Thoughts on the Navy / Fukushima Litigation

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Category: Civil Procedure, Federal Civil Litigation, International Law & Diplomacy, Public
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There’s an important lawsuit currently pending in federal court in San Diego. In this post, I’ll provide a brief summary and then highlight an intriguing legal question that the parties haven’t addressed.

First the summary: Two months ago, a class of U.S. Navy sailors filed an amended complaint against Tokyo Electric Power Company (“TEPCO”), the operator of the nuclear reactors in Fukushima that melted down after an earthquake-induced tsunami destroyed their power systems in March 2011. Within days of the earthquake, the U.S. Navy sent the USS Ronald Reagan to provide humanitarian aid to victims, but inadvertently exposed dozens of sailors to allegedly high levels of radiation in the process. Press reports suggest that the carrier sailed into a plume of radioactive steam a couple of miles off the coast, and that the crew drank and bathed in desalinated seawater that was irradiated. The claimed effects include reproductive problems, leukemia, ulcers, brain cancer, and thyroid illnesses, among others. Upon return from the mission, one sailor allegedly began to lose his eyesight. Another gave birth to a child with multiple birth defects. Some observers believe that the Ronald Reagan–a $6 billion vessel–is now too radioactive to keep in service. According to the complaint, TEPCO is responsible because the company knew about the high levels of radiation emitting from the reactors but nevertheless failed to inform the public, including the ship’s crew. Claims include negligence; strict liability for design defect, failure to warn, and ultra-hazardous activities; public and private nuisance; and intentional infliction of emotional distress. As remedies, the plaintiffs have demanded compensation for lost wages, punitive damages, and a $1 billion fund for medical care. Last month TEPCO filed a motion to dismiss on the basis of international comity, forum non conveniens, the political question doctrine, and various alleged deficiencies in the prima facie case. Read more »

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The Sources of Anti-Gay Sentiment in Uganda

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Category: International Law & Diplomacy, Popular Culture & Law, Public, Religion & Law
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American politicians and journalists have sharply criticized Uganda’s apparent hostility toward gay men and lesbians. When in February Uganda’s President Yoweri Museveni signed into law a bill imposing harsh criminal penalties for homosexual acts, U.S. Secretary of State John Kerry criticized the Ugandan law as a violation of international human rights. When a tabloid in Kampala, the nation’s largest city, published a list of “Uganda’s 200 Top Gays,” American newspapers reported that this mass “outing” led those on the list to fear for their lives and to seek desperately to flee the country.

In response to this criticism, the Ugandan government characterized the political comments and journalistic reports as disturbingly arrogant. Once again, the U.S. seemed to be trying to control Ugandan lawmaking and public opinion, the government said. Museveni himself insisted “outsiders” should leave his nation alone and vowed he would not give in. “If the West does not want to work with us because of homosexuals,” Museveni said, “then we have enough space to ourselves here.”

Is the dispute simply a matter of American support for gay rights colliding with Ugandan homophobia? As is usually the case in an international dispute of this sort, the controversy involves more than the purported enlightenment of the West on the one hand and the narrow-mindedness in the developing world on the other. There is ample evidence that American evangelical Christians heavily influenced Uganda’s political and religious leaders, who as a result of this influence turned on the nation’s gay men and lesbians. Read more »

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Understanding the Constitutional Situation in Crimea

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Category: International Law & Diplomacy, Public
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As the eyes of the world turn today (Sunday) to the Crimean referendum regarding separation from Ukraine and reunification with Russia, it is worth remembering that there have been a number of previous referendums on Crimea’s status, and almost all of them have produced highly ambiguous results.

Crimea, currently an “Autonomous Republic” under the Ukrainian Constitution, had been part of the Russian Empire from 1784 until the empire’s collapse in 1917. In the early Soviet period, it was part of the Russian Federation Soviet Socialist Republic and not the Ukrainian Soviet Socialist Republic. During the 1940’s, much of the region’s indigenous Tatar population was forcibly relocated to other parts of the Soviet Union, a move that allowed ethnic Russians to become a majority in the region.

