150th Anniversary of the U.S. Supreme Court Case Dredd Scott

One hundred fifty years ago today, on March 6, 1857, the U.S. Supreme Court held in the Dredd Scott decision that slaves “imported into this country” were not U.S. citizens and thus could not claim the rights and privileges of citizenship, including access to justice through the courts. The decision denied Scott, as well all African-American slaves and their descendants, the legal means to challenge their status as slaves and to request their freedom. The Dredd Scott decision, officially known as Scott v. Stanford, also struck down the Missouri Compromise Act of March 6, 1820, which barred slavery in the former Louisiana Territory. The Supreme Court declared the Act unconstitutional because the federal legislature could not prohibit the right of citizens to their “property” without due process of law. Today, the prohibition of slavery is regarded universally as a preemptory norm of international law, known as jus cogens, and is codified in article 7(1)(c) of the Rome Statute of the International Criminal Court (ICC) as an example of a “crime against humanity” intolerable to the international community.

The definition of enslavement in the Rome Statute follows and expands upon the Slavery Convention, its Protocol, and the Supplementary Convention. The Rome Statute also incorporates language and concepts from forced labor and human trafficking treaties.

Slavery Convention
The Slavery Convention was signed in Geneva on 25 September 1926 under the Council of the League of Nations. It entered into force on 9 March 1927. It codified the concerns against slavery expressed during the Brussels Conference of 1889-90 and provided a legal definition of slavery as “the powers attaching to the right of ownership.” Parties to the Convention agreed “to bring about, progressively and as soon as possible, the complete abolition of slavery in all its forms.”

Protocol Amending the Slavery Convention
After the League of Nations disbanded, a Protocol under the United Nations amended article 8 of the Slavery Convention. The Protocol substituted the newly created “International Court of Justice” for the previous Permanent Court of International Justice. The ICJ, like the PCIJ, had jurisdiction to settle disputes between states but lacked jurisdiction to hear cases brought by individuals challenging their conditions of enslavement. Thus, individuals relied on remedies through domestic courts.

Supplementary Convention on the Abolition of Slavery
The following year, in 1957, the United Nations adopted a Supplementary Convention “to intensify national as well as international efforts towards the abolition of slavery.” Parties to the Supplementary Convention agreed to implement domestic legislation to ensure compliance with the Slavery Convention. The United States became a party to the Supplemenary Convention in 1967. While the treaty has not reached universality, 156 states of the 191 UN member states are either a signatory or a party: 35 signatories and 121 parties. While Montegro and Serbia succeeded from the treaty since 2000, two additional states became parties: Uruguay on 7 Jun 2001 and Rwanda on 4 Oct 2006. Countries who have not signed or become parties to the treaty include Burundi, Indonesia, Thailand, and Venezuela.

Practices “Similar to Slavery” – Women as “Property”
The Supplementary Convention expanded the scope of protection to include “practices similar to slavery.” The Convention identifies four types of slavery-like practices: (1) debt bondage, (2) serfdom, (3) women as chattle, and (4) child exploitation. It mandates legislative reforms to prohibit the treatment of women as chattle in marriages, inheritances, and dispute resolutions. Also, the Supplementary Convention specifically identifies the right of a child to be free from exploitation.

Trafficking Conventions
On 18 May 1904, several European governments and Russia agreed to the International Agreement for the Suppression of the “White Slave Traffic.” The purpose of the agreement was to provide “effective protection against the criminal traffic known as the ‘White Slave Traffic,'” largely construed as trafficking in women and children. Under article 2, governments agreed to “to have a watch kept, especially in railway stations, ports of embarkation, and en route, for persons in charge of women and girls destined for an immoral life.” The agreement was applicable and binding in many territories of the European powers.

International Criminal Court
The Rome Statute categorizes “enslavement” as one of many acts constituting “crimes against humanity” but only when such acts are committed as part of a widespread or systematic attack. Adopting the language of the Slavery Convention, enslavement is further defined as “powers attaching to the right of ownership” over a person. The definition of enslavement is broadened to include “human trafficking,” particularly of women and children regardless of race. “Sexual slavery,” while recognized as a qualifying act under “crimes against humanity,” is not included in the definition of “enslavement.”

Whether the ICC has jurisdiction over a case of slavery depends largely on whether the practice rises to the level of “widespread or systematic attack directed against any civilian population” and thus constitutes an actionable crime against humanity. The terms “widespread” and “systematic” are not defined in the Statute. A textualist interpretation of the statute suggests that the use of “or” requires at least one of the criteria but does not mandate the presence of both criteria.

The Rome Statute identifies four main types of crimes.

The Rome Statute describes eleven types of acts under “crimes against humanity.”

Slavery is defined as control over a person and includes the practice of human trafficking.

Note: The International Day for the Abolition of Slavery is celebrated every December 2, the date of the adoption by the General Assembly of the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others. See GA resolution 317 (IV) of 2 December 1949.

International Treaties

• Rome Statute of the International Criminal Court (July 2002)
• Slavery Convention (signed 25 September 1926, eif 9 March 1927)
• Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 266 U.N.T.S. 3
• American Declaration of the Rights and Duties of Man (April 1948)
• International Covenant on Civil and Political Rights (23 March 1976)
• Optional Protocol to the International Covenant on Civil and Political Rights (23 March 1976)
• Universal Declaration of Human Rights (10 December 1948)
• American Convention on Human Rights (18 July 1978)
• International Agreement for the Suppression of the “White Slave Traffic” (18 May 1904)

International Courts

• International Criminal Court (2002) | Rome Statute
• European Court of Human Rights
• Inter-American Court of Human Rights (1969)
• Inter-American Commission on Human Rights (1959)

U.S. Supreme Court

• Scott v. Sandford, 60 U.S. 393 (March 6, 1857) (Dredd Scott)

U.S. Legal

• Declaration of Independence (July 4, 1776)
• U.S. Constitution, Art. 1, Sec. 2, “Three-Fifths Clause” (1788)
• Missouri Compromise (March 6, 1820)
• District of Columbia Emancipation Act (April 16, 1862)
• Emancipation Proclamation (January 1, 1863)
• U.S. Constitution, 14th Amendment
• U.S. Constitution, 15th Amendment, Suffrage for African-American males (1870)

Slavery Research and Education

• Slavery by the DHL Library at the UN
• Slavery documents by the Avalon Project, Yale Law School
• Gilder Lehrman Center for the Study of Slavery, Resistance, and Abolition, Yale University
• Slavery and the Making of America . The Slave Experience …by PBS television
• Wilberforce Institute for the study of Slavery and Emancipation
• Abolition 200: Bristol United Kingdom Commemoration of the Bicentenary of the Abolition of the Slave Trade Act in 1807