Cihon/Castagnera, Employment & Labor Law, 7e Ch 5 Instructor’s Manual 1

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Chapter 5: THE GLOBAL PERSPECTIVE: INTERNATIONAL EMPLOYMENT LAW AND AMERICAN
IMMIGRATION POLICY
INTRODUCTION
The fifth chapter focuses on international labor and employment law, corporate social responsibility, the Alien
Tort Claims Act, and U.S. immigration law. The chapter begins with a discussion of international labor and
employment law and continues with a discussion on immigration law and policy.
OUTLINE
International Employment Law and Policy
The International Labor Organization
The International Labor Organization (ILO), based in Geneva, is the branch of the United
Nations charged with developing and promulgating uniform labor and employment standards
internationally.
While the ILO has promulgated a vast scheme of labor and employment laws, regulations,
and guidelines, the “ILO” laws cannot supersede an individual nation’s sovereignty unless that nation
affirmatively adopts any such laws.
Although the United States is not a signatory to many ILO laws, U.S. labor and employment
laws in many instances are equal or superior to the ILO scheme.
In international employment law, conventions* are the uniform codes of procedure and
standards of conduct that the ILO seeks to promulgate and enforce in order to establish international
standards for the fair treatment of workers among all member-nations of the United Nations. The major
conventions involve the abolition of forced labor (signed by the U.S.), employment discrimination,
and collective bargaining.
*Conventions: International laws, usually sponsored by the United Nations or other multi-national
organizations, to which a number of nations agree to adhere.
International conventions to which the United States is a signatory, that can affect international
labor relations and employment litigation, include:
Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or
Commercial Matters. Facilitates and standardizes the service of legal processes, such as complaints,
summons, and subpoenas, in pursuit of litigation, including labor and employment litigation.
Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Assures that
signatory states will enforce arbitral awards, including labor and employment arbitration awards,
against parties found within their jurisdictions.
Convention on the Taking of Evidence Abroad in Civil or Commercial Matters. A judicial
authority (e.g., a court) in one contracting state may request its counterpart in another contracting state

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to facilitate such discovery activities as the taking of depositions or sworn statements in support of
litigation, including labor and employment litigation.
Convention on the Civil Aspects of International Child Abduction. Aims to control and
eliminate exploitation of child labor.
Concern about companies conducting business across borders has led to the notion of global
corporate responsibility*, held by many advocates of workers’ rights and environmental issues.
*Global Corporate Responsibility: Philosophy that says that corporations should behave as good global
citizens.
ETHICAL DILEMMA

Should Multinational Corporations Be Required to Act According to Ethical Standards in Their Labor
and Employment Relations?

SUMMARY:

According to Senior Fellow and Director of Globalization Studies Susan Aaronson of the Kenan Institute,
Washington Center, global corporate social responsibility is: a foreign policy issue in that corporations are
ambassadors of their nation’s values; an economic issue in that America’s future markets are overseas; and
a moral issue on which the reputation of the corporation, its management, and shareholders depends on
doing business abroad. Whether corporate social responsibility extends to treatment of foreign employees
may depend upon the policies and laws of the host nation. For instance, Brazil, the United Kingdom,
Germany, Belgium, the Dutch and France have recently taken steps to improve adherence to social
responsibility guidelines.
In the United States, the mission of promoting “labor and corporate social responsibility falls to a unit of
the Department of State” (DOS), to strengthen respect for worker rights and promote corporate social
responsibility around the world. The State Department’s Office of International Labor and Corporate Social
Responsibility, part of the Bureau of Democracy, Human Rights and Labor, promotes key priority areas
which include: promoting organized labor and their role as reformers in developing countries; partnering
with the private sector to protect human rights, including workers’ rights, and to promote good governance,
transparency, and the rule of law; promoting labor rights through free trade agreements and other
international negotiations; and combating child labor, forced labor and trafficking in persons. In addition,
the State Department supports an anti-sweatshop initiative to combat sweatshop labor in overseas factories.
Since 2000, nearly $18 million in projects have been funded through this initiative.
The Alien Tort Claims Act and International Workers’ Rights
The Alien Tort Claims Act* was enacted in 1789 as part of the original Judiciary Act, and
simply said that “[t]he district courts shall have original jurisdiction of any civil action by an alien for
a tort only, committed in violation of the law of nations or a treaty of the United States.”
Attorneys seeking to vindicate the rights of foreign workers allegedly oppressed by U.S.
multinational corporations have recently rediscovered the statute. The two decisions mainly bode well
for multinational corporate-defendants.
*Alien Tort Claims Act: Federal statute which provides a cause of action for aggrieved aliens in U.S. courts.

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CASE 5.1 SAREI V. RIO TINTO, PLC

2008 WL 5220286 (9th Cir. 2008)
SUMMARY:
Background: Bougainville is an island located just off the main island of Papua New Guinea (PNG).
Defendants, Rio Tinto, operated a mine on Bougainville beginning in the 1960s with the assistance of the
PNG government. In November 1988, after Rio Tinto had caused intense pollution, rainforest destruction
and slave-like treatment of its workers, some Bougainvilleans revolted and forced closure of the mine.
Under pressure from Rio Tinto, the PNG government quashed the uprising, and on February 24, 1990, the
country entered into a civil war. Under further pressure from Rio Tinto, the PNG government imposed a
military blockade on the island that lasted almost a decade and engaged in acts of cruelty, and as a result,
an estimated 15,000 Bougainvilleans died. In November 2000, the plaintiffs filed their class action claim,
raising numerous claims under the Alien Tort Statute, 28 U.S.C. Section 1350. In Sosa v. Alvarez-Machain,
the high court held, “Though the Alien Tort Statute (ATS) … is a jurisdictional statute, which does not
create a statutory cause of action for aliens, it was not intended to lie fallow until specific causes of action
were authorized by further legislation, but was meant to have a practical effect from the moment that it
became law, by providing a basis for district courts to exercise jurisdiction over a modest number of causes
of action recognized under the law of nations, such as for offenses against ambassadors, violations of safe
conduct, and possibly for piracy.” The Court also indicated that plaintiffs should first exhaust all causes of
action available to them under local law.
Issue: Should the plaintiffs be required to exhaust their other available remedies before being permitted to
sue in a U.S. court under the Alien Tort Statute?
Decision: Perhaps. The plurality opinion noted that, local remedies should be considered in the appropriate
case for claims brought under ATS, and the case is an appropriate case for such consideration under both
domestic prudential standards and core principles of international law. In order to exhaust remedies, the
plaintiff must do more than merely initiate a suit. The plaintiff must obtain a final decision of the highest
court in the hierarchy of courts in the legal system at issue, or show that the state of the law or availability
of remedies would make further appeal futile. In addition, the remedy must be available, effective and not
futile, looking at the circumstances surrounding access to a remedy and the ultimate utility of the remedy.
If a favorable decision has been obtained in domestic court, but the decision has not been complied with,
no further remedies need be exhausted, because a judgment that cannot be enforced is an incomplete and
ineffective remedy. The adequacy determination also includes an assessment of any delay in the delivery
of a decision. The case was remanded to the district court to determine in the first instance whether to
impose an exhaustion requirement on plaintiffs.

CASE 5.2 ROMERO V. DRUMMOND COMPANY, INC.

2008 WL 5274192 (11th Cir. 2008)
SUMMARY:
Background: A Colombian labor union sued executives of Drummond, Ltd., the Colombian subsidiary of
an American coal mining company located principally in Alabama, under the Alien Tort Statute and the
Torture Victim Protection Act of 1991, claiming that Drummond, with the knowledge of company
executives in the United States, hired paramilitary operatives to torture and assassinate leaders of the union
business administrator. The district court granted partial summary judgment against them; one claim for
relief – that Drummond aided and abetted the killings, which were war crimes – remained. The jury returned
a verdict for Drummond. The plaintiffs appealed the partial summary judgment and a series of discovery
and evidentiary rulings made before and during the trial. Plaintiffs grouped its claims under the Torture
Act, a claim of wrongful death under Colombian law, and claims of intentional infliction of emotional

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distress, false imprisonment, and assault under Alabama law. Drummond challenged the subject-matter
jurisdiction of the district court.
Issues: Does the Torture Victim Protection Act and Alien Tort Statute allow for suits against corporate
defendants? Did the court have jurisdiction to hear the case? Did the court err in disallowing plaintiffs’
discovery and evidentiary requests?
Decision: The district judge’s decision was affirmed, defeating the plaintiffs’ claims. The Court held that
the Torture Victim Protection Act allows suits against corporate defendants and the Alien Tort Statute
contains no express exception for corporations, and the statute grants jurisdiction over complaints of torture
against corporate defendants. The court also determined that the plaintiffs failed to satisfy the “state action”
requirement of the Torture Victim Protect Act. The district court did not abuse its discretion in refusing to
exercise supplemental jurisdiction over plaintiffs’ wrongful death claim under Colombian law. The district
court also did not abuse its discretion in denying plaintiffs’ motion for additional continuance when they
were not able to complete letter rogatory process to secure witness’ testimony for rescheduled trial date.
The court also found the district court did not abuse its discretion in excluding testimony of late-disclosed
witnesses and the district court did not abuse its discretion in refusing to allow plaintiffs’ proffered experts
to testify.

