The history of slavery and international law remains largely unwritten. Aside from Henry Richardson III's magisterial monograph, The Origins of African-American Interests in International Law, and a handful of shorter pieces (many of them recent),Footnote 1 few accounts of “slavery [as] a global legal institution”Footnote 2 have emerged from within the discipline, in stark and telling contrast to international law's ongoing reckoning with colonialism. What have been produced in increasing abundance—both inside and outside the discipline—are histories of anti-slavery and international law, stories of “valiant battles waged by enlightened and humane Europeans and Americans—usually white men—to liberate the slaves.”Footnote 3 The silencing of slavery in accounts of international law's past, and its afterlives in the present, is overdetermined. It has something to do with the prevailing history-making practices of international lawyers and historians; their choices of events, subjects, and structures,Footnote 4 which, as Toni Morrison insisted and Richardson illustrated, remain choices.Footnote 5 As Michel-Rolph Trouillot has shown, it has a lot to do with the kind of stories that “the West” and its international lawyers, want (and need) to tell (and hear) about themselves.Footnote 6 Like slavery itself, these silences have everything to do with race, and the whiteness of the international legal academy. This essay will consider what a history of slavery and international law might look like (or at least what it must take account of) and what the ongoing “impossibility of its telling”Footnote 7 reveals about race, racism, and international law.
There are number of ways to (re)tell the history of slavery and international law. Rather than Westphalia, one could choose to begin an account of international law's past with Palmares—a republic established by formerly enslaved people that would last for nearly a hundred years (1605–1694), and the “first self-governing entity in the modern world that did not admit ethnic, racial, religious, and gender particularism or exclusion.”Footnote 8 The Quilombolas might seed a narrative where international law is called upon to resist, as well as restore and refigure, slavery; one that includes the Haitian Revolution, the U.S. Civil War, and nineteenth and twentieth century anti-colonial internationalisms. Rather than rendering enslaved people “present absences” in stories about white abolitionists and judgesFootnote 9 as “redemptive heroes of the ‘international,’”Footnote 10 or white “middling” officials and settlers,Footnote 11 one could choose to present “the story of slavery and international law . . . in a different language, one that makes the slave the center of her own history,”Footnote 12 and its telling.Footnote 13 Finally, one could refuse, as Third World scholars and states have consistently done,Footnote 14 to disconnect slavery from other structures “heavily inflected by racialization, like apartheid and colonialism.”Footnote 15 Instead of defining them as “‘other’ than slavery,” one could emphasize their concatenations in the past and explore their entwined “afterlives” in the present.Footnote 16
A more conventional (and less ambitious for present purposes) starting point for reconsidering the history of slavery and international law is the 1876 Royal Commission on Fugitive Slaves, on which sat the leading British international lawyers of the day,Footnote 17 who concluded that granting “fugitive slaves” refuge would likely run contrary to “the strict theory of international law.”Footnote 18 The Commission, established after the British Admiralty instructed its ships that “fugitive slaves” seeking refuge in foreign ports and waters should be returned to their “masters,” had been tasked with determining “the nature and extent of [applicable] international obligations.”Footnote 19
The Commission is a generative starting point in three respects. First, it illustrates how celebrating the efforts of white men to abolish slavery and the slave trade distracts from the ways in which both were sustained by international law for much of the nineteenth century. Second, debates on the Commission illustrate how international law's late and partial turn against slavery was not a rejection of its white supremacist and racial capitalist underpinnings, but their refiguration through the White mythology of modern international law. Third, the raison d’être for the Commission—namely, what to do with enslaved peoples who sought freedom on their own terms—brings to the fore how “slavery transform[ed] and extend[ed] itself in the limits and subjection of freedom.”Footnote 20 In addition to disrupting the geopolitically circumscribed imperatives of “antislavery,” the fugitive slaves contested the terms upon which the enslaved were to be granted their “freedom” by white men—as grateful, peaceful, indebted apprentices—literal and figurative—for (white) “juridical freedom” and “humanity.”Footnote 21 In doing so, they continue to disrupt contemporary deracialized, and deracinated accounts of “antislavery” as human rights and international criminal law avant la lettre.Footnote 22
