) of 1956 Supplementary Convention 470 comment on/drafting of Article 12 (Overseas Territories) of 1956 Supplementary Convention 638–639, 641, 643, 649, 652, 658–660, 663, 665–667, 670, 673–674, 676–677, 679–688, 691–693, 695, 697, 702–704 comment on/drafting of Article 9 (Reservations) of 1956 Supplementary Convention 563, 566–567, 570 comment on/drafting of Article 1 (Servitudes) of 1956 Supplementary Convention 254, 263–266, 271, 302–303, 314 comment on/drafting of Article 4 (Slaves at Sea) of 1956 Supplementary Convention 450, 454–455, 457 comment on/drafting of Article 3 (Slave Trade) of 1956 Supplementary Convention 374, 377, 384–385, 395–396, 400–414, 416–424, 426–429, 432–434 comment on preamble of Supplementary Convention (1956) 242 comment on title of Supplementary Convention (1956) 224, 227, 230 party to 1953 Protocol amending Slavery Convention 16 party to 1926 Slavery Convention as of 1 Jan 2008 13

party to 1956 Supplementary Convention 23 Egyptian Slavery Act of 1896 481 El Salvador 590 comment on/drafting of Article 11 (Consent to be Bound) of 1956 Supplementary Convention 612–613 comment on/drafting of Article 6 (Criminal Offence) of 1956 Supplementary Convention 481 comment/proposal on preamble of Supplementary Convention (1956) 236–237, 241–242, 246 on Draft Resolution of the United Kingdom 198–199 Entry into Force Article 12 of Slavery Convention (1926) 11, 162–167 Article 13 of Supplementary Convention (1956) 707–716 British Draft Convention (1954) 708 British Draft Protocol (1925) 163 Convention (1956) 713–715 definition according to Slavery Convention (1926) 162–167 Draft Convention (1925) 163–164 Draft Convention (1956) 709–713 Slavery Convention (1926) 164–166 Supplementary Convention (1956) 707–716 Estonia party to 1926 Slavery Convention as of 1 Jan 2008 13, 17 Ethiopia party to 1926 Slavery Convention as of 1 Jan 2008 14 party to 1956 Supplementary Convention 23 slavery in 1920s 31 European Court of Human Rights 4 definition of slavery 4–5 exchange of laws and regulations see Laws and Regulations Fiji party to 1953 Protocol amending Slavery Convention 17 party to 1926 Slavery Convention as of 1 Jan 2008 13 party to 1956 Supplementary Convention 23

Index

Final Clause Article 15 of Supplementary Convention (1956) 736–740 British Draft Convention (1954) 737 Convention (1956) 739–740 Draft Convention (1956) 738–739 Supplementary Convention (1956) 22, 736–740 Finland party to 1953 Protocol amending Slavery Convention 16 party to 1926 Slavery Convention as of 1 Jan 2008 13 party to 1956 Supplementary Convention 23 Forced Labour Article 5 of Slavery Convention (1926) 10, 101–124 British Draft Protocol (1925) 102–103 definition according to Slavery Convention (1926) 101–124 Draft Convention (1925) 103–114 Slavery Convention (1926) 114–121 forced marriage Article 1 of 1956 Supplementary Convention 18, 59, 284–285 France 22, 207 comment on/drafting of Article 10 (Compromissory Clause) of 1956 Supplementary Convention 579–580, 582–591, 593, 596, 598–599 comment on/drafting of Article 11 (Consent to be Bound) of 1956 Supplementary Convention 603–606, 609–611, 613, 619, 621–622, 626–627, 633 comment on/drafting of Article 8 (Cooperation and Communication) of 1956 Supplementary Convention 537, 541–542, 547–549 comment on/drafting of Article 6 (Criminal Offence) of 1956 Supplementary Convention 481–483, 487–488, 490 comment on/drafting of Article 7 (Definition) of 1956 Supplementary Convention 500, 505–507, 515, 525 comment on/drafting of Article 14 (Denunciation) of 1956

803

Supplementary Convention 720–724, 727, 729–732, 734–735 comment on/drafting of Article 13 (Entry into Force) of 1956 Supplementary Convention 710–714, 716 comment on/drafting of Article 2 (Marriage) of 1956 Supplementary Convention 335–338, 342, 345 comment on/drafting of Article 5 (Mutilation) of 1956 Supplementary Convention 466–467 comment on/drafting of Article 12 (Overseas Territories) of 1956 Supplementary Convention 645–646, 649, 653–656, 666, 672, 680–682, 688–691, 701, 704 comment on/drafting of Article 9 (Reservations) of 1956 Supplementary Convention 556–558, 564–566, 568–571, 574 comment on/drafting of Article 1 (Servitudes) of 1956 Supplementary Convention 253, 256, 259, 262–263, 266, 281–283, 286, 289, 291–292, 311, 313–314, 316, 323 comment on/drafting of Article 4 (Slaves at Sea) of 1956 Supplementary Convention 457 comment on/drafting of Article 3 (Slave Trade) of 1956 Supplementary Convention 354, 362, 374, 376, 379, 382, 384, 386–390, 406–410, 417, 424, 427–429, 432–436, 439, 442–443 comment on preamble of Supplementary Convention (1956) 235, 238–239 comment on title of Supplementary Convention (1956) 220–223, 225–226 declaration made (Article 12 of 1956 Convention) as to overseas territories 25 party to 1953 Protocol amending Slavery Convention 17 party to 1926 Slavery Convention as of 1 Jan 2008 13 party to 1956 Supplementary Convention 23 proposal put forward to Slavery Convention (1926) about Article 5 106

804

Index

proposed amendment to Article 2 of 1925 Draft Convention by 71 proposed amendments to Article 3 of 1926 Slavery Convention 88–90 General Act for the Suppression of African Slave Trade 356, 366, 369–370, 380, 383, 412 General Act of Berlin (1885) 48–49 General Act of the Brussels Conference (1889–90) 48–49 Article 21 of 368 Article 28 of 447, 459 Genocide Convention 560–561, 610, 712 Germany comment on Article 2 of the 1926 Slavery Convention 77–79 comment on Article 1 (Servitudes) of 1956 Supplementary Convention 286 comment on 1925 Draft Convention 54–57 comment on/drafting of Article 11 (Consent to be Bound) of 1956 Supplementary Convention 614, 625 comment on Draft Protocol of the Secretary-General (1953) 183 party to 1953 Protocol amending Slavery Convention 17 party to 1926 Slavery Convention as of 1 Jan 2008 13 party to 1956 Supplementary Convention 23 proposed amendments to Article 5 of 1926 Slavery Convention 117–119, 122 Ghana party to 1926 Slavery Convention as of 1 Jan 2008 13 party to 1956 Supplementary Convention 23 Greece comment on/drafting of Article 3 (Slave Trade) of 1956 Supplementary Convention 404, 407 comment on Draft Protocol of the Secretary-General (1953) 182–183 on Draft Resolution of the United Kingdom 199 party to 1926 Slavery Convention as of 1 Jan 2008 13

