US Alien Research Articles

The Making of Modern US Citizenship and Alienage: The History of Asian Immigration, Racial Capital, and US Law

AbstractThis article unravels an important historical conjuncture in the making of modern US citizenship and alienage by drawing on the state's regulation of naturalization as it relates to Asian immigration in the early twentieth century. My primary concern is to examine the socio-legal formations that constructed the thick distinctions between the modern US citizen and alien along the lines of racial difference and racial capital. Specifically, this article argues that Asian immigration to the United States remade the modern US citizen and alien in two significant and interconnected ways. First, it underscores how the adjudication of race in US courts and connected political campaigns re-mapped race in the United States and sharpened the racialization of Asia and Europe in profound ways that ultimately produced immigrants from southern, central, and eastern parts of Asia as the modern US alien. Second, the debate over Asian immigrants’ eligibility to naturalize refashioned legal status as a normative avenue to sustain a regime of racial capital. It cast citizenship as a legal avenue for White men and families to acquire and protect a proprietary interest in citizenship and recast some Asian immigrants as permanent aliens in a period when alienage came to signify disposable immigrant labor. The article concludes by distinguishing how the struggle for US citizenship by Asian immigrants frames the epistemological parameters and political vocabulary of immigration and naturalization reform.

The Prosecution of Corporations before a Hybrid International Criminal Tribunal

This case note considers two decisions from two separate Appeals Panels of the Special Tribunal for Lebanon (“STL”) which held that the STL possessed the inherent power, pursuant to its inherent jurisdiction in matters relating to contempt, to exert its ratione personae jurisdiction over legal persons – two Lebanese corporations – accused of contemptuous conduct. These decisions opened the door for the first trials of corporate defendants in the history of international criminal law. The analyses of the Appeals Panels are pertinent to unresolved debates before United States (“US”) courts on whether the US Alien Tort Statute recognizes corporate liability for violations of the law of nations; raise the issue of the proper place of the principle of legality when jurisdictional questions arise as well as the proper interpretation of the STL’s Rules of Procedure and Evidence; and also have implications for other international criminal tribunals with provisions regulating contempt of court that are similarly worded to those in place at the STL.

Transnationale Menschenrechtsverletzungen im Internationalen Privatund Verfahrensrecht

Increasingly victims of alleged human rights violations try to bring civil actions against multinational enterprises. The US Alien Tort Statute provides a unique jurisdictional basis for such claims, triggering so-called human rights litigation since the 1980s. However, the Kiobel judgment of the US Supreme Court of April 2013 could bring this development to a sudden end. The paper analyses the decision and goes on to discuss core issues of the relation between human rights and conflict of laws.

The Impact of the 'Ruggie Framework' and the United Nations Guiding Principles on Business and Human Rights on Transnational Human Rights Litigation

This paper explores the impact of the Ruggie 'Protect, Respect and Remedy' framework and UN Guiding Principles on Business and Human Rights on transnational human rights litigation. It considers the impact to date, and the possible impact the Ruggie Framework and UN Guiding Principles could have on a widely predicted increase in the number of state law negligence claims against transnational corporations in the US after the decision of the Supreme Court in Kiobel v. Royal Dutch Petroleum limiting the jurisdictional reach of the US Alien Tort Statute 1789.

CORPORATE HUMAN RIGHTS ACCOUNTABILITY: THE OBJECTIONS OF WESTERN GOVERNMENTS TO THE ALIEN TORT STATUTE

AbstractThe almost two decade-long bonanza of civil litigation concerning gross human rights violations committed by corporations under the US Alien Tort Statute 1789 was scaled back by the US Supreme Court in Kiobel v Royal Dutch Petroleum in April 2013. The court restricted the territorial reach of human rights claims against transnational corporations by holding that the presumption against extra-territoriality applied to the Act. Thus Shell, the Dutch/British defendant, and the role it played in the brutal suppression by the Nigerian military of the Ogoni peoples' protest movement against the environmental devastation caused by oil exploration, lay outside the territorial scope of the Act. Legal accountability must lie in a State with a stronger connection with the dispute. While this article briefly engages with the Supreme Court decision, its main focus is on the attitude of Western governments to the corporate human rights litigation under the ATS as articulated in their amicus briefs. In these briefs they objected to the statute's excessive extraterritoriality and horizontal application of human rights to artificial non-State actors. In these two respects corporate ATS litigation created significant inroads into the conventional State-centric approach to human rights and thus provided an opportunity for more effective human rights enjoyment. This article tests the validity of the objections of Western governments to corporate human rights obligations under the ATS against the norms of public international law and against the substantive demands arising out of the shortfalls of the international human rights enforcement.

The Long Arm of Human Rights Risk: Supply Chain Management and Legal Responsibility

The recent Rana Plaza factory disaster in Bangladesh is yet another bloody and stark reminder of the real legal, reputational and economic risks facing corporations at the top of the supply chain for human rights infractions further down it. By reviewing such litigious avenues as the US Alien Torts Statute (even after Kiobel) and other tortious routes in UK and Europe, along with the impacts of individual retailer accords, the authors highlight the fact that the extraterritoriality of human rights abuses is no shield against liability. The article explains the reasons why companies need to be aware of the serious possibilities of legal action in their home jurisdictions for human rights abuses with which they may be associated by way of their supply chains relations, and argues for serious reforms to the current levels of due diligence in supply chain management.

