Thoughts on Mwani v. Al Qaeda

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Category: Federal Law & Legal System, International Law & Diplomacy, Public
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A federal magistrate judge issued a noteworthy decision yesterday in Mwani v. Al Qaeda—a case filed several years ago by victims of the 1998 truck bombing of the U.S. Embassy in Nairobi, Kenya. Six Kenyan nationals alleged jurisdiction under the Alien Tort Statute (ATS) and asserted claims for wrongful death, assault, and battery. The court found Al Qaeda liable on two of the claims and awarded compensatory and punitive damages.

Two aspects of the decision seem significant. First, the court reaffirmed a prior holding that jurisdiction was appropriate even under the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum, which established that ATS jurisdiction is available only for claims that “touch and concern the territory of the United States” with “sufficient force” to displace the presumption against the extraterritorial application of U.S. law. The magistrate judge concluded that Mwani satisfied Kiobel because Al Qaeda carried out part of the planning within the United States and directed the attack against the U.S. Embassy and its employees. It’s fairly common for an ATS case not to survive Kiobel these days, but the conclusion here seems reasonable. Read more »

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A Global Survey on the Study of International Law

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Category: International Law & Diplomacy, Legal Education, Public
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In the United States, public international law is not an important part of legal education. By my count, only eight schools require their students to complete a course on the subject: Florida International, Harvard, Hofstra, UC-Irvine, Michigan, Nebraska, Washington, and Washington & Lee. Everywhere else, international law is purely elective. Insofar as relatively few students tend to choose this elective, we have a legal profession made up of individuals who lack formal training on topics like treaty interpretation, human rights law, and international organizations.

Is this common in other countries or another example of American exceptionalism? To answer that question, I conducted a global survey of the study of international law. The results, which are available in the form of an interactive world map at PILMap.org, show the frequency with which law schools and governments around the world require individuals to study public international law en route to obtaining a law degree. By clicking on individual states, you can look at summary statistics and details about the curricula of specific law schools.

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US Supreme Court Review: Bond v. United States

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Category: Constitutional Law, International Law & Diplomacy, Public
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US Supreme Court logo(This is another post in our series, Looking Back at the U.S. Supreme Court’s 2013 Term.)

Continuing with this blog’s coverage of the recently concluded Supreme Court term, I’ll offer a few thoughts on the decision in Bond v. United States, which addressed a challenge to a statute that Congress passed in 1998 to implement the Chemical Weapons Convention (“CWC”). Most have heard about the underlying facts: After finding out that her husband was the father of her best friend’s soon-to-be-born child, Carol Anne Bond tried to poison the friend with 10-chloro-10H-phenoxarsine and potassium dichromate. This plan didn’t work, but the authorities found out about it and prosecuted Ms. Bond under 18 U.S.C. § 229(a) for possession and use of a “chemical weapon.” Bond then entered a conditional guilty plea that preserved her right to appeal and, after a lot of other litigation, made two arguments before the Supreme Court. First, she contended that Section 229(a) doesn’t apply because she didn’t use 10-chloro-10H-phenoxarsine and potassium dichromate as “chemical weapons” within the meaning of the statute. Second, she argued that the statute is invalid even if it applies because it exceeds the enumerated powers of Congress and intrudes upon powers that the Tenth Amendment reserves for the states. Read more »

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An Analysis of the Israel Passport Case, Zivotofsky v. Kerry

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Category: Constitutional Law, International Law & Diplomacy, Public
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Recently the Supreme Court granted certiorari in Zivotofsky v. Kerry to resolve an important question in U.S. foreign relations law: does the power to recognize foreign states and governments belong exclusively to the President, or do the political branches hold it concurrently? More specifically, the case concerns the constitutionality of Section 214(d) of the Foreign Relations Authorization Act of 2003, which requires that upon request from a U.S. citizen born in Jerusalem the Secretary of State must record “Israel” as the place of birth on the individual’s passport. After signing the bill into law, President Bush declined to honor its terms, and President Obama has done likewise. Both have argued that the passport requirement impermissibly interferes with the President’s recognition power because it contradicts a longstanding U.S. policy not to acknowledge the sovereignty of any state over Jerusalem. The Zivotofskys appear to agree that honoring the requirement would amount to U.S. recognition of an Israeli state that includes Jerusalem, but contend that the statute is constitutional and binding on the President because Congress shares in the recognition power. Oral argument is scheduled for the fall. If you’re interested, I wrote a brief analysis of the case over at the international law blog Opinio Juris. You can read it here.

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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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