party to 1956 Supplementary Convention 23 Guatemala comment on/drafting of Article 9 (Reservations) of 1956 Supplementary Convention 566 on Draft Resolution of the United Kingdom 200 party to 1953 Protocol amending Slavery Convention 17 party to 1926 Slavery Convention as of 1 Jan 2008 13 party to 1956 Supplementary Convention 23 Guinea party to 1953 Protocol amending Slavery Convention 17 party to 1926 Slavery Convention as of 1 Jan 2008 13 party to 1956 Supplementary Convention 23 Haiti 590 comment on Article 1 (Servitudes) of 1956 Supplementary Convention 306 comment on Article 2 of 1926 Slavery Convention 76 comment on/drafting of Article 11 (Consent to be Bound) of 1956 Supplementary Convention 618, 620–627, 633 comment on/drafting of Article 7 (Definition) of 1956 Supplementary Convention 504 comment on/drafting of Article 12 (Overseas Territories) of 1956 Supplementary Convention 665–666 comment on Draft Protocol of the Secretary-General (1953) 183 party to 1926 Slavery Convention as of 1 Jan 2008 13, 17 party to 1956 Supplementary Convention 23 Honduras 590 Hungary comment on/drafting of Article 14 (Denunciation) of 1956 Supplementary Convention 730 comment on/drafting of Article 4 (Slaves at Sea) of 1956 Supplementary Convention 457

Index

comment on/drafting of Article 3 (Slave Trade) of 1956 Supplementary Convention 438 party to 1953 Protocol amending Slavery Convention 17 party to 1956 Supplementary Convention 23 Iceland, party to 1956 Supplementary Convention 23 India comment on Article 9 of Draft Convention (1925) 148–149 comment on Article 5 of 1926 Slavery Convention 119–120 comment on/drafting of Article 10 (Compromissory Clause) of 1956 Supplementary Convention 587–588, 590–591, 595–598 comment on/drafting of Article 11 (Consent to be Bound) of 1956 Supplementary Convention 603, 607, 633 comment on/drafting of Article 8 (Cooperation and Communication) of 1956 Supplementary Convention 535–536, 538, 540, 543–544 comment on/drafting of Article 7 (Definition) of 1956 Supplementary Convention 500, 527, 529 comment on/drafting of Article 2 (Marriage) of 1956 Supplementary Convention 330, 337–338 comment on/drafting of Article 12 (Overseas Territories) of 1956 Supplementary Convention 644, 654, 669, 685 comment on/drafting of Article 9 (Reservations) of 1956 Supplementary Convention 559 comment on/drafting of Article 1 (Servitudes) of 1956 Supplementary Convention 277, 286, 290, 309, 311, 313–314 comment on/drafting of Article 4 (Slaves at Sea) of 1956 Supplementary Convention 457 comment on/drafting of Article 3 (Slave Trade) of 1956 Supplementary Convention 372, 379, 381–382, 403, 407, 427–429, 433–434, 438

805

on Draft Resolution of the United Kingdom 199 party to 1953 Protocol amending Slavery Convention 16 party to 1926 Slavery Convention as of 1 Jan 2008 13 party to 1956 Supplementary Convention 23 reservations made to 1926 Slavery Convention by 15 Indonesia comment on/drafting of Article 12 (Overseas Territories) of 1956 Supplementary Convention 656–657, 702 comment on/drafting of Article 3 (Slave Trade) of 1956 Supplementary Convention 396 International Abolitionist Federation 251, 268, 307–308 International Alliance of Women 340–341 International Atomic Energy Agency 590, 593 International Bureau for the Suppression of Traffic in Persons 333 International Court of Justice 21–22, 560, 610, 632 see also Article 10 of the 1956 Supplementary Convention Article 37 of the Statue of 174, 196, 203 International Criminal Court 4 International Criminal Tribunal for the former Yugoslavia 4 International Federation of Christian trade Unions 535 International Federation of Women Lawyers 341, 348 International Labour Organisation/ Office 105, 123–124, 216, 270, 275, 277, 306, 309, 314, 477, 522, 619 International Law Commission 19, 356, 361, 365–366, 385, 406, 412, 430, 443, 460, 560 international relations, see Article 12 (Overseas Territories) of 1956 Supplementary Convention International Slavery Convention (1926) 174–175 International Union of Child Welfare 307, 331

806

Index

Iran, party to 1956 Supplementary Convention 23 Iraq comment on Article 1 (Servitudes) of 1956 Supplementary Convention 294 party to 1953 Protocol amending Slavery Convention 16 party to 1926 Slavery Convention as of 1 Jan 2008 13 party to 1956 Supplementary Convention 23 Ireland party to 1953 Protocol amending Slavery Convention 17 party to 1926 Slavery Convention as of 1 Jan 2008 13 party to 1956 Supplementary Convention 23 Ireland, Northern comment on/drafting of Article 5 (Mutilation) of 1956 Supplementary Convention 469 comment on/drafting of Article 3 (Slave Trade) of 1956 Supplementary Convention 427 declaration made (Article 12 of 1956 Convention) as to overseas territories 25 party to 1953 Protocol amending Slavery Convention 16 party to 1926 Slavery Convention as of 1 Jan 2008 13 party to 1956 Supplementary Convention 24 Israel 590 comment on Article 1 (Servitudes) of 1956 Supplementary Convention 259 comment on/drafting of Article 11 (Consent to be Bound) of 1956 Supplementary Convention 623 comment on/drafting of Article 7 (Definition) of 1956 Supplementary Convention 504, 507, 509, 527 comment on/drafting of Article 12 (Overseas Territories) of 1956 Supplementary Convention 668 comment on/drafting of Article 3 (Slave Trade) of 1956 Supplementary Convention 433

comment on title of Supplementary Convention (1956) 222–223, 226, 228 objection to Bahrain’s reservation to 1926 Slavery Convention 14–15 on Draft Resolution of the United Kingdom (1953) 190, 192, 196–197, 202 party to 1953 Protocol amending Slavery Convention 17 party to 1926 Slavery Convention as of 1 Jan 2008 12 party to 1956 Supplementary Convention 23 Italy comment on/drafting of Article 10 (Compromissory Clause) of 1956 Supplementary Convention 592–593 comment on/drafting of Article 11 (Consent to be Bound) of 1956 Supplementary Convention 617 comment on/drafting of Article 12 (Overseas Territories) of 1956 Supplementary Convention 697 comment on/drafting of Article 4 (Slaves at Sea) of 1956 Supplementary Convention 457 comment on/drafting of Article 3 (Slave Trade) of 1956 Supplementary Convention 409, 438 declaration made (Article 12 of 1956 Convention) as to overseas territories 25 party to 1953 Protocol amending Slavery Convention 16 party to 1926 Slavery Convention as of 1 Jan 2008 12 party to 1956 Supplementary Convention 23 Jacquinot Decree (1951) 645 Jamaica party to 1926 Slavery Convention as of 1 Jan 2008 14 party to 1956 Supplementary Convention 23 Japan comment on/drafting of Article 3 (Slave Trade) of 1956 Supplementary Convention 354