ANSWERS TO CASE QUESTIONS

ROMERO V. DRUMMOND COMPANY, INC.
2008 WL 5274192 (11th Cir. 2008)
1. The plaintiffs did not seek to secure justice in their own countries probably due to fear of homeland
retaliation. Furthermore, it is difficult for a victim of torture under the umbrella of a nation’s law to bring
suit to vindicate such abuses; and more than likely, they cannot sue in the locality where the abuse and
tortures occurred. In addition, because the victims are claiming shameful and outrageous conduct on the
part of another nation, such suits may humiliate the government of the nation in whose courts they are
brought. Political and judicial corruptness make recourse impossible. In instances like Sarei, too often, the
revenues produced by these multi-national corporations’ clouds the political judgment of the government
and as a result, the masses suffer at the hands of those in power. The Torture Victim Protection Act and the
Alien Tort Statute offered the possibility of a remedy that the plaintiffs surmised would be far reached if
pursued in their own country.
2. The Colombian court would probably be better equipped to handle the wrongful death action case.
However, stemming from the response from previous question, the chaos and governmental turmoil has
more than likely led to resentment of the systems of government in that country. In turn, the plaintiffs
probably viewed that America was their only source of remedy as a result.
3. Student’s response to this question may vary. Some nations lack meaningful human rights and labor
legislation and many practices of these countries would shock the conscience, therefore global labor laws
are necessary to protect the rights of workers overseas working for American companies. Adherence to
local laws is not enough. At the same time, students may argue that it is unfair to compel a corporation to
police the action of a nation’s treatment of its own citizens.
4. In adjudicating these cases, a U.S. court would not be intruding upon foreign policy because the Alien Torture
Act makes it possible for a U.S. court to intervene in the name of international law.
5. The court in Sarei suggested that the plaintiff’s should first have to exhaust their local remedies before
coming into a U.S. courtroom because they do not want to overstep the authority of a functioning judiciary.
Also, more often than not, a U.S. court does not want to get involved. They may feel that it is none of their
business.

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Like the earlier 9th Cir. case, the 11th Cir. case demonstrates that the use of the Alien Tort
Statute to establish jurisdiction and the use of the Torture Act will be difficult in the context of
environmental and toxic tort matters occurring in third countries.
The Alien Tort Statute is unlikely to have a high impact upon the way U.S. corporations deal
with their oversea employees. Therefore, global labor organizations may present the highest prospect
of success.
A landmark case, Kiobel v. Royal Dutch Petroleum, which involved a lawsuit by 12 Nigerian
nationals claiming human rights violations by three oil companies, was reargued before the court in
late February, 2012 in the hopes of expanding and refining the Alien Tort Statue.
In another case, Mohamad v. Palestinian Authority, the issues were the same: do the human
rights laws at issue apply to someone other than a natural person? The Supreme Court of the United
States affirmed the decision of the lower court, finding that only a natural person is an “individual”
who can be held liable.

Global Labor Unions

Recently the international trade union movement has begun to use the term global unions* as
an umbrella designation, which includes the International Confederation of Free Trade Unions, which
represents national trade union centers around the globe and the Union Network International.
*Global Unions: International labor organizations, which typically attempt to organize employees of
globalized industries.
Union Network International (UNI).
Union Network International (UNI) is an organization aimed at meeting the globalization of
corporations, trade and manufacturing head on and targets multinational corporations, seeking to apply
global pressure in order to organize local and regional corporate facilities.
UNI claims to hold the allegiance of approximately 15 million workers in 900 unions in 150
countries, representing employees in many economic sectors.
UNI has a targeted list of 100 multinational employers.
The Working Law – Global Unions Seek to Organize American Workers Through the “Back
Door.”
THE WORKING LAW
Global unions seek to organize American workers through the “back door.” An example of how “back
door” organizing happens was the acquisition of three well-known U.S. security firms, Pinkerton, Burns
International Services and Loomis Fargo, by Sweden-based Securitas. At about the same time, Group 4
Securicor, a British-Danish outfit picked up Wackenhut. Labor unions are woven into the socioeconomic
fabric of continental nations such as Germany, where union leaders commonly serve on board of directors.
UNI and similar international labor organizations seek to sign so-called “global framework agreements”
capable of following the corporation to wherever it establishes operations around the world.
Immigration Law and Policy
Immigration Reform and Control Act of 1986
Historical Roots
The fundamental U.S. immigration statute is the Immigration and Nationality Act (INA) of
1952.

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Prior to its passage, U.S. immigration was governed by a variety of federal statutes, which
were not collected under a single title of the U.S. Code.
The purposes of the Immigration Reform and Control Act (IRCA) of 1986* were to:
Provide a solution for controlling illegal immigration to the United States;
Make some changes in the U.S. system of legal immigration; and
Provide a controlled legalization program for undocumented aliens who entered the United
States before 198.
*Immigration Reform and Control Act (IRCA) of 1986: The most recent major overhaul of U.S.
immigration law.
Primarily by the creation of civil and criminal penalties for employers who hire undocumented
(illegal) aliens, IRCA intended to stem the flow of illegal immigrants by creating a new immigrant
category for dependents of employees of international organizations, restricting the ability of many
foreign students to adjust their status to that of lawful permanent resident aliens and modifying the
former H-2 program for temporary workers by adding the H-2A program for temporary agricultural
workers.
IRCA also provided applications for a one-shot amnesty program under which illegal aliens
who entered the United States before January 1, 1982, could become legalized until April of 1988 and
“grandfathered” workers hired prior to November 6, 1986; however, the provision did not make it
lawful for an unauthorized alien to accept employment.
Today, experts estimate that more than 12 million illegal aliens are living in the U.S., and
some pundits predict that the number is substantially higher.
Employer Compliance with IRCA
The pre-employment question that must be asked is: Is the employee a U.S. citizen or lawfully
authorized to work in the United States? An employer must show that it has examined documents that
establish both employment authorization and the identity of the employee.
A U.S. passport, certificate of U.S. citizenship, certificate of naturalization, or certain resident
alien cards establish both.
Identity documents include a driver’s license, other state-issued card, or under certain
circumstances, other documentation approved by the Attorney General.
Employment authorization documents include a social security card or a birth certificate.
One of the proposals afloat in the Congress for immigrant verification and control is an
electronic employment-verification system aimed at screening approximately 54 million new hires
annually, which could cost $11.7 billion.
The employer is expected to examine the proffered documents, and if the documents appear
reasonably on their face to be genuine and to relate to the person presenting them, they are to be
accepted. Refusal of such documents may be viewed by the INS as an unfair immigration-related
employment practice.
If the document does not appear reasonably on its face to be genuine or to relate to the person
presenting it the employer should contact the local INS office closest to the employer’s facility and
request assistance.

