Elf Labour – the Definitive Legal Answer
It’s Christmas time and girls and boys around the world are excited for their annual visit from the jolly man in the red suit. On the 25th we will, once again, be awoken to the sound of friends and loved ones tearing open their presents. But with all this taking it is easy to forget who does all the making. Santa’s little helpers, the elves of the North Pole, spend all year building the toys which we enjoy so dearly, before inevitably breaking about 15 minutes before the roast dinner hits the table. The team in our employment department love a Christmas present as much as the next person, but we also care about the rights of elves. Here we explore who these mysterious manufacturers are and whether Santa has any right to demand so much of them.
Before proceeding it is important to understand who these nimble nisse are. Not much is known about the Christmas elves, however, there are some generally accepted assumptions which can form the basis of our analysis. Elves live at the North Pole building toys, tending to the reindeer and otherwise helping around Santa’s workshop. Elves are usually good-hearted and helpful although some folklore suggests that thanking them with food, possessions, or sometimes even mere compliments may insult them to the point where they wreak havoc on your home. This is a topic of debate between regions as some believe that leaving a bowl of porridge (or, in more modern times, some sugary snacks) keeps the elf fed, happy and out of trouble. Now that we know a little more about elves we can turn to the law.
If you opened this article for a serious legal discussion then do not be put off by the jovial nature of the preceding paragraph… you are in the right place and it’s about to get a whole lot more complicated. Were Santa’s workshop based in the UK our employment team would have a much easier time advising on the rights of elfkind. Alas, we must turn our attention to the jurisdiction of the North Pole. The icy wasteland lies within the Arctic Ocean and is not governed by any one nation. As such the law which applies to the North Pole and much of the Arctic Ocean is the ‘law of the sea’, internationally governed by the United Nations Convention on the Law of the Sea 1982 (UNCLOS). The North Pole and much of the surrounding territory can be more specifically categorised under the laws of the high seas in accordance with Article 86 UNCLOS as, among other reasons, it is a sufficient distance from the shorelines of neighbouring nations.
The High Seas
So Santa and his elves live and work on the high seas… who knew. But what does this mean? Well, Part VII of UNCLOS sets out a number of principles and prohibitions which govern conduct on the high seas. Most of the laws are positive duties which must be adhered to by States who are party to UNCLOS, however, despite Santa’s reputation it is unlikely his workshop would be considered a State. I certainly don’t recall seeing Santa’s signature on the back pages of the convention either. There are, therefore, very few laws which actually apply to elves and their merry master. In fact, since there would be no connection between (1) any State seeking to exercise their jurisdiction; and (2) Santa, elves, or the North Pole, no State would be able to enforce their own employment laws over elf labour. The only enforceable laws would be international laws enforced under the ‘universality principle’ which empowers States with the ability to punish certain offenses recognised as of universal concern, including… slavery.
To summarise where we have got to so far – Santa is held to perhaps the lowest standard of employment law possible. So long as he refrains from committing slavery, he can treat his elf workforce in virtually any manner he likes, in any working conditions, and he won’t be committing an offence. The UK’s mandatory 5.6 weeks’ holiday doesn’t seem quite so bad in comparison. But could it be possible that the beloved Saint Nick is actually in breach of this most basic of human rights laws? One of the most widely adopted definitions of slavery comes from the Slavery convention 1926, in summary being the exercise of any or all powers of ownership over a person. Two forms of exploitation which may indicate ownership being exercised over elves could be forced labour and/or controlling their movement (human trafficking).
Before continuing it is worth taking a moment to reflect on the last few words of the preceding paragraph… ‘Human Trafficking’. This may seem odd as we are discussing elves and whether they are human is debateable at best. However, being ‘human’ and being considered a ‘person’ entitled to rights are two separate legal concepts. For the purposes of this exploration it is assumed that elves are considered persons on the basis of assumed emotional intelligence and capacity for rational thought. As such it is possible, and illegal, to enslave them.
