Guest Post at Opinio Juris

I’ve done a guest post on Zivotofsky v. Kerry, the Israel passport case, over at the international law blog Opinio Juris. It’s available here.

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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.

As the plaintiffs prepare to respond to TEPCO’s motion, I’d like to draw attention to one issue that TEPCO hasn’t raised: choice of law. The sailors’ claims appear to rely exclusively on the tort law of California, but it’s not clear that California law should apply. After all, the alleged exposure happened in Japan as a result of the acts of a Japanese corporation. One might reasonably assume that Japanese law governs in such circumstances. To resolve this issue, the district court would have to apply California’s choice of law rules, in accordance with the Supreme Court’s decision in Klaxon Co. v. Stentor Electric Manufacturing Co. Those rules would in turn require the court to ask three questions in deciding between the substantive laws of California and Japan: (1) Is Japanese law materially different from California’s? (2) If there’s a material difference, what are the respective interests of Japan and California in having their own law apply? And (3), if Japan and California both have an interest in the application of their own law, which jurisdiction’s interest would suffer the greatest impairment if the court chose to apply the law of the other? I’ll address these questions in order, while assuming for the sake of brevity that the plaintiffs’ claims are all valid as a matter of California law.

Starting with the first question, Japanese law provides for the strict liability of nuclear power plant operators in the event of nuclear damage from radiation exposure. To that extent, Japanese law is similar to the rule of strict liability on which the plaintiffs rely. But there are also material differences. For example, the complaint seeks punitive damages–a remedy that is unavailable in Japan. In fact, Japan’s opposition to punitive damages is such that Japanese courts often refuse to cooperate in the enforcement of foreign punitive damages awards even if the awards are appropriate under the law of the jurisdiction where they were obtained. Further, the complaint names “Does 1 through 200″ as additional defendants alongside TEPCO, but Japan’s Act on Compensation for Nuclear Damage channels liability exclusively to TEPCO as the power plant’s operator. Even assuming that relevant Japanese and California laws are otherwise identical, these differences mean that the choice of law could play a major role in shaping the extent of the plaintiffs’ recovery.

The next task, then, would be to identify the respective interests of Japan and California in having their own laws apply. Japan has a few. One is nexus–the lawsuit challenges the conduct of a Japanese corporation in Japan, for injuries apparently suffered in Japanese territorial waters. Another is financial–the Japanese government’s role in rescuing TEPCO and ensuring the availability of compensation to victims suggests that Japan has a significant financial interest in the outcome of the litigation. Still another interest is that the suit could complicate efforts to provide uniform levels of compensation to victims with commensurate injuries. The application of California law would mean that the sailors, if successful, are entitled to far more than Japanese victims who have suffered similar or perhaps even more extensive harms, given the jurisdictions’ differing approaches to punitive damages. Differential treatment could in turn generate significant dissatisfaction and resentment among victims in Japan. On the other side, California has an interest in deterring foreign torts that harm California residents.

The final challenge under California’s choice of law doctrine would be to weigh the competing interests. To me, it’s not entirely clear how the federal court would rule on the issue if TEPCO had raised it. Japan’s interests seem to be numerically superior, but California’s is nevertheless significant. I offer no conclusion on this point, other than to say that neither view seems unreasonable.

Given the potential significance of choice of law, one wonders why it’s not in TEPCO’s motion. My guess is that the omission isn’t an accident. Most likely, TEPCO purposefully chose to focus instead on forum non conveniens, for two reasons. First, forum non would would be a bigger win in the sense that it results in immediate dismissal, while a choice of Japanese law would not. Second, there’s a tension between forum non and choice of law doctrine that makes it a little awkward to raise the issues simultaneously. To persuade the court to dismiss, TEPCO has to show that the Japanese judicial system is an adequate alternative forum that’s capable of redressing the plaintiffs’ alleged injuries. But to persuade the court to apply Japanese law, TEPCO would first have to highlight material differences between the relevant laws of California and Japan, as explained above. Doing this while also arguing forum non would force TEPCO to walk a fine line, arguing that Japanese law is different but not too different from the California alternative.

As the choice of law analysis illustrates, this case is fascinating for a lot of reasons and worth following. I look forward to seeing the plaintiffs’ response and the court’s ruling on the motion.

