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

Court United States Court of Appeals For the Second District, United States
Case number 05-1953-cv
Decision title Judgment
Decision date 22 February 2008
  • 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
Keywords Agent Orange, crimes against humanity, herbicides, infliction of unnecessary suffering, product liability, Vietnam War, war crimes, wrongful death
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During the Vietnam War in the 1960’s, the United States sprayed toxic herbicides in areas of South Vietnam. Herbicides were considered effective in meeting important US and allied military objectives in Vietnam. Vietnamese nationals and a Vietnamese organisation representing the victims of Agent Orange brought a case before US court against several US-registered companies that were deployed by the United States military during the Vietnam War. They claimed to have suffered injuries as a result of their exposure to and contamination by these herbicides.

The Plaintiffs brought the case to court under the Alien Tort Statute, which grants the district courts jurisdiction over any civil action by an alien claiming damages for a tort committed in violation of international law or a treaty of the United States. They also asserted claims grounded in domestic tort law. Plaintiffs sought monetary damages as well as injunctive relief in the form of environmental abatement, clean-up, and disgorgement of profits.

The District court determined that Plaintiffs had failed to demonstrate an alleged violation of international law because Agent Orange (toxic herbicide) was used to protect United States troops against ambush and not as a weapon of war against human populations. On 22 February 2008, the Court of Appeals confirmed this decision.

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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 various (chemical production) 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 between 1961 and 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. After the District Court dismissed these claims in 2005, the plaintiffs appealed.

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Related developments

A writ of certiorari with the Supreme Court was issued, but on 27 February 2009 the Supreme Court decided against hearing the case.

In August 2012 the US government announced its commitment to a joint project with Vietnam to clean up the chemicals left over from the use of Agent Orange and other herbicides during the Vietnam War.

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Legally relevant facts

The US government implemented a program to spray herbicides in Southeast Asia, which was called ‘Operation Trail Dust’. United States Air Force aircraft dispersed more than 95% of all herbicides used in Operation Trail Dust (Complaint, p. 13). The South Vietnamese government subsequently used these herbicides until 1975. The plaintiffs include Vietnamese nationals residing in both what was former North and South Vietnam and the Vietnamese Association for Victims of Agent Orange (“VAVAO”). This non-governmental organisation represented persons who were exposed to Agent Orange and other herbicides during the war. Due to this exposure, the plaintiff alleged that they incurred several injuries, such as miscarriages, birth defects, breast cancer, ovarian tumours, lung cancer, Hodgkin’s Disease, and prostate tumours. They claimed that the defendant did not take adequate or reasonable measures to reduce the content of dioxin or other toxic chemicals in their products or to otherwise prevent or mitigate their toxicity to humans who might come into contact with the herbicide, concerning the uses to which it would be put (Complaint, p. 17).

The District Court determined that Plaintiffs had failed to prove a violation of international law because Agent Orange was used to protect US troops against ambush and not as a weapon of war against human populations (p. 6). The final judgment dismissing the Complaint was entered on March 25, 2005, after which the plaintiffs filed an appeal. 

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Core legal questions

  • Do the alleged acts constitute a breach of customary international law?
  • Is the Alien Tort Law was applicable to the current case (Court of Appeal Decision, pp. 17-18)?
  • Has the District Court prematurely dismissed the claims for injunctive relief (Court of Appeal Decision, pp. 17-18)?

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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.

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Court's holding and analysis

In order to answer the first core question, the Court had to determine the existence of a breach of customary international law and the subsequent application of Alien Tort Law. In doing so, the Court relied on the Sosa case, in which the Supreme Court stated that courts should be careful in deciding whether violations of the law of nations can lead to an ATS claim (p. 21). In the light of this judgment, the Court evaluated the complaints of the plaintiffs. They alleged that the United States government violated international law by spraying toxic herbicides in areas of Vietnam from 1962 to 1970 and that the defendants either aided and abetted the government’s violations by supplying it with Agent Orange or that they were directly liable in their corporate capacities (p. 5).

Although the Court agreed with the plaintiffs that the herbicide campaign was controversial, it did not support the contention that the use Agent Orange violated universally accepted norms as those norms would not necessarily prohibit the deployment of materials that are only secondarily, not intentionally, harmful to humans’ (pp. 26-27). Moreover ‘alleged customary international norms proscribing the use of poisons as a weapon against human beings’ cannot be applied anyhow, since the Supreme Court held in Sosa v. Alvarez-Machain that to file a claim under the ATCA, the allegedly breached norm should be ‘obligatory’ and ‘universal’. According to the Court, these qualifications did not apply to this case (pp. 32-33).

With respect to the second core question, the Court was convinced that the fact relied upon by the District court were readily apparent. The Court did not find any signs of abuse of discretion in the District Court’s decision to reject injunctive relief and therefore dismissed the claim of the plaintiffs (p. 35).

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Further analysis

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Instruments cited

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Additional materials

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