Antislavery courts and the dawn of international human rights law.

• Author: Martinez, Jenny S.

ARTICLE CONTENTS INTRODUCTION I. ORIGINS OF THE ANTISLAVERY COURTS A. The Rise of British Abolitionism B. Abolitionism and British Foreign Policy, 1807-1814: Unilateralism C. British Foreign Policy at the End of the Napoleonic Wars: A Network of Treaties II. THE COURTS OF MIXED COMMISSION FOR THE ABOLITION OF THE SLAVE TRADE A. Overview of Court Operations B. The Courts in Operation: Impact and Limitations 1. Impact: Volume of Cases 2. Limitation: Nonparticipation 3. Limitation: Other Loopholes 4. Limitation: Reluctant Treaty Partners 5. Limitation: Faltering Domestic Support C. From Crisis to Success: The Final Abolition of the Slave Trade 1. Portugal 2. Brazil 3. Spain, Cuba, and the United States III. INTERNATIONAL HUMAN RIGHTS LAW AND INTERNATIONAL COURTS: RETHINKING THEIR ORIGINS AND FUTURE INTRODUCTION

Almost exactly two centuries ago, in March 1807, both the United States and Great Britain passed landmark legislation prohibiting the slave trade. The anniversary of this event has been marked with fanfare in both countries. (1) But these celebrations mask the fact that the transatlantic slave trade continued for another sixty years before it was finally suppressed. This Article is about those sixty years and the surprising and forgotten role that international law and international courts played in the extinction of the slave trade.

Between 1817 and 1871, bilateral treaties between Britain and several other countries (eventually including the United States) led to the establishment of international courts for the suppression of the slave trade. (2) Though all but forgotten today, these antislavery courts were the first international human rights courts. They were made up of judges from different countries. They sat on a permanent, continuing basis, and they applied international law. The courts explicitly aimed to promote humanitarian objectives. Though the courts were extremely active for only a few years, over the treaties' lifespan, the courts heard more than 600 cases and freed almost 80,000 slaves found aboard illegal slave trading vessels. (3) During their peak years of operation, the courts heard cases that may have involved as many as one out of every five or six ships involved in the transatlantic slave trade. (4)

These international antislavery courts have received scant attention from historians, (5) and legal scholars have almost completely ignored them. (6) To be sure, the cases they adjudicated represented only a fraction of the transatlantic slave trade from West Africa, and they left the East African slave trade untouched. Social, economic, political, and military factors created an environment amenable to the formation of the courts, and it is difficult to untangle the causal role played by these factors from the role of the courts themselves in the ultimate global abolition of the slave trade. The final suppression of the slave trade only occurred when changes in attitudes toward the trade in various countries led to effective enforcement of domestic laws against the traffic; these changes in domestic attitudes appear linked at least in part to international efforts to ban the slave trade, though other factors likely played a role as well. But regardless of the weight of various causal factors in the suppression of the slave trade, an international legal institution that had a direct and tangible impact on nearly 80,000 human lives should be far more than a footnote in the history of international law. Modern international courts--about which tens of thousands of scholarly pages have been spilled--measure their successes on a much smaller scale. (7)

In addition to its intrinsic historical interest, the story of the antislavery courts has important implications for contemporary issues in international law. Most legal scholars view international courts and international human rights law largely as post-World War II phenomena, with the Nuremberg trials of the Nazi war criminals and the founding of the United Nations as the seminal moments in the turn to international law as a mechanism for protecting individual rights. (8) But in fact, the nineteenth-century slavery abolition movement was the first successful international human rights campaign, and international treaties and courts were its central features. (9)

The history of the antislavery courts also reveals a more complex interrelationship between state power, moral ideas, and domestic and international legal institutions than many contemporary theories of international law and relations acknowledge. Great Britain, the main instigator of the antislavery treaties, no doubt would not have campaigned so strongly for abolition if it had been truly devastating to its economic and political interests. Yet substantial evidence shows that Britain's abolition policy was motivated by genuine humanitarian concerns and that the policy inflicted significant economic costs on its empire. Of equal significance, Britain used international law as one important tool for persuading other countries to abandon a widespread and profitable practice. Britain was the nineteenth century's greatest naval power, and its initial efforts to suppress the slave trade were military and unilateral, involving seizures of slave vessels by the British navy and condemnation of those ships in British courts. Over time, however, Britain found it could not rely on its military power alone, but instead had to utilize that power in conjunction with cooperative legal action to achieve its goals. Over several decades, Britain convinced one country after another to ratify increasingly powerful treaties against the slave trade. At the same time, these international legal mechanisms would have been ineffective without Britain's military and economic power. At critical moments, Britain was forced to deploy its "hard" powers, as well as its domestic laws and courts, to bring reluctant treaty partners back into the legal fold. In short, neither raw coercive power nor international law alone was enough to achieve the abolition of the slave trade. Both were necessary.

Each time and place in history is different, of course, and yet this episode is evocative of contemporary problems in international relations, including efforts to foster democracy and human rights both through the use of force and/or through international legal institutions, including courts. The antislavery movement's use of international law and legal institutions as part of a broader social, political, and military strategy can help us better understand the potential role of international law today in bringing about improvements in human rights. In more theoretical terms, the history of the antislavery courts suggests a need for a thicker, more robust account of the relationship between power, ideas, and international law. In short, this forgotten bit of history should change the way we think about international courts and international human rights law--their origins, limits, and potential.

1. ORIGINS OF THE ANTISLAVERY COURTS

   In 1800, slavery was a fundamental part of the world's economic and social order. Though not practiced in Europe itself, European colonies in the Western Hemisphere relied heavily on slave labor to support their plantation economies. Slave trading ships crossed the Atlantic flying the flags of all the seafaring European nations, as well as of the newly independent United States of America. In the first decade of the nineteenth century, an estimated 609,o00 slaves arrived in the New World. (10)

   Within a relatively short time span, however, things began to change. In 1807, Britain became the first major country, followed shortly by the United States, to ban its subjects from participation in the slave trade. (11) By the early 1840s, more than twenty nations--including all the Atlantic maritime powers--had signed international treaties committing to the abolition of the trade. By the late 1860s, only a few hundred slaves per year were illegally transported across the Atlantic. (12) And by 1900, slavery itself had been outlawed in every country in the Western Hemisphere.

   The abolition 10 slavery has received a great deal of attention from historians, (13) but much less from scholars of international law. And yet the abolition of chattel slavery remains perhaps the most successful episode ever in the history of international human rights law. Slavery is one of the few universally acknowledged crimes under international law. (14) Though powerful countries today defend torture (15)--another practice placed strictly off limits by international law--no nation today officially defends slavery. To be sure, modern forms of forced labor remain a significant human rights issue affecting millions of people, but the type of widespread, legalized chattel slavery that was commonplace in the nineteenth century has mostly disappeared. (16)

   How did such a dramatic shift occur in disparate societies around the world in less than a century? Changes in the world economy in the nineteenth century certainly created the conditions that made the abolition of slavery more feasible. But the best historical evidence suggests that slavery did not die an accidental death of abandonment in the face of competition from industrial capitalism. (17) Slavery was eradicated, intentionally, by people who had come to believe it was morally wrong. It was eradicated in part by military force, but also by coordinated legal action--including, surprisingly, international courts.

   1. The Rise of British Abolitionism

      The indisputable star of the international abolition story is Great Britain. Britain was, along with the United States, one of the first major countries to ban the slave trade. Unlike the United States, (18) Britain, whose ships were responsible for more than half of the trade in the years leading up to the ban, enforced its prohibition on slave trading with persistent vigor. Moreover, Britain soon became the main...