[This article was first published on the Law.com Network on April 21, 2014.]

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The First Bathymetric Chart of the East China Sea

Petermann Bathymetric ChartYesterday I came across a copy of the earliest bathymetric chart of the Pacific Ocean, which was made by the German geographer Augustus Petermann in 1877. The image to the left zooms in on the portion of the map that covers the East China Sea, including the Senkaku / Diaoyu Islands. A couple of features are worth noting: First, the Islands themselves are nowhere to be seen. Either Petermann never noticed their existence, or he thought them too insignificant to place on the map. Second, Petermann’s map doesn’t reflect the topographical changes that correspond with the Okinawa Trough, which is a seabed feature that separates the Ryukyu Islands from China’s continental shelf. Everything west of the Ryukyu Islands incorrectly appears as an undifferentiated area of relatively shallow waters. The map isn’t terribly significant to the ongoing territorial dispute between Japan and China, but it’s interesting nevertheless.

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Public Diplomacy on the Senkaku / Diaoyu Islands

The sovereignty dispute over the Senkaku / Diaoyu Islands seems to have evolved over the past year. The diplomatic impasse is nothing new, and the claims and legal arguments are the same as before. But the level of public diplomacy has increased dramatically. Legal merits aside, some commentators have concluded that China is now winning in the court of international public opinion. I’m not entirely sure that’s true, but I agree that Japan hasn’t done a particularly good job explaining itself to foreign audiences. In this post, I want to briefly compare the parties’ diplomatic efforts and then offer a few suggestions on how Japan might improve its strategy.

Advocates of the Chinese position have mounted a sustained, multi-pronged public relations campaign to discredit Japanese control over the Islands. Government officials have raised the issue in foreign media outlets and at international conferences. Chinese academics have published a series of articles in English to explain the basis for Chinese title. There’s even a government effort to publicize a recent English-language documentary that supports China’s position. (Several official news outlets have given favorable reviews, and the film has a miraculously high IMDB rating of 9.8 out of 10, which in theory means it’s one of the best movies ever made. Ratings for The Godfather (9.2) and Pulp Fiction (9.0) are unimpressive by comparison.)

The intensity and scale of these efforts reflect a couple of underlying conditions: First, due to historical grievances against Japan, people from China tend to feel quite passionately about the dispute. The idea of another incursion is simply intolerable to many. Second, China has vast human resources at its disposal, whether in the form of scholars who write academic articles, artists who make films, or private citizens who echo the official position. Drawing on these resources, China has managed to garner a certain level of international sympathy by tethering the Senkaku dispute to a familiar (and basically correct, but irrelevant) narrative about the militant and imperialistic nature of Japanese foreign policy during the nineteenth and early twentieth centuries.

Japan has started to respond. The Ministry of Foreign Affairs recently produced videos and other content (here and here) defending Japan’s position, and some officials have joined the op-ed debate. But I think there’s still significant room for improvement. I’ll offer three suggestions:

First, Tokyo needs to change the way it frames the dispute to international audiences, particularly citizens of the United States. The government should abandon the common refrain that a dispute doesn’t exist. That position comes across as obviously false to the American public and hurts Tokyo’s credibility. As long as Japan and China both claim the Senkakus exclusively for themselves, there is a clear dispute over sovereignty. Period. What Tokyo should say instead is that there is no legitimate dispute. That position wouldn’t really give anything to China—to recognize that a dispute exists is not to say that China’s claim is justified, or even better than frivolous. And the change would preserve rather than damage Japan’s credibility.

Second, Tokyo should emphasize further that nineteenth- and twentieth-century Japanese militarism is a red herring. As I’ve explained elsewhere, the basis for Japanese sovereignty is not aggression or imperialism, but effective control and longstanding Chinese acquiescence.

Finally, Tokyo needs to work with Washington to better explain to the American public why they should care about the dispute. Given the U.S.-Japan Security Treaty, Japan expects the United States to come to its defense in the event of military conflict. But a treaty doesn’t guarantee action, and to many people it’s not obvious that the United States should honor the commitment. The Islands, after all, are uninhabited, small, and remotely located in the western Pacific, and defending Japan against China would be enormously costly in both military and economic terms. To answer these concerns, Japan needs to spell out more clearly what would happen if China seized the Islands and the United States failed to respond. Potential consequences include further Chinese expansion in the western Pacific, severe and likely irreparable damage to the U.S.-Japan alliance, significant harm to the credibility of the international rule of law, full Japanese rearmament, and a rapid and destabilizing arms race in East Asia. By highlighting these risks, Tokyo and Washington will make it easier for U.S. officials to commit to honoring the Security Treaty before the American public.

