Thoughts on the Navy / Fukushima Litigation

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.

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

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.

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Syria and the Arms Trade Treaty

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.

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