Vietnam Association for Victims of Agent Orange v. Dow Chemical Co.

Court	United States District Court, Eastern District of New York, United States
Case number	04-CV-400
Decision title	Memorandum, Order and Judgment
Decision date	28 March 2005
Parties	Vietnam Association for Victims of Agent Orange, and others Dow Chemical Company, and others
Other names	Agent Orange
Categories	Crimes against humanity, Genocide, Torture, War crimes
Links	Memorandum, Order and Judgment (Amended)

Summary

During the Vietnam war, the United States used herbicides (including ‘Agent Orange’) in an effort to deprive the enemy of places to hide in forests and agricultural lands. In the decades after the war, reports on detrimental health effects of Agent Orange started coming out.

In this case, a Vietnamese organisation and several Vietnamese individuals did not sue the United States directly, but claimed that several chemical corporations by manufacturing the herbicides had violated national and international law. The Court rejected their claims based on national law, as under US law product liability against government contractors is barred.

Although the Court held that corporations can be held liable under international law, it also rejected the international law based claims as it did not find any international legal obligation which prohibited the US from using herbicides during the Vietnam war. The Court especially emphasised that the herbicides were not used with the specific intent to harm persons, but to ‘kill plants’. The Court held that since the use of herbicides during the Vietnam war had not been illegal, the manufacturers were not liable. The case was dismissed.

Procedural history

On 10 September 2004, a complaint was filed on behalf of the Vietnam Association for Victims of Agent Orange and several individuals against several (chemical) companies.

The civil action was filed pursuant to the Alien Tort Claims Act (ATCA), 28 U.S.C. para. 1350 and pursuant to other statutory and common law provisions, for aiding and abetting violations of international law and war crimes. The claims arise out of defendants’ manufacture and supply of herbicides which were used in Vietnam from 1961-1975 and which have caused death and injury. Therefore, the plaintiffs sought money damages for personal injuries, wrongful death and birth defects and injunctive relief for environmental contamination and disgorgement of profits.

The defendants filed a motion to dismiss, arguing that jurisdiction was lacking in this case and that the plaintiffs had failed to state a claim that the defendants had violated international law. Also, they claimed that the case would violate the separation of powers. The plaintiffs responded to this motion and both parties presented their oral arguments on 28 February 2005. The United States government presented its view as well, arguing that the case was non-justiciable and that the plaintiffs had no right to action under the ATCA.

Related developments

The Court of Appeals For the Second District affirmed the District Court’s judgment on 22 February 2008. A writ of certiorari with the Supreme Court was issued, but on 27 February 2009 the Supreme Court decided against hearing the case.

Legally relevant facts

During the conflict in Vietnam, the United States used Agent Orange and other herbicides from 1965 to 1971. The South Vietnamese government subsequently used these herbicides until 1975. Vietnamese nationals and an organisation, the Vietnamese Association for Victims of Agent Orange (VAVAO) alleged that harm had been done to them and to their lands by the use of these herbicides and that the manufacturers of these herbicides should be held responsible under domestic tort law and international law.

Core legal questions

Did the use of herbicides during the Vietnam war constitute the alleged breaches of domestic and/or international law?
Could the manufacturers of the herbicide be held accountable?

Specific legal rules and provisions

Article 23 of the Annex to the Hague Convention IV Respecting the Laws and Customs of War on Land signed October 18, 1907.
1925 Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare.
Article 3 of the Geneva Convention relative to Protection of Civilian Persons in Time of War.
Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide.
UN General Assembly Resolution 2603(XXIV)-A.

Paragraphs 1091 and 2441 of Title 18 of the US Code.
Federal Question, Paragraph 1331 of Title 28 of the US Code.
Diversity Jurisdiction, Paragraph 1332 of Title 28 of the US Code.
Regulation of Commerce, Paragraph 1337 of Title 28 of the US Code.
Alien Tort Claims Act, Paragraph 1350 of Title 28 of the US Code.
US Torture Victim Protection Act of 1991.

Court's holding and analysis

Under the "government contractor defence", product liability against government contractors is barred. The District Court held that the plaintiffs could therefore not file domestic law claims (pp. 13-14). However, the Court rejected the view that government contractor defence also applies to international law claims (pp. 16-17, 87 and 141): a company should refrain from carrying out orders to do an illegal act under international law (pp. 87 and 155).

However, the Court found that no international legal obligation of the United States had been breached by using herbicides in Vietnam during the period up to 1975 (pp. 165-166, 213 and 217). The Court held that the use of herbicides in Vietnam does not fit within the definition of torture, war crimes, genocide or any other alleged international crime. The Court reiterated throughout the ruling that herbicides were used with the intent to ‘kill plants’, not people or their livelihood (pp. 175-176, 181, 184 and 186), and that the herbicide use had been proportionate (p. 221).

Since the use of herbicides did not constitute a violation of international law at the time, the Court concluded that there was no basis for the claim.

Further analysis

Law professor Kenneth Anderson offered an expert declaration to the judge on behalf of the defendant corporations in this case. Both this declaration as well as a reply to the plaintiffs’ declaration was made available by him on SSRN. Mullenix wrote on third-generation mass tort litigation, including ‘Agent Orange’ cases.