Guest foreword by Khawar Qureshi QC

I am delighted to have been invited to provide the guest foreword for the 2013 Volume of the International Review of Law. Qatar University College of Law, particularly its Dean and staff, are committed to ensuring that the institution provides a platform for constructive exchange of views on topical legal issues. It has been my pleasure since opening the first Barristers’ Chambers in Qatar in 2008, and regularly being in Doha, to witness the law faculty embrace the opportunities presented to teachers and students alike by comparative law study. In addition to the faculty organising regular seminars and conferences on subjects of practical significance, such as international arbitration, energy law and environmental law, the Review provides a valuable opportunity for legal scholars from all over the world to share their understanding and experience. After all, it is only by studying different systems of law, (or engaging in practice which exposes one to different systems of law as I have been fortunate to benefit from), that one appreciates that all legal systems suffer from imperfections. The true test of any legal system is its ability to engage in critical and constructive self-assessment on a regular basis, as well as being receptive to well meaning input from others interested in promoting a strong legal system. A quick perusal of the contents list of International Review of Law reflects the success of Qatar University College of Law in establishing the position of this legal journal as a source of learning on a wide variety of issues. This Volume contains articles on civil disputes, specifically construction related mediation and claims involving maritime vessels (which developed in the ancient admiralty jurisdiction of the English Courts). There are articles on international law and regulation – in the realms of telecommunications privacy issues, and energy transmission. Corporate liability under the US Alien Tort Statute is examined in one article, and there are articles on medical law and ethics. One must not overlook the significance of Islamic law, and the vital need for greater scholarly endeavour in this regard. Shari’ah law is addressed in two separate articles concerning divorce and “end of life” medical treatment. I look forward to reading future volumes of International Review of Law, which I am sure will continue to address significant subjects and thereby contribute to legal learning and debate.

Corporate Accountability and Indigenous Peoples: Prospects and Limitations of the US Alien Tort Claims Act

Indigenous peoples are often the victims of human rights violations at the hands of multinational corporations (MNCs). Since there are few avenues to ensure accountability for such violations, the US Alien Tort Claim Act (ATCA) has become one of the principal vehicles to ensure such liability. With varying degrees of success, ATCA has proven to be an attractive statute for ensuring accountability of MNCs. In recent years several cases have been lodged by indigenous peoples, including pioneering cases against corporations such as Texaco, Shell, Chevron and Rio Tinto. This article aims at analysing the prospects but also the limitations of such a national tort act to provide remedies for human rights violations to indigenous communities. In doing so the article provides a practical analysis on the strengths and weaknesses of using ATCA as a tool for human rights litigation against MNCs.

The Wiwa Cases

The Wiwa cases are important in how they relate to the US Alien Tort Claims Act (ATCA) and have been considered landmark cases by some scholars because the plaintiffs received compensation through a settlement reached with the defendants out of court. However, the question remains as to whether the plaintiffs can accept compensation or receive favourable judgments in a lawsuit for which the cause of action is that the environment has been destroyed and that environmental rights have been violated under the US ATCA. In my view, the possible judgments would not be satisfactory under the circumstances that environmental rights are still not regarded as a kind of human right and that environmental crime has been confined to wartime environmental destruction until now. Therefore, the role played by extraterritorial jurisdiction of the US Court under the ATCA concerning overseas environmental protection would still be limited.

Unlocking the Alienation: A Comparative Role for Alien Torts Legislation in Post-colonial Reparations Claims?

This article continues the themes developed in a previous paper looking at reparations for past wrongs in post-colonial Australia. It narrows the focus to examine the scope of the law of tort to provide reparations suffered as a result of colonisation and dispossession, with particular emphasis on the assimilation policies whose legacy is now known emphatically, although it ought not be exclusively, as the Stolen Generations. The search for more than just words is particularly topical in light of the Australian Prime Minister’s formal apology in early 2008. This highly symbolic step must not lose momentum. That momentum could be both political and legal. In the latter context, we explore here the concept of alien tort, in the light of current Australian tort jurisprudence, which has thus far proved inadequate to achieve compensation for the harms suffered. Taking a comparative approach, procedural and substantive developments are to better deliver justice consistent with community values. In particular, the greater acceptance of psychological harm as actionable tortious conduct in Canada and the United States is examined. The article further examines the scope for stolen children to bring suit under the US Alien Tort Claims Act 1789. While the Australian government enjoys sovereign immunity in the courts of the United States, non-state organisations such as churches that were complicit in the forcible removals may be subject to United States jurisdiction wherever they have a presence in that country. The procedural and substantive elements of such a claim are discussed. In particular, the relevant cause of action, the issue of forum non conveniens and the statute of limitations will be analysed to map out whether a claim could be developed and successfully prosecuted.

The US Alien Tort Claims Act of 1789, the US Torture Victims Protection Act of 1992, and the Gongadze Case: A Right without Adequate Remedy?

The US 1992 Torture Victims Protection Act (TVPA) strengthens the reach of the 1789 Alien Tort Claims Act (ATCA) to US citizens alleging claims of torture and/or extrajudicial killings that occur abroad, but only if the plaintiffs were US citizens at the time of the criminal acts. Should the later-in-time statute, which gives effect to the United Nations Convention against Torture and extends remedies under the ATCA, be amended to apply to those given political asylum in this country from the moment of their entry? Is not the limbo status of victims given haven in the USA but not automatic citizenship, victims who rightly need resolution of brutal facts which occasioned rupture with their country of origin, a situation that cries for more precise remedy? This note explores this issue as raised by the case of Myroslava Gongadze, the widow of slain political journalist Georghy Gongadze in the Ukraine in September 2000. Only three of the perpetrators, policemen who say they followed orders, were put on trial in 2007–2008. Those who allegedly gave the orders for the killing continue to evade justice.

Corporate Liability under the US Alien Tort Claims Act and the (Inadvertent) Creation of an American International Law

(2003). Corporate Liability under the US Alien Tort Claims Act and the (Inadvertent) Creation of an American International Law. King's Law Journal: Vol. 14, No. 2, pp. 232-244.