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An employee who fails to provide required documentation within three business days of being
hired may be terminated from employment. If the employee claims the documents were lost or stolen,
the employee has an additional 90 days in which to present the replacement documents to the employer.
Who Enforces U.S. Immigration Laws?
U.S. Citizenship and Immigration Services: The USCIS, part of the Department of
Homeland Security (DHS), is responsible for the administration of immigration and naturalization
adjudication functions and establishing immigration services, policies and priorities. These functions
include:
adjudication of immigrant visa petitions;
adjudication of naturalization petitions;
adjudication of asylum and refugee applications;
adjudications performed at the service centers, and
all other adjudications performed by the INS.
U.S. Immigration and Customs Enforcement: Created in March 2003, Immigration and
Customs Enforcement (ICE) is the largest investigative branch of the Department of Homeland
Security (DHS) to more effectively enforce our immigration and customs laws so as to protect the
United States against terrorist attacks.
U.S. Department of Justice: The DOJ responsibilities include enforcing and defending the
interests of the United States according to the law, ensuring public safety, providing federal leadership,
seeking just punishment for those guilty of unlawful behavior, and ensuring fair and impartial
administration of justice for all Americans.
The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC),
in the Civil Rights Division, is responsible for enforcing the antidiscrimination provisions of the
Immigration and Nationality Act (INA), 8 U.S.C. § 1324b, which protects U.S. citizens and legal
immigrants from employment discrimination based upon citizenship or immigration status and unfair
documentary practices.
U.S. Social Security Administration: The Social Security Administration (SSA) pays
retirement, disability, and survivors benefits to workers and their families, administers the Supplement
Security Income program and issues Social Security numbers.
Federal Bureau of Investigation: After the tragic events of September 11, 2001, the director
of the Bureau articulated ten top FBI priorities: protecting the United States from terrorist attacks, from
foreign intelligence operations, and from cyber-based attacks and high-technology crimes; combating
international and national organized crime, major white-collar crime, and significant violent crime;
supporting our law enforcement and intelligence partners; and upgrading FBI technology.
U.S. Department of Labor: The Department of Labor fosters and promotes the welfare of
the job seekers, wage earners, and retirees of the United States by improving their working conditions,
advancing their opportunities for profitable employment, protecting their retirement and health care
benefits, helping employers find workers, strengthening free collective bargaining, and tracking
changes in employment, prices, and other national economic measurements through federal labor laws.
U.S. Department of State: Creates a more secure, democratic, and prosperous world for the
benefit of the American people and the international community.
Anatomy of an ICE Raid

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During the first week of March 2007, ICE agents raider a leather factory in New Bedford,
Massachusetts and arrested 361 workers.
The detainees were taken to a former Army base near Ayer, Massachusetts, and the following
day, some 60 women, sole caretakers of their children, were released. The factory-owner and four plant
managers were arrested and released on bail.
Shortly after the arrests, in a public statement, the U.S. attorney characterized the illegal
workers as “exploited workers with low-paying jobs and horrible working conditions.”
By November 2007, the detainees’ main case had climbed to the U.S. Court of Appeals for
the Second Circuit, sitting in Boston.
CASE 5.3 AGUILAR V. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT
2007 WL 4171244 (U.S. Ct. App. 1st Cir., 2007)
SUMMARY:
Background: On March 6, 2007, federal officers conducted a raid as part of “Operation United
Front,” targeting Michael Bianco, Inc. ICE agents appeared unannounced and arrested five
executives on immigration-related criminal charges and took more than 300 rank-and-file
employees into custody for civil immigration infractions. ICE transported some detainees to Fort
Devens in Massachusetts. Citing a shortage of available bed space in Massachusetts, ICE
transferred aliens to faraway detention and removal operation centers (DROs), such as a DRO in
El Paso, Texas. Petitioners allege that ICE actions temporarily thwarted any effective investigation
into the detainees’ needs. As a result, a substantial number of the detainees’ minor children were
left for varying periods of time without adult supervision. The detainees averred that ICE inhibited
their exercise of the right to counsel because volunteer lawyers were turned away or only allowed
contact with those who specifically asked for counsel.
On the afternoon of March 8, the Guatemalan consul filed a petition for a writ of habeas corpus and
a compliant for declaratory and injunctive relief in the United States District Court for the District
of Massachusetts. The action sought the detainees’ immediate release, or, in the alternative, a
temporary restraining order halting further transfers. The district court enjoined ICE from moving
any of the retaining detainees out of Massachusetts.
Issue: Does the court have subject matter jurisdiction?
Decision: No. The court found there is no case law suggesting that claims similar to those asserted
here are actionable under the substantive component of the Due Process Clause, and it is not for
the judiciary to expand the concept of substantive due process. Accordingly, the court dismissed
the substantive due process claims for failure to satisfy the prerequisites of Federal Rule of Civil
Procedure 12(b)(6). Although undocumented workers have certain inalienable rights, Congress has
not formulated a regime that satisfies constitutional imperatives, and the court must follow
Congress’ lead.

ANSWERS TO CASE QUESTIONS

AGUILAR V. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT
2007 WL 4171244 (U.S. Ct. App. 1st Cir., 2007)

1. Student’s response to this question will vary. The question is intended for the student to think
about the protections, or lack thereof, offered to illegal aliens. In essence, this sounds like a
rhetorical question at best. An alien is surely a “person” in any ordinary sense of the term.

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Aliens, even aliens whose presence in this country is unlawful, have long been recognized as
“persons” guaranteed due process of law by the Fifth and Fourteenth Amendments. Indeed, the
Supreme Court has clearly held that the Fifth Amendment protects aliens whose presence in
this country is unlawful from invidious discrimination by the Federal Government. According
to congressional debates, the phrase “within its jurisdiction” was intended in a broad sense to
offer the guarantee of equal protection to all within a State’s boundaries, and to all upon whom
the State would impose the obligations of its laws. Indeed, it appears from those debates that
Congress, by using the phrase “person within its jurisdiction,” sought expressly to ensure that
the equal protection of the laws was provided to the alien population. Plyler v. Doe, 1982. If
an undocumented alien, who is clearly a person under the Fifth and Fourteenth Amendment,
cannot seek recourse in a judicial system that promises to uphold the principles of the U.S.
Constitution, then the system has truly failed them, and the possibility of seeking recourse
elsewhere is ineffectual.
2. The burden of proof simply means that the necessity of proof always lie with the person who
lays charges. It is reasonable to place the burden of proof on the ICE agency that the detainees
do not have a right to stay in the country because of their status. In making an allegation; they
should prove their claim according to the requisite standard of proof. Likewise, by regulation,
in deportation proceedings, the INS has the burden of proof of establishing deportability by
clear and convincing evidence. Woodby v. INS (1986). As part of its burden, therefore, the INS
must prove ‘alienage,’ i.e., that the subject of the proceedings is an alien.’ Sandoval-Vera v.
INS (9th Cir. 1982). Once the INS offers proof of a foreign birth, however, a rebuttable
presumption of alienage arises and the burden shifts to the alleged alien to prove citizenship.
Corona-Palomera v. INS (9th Cir. 1981). The same standard applies more or less equally in
civil and criminal proceedings. The individual bringing the charge or making the claim has to
prove to the fact-finder that the person being accused committed the alleged accusation.
3. The ICE had complete disregard for the detainees’ individual or family circumstances. The
employees were scattered to holding facilities like cargo, thus depriving them of access to their
families, even their minor children in most of the cases. Furthermore, from the record it seems
that social workers and even attorneys were denied access to the employees. These actions
taken by the ICE, understandably so, could be viewed as ham-handed.
4. Student’s answers will vary on this question. By law, a person found to be an illegal alien is
subject to deportation. However, the answer to this question is based upon specific facts and
circumstances of each case and is analyzed on a case-by-case basis, such as if the alien has
been in the U.S. a long period of time and for whom deportation would result in harsh
consequences. Repeat offenders who are also illegal aliens are also subject to deportation
proceedings. Committing crimes while in the U.S. definitely damages a person’s case to stay
in the United States. If an alien can prove that they have children that were born in the United
States does not help their case. Normally, a child of an illegal alien departs with their deported
parent. However, the child is free to come back since they themselves were not deported.
5. Student’s answers will of course vary on this question. Possible policy considerations which
students might propose may include the institution of specific mechanisms and standards for
which agencies like the ICE have to follow when dealing with illegal aliens in regards to raids,
the holding of immigrants in facilities, efficient right to legal counsel.
2. Aftermath
a) The New Bedford leather goods company was sold to a Missouri-based
manufacturer of military and law enforcement gear. Michael Bianco Inc. was sold to
Eagle Industries, a longtime competitor. Bianco was fined $45,000 after the federal

