The Terrorism Exception to Asylum: Managing the Uncertainty in Status Determination

The Immigration and Nationality Act ( INA ), as it must, excludes a terrorist from receiving asylum. The substantive criteria and the adjudicative procedures set forth under the INA for the identification of the undeserving terrorist inevitably exclude those who are neither terrorists nor otherwise undeserving. Such unintended consequences are perhaps unavoidable in any well-conceived statutory scheme. What is disconcerting is, however the margin of the possible error in the application of this statutory scheme. Those who may be excluded by the application of these provisions are often not those who are supposed to be excluded as terrorists. Moreover, the existing scheme provides little help in screening out the real terrorists. The Article demonstrates these flaws and proposes some substantive and procedural modifications

Civil Liability for Violations of International Humanitarian Law: The Jurisprudence of The Ethiopia-Eritrea Claims Tribunal in The Hague

Violations of international humanitarian law are compensable by a state causing the violations. The roots of this obligation can be traced to Article 3 of Hague Convention IV, which states that a party to the conflict which violates the provisions of [international humanitarian law] shall . . . be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces. A similar rule is also contained in Protocol I Additional to the 1949 Geneva Conventions. In practice, the enforcement of this important provision of international humanitarian law has remained a matter of rarity, particularly in terms of civil - rather than criminal - liability. However, a recent exception is the Eritrea-Ethiopia Claims Commission in The Hague (the Claims Commission or the Commission). The Claims Commission was established pursuant to a peace agreement signed by Eritrea and Ethiopia in Algiers, Algeria, on December 12, 2000, ending a devastating war fought between the two countries from May 1998 to December 2000. The Commission was charged with the duty of deciding, through binding arbitration, all claims by one party or citizens of that party against the other party for loss, damage, or injury resulting from violations of international law (mainly violations of international humanitarian law that occurred during the war). The Commission commenced its work in March 2001 and decided to consider the claims of the parties in two different phases of the proceedings: a liability phase and a damages phase. The Commissions rendered the final decisions of the liability phase on December 19, 2005. The damages phase is still being conducted, although no decisions have been rendered by the Commission to date as part of that phase. Thus, this article exclusively focuses on the Commission\u27s work as it relates to the completed liability phase

Managing Forced Displacement by Law in Africa: The Role of the New African Union IDPs Convention

This Article provides a critical appraisal of the newly adopted African IDPs Convention. In particular, it offers a detailed analysis of the Convention\u27s transformation of the UN Guiding Principles into legally binding rules for the management of the phenomenon of internal displacement in Africa. By definition, internally displaced persons (IDPs) are persons who have not crossed international frontiers and are citizens of the state within which they find themselves. Although their conditions may be similar to refugees, who are necessarily aliens to the host community, their legal status is not analogous. At the most basic level, there is no doctrinal agreement on whether IDP is a legal status at all. This has created a fundamental doctrinal dilemma. The Article analyzes the merits of the arguments for and against according IDPs a distinctive legal status analogous to refugees. It also provides a detailed discussion of the important provisions that define the rights and responsibilities of IDPs and the various state and non-state actors during the three most important phases-before displacement, during displacement, and after return

Immigration Law as Contract Law

EVERYDAY LAW FOR IMMIGRANTS. By Victor C. Romero. Boulder: Paradigm Publishers, 2009. Pp. 160. $24.95. Described by leading scholars as intricate, “hopelessly convoluted,” “byzantine,” or even a “hideous creature,” immigration law is a conundrum of a sort—very difficult to teach to law students, let alone explain to the ordinary migrant new to the American legal system. A learned judge described the difficulty associated with immigration law, stating, “Whatever guidance the regulations furnish to those cognoscenti familiar with [immigration] procedures, this court, despite many years of legal experience, finds that they yield up meaning only grudgingly and that morsels of comprehension must be pried from mollusks of jargon.” In his book, Everyday Law for Immigrants, Professor Victor Romero breaks this “hideous creature” down into its most basic cells with astounding efficiency and care to provide the ordinary person with the essentials of how immigration status is acquired, maintained, and lost. The book is quite remarkable. It not only presents complex materials in plain and understandable language, but also employs a creative analogy between immigration law and contracts to help the reader gain a better understanding of immigration law. Throughout the book, Professor Romero masterfully demonstrates, for the benefit of those who make and interpret the law, the needlessness of immigration law’s complexity. As such, it is an extraordinary success in simplifying complex materials in the tradition of the Everyday Law Series—as attested to by the editors of the series, Professors Richard Delgado and Jean Stefancic —and in guiding the efforts of lawmakers and the judiciary to simplify the puzzle that is immigration law. This Review examines the fundamental assumptions, theories, approaches, and contents of each section of Professor Romero’s book to demonstrate how he effectively simplifies immigration law; a few humble critiques and suggestions are offered along the way