Index

Jordan party to 1926 Slavery Convention as of 1 Jan 2008 14 party to 1956 Supplementary Convention 23 Korea 331 Kuwait party to 1926 Slavery Convention as of 1 Jan 2008 14 party to 1956 Supplementary Convention 23 Kyrgyzstan party to 1926 Slavery Convention as of 1 Jan 2008 14 party to 1956 Supplementary Convention 23 Lao People’s Democratic Republic party to 1956 Supplementary Convention 23 Latvia party to 1926 Slavery Convention as of 1 Jan 2008 12, 17 party to 1956 Supplementary Convention 23 Laws and Regulations Article 7 of Slavery Convention (1926) 11, 130–137 British Draft Protocol (1925) 131 definition according to Slavery Convention (1926) 130–137 Draft Convention (1925) 131–133 Slavery Convention (1926) 134–136 League of Nations Council of 31–32 Sixth Committee of the Assembly of 33–34, 37, 46, 59, 61 Temporary Slavery Commission 32, 36, 47, 52, 59, 72–73 report of, 25 Jul 1925 32–34, 37–38, 83 League of Nations Mandates Commission 111 League of Nations Slavery Convention (1926) 29–167 see also Slavery Convention (1926) Lebanon, party to 1926 Slavery Convention as of 1 Jan 2008 13, 17

807

Lesotho party to 1926 Slavery Convention as of 1 Jan 2008 14 party to 1956 Supplementary Convention 23 Liberia 590 comment on/drafting of Article 12 (Overseas Territories) of 1956 Supplementary Convention 665, 697 comment on/drafting of Article 3 (Slave Trade) of 1956 Supplementary Convention 401 party to 1953 Protocol amending Slavery Convention 16 party to 1926 Slavery Convention as of 1 Jan 2008 12 Libyan Arab Jamahiriya party to 1926 Slavery Convention as of 1 Jan 2008 14 party to 1956 Supplementary Convention 23 Liechtenstein 590 Luxembourg 590 party to 1956 Supplementary Convention 23 Macedonia, Republic of party to 1926 Slavery Convention as of 1 Jan 2008 13 Madagascar party to 1926 Slavery Convention as of 1 Jan 2008 14 party to 1956 Supplementary Convention 23 Malawi party to 1926 Slavery Convention as of 1 Jan 2008 14 party to 1956 Supplementary Convention 23 Malaysia, party to 1956 Supplementary Convention 24 Mali party to 1953 Protocol amending Slavery Convention 17 party to 1926 Slavery Convention as of 1 Jan 2008 12 party to 1956 Supplementary Convention 24 Malta party to 1926 Slavery Convention as of 1 Jan 2008 14

808

Index

party to 1956 Supplementary Convention 24 Mandel Decree (1939) 645 marking a person, see Article 5 of Supplementary Convention (1956) marriage British Draft Convention (1954) 327–332 Convention (1956) 339–348 Draft Convention (1956) 332–339 minimum age for Article 2 of 1956 Supplementary Convention 19, 331, 333, 339 Supplementary Convention (1956), Article 2 326–349 marriage registration, see Article 2 (Marriage) of 1956 Supplementary Convention Mauritania party to 1953 Protocol amending Slavery Convention 17 party to 1926 Slavery Convention as of 1 Jan 2008 12 party to 1956 Supplementary Convention 24 Mauritius party to 1926 Slavery Convention as of 1 Jan 2008 14 party to 1956 Supplementary Convention 24 Mexico 590 comment on/drafting of Article 11 (Consent to be Bound) of 1956 Supplementary Convention 609 comment on/drafting of Article 15 (Final Clause) of 1956 Supplementary Convention 739 comment on/drafting of Article 2 (Marriage) of 1956 Supplementary Convention 340 comment on/drafting of Article 5 (Mutilation) of 1956 Supplementary Convention 470 comment on/drafting of Article 4 (Slaves at Sea) of 1956 Supplementary Convention 455 comment on/drafting of Article 3 (Slave Trade) of 1956 Supplementary Convention 406 party to 1953 Protocol amending Slavery Convention 16 party to 1926 Slavery Convention as of 1 Jan 2008 12

party to 1956 Supplementary Convention 24 minimum age for marriage, see Article 2 (Marriage) of 1956 Supplementary Convention Monaco comment on/drafting of Article 6 (Criminal Offence) of 1956 Supplementary Convention 477–478 comment on/drafting of Article 5 (Mutilation) of 1956 Supplementary Convention 463–464 comment on Draft Protocol of the Secretary-General (1953) 182 party to 1953 Protocol amending Slavery Convention 16 party to 1926 Slavery Convention as of 1 Jan 2008 12 Mongolia party to 1926 Slavery Convention as of 1 Jan 2008 14 party to 1956 Supplementary Convention 24 Montenegro party to 1926 Slavery Convention as of 1 Jan 2008 14 party to 1956 Supplementary Convention 24 Morocco party to 1953 Protocol amending Slavery Convention 17 party to 1926 Slavery Convention as of 1 Jan 2008 12 party to 1956 Supplementary Convention 24 Myanmar, party to 1953 Protocol amending Slavery Convention 17 Mutilation Article 5 of Supplementary Convention (1956) 461–474 British Draft Convention (1954) 462–464 Convention (1956) 469–473 Draft Convention (1956) 464–469 Supplementary Convention (1956) 461–474 Mutual Assistance Article 4 of Slavery Convention (1926) 95–100 British Draft Protocol (1925) 96

Index

definition according to Slavery Convention (1926), Article 4, 95–100 Draft Convention (1925) 96–99 Slavery Convention (1926) 99–100 Nansen, Dr Fridtjof proposed amendments to Article 7 of 1926 Slavery Convention 132–137 proposed amendments to Article 8 of 1926 Slavery Convention 139–143 Nepal party to 1926 Slavery Convention as of 1 Jan 2008 14 party to 1956 Supplementary Convention 24 Netherlands comment on/drafting of Article 10 (Compromissory Clause) of 1956 Supplementary Convention 582–583, 590 comment on/drafting of Article 11 (Consent to be Bound) of 1956 Supplementary Convention 606, 613, 619–622, 633 comment on/drafting of Article 8 (Cooperation and Communication) of 1956 Supplementary Convention 543 comment on/drafting of Article 6 (Criminal Offence) of 1956 Supplementary Convention 481 comment on/drafting of Article 7 (Definition) of 1956 Supplementary Convention 499, 503, 511 comment on/drafting of Article 14 (Denunciation) of 1956 Supplementary Convention 721–723, 731, 733 comment on/drafting of Article 12 (Overseas Territories) of 1956 Supplementary Convention 644–645, 653, 656, 669 comment on/drafting of Article 9 (Reservations) of 1956 Supplementary Convention 561–562 comment on/drafting of Article 1 (Servitudes) of 1956 Supplementary Convention 254–255, 260,

809

276–278, 288, 290–291, 302, 310, 315–316, 318, 323–324 comment on/drafting of Article 4 (Slaves at Sea) of 1956 Supplementary Convention 451 comment on/drafting of Article 3 (Slave Trade) of 1956 Supplementary Convention 362, 378–379, 382, 388–391, 403 comment on preamble of Supplementary Convention (1956) 237 declaration made (Article 12 of 1956 Convention) as to overseas territories 25 party to 1953 Protocol amending Slavery Convention 17 party to 1926 Slavery Convention as of 1 Jan 2008 12 party to 1956 Supplementary Convention 24 proposal put forward to Slavery Convention (1926) about Article 5, 106–107 Netherlands Antilles comment on Article 12 (Overseas Territories) of 1956 Supplementary Convention 653 party to 1953 Protocol amending Slavery Convention 17 Netherlands New Guinea party to 1953 Protocol amending Slavery Convention 17 New Zealand 590 comment on Article 12 (Overseas Territories) of 1956 Supplementary Convention 55 declaration made (Article 12 of 1956 Convention) as to overseas territories 25 party to 1953 Protocol amending Slavery Convention 16 party to 1926 Slavery Convention as of 1 Jan 2008 12 party to 1956 Supplementary Convention 24 Nicaragua 590 party to 1953 Protocol amending Slavery Convention 17 party to 1926 Slavery Convention as of 1 Jan 2008 12 party to 1956 Supplementary Convention 24