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Occupational Safety and Health Administration identified 15 violations, including

chemical, mechanical, and electrical hazards.
3. State and Local Involvement with Illegal Immigrants
a) Many state and local governments, which are usually deemed to be
preempted from intruding into immigration law and policy, have become frustrated
with federal inaction or ineffectiveness in the face of rapidly rising numbers of illegal-
immigrant workers, who make claims upon public services, and, allegedly, increase
crime rates in communities where they settle.
b) Hazelton, Pennsylvania, enacted a statute aimed at punishing, among others,
employers who hired illegal aliens, but the ordinance was stymied by a federal court
injunction on the ground that it is preempted by federal immigration and labor laws.
c) California
(1) On October 4, 2006, the city of Escondido passed an ordinance that
allowed residents, businesses and city officials to file written complaints with
the city if they suspect a landlord is renting to illegal immigrants.
(2) If the tenants were found to be illegal immigrants, landlords would
be given 10 days to evict them or face suspension of their business licenses.
d) Missouri
(1) During the summer of 2006, Valley Park passed an ordinance which
said that landlords could be fined for renting to illegal immigrants, and
businesses could lose their licenses for five years for hiring them.
(2) In March 2007, the ordinance was declared illegal by a state court
and now the ordinance says landlords can lose their occupancy permits if
they are found renting to illegal immigrants.
e) Texas
(1) In November 2006, the city council of Farmers Branch passed an
ordinance authorizing fines for landlords who rent to illegal aliens and also
declared English to be the official language of the community.
f) Challenges by the ACLU and/or pro-immigration immigrant groups
challenged the ordinances are grounded upon conflicts with the U.S. Constitution
and/or federal statutory law.
g) More recently in fiscal year 2011, ICE’s Office of Enforcement and Removal
Operations focused on removing “high priority” individuals, those individuals that
fall into priority areas for enforcement. It removed 396,906 individuals – marking the
largest number in the agency’s history.
4. The Legal Arizona Workers Act has stood out as being the only ordinance so far that
survived all legal challenges. In May of 2011, the Supreme Court of the United States made a
decision upholding the law.

CASE 5.4 CHAMBER OF COMMERCE OF U.S. V. WHITING

131 S.Ct. 1968 (U.S. 2011)

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Cihon/Castagnera, Employment & Labor Law, 7e Ch 5 Instructor’s Manual 11

SUMMARY:
Background: The Chamber of Commerce and various business and civil rights organizations brought action
challenging the validity of Arizona's unauthorized alien employment law, which allowed the suspension
and revocation of business licenses for employing unauthorized aliens and required every employer to
verify the employment eligibility of hired employees through a specific Internet-based system. The United
States District Court for the District of Arizona upheld the statute, and the plaintiffs appealed. The United
States Court of Appeals for the Ninth Circuit affirmed the decision. Certiorari was granted.
Issue: Is the Legal Arizona Workers Act Preempted by federal immigration law?
Decision: The Supreme Court affirmed the decision of the lower court and held that:
(1) the provision of Arizona law allowing suspension and revocation of business licenses fell within the
Immigration Reform and Control Act's (IRCA) savings clause;
(2) the provision of Arizona law allowing suspension and revocation of business licenses was not impliedly
preempted for conflicting with federal law; and
(3) Arizona law's requirement that every employer verify the employment eligibility of hired employees
through a specific Internet-based system did not conflict with federal law.

Case 5.4 ARIZONA V. UNITED STATES

---S.Ct. ---, 2012 WL 2368661 (U.S., June 25, 2012)

SUMMARY:

Background: An Arizona statute known as S.B. 1070 was enacted in 2010 to address pressing issues related
to the large number of unlawful aliens in the State. The United States sought to enjoin the law as preempted.
The District Court issued a preliminary injunction preventing four of its provisions from taking effect.
Section 3 makes failure to comply with federal alien-registration requirements a state misdemeanor; § 5(C)
makes it a misdemeanor for an unauthorized alien to seek or engage in work in the State; § 6 authorizes
state and local officers to arrest without a warrant a person “the officer has probable cause to believe ... has
committed any public offense that makes the person removable from the United States”; and § 2(B) requires
officers conducting a stop, detention, or arrest to make efforts, in some circumstances, to verify the person's
immigration status with the Federal Government. The Ninth Circuit affirmed, agreeing that the United
States had established a likelihood of success on its preemption claims.
Decision: The Supreme Court held that (1) provision making failure to comply with federal alien-
registration requirements a state misdemeanor was preempted;
(2) provision making it a misdemeanor for unauthorized alien to seek or engage in work in Arizona was
preempted;
(3) provision authorizing arrests for removable offense was preempted; but
(4) preliminary injunction against provision requiring officer conducting stop, detention, or arrest to verify
person's immigration status with Federal Government if officer had suspicion that the person was
unlawfully in United States was improper.

5. The Arizona Attorney general has moved forward with implementation of the act.
Violation of the new state law will subject the employer to probation, and may subject the
employer to a suspension or revocation of all license depending on the following conditions:
(p. 100)

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Cihon/Castagnera, Employment & Labor Law, 7e Ch 5 Instructor’s Manual 12

a) For a first violation of an employer knowingly hiring an unauthorized alien,

the court shall order mandatory three years’ probation and may suspend all licenses
held by the employer for a maximum of ten days. (p. 101)
b) For a first violation of an employer intentionally hiring an unauthorized alien,
the court shall order a mandatory five years’ probation and order the appropriate
licensing agencies to suspend all licenses held by the employer for a minimum of ten
days. (p. 101)
c) For a second violation, the court will order the appropriate licensing agencies
to permanently revoke all licenses that are held by the employer. (p. 101)
d) Licenses that can be lost under the law include, “any agency permit,
certificate, approval, registration, charter or similar form of authorization that is
required by law and that is issued by any agency for the purposes of operating a
business in this state.” (p. 101)
PROBLEMS
QUESTIONS
1. Student’s responses to this question may vary. An argument can be made for free trade and
outsourcing. The argument that although many foreign workers work for a small fraction of what
Americans do, providing them with the opportunity to work for multi-national corporations hardly
constitutes "exploitation" since it provides them with a much higher standard of living than they
could achieve anywhere else. In much of the world, the poor struggle to survive, with standards of
living far below anything imaginable in America. In many third-world countries, the opportunity
to work in a factory earning less than three dollars a day is a fantasy and a dream come true. Less
than three dollars a day is a pittance for an American worker, but in many foreign companies it
provides for the essentials of life.
2. Student’s responses to this question may vary. Morally speaking, the benefit that these workers
receive from being “exploited” hardly justifies their exploitation. Economically speaking, the
“exploitation” of these workers provides a path out of poverty for millions of workers. These
workers are better off working in a sweatshop for three dollars a day as opposed to having to
rummage through garbage in search of scraps of metal or edible food, all for an average income of
.75 cent a day.
3. Student’s responses to this question may vary. An American country doing business in another
country may be expected to perform better because it is immoral for workers to be subject to harsh
and unsafe conditions in the workplace. American companies should strive for upholding safe
working conditions, regardless of the country in which they operate. Only in this way can the
argument that the company is actually assisting, rather than exploiting, the indigenous population
carry any weight.
4. Ignoring the presence of these undocumented workers would undermine the longstanding
principles and immigration laws that we have set in place. There is a system of legal entry that
needs to be adhered to and allowing workers to bypass the legal process and proceed illegally
without any repercussions would open the door for a flood of illegal immigrants to come to America
through similar means of passage. Others embark through similar means, thus seeing no need to
take the legal route since those who break the law are rewarded and not punished. However, the
U.S. government seems to have a duplicative policy. Many known illegal immigrants are allowed
to remain in this country and provided with social and educational benefits, only at some point in
the future, after having established a life in the U.S., to be deported to a country to which they no
longer have ties. In law, there is a theory known as latches. In essence, it means that if you have a