The first referendum was one that did not occur. Under the Constitution of the Soviet Union, no territory could be transferred from any of the 15 constituent S.S.R.’s without the approval of the affected people. In 1954, for reasons that are still not clear, Soviet Premier Nikita Khrushchev, an ethic Russian who had previously been appointed by Josef Stalin to head the Ukrainian S.S.R.’s government, secured the approval of the transfer of Crimea to the Ukrainian S.S.R., even though only about 20% of the Crimean population at that time were of Ukrainian ancestry. Read more »

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State Legislation on the “Sea of Japan” / “East Sea”

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Category: Constitutional Law, International Law & Diplomacy, Public
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600px-Sea_of_Japan_naming_disputeRecently certain Korean American groups have begun lobbying for state legislation requiring public school textbooks to explain that the “Sea of Japan” is also called the “East Sea.” Japan prefers and uses the former, while South Korea the latter. Bills on this issue are currently at varying stages of adoption in Virginia, New Jersey, and New York, and are part of a broader campaign to raise public awareness about Japan’s colonial and wartime behavior. In this post, I want to address briefly the constitutionality of this legislation under the doctrine of foreign affairs preemption. My view is that the legislation is likely permissible and not preempted.

I’ll begin with the key features of foreign affairs preemption. In American Insurance Association v. Garamendi, the Supreme Court explained that the constitutionality of a state action carrying more than “incidental” foreign policy consequences hinges on whether the action conflicts with federal foreign policy. In the presence of a clear conflict, the state law is invalid. Absent such a conflict, constitutionality depends primarily on the strength of the state interest at stake, as judged “by standards of traditional practice.” This means that non-conflicting state action is likely to be permissible if it falls within a traditional competence of state governments. Read more »

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Syria and the Arms Trade Treaty

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Category: International Law & Diplomacy, Public
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In this post, I want to evaluate the link between two contemporary foreign policy issues that are generally viewed as unrelated. The first is ongoing U.S. military assistance to Syrian rebels. As Reuters reported last week, the United States is currently supplying a variety of small arms, anti-tank rockets, and other items to “moderate” rebel factions, and Congress has approved funding for future deliveries through the end of the fiscal year. The second issue is the Obama Administration’s decision to sign the Arms Trade Treaty (“ATT”) last September. While it’s far from clear that the United States will ratify the ATT, an established doctrine of international law holds that the act of signature triggers an interim obligation to refrain from conduct that would defeat the treaty’s “object and purpose.” This obligation might restrict the ability of the United States to supply arms to the rebels, and raises questions about the legality of the ongoing transfers. To understand why, it’s necessary to consider the text of the ATT, the rebels’ conduct, and the nature of the interim obligation. Read more »

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The Drafting History of the Treaty of Shimonoseki

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One of the many contested issues in the sovereignty dispute over the Senkaku / Diaoyu Islands is whether China ceded title to Japan in the Treaty of Shimonoseki. In this post, I’ll briefly explain the competing textual arguments under the Treaty and then explore the question of meaning from an angle that is often overlooked: whether a first-hand, historical account of the Treaty negotiations from a Japanese official named Munemitsu Mutsu favors the contemporary position of either party. Mutsu’s account is valuable to the ongoing debate because he wrote it shortly after the negotiations concluded and, as the Japanese foreign minister and Tokyo’s chief representative at Shimonoseki, he possessed intimate and unsurpassed knowledge of the discussions that occurred. I obtained the account from Kenkenroku: A Diplomatic Record of the Sino-Japanese War, 1894-95, which was edited and translated by Gordon Mark Berger in 1982. Read more »

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Postcard from Prague – Part Two: Describing the Czech Legal Profession

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PragueUnlike the situation in the United States, where we basically have a unified legal profession with a single type of lawyer, the Czech legal profession contains several different categories of legal professionals. While most Czech legal professionals have a common university education in law (see the previous post), they are classified by different categories which are determined by the role they play, and, to a lesser extent, by the nature of the three years apprenticeship that the individual law student completes following law school.

Czech educated lawyers are divided into three basic categories: advocates (or lawyers), public prosecutors, or judges. While there is some movement between these categories, most members of the legal profession spend their careers in one category or another. In addition to these three categories, some lawyers also serve as public notaries. Czech notaries are a sort of public official who provides important services related to inheritance and the drafting of legal documents. Notaries are appointed and their numbers are limited by statute. Importantly, notaries are viewed as neutral public figures who provide necessary services, but who do not represent their clients in the same way that advocates do. Read more »

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Postcard from Prague – Part One: Comparing the U.S. and Czech Experiences in Legal Education

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Category: International Law & Diplomacy, Legal Education, Public
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Prague Legal education in the Czech Republic is similar to that in the United States in some regards, but it departs from the U.S. model in a number of ways.