810

Index

Niger party to 1953 Protocol amending Slavery Convention 17 party to 1926 Slavery Convention as of 1 Jan 2008 12 party to 1956 Supplementary Convention 24 Nigeria child marriage in 332 comment on/drafting of Article 2 (Marriage) of 1956 Supplementary Convention 332 party to 1926 Slavery Convention as of 1 Jan 2008 14 non-metropolitan territories, see Article 12 (Overseas Territories) of 1956 Supplementary Convention Non-Self-Governing and Trust Territories, see Article 12 (Overseas Territories) of 1956 Supplementary Convention Norway 590 comment on/drafting of Article 6 (Criminal Offence) of 1956 Supplementary Convention 487, 490–491 party to 1953 Protocol amending Slavery Convention 16 party to 1926 Slavery Convention as of 1 Jan 2008 12 party to 1956 Supplementary Convention 24 Opium Protocol (1953) 648–649, 652, 665, 704 Overseas Territories Article 9 of Slavery Convention (1926) 145–150 Article 12 of Supplementary Convention (1956) 25–27, 634–706 British Draft Convention (1954) 635–636 British Draft Protocol (1925) 146 commentary on (Article 9 of 1925 Draft Convention) 150 Convention (1956) 657–702 definition according to Slavery Convention (1926) 145–150 Draft Convention (1925) 146–148 Draft Convention (1956) 637–657 Slavery Convention (1926) 148–149 Supplementary Convention (1956) 634–706

Pakistan 590 comment on/drafting of Article 11 (Consent to be Bound) of 1956 Supplementary Convention 610, 618, 621, 623, 629–631 comment on/drafting of Article 8 (Cooperation and Communication) of 1956 Supplementary Convention 547 comment on/drafting of Article 6 (Criminal Offence) of 1956 Supplementary Convention 478, 486, 488 comment on/drafting of Article 7 (Definition) of 1956 Supplementary Convention 504–507, 509, 512, 518–521, 523–526 comment on/drafting of Article 14 (Denunciation) of 1956 Supplementary Convention 719, 729, 732 comment on/drafting of Article 13 (Entry into Force) of 1956 Supplementary Convention 714 comment on/drafting of Article 2 (Marriage) of 1956 Supplementary Convention 328–329, 342–343 comment on/drafting of Article 5 (Mutilation) of 1956 Supplementary Convention 463 comment on/drafting of Article 12 (Overseas Territories) of 1956 Supplementary Convention 636, 661, 670–675, 680–684, 691–693, 697, 700, 702 comment on/drafting of Article 9 (Reservations) of 1956 Supplementary Convention 562–563, 567–569 comment on/drafting of Article 1 (Servitudes) of 1956 Supplementary Convention 279–280, 283, 295–297 comment on/drafting of Article 3 (Slave Trade) of 1956 Supplementary Convention 402, 405–407, 414, 434, 437, 439 comment on title of Supplementary Convention (1956) 223, 226, 230 comment/proposal on preamble of Supplementary Convention (1956) 242–243, 245

Index

party to 1926 Slavery Convention as of 1 Jan 2008 14 party to 1956 Supplementary Convention 24 Palermo Protocol 3 UF United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children definition of trafficking in persons 3 Panama 590 Papua New Guinea, party to 1926 Slavery Convention as of 1 Jan 2008 14 Paraguay 590 comment on/drafting of Article 11 (Consent to be Bound) of 1956 Supplementary Convention 617 comment on title of Supplementary Convention (1956) 223 Paris Agreement 647 Penalties Article 6 of Slavery Convention (1926) 10–11, 125–129 definition according to Slavery Convention (1926) 125–129 Permanent Court of International Justice 140, 142–144, 174, 196, 203, 579–580 see also Article 8 (Compromissory Clause) of the Slavery Convention (1926) person of servile status Article 7(b) of Supplementary Convention (1956) 513–523 definition according to British Draft Convention (1956) 513–514 definition according to Convention (1956) 516–521 definition according to Draft Convention (1956) 514–516 definition according to Supplementary Convention (1956) 513–523 Peru comment on/drafting of Article 11 (Consent to be Bound) of 1956 Supplementary Convention 619 comment on/drafting of Article 2 (Marriage) of 1956 Supplementary Convention 344 comment on/drafting of Article 3 (Slave Trade) of 1956 Supplementary Convention 420, 427–429, 432–434

811

party to 1956 Supplementary Convention 24 Philippines 590 comment on/drafting of Article 11 (Consent to be Bound) of 1956 Supplementary Convention 615, 620–621, 623, 626, 630 comment on/drafting of Article 8 (Cooperation and Communication) of 1956 Supplementary Convention 546–548 comment on/drafting of Article 7 (Definition) of 1956 Supplementary Convention 502, 508–509, 512, 520, 527 comment on/drafting of Article 2 (Marriage) of 1956 Supplementary Convention 345 comment on/drafting of Article 5 (Mutilation) of 1956 Supplementary Convention 470 comment on/drafting of Article 12 (Overseas Territories) of 1956 Supplementary Convention 678, 680, 683, 686, 691–696, 699, 705 comment on/drafting of Article 9 (Reservations) of 1956 Supplementary Convention 566 comment on/drafting of Article 1 (Servitudes) of 1956 Supplementary Convention 257–259, 262–265, 280–282, 294, 324–325 comment on/drafting of Article 4 (Slaves at Sea) of 1956 Supplementary Convention 456 comment on/drafting of Article 3 (Slave Trade) of 1956 Supplementary Convention 411, 414, 424, 427 comment on title of Supplementary Convention (1956) 224–225, 227–228, 230 party to 1926 Slavery Convention as of 1 Jan 2008 14 party to 1956 Supplementary Convention 24 Poland comment on/drafting of Article 10 (Compromissory Clause) of 1956 Supplementary Convention 596 comment on/drafting of Article 11 (Consent to be Bound) of 1956 Supplementary Convention 616, 624