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Cihon/Castagnera, Employment & Labor Law, 7e Ch 5 Instructor’s Manual 13

legal cause of action, and you do nothing to protect your rights, then after sufficient time has passed,
you lose the right to pursue any legal remedy. The federal government does not apply this legal
theory against itself.
5. Student’s response to this question may vary. Illegal aliens are already receiving certain social
services such as access to health care and public education for their children. The federal
Emergency Medical Treatment and Active Labor Act (EMTALA) mandate that U.S. hospitals with
emergency room service must treat anyone who requires care, including illegal aliens. Access to
health care and education is direly important and the consequences of the lack thereof can be
extremely detrimental. Also, states, generally have granted access to their court systems to illegal
aliens, provided that the alien resides in the particular state. In addition, there are strong public
policy considerations for granting illegal aliens access to these. However, access to other benefits
such as the right to join a labor union, access to unemployment benefits, and the right to filing a
complaint with a local or federal agency, careful consideration to the arguments on both sides is
necessary.
CASE PROBLEMS
6. The United States District Court of International Trade dismissed the suit primarily because the
Plaintiff failed to demonstrate that he suffered an injury in fact, as required for Article III standing
as case or controversy for the claims cited.
7. Under the Aliens Tort Claims Act (ATCA), the plaintiffs have a right to proceed with the claims
they are setting forth in a U.S. court. In addition, according to the United States District for the
Southern District of New York, the Court had subject matter jurisdiction over the issues presented.
Also, the Court determined that the individual plaintiffs had standing, for purposes of a class action
under ATCA.
8. The plaintiff’s case was dismissed in part and vacated in part. The Court concluded in part that the
plaintiffs did suffer extreme emotional pain and suffering that is actionable under the Alien Tort
Act (ATA) and Torture Victim Protection Act (TVPA). However, the Court found that the
plaintiffs’ allegations of intentionally inflicted physical pain and suffering did not meet the statutory
elements of torture under the ATA or TVPA, however. Furthermore, the Court declared that the
actions claimed did not constitute the type of crime against humanity as would be actionable under
ATA. In addition, the Court declared that the non-government security force assaults on the
plaintiffs did not constitute state action nor did the plaintiffs provide sufficient evidence or
correlation of state involvement to prove that there was state involvement and as a result their
complaint failed to satisfy that element of the ATA.
9. According to the United States Court of Appeals for the Tenth Circuit held that National Labor
Relations Act (NLRA) did not preempt tribal government from enacting right-to-work ordinance.
Also, the Court determined that Congress did not intend by its NLRA provisions to preempt tribal
sovereign authority to enact its right-to-work ordinance. Indian tribes are neither states, nor part of
federal government, nor subdivisions of either; rather, they are sovereign political entities
possessed of sovereign authority not derived from United States, which they predate. Like states
and territories, the Pueblo has a strong interest as a sovereign in regulating economic activity
involving its own members within its own territory, and it therefore may enact laws governing such
activity.
10. The United States District Court in Maine concluded, “(i) the plaintiffs have failed to establish
standing to seek the requested relief or that their claims are ripe, and, in any event, (ii) pursuant to
8 U.S.C. § 1252(a)(2)(B)(ii), the court is without jurisdiction to affect any decision or action the
Attorney General of the United States or the Commissioner of the Immigration and Naturalization
Service may take in connection with the H-2B visa application of non-party Cianbro Corporation

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Cihon/Castagnera, Employment & Labor Law, 7e Ch 5 Instructor’s Manual 14

now pending before the Immigration and Naturalization Service.” In making this decision the Court
should have taken into consideration the autonomy of the INS and their capability of handling the
issue at hand. In contrast, the Court should have also taken into consideration the fact there are
strong public policy concerns of mandating that American corporations recruit American workers
and the fact that this company did not hire any of the Americans was very suspicious.
11. According to the District Court, California's whistle-blower protection laws merely prevented
Japanese commercial air carriers from retaliating against employees for reporting and resisting
domestic law violation, and in no way conflicted with carrier's limited treaty right, under
Friendship, Commerce, and Navigation Treaty between United States and Japan, to discriminate in
favor of Japanese citizens in filling certain managerial and technical positions, and therefore
whistle-blower protection laws were not preempted by treaty. The district court reasoned that
plaintiffs' claims were preempted because holding Japanese employers liable for violation of
California employment law would conflict with the employers' treaty-conferred right to engage
specialists “of their choice. California's whistle-blower protection laws merely prevent JAL from
retaliating against employees for reporting and resisting the employer's domestic law violations;
the laws in no way conflicts with JAL's limited treaty right to discriminate in favor of Japanese
citizens. In the absence of conflict, there can be no preemption. In addition, the District Court
ordered the plaintiff’s to pursue arbitration under their employment contracts because it expressly
mandated arbitration. Transfer, from California to Hawaii, of case in which flight engineer and
commercial pilot sued, inter alia, their employer-contract crew provider and Japanese commercial
air carrier for alleged violations of California's whistle-blower protection laws, wrongful
termination, and emotional distress was not abuse of discretion, given that flights underlying
engineer and pilot's complaints to carrier operated in Thailand, Hawaii, and Japan, engineer and
pilot both resided in Hawaii while employed with provider, communications between engineer,
pilot, and carrier and termination decisions all occurred in Hawaii, most potential witnesses resided
in Hawaii and Japan, and most documentary evidence was located in Hawaii. 28 U.S.C.A. §
1404(a).
12. The governor’s directive of enforcing the state law, which declares the illegality of receipt of tax
credits by employers of illegal aliens, in the local county could be a violation of the employer’s due
process. Referring the enforcement of the law to local judges who are probably incapable and
uninformed about immigration law would probably constitute an unfair trial. In addition, almost
all of the governor’s other proposed state and local initiatives are preempted by the federal
government’s exclusive authority to regulate immigration and are therefore unconstitutional. For
example, the governor’s directive to verify the immigration status of every criminal presented for
incarceration and the Compliance by Written Demand verification of legal status “directly
regulated immigration” by “creating a comprehensive scheme to detect and report the presence and
effect the removal” of undocumented immigrants.
13. Allowing Rodriguez an adjustment of status despite his previous history of legal violations would
reward him for breaking the law. Also, Rodriguez’s case cannot go unpunished, it would send the
message to other illegal aliens that violating U.S. immigration laws and false identity pays. In
contrast, deporting Rodriguez to Mexico may cause an undue burden and have harsh consequences
on him and his family. Also, Rodriguez has been in the country for over eight (8) years and may
not have any ties to be able to survive if he returns. The United States Court of Appeals for the
Eight Circuit held that an alien who marks the “citizen or national of the United States” box on a
Form I-9 for the purpose of falsely representing himself as a citizen to secure employment with a
private employer has falsely represented himself for a benefit or purpose under the Act. With this
holding, the Court followed the lead of the sister circuits who have considered this issue. See
Theodros v. Gonzales, 490 F.3d 396, 402 (5th Cir.2007) (holding that private employment is a
“benefit or purpose” under the Act and that an alien who falsely represents himself as a citizen to

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publicly accessible website, in whole or in part.
Cihon/Castagnera, Employment & Labor Law, 7e Ch 5 Instructor’s Manual 15

obtain private employment is inadmissible); see also Kechkar v. Gonzales, 500 F.3d 1080, 1084
(10th Cir.2007); Naser v. Gonzales, 123 Fed.Appx. 624, 624-25 (5th Cir.2005). The Court found
that Rodriguez in fact falsely represented himself as a citizen when he submitted the Form I-9 and
was therefore ineligible for adjustment of status.
14. The United States Court of Appeals declared that undocumented aliens working for employer who
refused to bargain collectively with their union representatives after vote to unionize were
“employees” protected by NLRA, as required for enforcement of order by National Labor Relations
Board (NLRB) compelling employer to bargain after valid election by employees, since extending
coverage of NLRA to undocumented alien employees was consistent with Act's purpose of
encouraging and protecting collective bargaining process for all employees. National Labor
Relations Act, §§ 2(3), 8(a)(1, 5). Undocumented alien workers and legal workers shared
“community of interest” as employees, under NLRA, as required for National Labor Relations
Board (NLRB) to place undocumented alien workers in same collective bargaining unit with legal
workers, since undocumented alien workers shared identical interest with coworkers in wages,
benefits, skills, duties, working conditions, and supervision, undocumented alien workers qualified
as employees under NLRA so their votes were as valid as those of coworkers, and undocumented
alien workers' fear of detection and termination was counterbalanced by hope of continued
employment similar to at-will coworkers' expectations of future employment in jobs held at whim
of employers. National Labor Relations Act, § 9(b). The statutory definition does compel an
outcome and leaves no room for ambiguity because undocumented workers under Act are
considered employees.
15. The U.S. Court of Appeals for the Eight Circuit denied Yu’s motion to suppress evidence of his
confession during investigations. The Court found that waiver of his right to remain silent during
interview of defendant by Bureau of Immigration and Customs Enforcement (ICE) agents during
agents' search of defendant's home was voluntary; although defendant had taken prescription
medications, and Miranda warnings were given in English rather than in Chinese, interviewing
officer testified defendant did not appear to be under influence of medications or drugs, officer
conversed with defendant for two hours without a misunderstanding based on language, defendant
provided agent with detailed information in English about nature of his business and his personal
background, and there was no showing that agents used coercive or inappropriate tactics.
HYPOTHETICAL QUESTIONS
16. Student’s responses to this question may vary. The benefits of a company adopting the triple bottom
line accounting principle is that the company will make better decisions as it relates to their impact
on the environment and labor relations. It can lead to reduced costs in environmental law violations.
It can also lead to greater goodwill and loyalty among the global community and its employees,
respectively. The downside to adopting this approach is that it could divert business attention from
its goal of making a profit. Shareholders should be pleased with the company’s decision to adopt
the triple bottom line approach because having three reporting considerations instead of one is
necessary to the financial bottom line. Financial success itself is reliant upon not only economic
sustainability but also social and environmental sustainability. A company that can meet the needs
of the present in terms of social and environmental impact, without compromising the needs of the
future, is more likely to appeal to investors and customers alike and thus be financially successful.
Obviously, if the company is financially successful it benefits everyone that has a stake in the
company’s achievements.
17. The plaintiffs must show practical assistance, encouragement, or moral support that had a
substantial effect on the perpetration of the crimes. The plaintiffs must also show that the forced
labor by the Myanmar military was a direct result of state involvement by the oil company. Plaintiff
must do so by providing sufficient evidence or correlation that the U.S. oil company directed or