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Complaint in the Navy / TEPCO Radiation Case

I haven’t seen this online anywhere, so I’m posting the amended complaint filed against Tokyo Electric Power Company (TEPCO) by the class of U.S. Navy sailors who suffered radiation exposure after Fukushima. It’s here. Also, here’s the defendant’s response, which seeks dismissal on the basis of international comity, forum non conveniens, the political question doctrine, and various alleged deficiencies in the prima facie case. One question: why no challenge to the extraterritorial application of California tort law to alleged negligence by a Japanese defendant in Japan? I’ll write more on that in a subsequent post.

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Will Japan Comply with the ICJ’s Whaling Decision?

Yesterday the International Court of Justice ruled that a Japanese government-sponsored program for hunting certain species of whales in the Antarctic violates the International Convention for the Regulation of Whaling. Japan had argued that the program was lawful under Article III of the Convention, which authorizes states-parties to “kill, take and treat whales for purposes of scientific research,” but the Court rejected that argument and found that the program’s design and implementation lacked a reasonable relationship to scientific inquiry. As remedies, the Court ordered declaratory relief and enjoined Japan “to revoke any extant authorization, permit or license, to kill, take or treat whales” in relation to the unlawful program and “refrain from granting any further permits . . . in pursuance of that program.”

Some commentators have predicted that Japan will flout the Court’s judgment, given a purported Japanese policy in favor of unfettered access to marine resources on the high seas. But I’m not so sure, for two reasons. First, Japan has a strong interest in presenting itself to the international community as a state that follows the international rule of law. This is particularly true today, in light of the ongoing dispute over the Senkaku / Diaoyu Islands. By signaling a lack of regard for international law, a decision to disobey the ICJ would make it more difficult for Tokyo to credibly invoke principles of occupation and acquisitive prescription in justifying Japanese sovereignty over the Islands. Put differently, disregarding the judgment would play into China’s hands by allowing Beijing to depict Japan as a nation that does not care about international law, including by extension the law underlying the territorial dispute. Second, no one really eats whale meat anymore in Japan. In all my time living there, I might have seen it on a menu once or twice, if that. And as far as I can tell, my experience wasn’t aberrational. The result is that whale hunting isn’t an issue of much practical significance to the average Japanese citizen, and that a decision to comply with the ICJ should have relatively low political costs for Tokyo. To be sure, abiding by the Court’s decision will be unpopular among nationalists and presumably against the personal preferences of Prime Minister Abe. But reputational considerations seem to make compliance the better option.

[Update: It's nice to be right sometimes. Tokyo just announced that it would honor the ICJ ruling and has already cancelled its annual Antarctic whaling hunt. This is a smart move for the reasons stated above.]

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An Old Map of the Senkaku / Diaoyu Islands

SenkakusI recently learned that Google has a great collection of historical maps, including a couple that are relevant to the ongoing territorial dispute over the Senkaku / Diaoyu Islands. The best is a German map of East Asia from 1875. Pictured above is a close-up of a portion depicting the now-disputed Islands. Note the cluster of small features surrounding the one labeled “Tiao Su”—these are the Senkaku / Diaoyu. Also note the blue line running through the map—the key indicates that this represents the division between Chinese and Japanese territory.

Whoever made the map apparently thought the Islands belonged to Japan at least as early as 1875. We now know that to be an error, given that Japan didn’t annex until 1895. But the map still suggests that Chinese sovereignty was not clearly established at the time—unless the mapmakers had no clue about what was happening, the fact that they were unaware of a purported Chinese title provides at least some reason to believe that China wasn’t exercising control. This in turn supports the notion that the Islands were unoccupied terra nullius in the late 1800s, and that Japan acted lawfully in annexing them. The map is also consistent with the view that Japan genuinely perceived the Islands as unoccupied territory when it first claimed title.

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