812

Index

comment on/drafting of Article 6 (Criminal Offence) of 1956 Supplementary Convention 487 comment on/drafting of Article 14 (Denunciation) of 1956 Supplementary Convention 730 comment on/drafting of Article 12 (Overseas Territories) of 1956 Supplementary Convention 690–691, 693, 695–699 comment on/drafting of Article 9 (Reservations) of 1956 Supplementary Convention 567 comment on Article 1 (Servitudes) of 1956 Supplementary Convention 263, 283, 317 on Draft Resolution of the United Kingdom 199 comment on/drafting of Article 3 (Slave Trade) of 1956 Supplementary Convention 425 party to 1926 Slavery Convention as of 1 Jan 2008 13, 17 party to 1956 Supplementary Convention 24 Portugal 590 comment on Article 5 of the 1926 Slavery Convention 115, 122, 124 comment on/drafting of Article 8 (Cooperation and Communication) of 1956 Supplementary Convention 547 comment on/drafting of Article 7 (Definition) of 1956 Supplementary Convention 493, 503, 506, 518–519, 525 comment on/drafting of Article 14 (Denunciation) of 1956 Supplementary Convention 730 comment on/drafting of Article 13 (Entry into Force) of 1956 Supplementary Convention 715 comment on/drafting of Article 2 (Marriage) of 1956 Supplementary Convention 341–342, 344–345, 347 comment on/drafting of Article 5 (Mutilation) of 1956 Supplementary Convention 470–471 comment on/drafting of Article 12 (Overseas Territories) of 1956 Supplementary Convention 659, 665–667, 678, 685–686

comment on/drafting of Article 9 (Reservations) of 1956 Supplementary Convention 563 comment on/drafting of Article 4 (Slaves at Sea) of 1956 Supplementary Convention 456 comment on/drafting of Article 3 (Slave Trade) of 1956 Supplementary Convention 354, 403, 408, 411, 413, 423, 425, 427–429, 431–434 comment on Nansen proposal (Article 8 of 1926 Slavery Convention) 142–143 on Article 2 of 1925 Draft Convention 71 party to 1926 Slavery Convention as of 1 Jan 2008, 13, 17 party to 1956 Supplementary Convention 24 penal laws 104 reservations about British Draft Proposal (1925) 104–106 preamble Slavery Convention (1926) 43–47 Supplementary Convention (1956) 231–247 Protocol Amending the Slavery Convention (1953) 15–17, 169–203, 759–762 commentary 201–203 Draft Protocol of the Ad Hoc Committee on Slavery (1951) 173–180 Draft Protocol of the Secretary-General (1953) 180–186 Draft Resolution of the United Kingdom (1953) 186–201 Protocol Amending the Slavery Convention signed at Geneva on 25 Sep 1926; December, 1953 Appendix 759–762 ratification, see Article 11 (Consent to be Bound) of 1956 Supplementary Convention refugees on ships, see Article 4 (Slaves at Sea) of 1956 Supplementary Convention Reservations Article 9 of Slavery Convention (1926) 11 Article 9 of Supplementary Convention (1956) 550–574

Index

British Draft Convention (1954) 551–554 Convention (1956) 559–572 Draft Convention (1956) 554–558 Supplementary Convention (1956) 21, 550–574 Romania comment on/drafting of Article 11 (Consent to be Bound) of 1956 Supplementary Convention 611 comment on/drafting of Article 12 (Overseas Territories) of 1956 Supplementary Convention 669 comment on/drafting of Article 3 (Slave Trade) of 1956 Supplementary Convention 409 party to 1953 Protocol amending Slavery Convention 17 party to 1926 Slavery Convention as of 1 Jan 2008 13 party to 1956 Supplementary Convention 24 Russian Federation party to 1926 Slavery Convention as of 1 Jan 2008 14 party to 1956 Supplementary Convention 24 Rwanda, party to 1956 Supplementary Convention 24 Saint Lucia party to 1953 Protocol amending Slavery Convention 17 party to 1926 Slavery Convention as of 1 Jan 2008 13 party to 1956 Supplementary Convention 24 Saint Vincent and the Grenadines party to 1953 Protocol amending Slavery Convention 17 party to 1926 Slavery Convention as of 1 Jan 2008 13, 14 party to 1956 Supplementary Convention 24 San Marino, party to 1956 Supplementary Convention 24 Saudi Arabia 22 comment on/drafting of Article 11 (Consent to be Bound) of 1956 Supplementary Convention 627

813

comment on/drafting of Article 12 (Overseas Territories) of 1956 Supplementary Convention 669–670, 673, 679–680, 682–683, 688–690, 701, 705 comment on/drafting of Article 3 (Slave Trade) of 1956 Supplementary Convention 412, 420, 426 party to 1926 Slavery Convention as of 1 Jan 2008 14 party to 1956 Supplementary Convention 24 Secretary-General see also Article 14 (Denunciation) of 1956 Supplementary Convention Draft Protocol of the (1953) 180–186 Senegal party to 1926 Slavery Convention as of 1 Jan 2008 13 party to 1956 Supplementary Convention 24 Serbia party to 1953 Protocol amending Slavery Convention 17 party to 1926 Slavery Convention as of 1 Jan 2008 14 party to 1956 Supplementary Convention 24 serfdom 248, 273, 276, 278, 320–321 see also Article 1 (Servitudes) of Supplementary Convention (1956) Article 1 of 1956 Supplementary Convention 18, 59 Servile Status, Person of Article 7(b) of Supplementary Convention (1956) 513–523 Servitudes 246 Article 1 (Servitudes) of 1956 Supplementary Convention 248–326 Introductory Paragraph 249–252 Paragraph (a) 266–268 Paragraph (b) 273–276 Paragraph (c) 287–288, 298, 301 Paragraph (d) 304–308 British Draft Convention (1954) 249–252, 266–268, 273–276, 287–288, 298, 301, 304–308 commentary on 322–325

814

Index

Convention (1956) 257–266, 272–273, 278–283, 292–297, 300, 303–304, 315–318 Draft Convention (1956) 252–257, 269–272, 276–278, 288–292, 298–300, 301–303, 308–315 overall provisions of Article 1 (Servitudes) of 1956 Supplementary Convention 318–322 provisions of Article 1 of Supplementary Convention (1956) 318–326 Supplementary Convention (1956) 20, 248–326 Seychelles party to 1926 Slavery Convention as of 1 Jan 2008 13 party to 1956 Supplementary Convention 24 Sierra Leone party to 1926 Slavery Convention as of 1 Jan 2008 14 party to 1956 Supplementary Convention 24 Singapore, party to 1956 Supplementary Convention 24 slavery abolition of legal status of, 1925 32 Article 1(1) of Slavery Convention (1926) 51–60 Article 7(a) of Supplementary Convention (1956) 493–512 definition according to British Draft Convention (1954) 493–498 definition according to British Draft Protocol (1925) 51 definition according to Convention (1956) 501–509 definition according to Draft Convention (1925) 52–54 definition according to Draft Convention (1956) 499–501 definition according to Slavery Convention (1926) 54–57 definition according to Slavery Convention (1926), Article 1(1) 51–60 definition according to Supplementary Convention (1956) 20, 493–512 report of Temporary Slavery Commission, 25 Jul 1925 32–33 Slavery Convention (1926) 8–15, 29–167

see also League of Nations Slavery Convention (1926) accession 157–160 amended by Protocol (1955) 763–770 Appendix 763–770 amending the (1953 Protocol), party states 15–17 Appendix 751–758 Article 1 – Definitions 50–68 Article 1(1) – Slavery 51–60 Article 1(2) – Slave trade 60–65 Article 2 – Suppression of slavery and slave trade 69–79 Article 3 – Slave trade at sea 80–94 Article 4 – Mutual Assistance 95–100 Article 5 – Forced Labour 101–124 Article 6 – Penalties 125–129 Article 7 – Laws and Regulations 130–137 Article 8 – Compromissory Clause 138–144 Article 9 – Overseas Territories 145–150 Article 10 – Denunciation 151–154 Article 11 – Accession 155–161 Article 12 – Entry into Force 162–167 commentary on Article 1 65–68 commentary on Article 1(1) 57–60 commentary on Article 1(2) 65 Compromissory Clause 141–143 definition of slavery 53–57 definition of slavery in Article 1 of 8–9 definition of slave trade 64–65 Denunciation 152–153 Draft Protocol of the Ad Hoc Committee on Slavery (1951) 173–180 Draft Protocol of the Secretary-General (1953) 180–186 Draft Resolution of the United Kingdom (1953) 186–201 Entry into Force 164–166 forced labour 114–121 Laws and Regulations 134–136 mutual assistance 99–100 Overseas Territories 148–149 Penalties 128–129 preamble 39–49 British Draft Proposal (1925) 40–41