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themselves was severed—that they were a new people whose true
home and destiny, to the latest generations, were to be in Africa.

Many of them became stockmen, roaming with their flocks and herds
over vast tracts of grazing lands, for which they paid a nominal rent
to the Company. Some of them became mighty hunters of big game
—like Nimrod; and even those who herded cattle and sheep were
forced to protect themselves and their live stock against lions and
leopards and the savage Bushmen who waged a constant warfare in
which quarter was neither given nor expected. In such
circumstances it is not wonderful that the people who [18]had in their
veins the blended blood of Holland and Navarre developed to an
almost unparalleled degree courage, self-reliance and love of
independence, coupled with a passion for solitude and isolation.

As inevitable results of the life they led—so isolated and wild—the

children grew up untaught; the women, being served by slaves, lost
both the Dutch and French habits of thrift and cleanliness; and the
men became indifferent to the elegancies of life, and grew more and
more stern and narrow-minded on all questions of public policy and
religion. But there was no declension of religious fervor. In all their
wanderings the Bible went with them as an oracle to be consulted on
all subjects, and the altar of family worship never lacked its morning
and evening sacrifice. And they retained a passionate love of
personal freedom which no effort of the Company’s government
could bring under perfect discipline.

Magistrates and assessors were appointed in some of the distant

stations, but they failed to control the wandering stockmen, who
were called Trek Boers because they “trekked” from place to place.
Being good marksmen and inured to conflict with wild beasts and
wilder [19]men, they formed among themselves companies of fighting
men whose duty it was to disperse or destroy the savage Bushmen.
These independent military organizations the government
recognized and approved by appointing over them a field
commander for each district and a subordinate called a field cornet
for each subdivision of a district. These officers and their respective
commands became permanent features of the system of local
government, and the war bands—called commandos—have always
been recognized in the records of military operations by the Boers.

The administration, through a governor and council appointed by the

Dutch East India Company in Holland, was never popular with the
colonists. The governor was in no sense responsible to the people
he governed. This was one of the causes which prompted the Boers
to go out into the wilderness, where distance from the center of
authority secured to them greater freedom.

In 1779 the disaffected colonists sent commissioners to Holland to

demand of the States-General redress of the grievances suffered
under the rule of the Dutch East India Company and a share in the
government of the colony. This action was due, in part, to actual
wrongs inflicted [20]on a liberty-loving people, and, in part, to the
spirit of independence which characterized the temper of the age
and had led the British colonists in North America to throw off the
control of their mother country.

After prolonged negotiations the States-General sent out two

commissioners to investigate the state of affairs in the Cape colony
and to recommend measures of reform. The degree of relief
proposed was considered inadequate—especially by those who
dwelt in the more distant settlements. Therefore, in 1795, the people
of the interior rose up in revolt against the Company’s government—
professing, however, unabated loyalty to the mother country. The
magistrates appointed by the company were deposed, and little
republics were set up, each with a representative assembly. It would
have been an easy matter for the government at the Cape to have
suppressed these uprisings by cutting off their food supplies. But just
then other events claimed the attention of both the governor and the
governed—events which drew South Africa into the tumultuous tide
of European politics and led to the immediate contact of Boer and
Briton, and initiated a struggle between the two [21]which has been
renewed at intervals, with varying fortunes, for more than a hundred
years.

Before going forward to the event of 1795—the first contact of Boer

and Briton—it will be well to note some of the more important
features of the condition in which that contact found the Boer.

The total Boer population of South Africa in 1795 was about

seventeen thousand, with a rapid rate of increase. In the mixed
blood of the people the proportions of national elements were:
Dutch, a little less than two-thirds; French, one-sixth; the remainder
was principally German, with a sprinkling of other nationalities.

The popular language differed largely from that of Holland at the

close of the eighteenth century. The amalgamation with a large body
of foreigners, the scant instruction in book learning, and above all the
necessity of speaking to the slaves and Hottentots in the simplest
manner possible had all tended to the destruction of grammatical
forms. The language in common use by the Boer had become a
mere dialect, having a very limited vocabulary. But the Dutch Bible—
a book that every one read—greatly increased the number of words
with which he was familiar. With this addition, however, [22]most of
the uneducated South African colonists were unable to understand
fully the contents of a newspaper of the time printed in Holland, or a
book treating of a subject unfamiliar to them. Naturally this dialect of
the Dutch was greatly beloved by the people using it—it was the
language of mother, of lover, of friend to friend in parting to meet no
more.

In no other country were women more completely on an equality with

men than in South Africa. Property belonging to a woman while she
was single, or acquired by her after marriage, was secured to her in
perpetuity so that her husband could neither squander it nor dispose
of it in any way without her consent. Neither was it subject to seizure
for debts contracted by him, but was as absolutely hers as if no
marriage existed.

The rights of children to be provided for were sacredly guarded. An

individual having five or more children could only dispose by will of
half the estate; the remainder belonged to the children, and upon the
death of the parent it was equally divided among them; if any were
minors their share was taken in trust for them by guardians provided
by law. If there were [23]not more than four children the parent could
dispose by will of two-thirds of the estate.

The industrial pursuits of the people outside of Cape Town were

almost entirely agricultural and pastoral. There were no mining
interests. There was abundance of fish, but the taking of them was
discouraged by government prohibitions of fishing in any waters but
Table Bay in summer and False Bay in winter. This measure was
taken to save the Company the expense of providing military
protection for fishermen at a distance from the fort. In 1718 it was
permitted to fish in Saldanha Bay, also, but as one-fifth of the
product was exacted as a tax the license was not accepted.

The making of wagons and carts of the peculiar kind needed in

Africa at that time was carried to great perfection. This, however,
was the only important manufacturing industry in the country. For the
most part families supplied themselves with homemade articles of
use, such as soap, candles, furniture, leather, cloth, harness and
farming implements. Everything thus produced was crude and
clumsy, but the articles were durable and served the purpose fairly
well.

All in all, they were a worthy and a very [24]peculiar people—these

Boers. They differed largely from all others in habits, language and
ideals; but they were loyal to their ideals, and acted with rare good
sense and manly energy in carrying them into effect. They were so
far free from the prevailing spirit of religious bigotry that in 1795,
besides the Dutch Reformed Church—in a sense the national church
—the Lutheran and the Moravian denominations were tolerated.

The territory in South Africa that had been explored, up to 1795,

included the Cape colony, the western coast as far north as Walfish
Bay, the eastern coast to the Zambesi River and the Zambesi Valley
to a point above Tete, and a few localities in the region now known
as Rhodesia. Possibly some roving elephant hunters had crossed
the Orange River, but, if so, they were silent as to any discoveries
made.

The Bushmen had retired from the populous parts of the Colony, and
were numerous only along the mountain range in the interior. The
Hottentots had dwindled away to a few thousand. The thinning out of
these native races was due not so much to mortal conflict with the
whites as to the ravages of smallpox and strong drink. Like all
savage people they [25]seemed to melt away before these scourges
as stubble before flames.

