THE ALIENS ARE COMING: CNMI AND FREE ENTERPRISE

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By Robert M. Rees

The U.S. District Court of Hawai’i may become the Armageddon for a seminal battle – 50,000 aliens versus unmitigated free enterprise – in the development of the global economy.

HONOLULU, Hawai‘i (February 2-8, 2000 – Honolulu Weekly)---A young woman of Bangladesh, coming in age in a country where poverty is the rule, was struck by an ad that promised a chance "to live in America" along with good wages and a place to stay. She applied for the job, and was hired.

When she arrived in Saipan, the capital of the Commonwealth of the Northern Marianas, a U.S. territory, she found herself in peonage – the forced labor of persons in debt.

Her pay for producing clothing sold to America’s cutting-edge retailers, including The Gap, The Limited and Tommy Hilfiger U.S.A., was $3 an hour. She owed a "recruitment fee" of $7,000. She had to pay $100 a month to live in vermin-infested barracks. When she became pregnant, she was told that if she refused an abortion, she would be fired and left destitute.

To some, this tragedy might seem only the inevitable and even inconsequential outcome of an emerging global economy where "the market decides." After all, Ross Perot wasn’t all wrong when he famously exclaimed that the "sucking sound" that follows agreements on unrestricted free trade is that of jobs being siphoned off to where labor is cheap.

The hero of the new global economy is economist David Ricardo – who, in the early 1800s, was able to visualize Adam Smith’s apocryphal pin factory, where each worker specializes in minutiae so as to increase the productivity of all, as a worldwide system. From Ricardo’s virtual global production plant came the concept of comparative advantage: If each country sticks to what it does best, and if all countries trade without restrictions, then we will be guided by the fabled "Invisible Hand" of Adam Smith’s capitalism to a more productive life.

It took Herbert Spencer, an Englishman traveling in America in the 1880s, to articulate for us what was a central tenet of capitalism: "survival of the fittest." Spencer, not Charles Darwin, coined that phrase, and he did so to pronounce that government help for those in need leads to the survival of the least fit.

In 1905, the U.S. Supreme Court institutionalized Spencer’s Social Darwinism into law. Old Justice Rufus Wheeler Peckham, writing for a 5-4 majority in Lochner vs. New York, determined that the state cannot limit an employee’s hours worked per day, because workers have the freedom to sign any contract they damn well please.

The cruel old days of unfettered capitalism disappeared when the Great Depression of ’29 shook the world by its broad industrial shoulders. Now, however, there’s a new push to let capitalism be capitalism. It comes under the guise of free trade in a globalized economy, and is based on a veritable global Internet of market-driven activity.

To better compete in the new world of unrestricted global trade, entrepreneurs around the world are seeking comparative advantage. Saipan’s determined that theirs ought to be slave labor. Saipan is exempt from some U.S. statutes, including minimum wage and alien-labor laws. This has allowed its entrepreneurs to import and to exploit workers from China, the Philippines, Thailand and Bangladesh. In garment sweatshops as bad as those that once existed on New York’s lower East Side, these workers produce clothing that is sold to some of the world’s leading retailers.

Now, however, with nothing to lose but their chains, the workers of the world are finding new ways to unite: legally. America’s lawyers have taken on a new client, Karl Marx’s exploited proletariat, and together they are suing the ass off capitalism.

The girl from Bangladesh is part of a class action suit filed by 50,000 alien workers on Saipan. "This class action challenges a garment production system… based on peonage and involuntary servitude, under which tens of thousands of foreign guest works, primarily young women, work for subsistence wages in unlawful sweatshop conditions," it charges.

How can 50,000 aliens in Saipan sue international and U.S. companies in U.S. courts? Under the Alien Tort Claims Act of 1789. ACTA was passed by the 1st Congress so that foreigners whose ships were seized by American pirates could take the scoundrels to court. It permits aliens to sue in U.S. District Courts for torts "committed in violation of the law of nations." (The law of nations is a formalization of the way nations deal with each other, as in mutual regard for diplomats and as in immunity of foreign ships on neutral waters. The law of nations is referenced when our own Declaration of Independence cites, "Things which independent States may of right do.)"

A new and different use for the Alien Tort Claims Act of 1789 was developed in 1980: A U.S. District Court allowed a Paraguayan family to sue, in the U.S. courts, a former Paraguayan government official who was residing in the United States. The official, while in Paraguay, had allegedly allowed the torture of the father of the family.

Jurisdiction under the Alien Tort Claims Act was extended to non-government affairs in 1997. A District Court in California allowed Burmese citizens to sue Unocal Corporation because of alleged atrocities that occurred while suppliers under contract to Unocal were building a gas pipeline through the jungle. Another U.S. District Court has permitted rainforest dwellers from Ecuador to sue Texaco because of their claim that the pollution caused by Texaco is a violation of "the law of nations." Both the Burmese and Ecuadorian suits are pending.

The 50,000 aliens from Saipan filed their suit in California, but the venue was moved to Hawai‘i because of Honolulu’s better geographic proximity for all parties. As we might have expected, Tommy Hilfiger et al. then asked that the case be moved to Saipan, but the 9th Circuit Court of Appeals, last week, rejected their motion. (A trial in Saipan, where 92 percent of all private sector jobs are held by aliens, would have a tremendous advantage to the defendants because of the importance of the sweatshops to the local economy.)

The case will be tried in Judge David Ezra’s District Court. Ezra, in the past, has not been paralyzed by lack of precedent. Among the firms representing the aliens will be Honolulu’s Davis Levin Livingstone Grande, known for its innovative work on behalf of the oppressed.

It should be a landmark case as the world begins to wrestle not only with questions of sovereignty, jurisdiction and legal accountability in a globalized economy, but also with how much can we abdicate our moral responsibility to letting the market decide.

For additional reports from The Honolulu Weekly, go to PACIFIC ISLANDS REPORT News/Information Links: Newspapers/Honolulu Weekly

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