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If Trade Rules Had Been Used in 'Amistad' Case

The National Law Journal
(p. A20)
Monday, March 9, 1998

By John C. Klotz

OSCAR TIME approaches. Although not a hit of "titanic" proportions, contending for four awards is Stephen Spielberg's "Amistad."

The movie relates the struggles of a group of Africans who, having been kidnapped into slavery in 1839, mutinied their way to liberty--only to wind up in captivity in Connecticut, the subject of competing admiralty claims. The case upon which the film is based is U.S. v. Libellants and Claimants of the Schooner Amistad, 40 U.S. (15 Peters) 518, 10 L. Ed. 826 (1841).

To most viewers, the film is about the way things were when the law recognized the rights of slave owners to their "property." We observe the court battle in hindsight. Slavery, after all, has been abolished. Yet, on closer inspection, it can be said that the core issue of the Amistad dispute, human rights v. property rights, did not end with the 13th Amendment, but persists to this day and is as contemporary as the inexorable rush to a global, corporate world order.

The conflict between property rights and human rights is intrinsic to the American experience. In Jefferson's first draft of the Declaration of Independence, he wrote of the inalienable rights "to the life, liberty and the pursuit of property" rather than "life, liberty and the pursuit of happiness." To the merchants and farmers who founded the Republic, the pursuit of property was an important constituent of their concept of freedom. Yet the practical wisdom of Benjamin Franklin and others prevailed, and Jefferson's draft was amended. Perhaps, with their due regard for the "opinions of mankind," our forefathers realized that founding a revolution on the pursuit of property was a bit tacky.

The Core Question

Slavery presented the conflict between property rights and human rights in its starkest form. The failure of the Republic's founders to resolve the conflict between the inalienable right to freedom and the alienable rights of slaves as property was an incongruity that was resolved only by the Civil War and the 13th Amendment. In the meantime, when presented with litigation involving slavery, the federal judiciary was required to dispense justice under the most unjustifiable circumstances.

The Amistad case was one such instance; the Dred Scott decision was another. Unable to resolve the irresolvable, the courts only added more fuel to the approaching conflagration. Yet, while Dred Scott (which required the return of escaped slaves to their owners) has little to teach today's lawyers, Amistad offers valuable insight into the problems of property rights and personal freedom, particularly when they collide in the arena of international law.

The thrust of U.S. economic and foreign policy is summed up in the word "globalization." All of the world's individual national economies are viewed as interdependent, and powerful new international legal regimes are being created to deal with this interdependence. Among them are the World Trade Organization, the General Agreement on Tariffs and Trade and the North American Free Trade Agreement. Under negotiation is the Multiparty Agreement on Investment, or MAI.

Each of these regimes has a common thread: the creation of trade courts that settle disputes between private parties (mainly corporations) and national governments by binding arbitration.

The MAI would allow investors to seek arbitration against national governments that threaten to harm their investments. The main selling point of arbitration is that it is quick, informal and not bound up in "outmoded" national court processes.

Whatever arbitration's supposed advantages, it cannot be disputed that by binding themselves to arbitration with private litigants, national governments are agreeing to an extraordinary abridgment of their sovereignty.

Suppose a new government took power in Nigeria and sought redress for Shell's devastation of the Ogoni homeland in the Niger delta. Could Shell then take claims of harm to its investment to a trade arbitration panel under the MAI? One would think so.

Corporate Clout

But there appears to be no reciprocity. While Shell shareholders may drag Nigeria to arbitration, it does not appear that the international conglomerate need surrender its corporate veil of protection for the damages caused by its Nigerian subsidiary. Globalization may represent not so much a New World Order as a New Corporate Order.

It is to this the Amistad case speaks. Writing for the majority, Justice Joseph Story hinged his determination on an American reverence for competent tribunals:

"If the contest were about any goods on board of this ship, to which American citizens asserted a title, which was denied by the Spanish claimants, there could be no doubt of the right of such American citizens to litigate their claims before any competent American tribunal, notwithstanding the treaty with Spain. A fortiori, the doctrine must apply where human life and human liberty are in issue; and constitute the very essence of the controversy. The treaty with Spain never could have intended to take away the equal rights of all foreigners, who should contest their claims before any of our Courts, to equal justice; or to deprive such foreigners of the protection given them by other treaties, or by the general law of nations."
Assume momentarily the law of slavery in 1841. Query: If Amistad had been before a panel of arbitrators from the shipping industry (who might be primarily concerned about the safety of crews and cargoes), is there any doubt that the mutineers would have lost?

The freedom of the Africans who mutinied on the Amistad was preserved because of the confidence the Supreme Court placed in "any of our Courts" to render equal justice.

In the rush to globalization, is this treasured birthright now to be sold for a pot of traders' gold?

Mr. Klotz is a Manhattan trial attorney.

Copyright 1998, The New York Law Publishing Company. All Rights Reserved.

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