Index

commentary on the 47–49 Draft Convention (1925) 41–43 Slavery Convention (1926) 43–47 Protocol amending (1953) 169–203 reservations made to 14–15 Slave Trade at Sea 86–92 state parties to, as of 1 Jan 2008 12–13 state parties to, by way of consenting to 1953 Protocol, as of 1 Jan 2008 14 suppression of slavery and slave trade 74–78 Slavery Conventions 6–27 Slaves at Sea Article 3 of Slavery Convention (1926) 10 Article 4 of Supplementary Convention (1956) 445–460 Supplementary Convention (1956) 445–460 Slave Trade Article 1(2) of Slavery Convention (1926) 60–65 Article 3 of Supplementary Convention (1956) 350–444 Article 7(c) of Supplementary Convention (1956) 523–529 British Draft Convention (1954) 351–357 Convention (1956) 399–439 definition according to British Draft Convention (1956) 523 definition according to British Draft Protocol (1925) 60–61 definition according to Convention (1956) 524–528 definition according to Draft Convention (1925) 61–64 definition according to Draft Convention (1956) 524 definition according to Slavery Convention (1926) 64–65 definition according to Slavery Convention (1926), Article 1(2) 60–65 definition according to Supplementary Convention (1956) 523–529 Draft Convention (1956) 358–399 Supplementary Convention (1956) 350–444

815

Slave Trade at Sea Article 3 of Slavery Convention (1926) 80–94 British Draft Convention (1954) 446–447 British Draft Protocol (1925) 81–82 Convention (1956) 454–458 definition according to Slavery Convention (1926), Article 3 80–94 Draft Convention (1925) 82–86 Draft Convention (1956) 447–453 Slavery Convention (1926) 86–92 Slovakia party to 1926 Slavery Convention as of 1 Jan 2008 13 party to 1956 Supplementary Convention 24 Slovenia, party to 1956 Supplementary Convention 24 Solomon Islands party to 1953 Protocol amending Slavery Convention 17 party to 1926 Slavery Convention as of 1 Jan 2008 13 party to 1956 Supplementary Convention 24 South Africa 590 commentary on Article 1(1) of the 1926 Convention 58–60 comment on Article 2 of the 1926 Slavery Convention 74–75 comment on Article 5 of the 1926 Slavery Convention 115–116 comment on 1925 Draft Convention 54, 56, 58 party to 1953 Protocol amending Slavery Convention 16 party to 1926 Slavery Convention as of 1 Jan 2008 13 Spain comment on Article 5 of 1926 Slavery Convention 111–112 comment on/drafting of Article 6 (Criminal Offence) of 1956 Supplementary Convention 488 comment on/drafting of Article 3 (Slave Trade) of 1956 Supplementary Convention 439 party to 1953 Protocol amending Slavery Convention 17

816

Index

party to 1926 Slavery Convention as of 1 Jan 2008 13 party to 1956 Supplementary Convention 24 reservations made to 1926 Slavery Convention by 15 Sri Lanka party to 1926 Slavery Convention as of 1 Jan 2008 14 party to 1956 Supplementary Convention 24 St John’s International Social and Political Alliance 264, 294–295, 307, 309, 325, 331–333, 341 Sudan comment on/drafting of Article 10 (Compromissory Clause) of 1956 Supplementary Convention 591 comment on/drafting of Article 11 (Consent to be Bound) of 1956 Supplementary Convention 611, 617–618, 627 comment on/drafting of Article 2 (Marriage) of 1956 Supplementary Convention 347 comment on/drafting of Article 12 (Overseas Territories) of 1956 Supplementary Convention 658–659, 661, 663, 665–667, 670, 673–674, 677, 681–685, 692, 697, 704 comment on/drafting of Article 9 (Reservations) of 1956 Supplementary Convention 564, 571 comment on/drafting of Article 1 (Servitudes) of 1956 Supplementary Convention 282–283, 293–295 comment on title of Supplementary Convention (1956) 225 party to 1926 Slavery Convention as of 1 Jan 2008 13, 14, 17 party to 1956 Supplementary Convention 24 Supplementary Convention (1956) 6–7, 18–27, 205–740, 784–791 UF Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery Appendix 784–791 Article 1 – Servitudes 248–326 Paragraph (a) 266–273

Paragraph (b) 273–287 Paragraph (c) 283–304 Paragraph (d) 304–318 Article 2 – Marriage 326–349 Article 3 – Slave Trade 350–444 Article 4 – Slaves at Sea 445–460 Article 5 – Mutilation 461–474 Article 6 – Criminal offence 475–491 Article 7 – Definitions 492–529 Article 7(a) – Slavery 493–512 Article 7(b) – Person of Servile Status 513–523 Article 7(c) – Slave Trade 523–529 Article 8 – Cooperation and Communication 530–549 Article 9 – Reservations 550–574 Article 10 – Compromissory Clause 575–599 Article 11 – Consent to be Bound 600–633 Article 12 – Overseas Territories 25–27, 634–706 Article 13 – Entry into Force 707–716 Article 14 – Denunciation 717–735 Article 15 – Final Clause 736–740 commentary on 228–230 Compromissory Clause 575–599 Consent to be Bound 600–633 Cooperation and Communication 530–549 Criminal Offence 475–491 declarations as to overseas territories, made by 25–27 definition of person of servile status 513–523 definition of slavery 493–512 definition of slave trade 523–529 Denunciation 717–735 Entry into Force 707–716 Final Clause 736–740 Introductory Paragraph 257–266 Marriage 326–349 Mutilation 461–474 Overseas Territories 25–27, 634–706 preamble 231–247 provisions of Article 1 318–322 Reservations 550–574 Servitudes 248–326 Slaves at Sea 445–460