And here we close this chapter of the history of the Boers. We leave
them, for the moment, divided as to the government of the Dutch
East India Company, but a homogeneous people seventeen
thousand strong, and having developed out of the elements mixed in
their blood and the peculiar environment and experiences in which
they lived a new race of civilized men to be known in the history of
commerce, diplomacy and war as Africanders. [26]
[Contents]
CHAPTER II.
FIRST CONTACT OF AFRICANDER AND BRITON
IN DIPLOMACY.
 (1795.)

Colonel Robert Jacob Gordon was in chief command of all the

regular military forces maintained in the Cape colony. These
consisted of a regiment of infantry numbering twenty-five officers and
five hundred and forty-six rank and file, an artillery corps mustering
twenty-seven officers and four hundred and three rank and file, fifty-
seven men stationed at the regimental depots Meuron and
Württemberg and a corps of mountaineer soldiers, called pandours,
numbering two hundred and ten.

It is important to remember that at this time the colonists were

divided in sentiment as to the government of the Dutch East India
Company, but united in loyalty to the States-General and the
Stadtholder of Holland. In the interior the people had risen up in a
mild revolt, had dismissed [27]the local magistrates who were the
appointees of the Company, and had instituted incipient republics
under the government of representative assemblies. Even in
Stellenbosch and Cape Town the majority sympathized with these
movements, and only waited a favorable opportunity to declare
against the Company’s rule.

It is equally important to know that the military, also, were divided in

sentiment on this subject. Of the infantry, the officers were loyal to
the Orange party, but the rank and file were mercenaries from nearly
every country in the north of Europe, and were zealous for that party
or nation from whom they could draw the highest pay. The artillery
corps, on the contrary, was composed almost entirely of
Netherlanders, with a few French and Germans. These men were
attached to the mother country. A large majority of them, however,
sympathized with the republican movement in Europe, and would
have preferred alliance with the French rather than with the English,
for, at that time, the lead of France was toward republicanism.

Thus weakened by internal divisions, the Colony presented an open

door to invasion by any power that might covet a point of so great
[28]strategic importance on the ocean thoroughfare between Europe
and the Orient.

The English government, when about to enter into hostilities with

France, became apprehensive that the French would perceive the
value of the Cape colony and instantly take forcible possession of it.
This they determined to prevent at any cost; for the military
occupancy of the Cape by the French would bring England’s
highway to India under the control of her hereditary foe.

As early as the 2d of February, 1793, negotiations were opened

between the British government and the Dutch home and colonial
authorities concerning a strengthening of the garrison at the Cape by
a contingent of British troops from St. Helena. The States-General
and the Dutch East India Company, in response to this proposal,
signified their desire for aid in the form of warships to guard the
coast of the Cape peninsula, and that in case such assistance could
not be given they would accept the offered troops.

While this correspondence was going on events were transpiring that

occasioned ill-feeling between the Dutch and the English, although
they were in alliance against the French. Being [29]paralyzed by
dissensions among their own people, the States-General made
urgent appeals to the British government for more efficient aid in
both men and money. To these appeals the answer of the English
authorities was a bitter complaint that their troops were already
bearing the brunt of the war in defense of the Netherlands, and that
the Stadtholder and his government were not making proper
exertions to raise men and money at home.
In making such answer, the British ministers seemed to be willfully
blind to the prostrate condition of the Dutch government. The French
had put the army of invasion under the command of Pichegru, one of
the ablest generals of his time. One after another the Dutch
strongholds were falling before him. The province of Friesland was
threatening to make a separate peace with France if the States-
General did not hasten to act in that direction for all Holland. The
patriot party felt such antipathy to their English allies that it was
difficult to get hospital accommodation in Dutch towns for the
wounded British soldiers. And notwithstanding all these
circumstances the English authorities asserted that the Stadtholder’s
failure to put in the field a large and well-equipped force was due to
[30]apathy in his own cause rather than to weakness. The one
measure of additional help offered was that if the Dutch government
would furnish five hundred to a thousand troops for the better
defense of Cape Colony the English East India Company would
transport them thither free of charge. It being impossible for the
Dutch to furnish the men, the negotiations came to an end.

Meanwhile, as was signified in the attitude of Friesland, the Dutch

people were considering the question of changing sides in the war.
That fact—without the knowledge of the Stadtholder—was informally
communicated to the governor of Cape Colony in a letter written by
the chief advocate of the Dutch East India Company, with the
approbation of the directors. The letter reached the Cape on the 7th
of February, 1795, informing the colonists that in all probability
Holland might soon dissolve the alliance with the English and make
common cause with France. The letter stated that matters at home
were in an uncertain condition; that the French armies were
advancing and already had occupied a part of the country, and that it
would be necessary to be vigilant so as not to be surprised by any
European power. The warning, though not [31]specific as to what
power, evidently referred to England.
Later reports informed the colonists that a French army under
Pichegru was besieging Breda and threatening the region across the
Maas. But these reports were not in the nature of official dispatches.
They were communicated verbally by Captain Dekker of the frigate
Medemblik, which arrived at the Cape on the 12th of April, 1795.

The next intelligence from Europe was calculated to perplex and

alarm the colonists to a high degree. On the 11th of June, 1795,
successive reports came by messengers from Simonstown to the
castle to the effect that several ships of unknown nationality were
beating into False Bay; later that the ships had cast anchor, and at
ten in the evening that Captain Dekker had sent a boat to one of the
stranger ships to ascertain particulars, directing the lieutenant in
charge to wave a flag if he found them friendly, and that no such
signal had been made, nor had the boat returned.

The situation so suddenly developed was, to say the least,

disturbing. The governor called his council together to consider it.
After conference the signals of danger were made summoning [32]the
Burghers of the country districts to Cape Town. Lieutenant-Colonel
De Lille was ordered to proceed at once to Simonstown with two
hundred infantry and a hundred gunners to strengthen the garrison
there. The troops left the castle within an hour and reached
Simonstown before noon of the next day.

The council continued in session until past midnight, and after

adjournment remained at the castle in readiness to deal with any
emergency that might arise. At half-past two in the morning of the
12th they were called together again to consider a letter just received
from Simonstown. The communication was from Mr. Brand, the
official resident at Simonstown, and contained interesting news.
Captain Dekker’s boat had returned from its long visit to the strange
fleet. With it had come a Mr. Ross, bearing letters for the head of the
Cape government from the English admiral, Sir George Keith
Elphinstone and Major-General James Henry Craig.

Mr. Ross, having been supplied with a horse and a guide, reached
the castle and delivered the letters in due time. They proved to be
three complimentary notes from directors of the English East India
Company to Commissioner [33]Sluysken, governor of the colony. Mr.
Ross also presented an invitation from Admiral Elphinstone to the
Commissioner and Colonel Gordon to visit his ship, intimating that
there they would receive important information and a missive from
the Stadtholder of the Netherlands. It was noted that in the
conversation Mr. Ross was careful to evade all questions concerning
the state of affairs in Europe and the destination and business of the
fleet.

While the council pondered these things, Lieutenant Van Vegezak,

who had visited the English admiral’s ship, arrived at the castle. He
had little information to impart. There were in the fleet three seventy-
four gun ships, three of sixty-four guns each, a frigate of twenty-four
guns, two sloops of war carrying the one eighteen and the other
sixteen guns; and there were troops on board under the command of
Major-General James Henry Craig, but how many he had not been
able to learn.

Now, the facts which accounted for the presence at the Cape of this
British naval and military force were unknown to the colonists. The
Stadtholder’s government had been overthrown. The democratic
party in Holland had received the French with open arms. The
national government [34]had been remodeled. The States-General
had abolished the Stadtholderate. And the British ministers, alarmed
for their vast possessions in India, and realizing that they must now
depend upon their own exertions to keep the French from seizing the
port which practically commanded the sea route thither, had fitted out
and dispatched with all haste this expedition, with orders to occupy—
peacefully if they could, but forcibly if they must—the castle and
harbor of Cape Town. The fleet had made a rapid passage. One
division sailed on the 13th of March, the other on the 3d of April. The
two squadrons met off the Cape on the 10th of June and on the 11th
cast anchor in False Bay.

The colonial officers acted with marvelous caution, considering the

fact that they were in ignorance of the late events which had led to
the appearing of this formidable expedition in South African waters.