Slavery Continued – Forced Labour and Trafficking
By human standards, it is almost undeniable that Santa exploits his elf workers. Sources differ as to whether elves are unpaid or paid in sweet treats like Christmas cookies. Despite how delicious Christmas cookies sound, it would certainly be considered exploitation if a human was expected to build smartphones and drones 365 days a year in exchange for, at most, a few cookies. But here is where our understanding of elves runs out. Elves may only need a few cookies to make it worth their while. Perhaps they need no food at all or live simply for the joy of working. This is where the crux of the matter lies. Both forced labour and trafficking require some element of exploitation by threat or coercion to control a reluctant other in order to indicate slavery. Regardless of how Santa treats the elves, regardless of how they live, how hard they work, or how little they get paid… if they choose to stay and work at this workshop then Santa is not exercising ownership over them and they cannot be slaves.
What if they don’t?
The North Pole is in the centre of the Arctic Circle, subjected to extreme temperatures and 430 miles from the nearest landmass. While Santa can travel around the world freely, the elves arguably have no choice in their service. In fact, it is somewhat suspicious that Santa would choose such a remote location for himself and his elves, both of European origin, unless this was actually his intention. So, what if they don’t work voluntarily and are instead detained as slaves under international law? Article 99 UNCLOS prohibits the transportation of slaves on the high seas, however, as there is no acquisition, transport or disposal of slaves at the North Pole this may not be the best provision to rely on. Instead it may be more appropriate to use the universality principle to enforce the prohibition of slavery found in the Universal Declaration of Human Rights 1948.
Wait… is Santa a pirate?
Before sailing up to Santa’s workshop and accusing him of slavery there is one thing to remember. The ice. Hundreds of miles of ice lie between Santa’s workshop and its much-needed audit. But while this ice poses an obvious physical obstruction it also has legal significance. The UNCLOS uses the terms “ship” and “vessel” interchangeably in the English translation of the Convention and, while UNCLOS has confirmed no distinction between the two, no definition has been provided. Instead it has been suggested that the definition from the Maritime Pollution Convention 1973/78 be used:
“Ship” means a vessel of any type whatsoever operating in the marine environment and includes hydrofoil boats, air-cushion vehicles, submersibles, floating craft and fixed or floating platforms.
It is possible to argue that the floating ice on which Santa’s workshop stands is a floating platform capable of being considered a ship/vessel under this definition and, consequently, under the UNCLOS. As soon as this is accepted Santa is no longer operating his workshop just on the high seas, but also aboard a stateless ship. It is not an offence in itself to operate a stateless ship and so, should the elves be consensual volunteers, there is still no offence committed. However, by exploiting a crew of unwilling elf captives Santa’s actions may be caught within the Article 101 UNCLOS definition of piracy and by extension the North Pole would be considered a pirate ship under Article 103. Shiver me timbers indeed. Any act of voluntary participation in the operation of a pirate ship also counts as an act of piracy – so should some elves or other beings willingly help Santa while some elves are slaves, they would also be considered pirates.
The most significant consequence of this understanding is the right under Article 105 UNCLOS for any State to seize a pirate ship and the property on board. Yes, that’s right, if a State sent a warship or government ship/aircraft to the North Pole and found elves detained and enslaved inside Santa’s workshop it would have a claim, not just to the workshop, but to the North Pole itself. Of course, we would need to exercise a right to visit in order to go and find the answers for ourselves. Under Article 107 UNCLOS only warships and government ships/aircraft are entitled to seize on account of piracy but in order to board Santa’s floating ice ship and investigate they would need reasonable grounds for suspecting piracy or slavery. With a hidden workshop and a reputation around the world as a saintly bringer of joy no State is currently able to investigate the North Pole. Well-played Kringle… for now it will have to remain a matter of faith whether elves are Santa’s little helpers or slaves under a tyrannical pirate overlord.
We in the Acuity employment team hope you have enjoyed our articles this year and would like to take this opportunity to wish both elf and human-kind a merry Christmas. We look forward to another exciting year in 2023 and if any elves would like to get in contact with our employment team we would be happy to take further instructions.
Claire Knowles – Partner
Adam McGlynn – Associate