The Alienage Spectrum Disorder: The Bill of Rights From Chinese Exclusion in Guantanamo

The fundamental notion that increased ties to the polity of the United States would entitle an alien to better rights is deeply-rooted in the jurisprudence. Ordinarily, these rights tend to strengthen as one moves forward from the beginning of the spectrum, which might involve the most attenuated contact, as in the case of enemy aliens detained by United States military in a foreign land or an overseas visa applicant, to the end of the spectrum, which might involve a United States citizen. While this seems to make perfect sense, this article argues that a closer examination of the century-old jurisprudence suggests that the spectrum is indeed replete with inconsistencies, and as such, is utterly disordered. It further contends that the disorder in the alienage spectrum is a result of the awkward exclusion of the so-called aliens from the benefits of maturing notions of equal protection and due process as a result of the pre-rights era of Chinese exclusion, which is a part of the Plessy v. Ferguson legacy. More specifically, the article contends that the source of the disorder is the century-old tug-of-war between the plenary power doctrine, which immunizes congressional acts relating to immigration from judicial review, on the one hand, and contemporary notions of due process and equal protection on the other. At a more philosophical level, the disorder is a product of a tug-of-war between the perception of the Constitution as a compact between a selected group of “people” with the prerogative to exclude all others, on the one hand, and the perception of the Constitution “as a limitation on the Government’s conduct with respect to all whom it seeks to govern” on the other. The interplay between these fundamental assumptions, coupled with historical accidents, has produced a jurisprudence that is incoherent and largely unpredictable. This article purports to define the spectrum, highlight the disorder, identify and characterize the culprit gene, and propose modest reordering steps

China-African Investment Treaties: Old Rules, New Challenges

This paper analyzes the existing China-African BITs and puts forward some suggestions for its improvement. The extraordinary rise in the last decade of Chinese investment in Africa continues to be a subject of profound curiosity. That is largely because it defies the centuries-old norm on who invests where. Traditionally, the bulk of foreign investment had flowed North-South but rarely South-South. Whenever and wherever it occurred, the means of its protection ranged from direct military intervention to a bona fide and equitable legal framework. China had experienced the full range of treatments in its long history of dealings with the West, as had Africa. Although they went through the spectrum of experiences independently, they seem to have been exposed to the same set of evolving principles at about the same time in varying degrees

China\u27s Bilateral Investment Treaties with African States in Comparative Context

In the last decade, China has made significant investments all over Africa. The principal legal instruments designed to protect Chinese investment in Africa are Bilateral Investment Treaties (BITs). Traditionally, BITs were largely designed to protect Northern investment in the South. This article evaluates their adaptability to South-South relations through a comparative study of China-Africa BITs in light of China’s BITs with the North, principally the recently ratified China-Canada BIT

The China-Africa Factor in the Contemporary ICSID Legitimacy Debate

The International Centre for the Settlement of Investment Disputes (ICSID), affiliated with the World Bank, was created at a time when most African countries had just gained independence and foreign investment required a more legitimate protection in the former colonies. The ICSID Convention, which set up the Centre, came into force on October 14, 1966. The majority of the ICSID cases involved Africa, Western Europe, and North America. Today, Africa\u27s largest infrastructure financier is no longer the World Bank—it is China. China does not have as much experience with ICSID as Africa, although it has shown interest in pursuing investment arbitration in recent years as it assumes a greater role as an exporter of capital and seeks to protect its rapidly growing investments abroad. Nonetheless, as this article will demonstrate, at its very core, ICSID was never designed for, nor has it ever meaningfully served, South-South disputes-which China-Africa disputes technically are. In light of this background, this article weighs in on the debate over ICSID\u27s legitimacy from the perspective of Africa\u27s experience in the last half-century and evaluates ICSID\u27s suitability to resolve current and future investment disputes that arise out of the new economic partnerships between African states and Chinese investors. The article is divided into five parts. Part 2 examines the various narratives on ICSID\u27s legitimacy and critically appraises the existing empirical studies in light of Africa\u27s experience. Part 3 discusses Africa\u27s position on the fundamental doctrinal dilemma in foreign investment law vis-A-vis the new China factor. Part 4 provides a case study of selected ICSID cases involving African states to put the empirical studies in context and shed some light on the nature of justice that the tribunals have dispensed. Part 5 provides a more focused assessment of ICSID\u27s suitability for the resolution of disputes between African states and Chinese investors. Part 6 concludes the article