To the note inviting the commissioner and Colonel Gordon to visit the
English admiral on his ship, they courteously replied that it was
impossible for these officers to leave Cape Town, and begged the
admiral to send ashore a responsible representative with the
promised information and dispatch. They also instructed [35]the
resident at Simonstown to permit the English to provision their ships,
but to allow no armed men to land. A force of eighty-four Burghers
and thirty gunners, with three field pieces, was posted at Muizenburg
in a position to command the road to Simonstown. On the 13th of
June the defensive works of Simonstown Bay were strengthened by
additional troops, and three hundred and forty infantry and
artillerymen were sent to further strengthen the post at Muizenburg.

On the 14th of June there came to the castle a deputation from the
Admiral, consisting of Lieutenant-Colonel McKenzie, Captain Hardy
of the sloop Echo and Mr. Ross, secretary to General Craig.

Mr. Ross handed to Commissioner Sluysken a communication from

the prince of Orange—late the Stadtholder of the Netherlands, and
supposed to be so still by the colonists. The prince’s mandate, dated
at Kew on the 7th of February, 1795, ordered the Commissioner to
admit the troops of the King of England into the colony and the forts
thereof and to admit the British ships of war into the ports, and to
treat the British troops and ships of war as the forces of [36]a power
friendly to Holland and sent to protect the colony against the French.

The deputation from the admiral also delivered to the Commissioner

a joint letter from Admiral Elphinstone and General Craig, in which
was written their account of the then condition of affairs in the
Netherlands. They informed him that the winter in Europe had been
exceptionally severe; that toward the close of January the rivers had
been frozen so hard as to make them passable for armies; that the
French had crossed on the ice into Utrecht and Gelderland and had
driven the English troops into Germany and compelled the Dutch
forces to surrender. They represented that it was a matter of only a
few days for the whole of the country to fall into the possession of
the French by forced capitulation, without any previous terms of
surrender, and that the Stadtholder only escaped capture by taking
passage in a fishing boat, which carried him from Scheveningen to
England. They further intimated to the Commissioner that this
gloomy state of things was only temporary; that Britain and her allies
were preparing to enter the field with overwhelming force, and were
confident of being [37]able to drive the French out of Holland in the
next campaign.

The letter stopped short of full particulars, leaving the colonial

authorities in ignorance of the cordial welcome given to the French
by the democratic party in Holland, and of the remodeling of the
national government and the abolition of the Stadtholderate. The
impression the British officers sought to make was that Holland had
been overrun and conquered, and was being treated with the utmost
rigor by the French. They carefully withheld the facts that the
remodeled government of the Netherlands was still in existence and
that the French were regarded as friends by a majority of the people.
They wished the colonists to believe that the Prince of Orange was
still the Stadtholder of the Netherlands, though temporarily a fugitive
in England; that he would be reinstated by the help of his faithful
allies in the next campaign, and that loyalty to his prince required the
Commissioner of the Cape Colony to throw open the ports and the
forts of the colony to the friendly occupation of the British forces.

The council decided that no immediate action should be taken on the

prince’s mandatory letter. It was the command of a fugitive in a
[38]foreign land and lacked the indorsement of the States-General,
and, therefore, had no official force. They were loyal to the House of
Orange, but they felt that any present action would be taken in
ignorance of the true state of affairs. There was nothing to guide
them but this letter of their fugitive prince and the word of these
armed and interested visitors who sought to occupy their harbors
and strongholds at once. They decided to temporize as far as they
could without giving the strangers peaceable possession, hoping that
more complete and reliable intelligence from the Netherlands would
reach them.

The council’s answer to Admiral Elphinstone is an example of rare

diplomatic acumen. It assured him that the fleet would be permitted
to take in all necessary provisions, but requested that in doing so
only small bodies of unarmed men be sent ashore. It also expressed
gratitude to the British government for its evident goodwill, and
intimated that, while confident of their ability to resist any attack that
might be made, they would ask the British for assistance in case the
French should attempt to seize the colony. It further requested the
admiral to inform the council what number of troops he could furnish,
[39]if any were needed. The admiral replied that General Craig would
visit the Commissioner in Cape Town and impart fuller information.
Meanwhile the arrival of Burgher forces from Stellenbosch enabled
the council to add two hundred horsemen to the post at Muizenburg.
On the 18th of June General Craig met the Commissioner at Cape
Town. The next day the general was introduced to the council, and
laid before the members the mission upon which he had been sent
and his instructions as to the manner of accomplishing it. He stated
that the fleet and the troops had been sent by his Britannic Majesty
to defend the colony against seizure by the French, or any other
power, and that the British occupancy was intended to last only until
the government in the Netherlands could be restored to its ancient
form, when it was his Majesty’s purpose to give up the colony to its
proper rulers—the Stadtholder and the States-General of Holland.
He assured them that no changes would be made in the laws and
customs of the country, nor would any additional taxes be levied
without the expressed desire of the people. The colonists would be
required to bear no cost but that of their own government as it then
existed, and they would be at [40]liberty to profit largely by trade with
England’s possessions in India. The colonial troops would be paid by
England, on condition that they take an oath of allegiance to his
Britannic Majesty—the obligation thereof to last only as long as the
British occupancy of the colony. The civil service would remain as it
was, and the present incumbents retain their offices until his
Majesty’s pleasure should be made known.

To this proposal the council made answer in writing, declining it, and
notifying the general that they would protect the colony with their
own forces against all comers.

Admiral Elphinstone and General Craig responded to this act of the

council by a general proclamation to the government and inhabitants
of the country, inviting and requiring them to accept his Britannic
Majesty’s protection in view of the certainty that the French would
endeavor to seize the colonial dependencies of the Netherlands.
Three days later the same officers published an address to the
inhabitants, in Dutch and German, renewing the offer of protection
under the conditions laid before the council by General Craig, and
inviting them to send a committee of their own selection to
Simonstown to [41]confer with the heads of the British expedition.
The address emphasized the alternative before the people—a
French or an English occupation. The former, it affirmed, would
introduce a government on Jacobin principles, and would result in
anarchy, the guillotine, an insurrection of the slaves with all the
horrors that had been enacted at St. Domingo and Guadeloupe,
isolation from Europe, the destruction of commerce and a dearth of
money and of the necessaries of life. But the English occupation, it
went on to say, would give them safety under the wing of the only
power in Europe that was able to assure protection of person and
property under the existing laws, or any others the colonists might
choose to enact; it would secure a free market for all their products
at the best prices; it would release their trade from the heavy imposts
of the Dutch East India Company; it would open and promote
commerce by sea and land between all parts of the colony, and it
would secure better pay for such of the colonial troops as might
choose to enter the British military service.

This appeal directly to the people over the heads of their chief
officials, and to the cupidity of their mercenary soldiers, was
resented by the council, who notified the British representatives
[42]forthwith that further communication on the subject of British
occupancy was not desired.

Nevertheless, on the 26th of June, the admiral and the general sent
the colonial authorities another long letter, reiterating therein their
former statements to the effect that the Netherlands had been
absorbed by France; that if left to itself the Cape colony would be
absorbed in like manner, and adding the significant intimation that
his Britannic Majesty could not allow it to fall into the hands of his
enemies.

The council responded to this letter by prohibiting any further supply

of provisions to the British force, and strengthening the post at
Muizenburg with Burgher horsemen, pandours and the entire
garrison from Boetselaar except one man; he was left to spike the
guns in case the English should land. The council also wrote the
British commanders that they noted the difference between proffered
assistance against an invader and a demand to surrender the colony
to the British government.

When the real design of the English was revealed, the disaffected
Burghers of the Cape and of Stellenbosch ceased all opposition to
the government, and offered to do their utmost in defense of the
colony. When the Commissioner [43]announced that the country
would not be surrendered to the English, the people cheered him
rapturously in the streets, and saluted him as Father Sluysken.

But notwithstanding these outward signs of unity the high officials

and the people were not quite of one mind. A majority of the
Burghers had adopted republican ideas, and, if they were to be left
to themselves, were ready to welcome the French. Such English
visitors as had come to the Cape had exasperated the colonists by
boastfully predicting the ultimate subjection of the colony to Great
Britain. The Burghers believed that they had now come in the guise
of friendship to make good the insulting prediction. On the other
hand, the official heads of the colony were lukewarm in doing what
they knew and admitted to be their duty for the defense of the
colony. Colonel Gordon openly expressed his readiness to admit the
English troops whenever the French should threaten an attack. He
went so far as to say that even in existing circumstances he would
admit them if they would covenant to hold the country for the Prince