The Dead Letter of International LawFootnote 23
International law was central to the establishment, expansion, and consolidation of the racialized institutions of slavery and the slave trade on which the West was built, materially and ideologically. It also enabled both well into the nineteenth century, a fact elided juridically and temporally by the focus on British “post”-abolition suppression efforts. Twelve years after enslaved British subjects obtained their “juridical freedom,” and four decades after both the United States and Britain formally prohibited the international slave trade, Henry Wheaton declared racial slavery (i.e., the enslavement of African people) and the transatlantic slave trade permissible under “general international law.”Footnote 24 Wheaton defended slavery on positivist, historicist, and social Darwinist grounds. The first defense was that the right to trade in human beings “was vested in all by the consent of all, could be divested only by consent; and . . . must remain lawful to those who could not be induced to relinquish it.”Footnote 25 The second was that, “[t]hroughout Christendom this harsh rule had been exploded,” but “parties to the modern law of nations do not propagate their principles by force; and Africa had not yet adopted them.” This meant European slave traders could lawfully continue “purchasing the human beings” that were the victims of this “harsh rule,” a specious argument, even on its own terms.Footnote 26 The third was that “African slaves” were “better fitted by their physical constitutions to endure the toil of cultivating, under a burning sun, the rich soil” than their white counterparts; so planters “were naturally tempted . . . to substitute for white servants the labour of African slaves.”Footnote 27
Wheaton's first, positivist defense of slavery and the slave trade was the most common—empowering the European powers (Britain included) to continue to enforce enslavement under cover of “[international] legal phrase and chicanery”Footnote 28—but his other two defenses proved the most enduring. The British had, in the name of “antislavery,” been violently intervening in African polities, whose formal sovereignty they oftentimes simultaneously recognized, for the past four decades. However, in 1876, international lawyers remained convinced that their discipline compelled them to (re)turn (some) human beings into chattel rather than violate the sovereignty of (certain) states.Footnote 29 As W.E.B. Du Bois illustrated at its close, for much of the nineteenth century the slave trade persisted not in spite of the letter of international law, but because of it.Footnote 30
“Antislavery” and the White Mythology of International Law
In 1876, three international lawyers dissented, concluding that if Britain instructed naval officers not to surrender “fugitive slaves” it would not be a violation of international law.Footnote 31 The significance of the Phillimore, Bernard, and Maine dissent lies not in their conclusion but how they reached it: by embracing the evolutionary—or, plainly, social Darwinist—“White Mythology” underpinning Wheaton's second and third defenses,Footnote 32 noting:
International law, it is to be observed, is not stationary; it admits of progressive improvement, though the improvement is more difficult and slower than that of municipal law, and though the agencies by which change is effected are different. It varies with the progress of opinion and the growth of usage; and there is no subject on which so great a change of opinion has taken place as slavery and the slave trade.Footnote 33
There remained some differences between “the laws of civilized States” concerning slavery and the slave trade, “which the progress of civilization, tending though it does continually to produce a general uniformity, has not yet entirely effaced.”Footnote 34 However, these would be effaced in and through the progressive evolution of international law among the “the fully sovereign states of . . . white society[,]” as John Westlake described it a few years later.Footnote 35 This was an argument concerning slavery, raised by both James LorimerFootnote 36 and WestlakeFootnote 37 in the decades that followed.