Index

Slave Trade 350–444 states party to the 22–24 title of 219–230 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery (1956) see Supplementary Convention (1956) suppression of slavery and slave trade Article 2 of Slavery Convention (1926) 69–79 Article 2 of Supplementary Convention (1956) 69–79 British Draft Protocol (1925) 70 definition according to Slavery Convention (1926), Article 2 69–79 Draft Convention (1925) 71–74 Slavery Convention (1926) 74–78 Suriname comment on Article 12 (Overseas Territories) of 1956 Supplementary Convention 653 party to 1953 Protocol amending Slavery Convention 17 party to 1926 Slavery Convention as of 1 Jan 2008 13 party to 1956 Supplementary Convention 24 Sweden 590 on Draft Resolution of the United Kingdom (1953) 194, 203 party to 1953 Protocol amending Slavery Convention 16 party to 1926 Slavery Convention as of 1 Jan 2008 13 party to 1956 Supplementary Convention 24 Switzerland 590 comment on Draft Protocol of the Secretary-General (1953) 183 party to 1953 Protocol amending Slavery Convention 16 party to 1926 Slavery Convention as of 1 Jan 2008 13 party to 1956 Supplementary Convention 24 Syria comment on/drafting of Article 2 (Marriage) of 1956 Supplementary Convention 330 party to 1926 Slavery Convention as of 1 Jan 2008, 13

817

Syrian Arab Republic party to 1953 Protocol amending Slavery Convention 16 party to 1956 Supplementary Convention 24 Tanzania, United Republic of party to 1926 Slavery Convention as of 1 Jan 2008 14 party to 1956 Supplementary Convention 24 Thailand 590 Togo party to 1926 Slavery Convention as of 1 Jan 2008 13 party to 1956 Supplementary Convention 24 Treaty of Saint Germain-en-Laye 78 Trinidad and Tobago party to 1926 Slavery Convention as of 1 Jan 2008 14 party to 1956 Supplementary Convention 24 Tunisia comment on Article 12 (Overseas Territories) of 1956 Supplementary Convention 655 party to 1926 Slavery Convention as of 1 Jan 2008 14 party to 1956 Supplementary Convention 24 Turkey comment on/drafting of Article 10 (Compromissory Clause) of 1956 Supplementary Convention 584, 589–590 comment on/drafting of Article 11 (Consent to be Bound) of 1956 Supplementary Convention 605, 607, 612, 614, 624–625, 630 comment on/drafting of Article 8 (Cooperation and Communication) of 1956 Supplementary Convention 542, 547 comment on/drafting of Article 7 (Definition) of 1956 Supplementary Convention 506–508, 519–520, 525–527 comment on/drafting of Article 12 (Overseas Territories) of 1956 Supplementary Convention 646, 648–651, 653–655, 664, 675–676,

818

Index

678, 685–687, 689, 691–692, 694, 696 comment on/drafting of Article 9 (Reservations) of 1956 Supplementary Convention 565–566, 571, 574 comment on/drafting of Article 1 (Servitudes) of 1956 Supplementary Convention 260–261, 291, 320 comment on/drafting of Article 4 (Slaves at Sea) of 1956 Supplementary Convention 457 comment on/drafting of Article 3 (Slave Trade) of 1956 Supplementary Convention 365–366, 368, 391, 403–407, 410, 413, 415–421, 424, 427–429, 432–435, 438–439, 443 comment on title of Supplementary Convention (1956) 228 comment/proposal on preamble of Supplementary Convention (1956) 240, 243 party to 1953 Protocol amending Slavery Convention 16 party to 1926 Slavery Convention as of 1 Jan 2008, 13 party to 1956 Supplementary Convention 24 Turkmenistan party to 1953 Protocol amending Slavery Convention 17 party to 1926 Slavery Convention as of 1 Jan 2008 13 party to 1956 Supplementary Convention 24 Uganda party to 1926 Slavery Convention as of 1 Jan 2008 14 party to 1956 Supplementary Convention 24 Ukraine comment on/drafting of Article 6 (Criminal Offence) of 1956 Supplementary Convention 488 comment on/drafting of Article 3 (Slave Trade) of 1956 Supplementary Convention 439 party to 1926 Slavery Convention as of 1 Jan 2008 14 party to 1956 Supplementary Convention 24

Ukrainian Soviet Socialist Republic comment on/drafting of Article 6 (Criminal Offence) of 1956 Supplementary Convention 488 comment on Article 1 (Servitudes) of 1956 Supplementary Convention 257–258 UN (United Nations) 21–22 Economic and Social Council 173, 175, 202, 454, 536, 538, 540, 546, 609, 615, 635, 658 on Draft Resolution prepared by Ad Hoc Committee of Slavery 213–215 Resolution 475 (XV) 199, 201, 215, 493, 601 Resolution 525(XVII) 215, 330, 614, 690 Resolution 564 (XIX) 353, 359, 400, 465, 570, 601, 709 Resolution 608 (XXI) 216, 398, 400, 410, 611, 613 Union of Soviet Socialist Republics (USSR) comment on/drafting of Article 10 (Compromissory Clause) of 1956 Supplementary Convention 578–581, 586, 589, 592, 597–598 comment on/drafting of Article 11 (Consent to be Bound) of 1956 Supplementary Convention 603, 605, 607, 610, 613–614, 620, 624–627, 629, 632 comment on/drafting of Article 8 (Cooperation and Communication) of 1956 Supplementary Convention 541–543 comment on/drafting of Article 6 (Criminal Offence) of 1956 Supplementary Convention 486–487, 489 comment on/drafting of Article 7 (Definition) of 1956 Supplementary Convention 500 comment on/drafting of Article 14 (Denunciation) of 1956 Supplementary Convention 723, 725, 729, 734 comment on/drafting of Article 13 (Entry into Force) of 1956 Supplementary Convention 710, 712

Index

comment on/drafting of Article 2 (Marriage) of 1956 Supplementary Convention 334 comment on/drafting of Article 12 (Overseas Territories) of 1956 Supplementary Convention 638–643, 646–647, 649, 651, 654–655, 667, 698–699, 702 comment on/drafting of Article 9 (Reservations) of 1956 Supplementary Convention 555, 557–559, 566, 574 comment on/drafting of Article 1 (Servitudes) of 1956 Supplementary Convention 252–256, 290–291, 299–300, 309–314, 317–318, 323 comment on/drafting of Article 4 (Slaves at Sea) of 1956 Supplementary Convention 449–452, 455, 457, 459 comment on preamble of Supplementary Convention (1956) 236–237 comment on title of Supplementary Convention (1956) 220–221 United Kingdom 22, 207 assimilate slave trade at sea to piracy 19–20 comment on Article 3 of 1926 Slavery Convention 85, 87 comment on Article 5 of 1926 Slavery Convention 119–120 comment on Article 6 of 1926 Slavery Convention 128 comment on Article 9 of Draft Convention (1925) 149 comment on Article 11 of Slavery Convention (1926) 161 comment on/drafting of Article 10 (Compromissory Clause) of 1956 Supplementary Convention 576–577, 581, 583, 585, 588, 590, 592, 595–598 comment on/drafting of Article 11 (Consent to be Bound) of 1956 Supplementary Convention 605, 607, 618, 630, 633 comment on/drafting of Article 8 (Cooperation and Communication) of 1956 Supplementary Convention 531–534, 536–538, 540–544, 549