First of all, the choices of where to study law are clearly more limited in the Czech Republic.  There are only four universities in the Czech Republic that are authorized to award law degrees:  Charles University (Prague); Masaryk University (Brno); the University of Western Bohemia (Pilsen); and Palacky University (Olomouc).

The most noticeable difference is that Czech students study law as undergraduates, as is the case in most countries of the world.  (The United States and Canada are outliers in that regard.)  Would-be lawyers typically enter the university as law students and remain law students the entire time they are enrolled. Read more »

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The Diplomacy Powers of Congress

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Category: Constitutional Law, International Law & Diplomacy, Public
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I’ve written on this before, so I’ll keep it short: The Michigan Law Review just published my article on the extent to which Congress has constitutional authority to engage in international diplomacy. If you’re interested, it’s available here.

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Why China’s ADIZ Has No Legal Significance

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There’s been an avalanche of news on the East China Sea over the past week. As I discussed in my previous post, China recently announced a new Air Defense Identification Zone (“ADIZ”), thereby requiring foreign aircraft flying over the Sea to provide navigation plans and means of identification to Chinese authorities, and to follow any instructions from the same. China’s armed forces “will adopt defensive emergency measures” against any aircraft that fails to cooperate. The reactions have been uniformly negative. Australia, Japan, South Korea, Taiwan, and the United States have all expressed opposition, while Japan, South Korea, and the United States each sent military aircraft into the ADIZ without notifying China or otherwise complying with the announced rules. Sensing that they had overreached, Chinese authorities subsequently exempted U.S. aircraft as long as they do not “go too far.” Japan, however, is still subject to the ADIZ. My last post explained that the legality of all of this hinges on whether China has title to the Senkaku / Diaoyu Islands that are located within the ADIZ, and on how aggressively China chooses to enforce the measure. Read more »

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China’s New Air Defense Identification Zone

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£¨Í¼±í£©[¶«º£·À¿Õʶ±ðÇø]¶«º£·À¿Õʶ±ðÇø»®ÉèʾÒâͼThree days ago China’s Ministry of National Defense established an Air Defense Identification Zone (“ADIZ”) for the East China Sea. According to the announcement, foreign aircraft operating within the ADIZ will be subject to a couple of requirements: First, they must provide Chinese authorities with various means of identification, including by reporting flight plans, maintaining two-way radio communications and responding in a timely manner to inquiries, displaying clear marks of nationality, and maintaining the operation of any secondary radar transponders. Second, the aircraft must “follow the instructions” of Chinese authorities. If any aircraft fails to provide identification or follow instructions, “China’s armed forces will adopt defensive emergency measures.” The ADIZ is outlined in red in the map above and, most notably, includes the air territory above the contested Senkaku / Diaoyu Islands. Japan has warned that the ADIZ creates a risk of “unpredictable events,” while Secretary of State John Kerry and Secretary of Defense Chuck Hagel said that they are “deeply concerned” about China’s announcement and committed to defending Japan. The obvious purpose of the ADIZ is to further whittle away at Japan’s de facto control over the Islands. In this post, I want to raise two brief points on the legality of this measure. Read more »

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Data on the Foreign Travel of Wisconsin’s Federal Legislators

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Category: Constitutional Law, International Law & Diplomacy, Public
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It’s common to hear of federal legislators traveling abroad on official business to meet with foreign leaders. Because this practice has a variety of significant implications for the execution of U.S. foreign relations, I decided to look into the extent to which Wisconsin’s representatives and senators have been involved over the last five years. My sources were WikiLeaks cables and public reports on publicly and privately financed foreign travel. While it’s not always easy to identify the purpose of any given trip, detailed accounts are often contained in State Department cables, which you can access by performing keyword searches on WikiLeaks’s website. My findings are below. As you’ll notice, Wisconsin’s legislators traveled abroad, if at all, only in 2009–not a single representative or senator reported foreign travel on public funds from 2010-present. I wasn’t able to obtain information on privately-funded travel for the last four years, so it’s possible that some travel still occurred during the period, but the drop-off in publicly-funded travel is striking. And a little bizarre. Perhaps it’s pure coincidence. Or maybe it’s a response to fiscal austerity? I don’t know.   Read more »

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