This White Mythology was “founded in an opposition to certain myth-ridden ‘others’,”Footnote 38 peoples who were simultaneously constituted as non-White and uncivilized. As Antony Anghie has shown, in this “linear, evolutionary scheme . . . the non-European world is the past and the European world the future,” and “by examining the primitive… the [white, “European”] modern acquires a better, clearer sense of itself.”Footnote 39 This heterology or “dynamic of difference” structures international law generally, and its late nineteenth century variant—inflected by biological race-thinking—enabled Sumner Maine, Westlake, and their colleagues to re-invent the discipline through this evolutionary, historical jurisprudence, while co-constituting themselves, their “European-by-blood” states, and international society as white.Footnote 40
By extending this White Mythology to the question of slavery, as Wheaton had done in outline, the dissenting international lawyers performed a double move: the first was to universalize (and trivialize)Footnote 41 the institution of slavery and de-link it from the West in particular; such that—as Jean Allain puts it—in “the universal history of the world, it is free labour and not slavery which is the rather ‘peculiar’ institution, the norm having been slave labour.”Footnote 42 The second was to insist that the backward “non-West,” and Africa in particular, was simply the last to eradicate it. Crucially, this double move (ironically) refigured the West—which, paraphrasing Frantz Fanon, was literally created by slavery and colonialism, and continued to benefit from both—as an “International Empire of Antislavery,”Footnote 43 making “antislavery” a defining or constitutive attribute of progressive, “white,” Western civilization. Simultaneously, it condemned those deemed “uncivilized” as necessarily slave societies or states, stuck as they were in the West's past, and therefore ripe for imperial intervention in the name of “antislavery” (as Liberia and Ethiopia would soon discover).Footnote 44
“Antislavery imperialism” had been gaining momentum over the course of the nineteenth century, in respect of control over the seas and the coastal enclaves in Africa, in particular. But the White Mythology of “antislavery” enabled abolitionists, European colonial officials, and international lawyers to develop “New International [Legal] Machinery”Footnote 45 necessary to refigure slavery as a problem outside the West and predominantly in Africa, and beseeching Western colonial intervention. This began with the Berlin and Brussels Acts of 1885 and 1890, which circumscribed the obligation to combat slavery and the slave trade to Africa, where “it still exist[ed]”Footnote 46 (a geographical limitation on the international legal obligation to abolish slavery and the slave trade that was carried through to the 1926 Slavery Convention).Footnote 47 Then, having legally confined slavery and the slave trade to the non-West (and confident the White Mythology would keep it there “historically”) the opening lines of the Brussels Act declared that “the most effective means for counteracting the Slave Trade” was the “progressive” European occupation and colonization of “African territories,” under cover of international law.Footnote 48 As Du Bois pointed out eighty years ago, and as Western historians and international lawyers are gradually beginning to recognize, “[at the] back of slave trade suppression lurked colonial imperialism.”Footnote 49
These continuities between abolition, white supremacy, and colonial imperialism bring to the fore the third way in which the 1876 Commission is generative for (re)telling the history of slavery and international law: by foregrounding the role of fugitive subjects. Enslaved people who sought freedom on their own terms were, in the first instance, out of place in the strategic and stage-managed “emancipation” that happened to further imperial ambitions, maximize profits and profiteering, and secure and consolidate white supremacy globally.Footnote 50 Their histories remain out of place in the gentle, celebratory accounts of “80,000 people being freed” by international law, as nothing less than “the greatest success story in the history of human rights law.”Footnote 51 As Vasuki Nesiah has shown, the enslaved people who chose resistance, maronnage, or death over the “certain sort of juridical freedom” granted by the white man are outliers of the neat story of the Mixed Commissions—as well as histories of “antislavery” and international law more generally—and their circumscribed juridical and ethical grammar of “humanity.”Footnote 52 There are fugitives within that story as well: the “freed” who died en route to Mixed Commissions, the apprentices freed by these Commissions, whose “freedom” was indistinguishable from slavery, and at times worse as “the master had no further rights after the termination of the apprenticeship and therefore no interest in looking after his or her property properly.”Footnote 53 As Hartman has shown, this “debt of emancipation” extended beyond apprenticeship, to the “tabulation of duty and responsibility [that] resulted in a burdened individuality in which one enjoyed the obligations of freedom without its prerogatives,” and “recapitulated black servitude within the terms of an emancipatory narrative.”Footnote 54
Race was central to the introduction and expansion of slavery as well as its “abolition.” Yet, there are those who seek to disarticulate race and slavery, both legally and historically. For example, by insisting on a narrow, legal (not “politicized”) definition of slavery that “erases race” and eschews connections to other “systemic practices heavily inflected by racialization, like apartheid and colonialism,”Footnote 55 while deriding those who have done so for some time;Footnote 56 or by confining the concatenations of race and slavery to the past, cordoning them from their ideological and material effects in the present.Footnote 57 We are counseled not to talk about present redistribution or reparation, but past racism,Footnote 58 or warned that talking about reparations “divert[s] focus from the pressing challenges of tackling contemporary racism and global inequality.”Footnote 59 These projects of deracialization and deracination not only do violence to “the past”Footnote 60 and undermine the claims for reparations; they obscure the manifold afterlives of slavery in the racial capitalist present.