819

comment on/drafting of Article 6 (Criminal Offence) of 1956 Supplementary Convention 476–477, 479, 482–483, 487–488 comment on/drafting of Article 7 (Definition) of 1956 Supplementary Convention 493, 498–503, 510–511, 513, 515–518, 522 comment on/drafting of Article 14 (Denunciation) of 1956 Supplementary Convention 718, 720, 723–725, 71, 733–734 comment on/drafting of Article 13 (Entry into Force) of 1956 Supplementary Convention 708–709, 714 comment on/drafting of Article 15 (Final Clause) of 1956 Supplementary Convention 737–738 comment on/drafting of Article 2 (Marriage) of 1956 Supplementary Convention 327–328, 333–339, 346 comment on/drafting of Article 5 (Mutilation) of 1956 Supplementary Convention 462–471, 473–474 comment on/drafting of Article 12 (Overseas Territories) of 1956 Supplementary Convention 635, 640–641, 643–648, 651–656, 661–664, 667, 670–672, 678, 680–683, 686–687, 691–692, 694–699, 702–705 comment on/drafting of Article 9 (Reservations) of 1956 Supplementary Convention 551–555, 557, 562, 568, 573 comment on/drafting of Article 1 (Servitudes) of 1956 Supplementary Convention 252, 255–256, 259–262, 265, 267–272, 274–279, 285–286, 288, 291, 293, 297, 299, 304–308, 310–315, 317, 323, 325 comment on/drafting of Article 4 (Slaves at Sea) of 1956 Supplementary Convention 448–451, 457, 459 comment on/drafting of Article 3 (Slave Trade) of 1956 Supplementary Convention 351–352, 354, 359–361, 363, 365–369, 371,

820

Index

373–377, 379, 381–388, 390–394, 396–397, 403, 405, 409–411, 414, 417, 419–420, 422, 424–435, 437, 439–441 comment on Draft Protocol of the Secretary-General (1953) 184 comment on preamble of Supplementary Convention (1956) 237–238, 246 comment on title of Supplementary Convention (1956) 220, 223–225, 228 declaration made (Article 12 of 1956 Convention) as to overseas territories 25 drafting of Article 10 of 1926 Slavery Convention 153 drafting of Article 11 of 1926 Slavery Convention 158 Draft Resolution of the United Kingdom (1953) 186–203 Note A/2435/Add.3 195 on Nansen Proposal (Article 7 of 1956 Convention) 134 party to 1953 Protocol amending Slavery Convention 16 party to 1926 Slavery Convention as of 1 Jan 2008 13 party to 1956 Supplementary Convention 24 proposal on preamble of Supplementary Convention (1956) 243 United States of America 207, 590 comment on/drafting of Article 11 (Consent to be Bound) of 1956 Supplementary Convention 609, 611–612, 632 comment on/drafting of Article 3 (Slave Trade) of 1956 Supplementary Convention 359, 365, 411 declaration made (Article 12 of 1956 Convention) as to overseas territories 25 on Draft Resolution of the United Kingdom (1953) 193–194, 203 party to 1953 Protocol amending Slavery Convention 17 party to 1926 Slavery Convention as of 1 Jan 2008 13 party to 1956 Supplementary Convention 24 reservations made to 1926 Slavery Convention by 15

Universal Declaration of Human Rights 614, 678 Article 4 of 232–233, 494 preamble to 1956 Supplementary Convention 234–240 UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children see Palermo Protocol UN Secretariat, see Article 15 (Final Clause) of 1956 Supplementary Convention UN Secretary-General 25–27 notification to, when consent declaration made (Article 12 of 1956 Convention) as to overseas territories 25 UN Supplementary Convention (1956) see Supplementary Convention (1956) Uruguay 590 comment on/drafting of Article 9 (Reservations) of 1956 Supplementary Convention 566 on Draft Resolution of the United Kingdom 198–199 party to 1926 Slavery Convention as of 1 Jan 2008 14 party to 1956 Supplementary Convention 24 Vienna Convention on the Law of Treaties 21 Vietnam comment on Article 1 (Servitudes) of 1956 Supplementary Convention 296–297 comment on/drafting of Article 6 (Criminal Offence) of 1956 Supplementary Convention 487 party to 1926 Slavery Convention as of 1 Jan 2008 14 Viscount Cecil of Chelwood 8–10, 57 commentary on Article 1 of 1926 Slavery Convention 65–68 drafting of Article 2 of 1925 British Draft Protocol 70 drafting of Article 5 of 1925 British Draft Protocol 81–82 drafting of Article 2 of 1925 Draft Convention 72–73 drafting of Article 2 of 1926 Slavery Convention 76–77, 79 drafting of Article 5 of 1926 Slavery

Index

Convention 102–103, 107–110, 112–114, 117–124 drafting of Article 6 of 1926 Slavery Convention 126–129 drafting of Article 7 of 1926 Slavery Convention 132–133, 135 drafting of Article 8 of 1926 Slavery Convention 141, 143–144 drafting of Article 9 of 1926 Slavery Convention 146–147, 150 drafting of Article 12 of 1926 Slavery Convention 164, 166 drafting of the 1925 British Draft Protocol 81–82 drafting of 1925 Convention 60–62 drafting of the 1925 Draft Convention 83–86 drafting of League of Nations Slavery Convention (1926) 33–38 drafting of preamble of Slavery Convention (1926) 43, 46–47 drafting of the 1926 Slavery Convention 86–89 on Article 4 of Draft Convention (1925) 99–100 women’s rights, see Article 1 (Servitudes) of 1956 Supplementary Convention Yemen party to 1926 Slavery Convention as of 1 Jan 2008 14 youth rights, see Article 1 (Servitudes) of 1956 Supplementary Convention Yugoslavia comment on/drafting of Article 10 (Compromissory Clause) of 1956 Supplementary Convention 581, 585 comment on/drafting of Article 11 (Consent to be Bound) of 1956 Supplementary Convention 603, 616 comment on/drafting of Article 8 (Cooperation and Communication) of 1956 Supplementary Convention 538, 542–544 comment on/drafting of Article 6 (Criminal Offence) of 1956 Supplementary Convention 483 comment on/drafting of Article 7 (Definition) of 1956 Supplementary Convention 500–501

821

comment on/drafting of Article 14 (Denunciation) of 1956 Supplementary Convention 723–724 comment on/drafting of Article 13 (Entry into Force) of 1956 Supplementary Convention 711–712 comment on/drafting of Article 2 (Marriage) of 1956 Supplementary Convention 336 comment on/drafting of Article 5 (Mutilation) of 1956 Supplementary Convention 466 comment on/drafting of Article 12 (Overseas Territories) of 1956 Supplementary Convention 637–641, 645, 647651, 653, 655, 679, 703 comment on/drafting of Article 9 (Reservations) of 1956 Supplementary Convention 555, 564–565 comment on/drafting of Article 1 (Servitudes) of 1956 Supplementary Convention 253–254, 269–271, 285–286, 291–292, 299, 312, 314 comment on/drafting of Article 4 (Slaves at Sea) of 1956 Supplementary Convention 450–452 comment on/drafting of Article 3 (Slave Trade) of 1956 Supplementary Convention 372, 374, 376, 378, 381–392, 396–397, 403, 438, 441 comment on title of Supplementary Convention (1956) 221 Yugoslavia, Former party to 1926 Slavery Convention as of 1 Jan 2008 13 party to 1956 Supplementary Convention 24 Zambia party to 1926 Slavery Convention as of 1 Jan 2008 14 party to 1956 Supplementary Convention 24 Zimbabwe, party to 1956 Supplementary Convention 24