A Non-Lawyer’s Guide to Judge Weinstein’s Agent Orange Decision
The following independent commentary gives a section-by-section analysis of the decision. (For a more concise presentation of the legal questions in the decision, please see the attached summary table.)
1. All domestic (
Commentary: This finding makes sense given the very close relationships that exist between military contractors and the government to the present day. However, the plaintiffs made a strong argument that the government only ordered the chemical companies to produce herbicides—not herbicides with high levels of dioxin. The judge’s decision also produces a perverse result that the corporations can escape liability because the government was also guilty—while if the government were less guilty the corporations would be liable? To a non-lawyer, this suggests some deficiency in US domestic tort laws.
law does apply to this case. The “law of nations…is
internalized by [US] courts as law of the
Commentary: Judge Weinstein is upholding the validity
of international law as binding on the
3. Judge Weinstein is not convinced by plaintiffs’ arguments
about the causation of their
injuries. That is, while he accepts that the plaintiffs were exposed to
herbicides, he does not believe that research to date proves that this caused
their injuries (18). Later he labels plaintiffs’ claims “anecdotal” and not
backed by sufficient epidemiological research (42). The
Commentary: The judge does not say (as has sometimes
been misreported) that plaintiffs’ claims are false or unconnected to Agent
Orange, just that there is not enough proof to be established in a
4. Agent Orange should be classified as a herbicide, not as a poison—although dioxin is a poison (60-1). The negative effects of Agent Orange are “collateral consequences;” herbicides were not intended to hurt people, only to kill plants.
Commentary: This seems unclear and hair-splitting. Agent Orange contains dioxin, so if dioxin is considered a poison shouldn’t Agent Orange also be? The dosage involved was sufficient to harm people. This is a key weak point of the decision that could be re-examined on appeal.
5. No injunctive relief can be provided since this would be
“impracticable” and involve a
Commentary: Injunctive relief here means the court
ordering action to be taken, as opposed to awarding monetary damages to
plaintiffs. Weinstein is excluding this possibility in advance on what he
believes to be practical grounds. Once again, this seems to show weaknesses and
limitations of US law. Corporations can go around the world and destroy the
environment, but US courts have no power to order cleanup? Of course,
6. The Vietnam Association for the Victims of Agent Orange/Dioxin (VAVA) is a legitimate organization with standing to sue (73-4), not a government body or a false class. It does represent its members, who also have standing to sue as individuals.
Commentary: Here Judge Weinstein is rejecting one of
the more far-fetched claims made by defendants, which can essentially be
reduced to Red-baiting (since
7. It is possible to sue corporations for violations of international law in some cases. Corporations should have no blanket exemption (78-90).
Commentary: This seems obvious, but actually the
corporate lobbies in
8. The Alien Tort Statute has no fixed statute of limitations, nor do the other relevant instruments of international law considered in the case. Thus “there is good reason not to create or apply general hard and fixed rules…or relatively short statutes of limitation, newly minted by judicial fiat, in the developing area of international law” (93). Weinstein opens the possibility that this question could be re-examined on appeal
Commentary: This weakens what had been viewed as one of the main obstacles to the suit going forward. Different laws have different statutes of limitations—particularly US domestic laws. In this instance, Judge Weinstein is applying the law flexibly: if there is no fixed limit stated in the law, none should be imposed.
9. Defendants’ contention that plaintiffs’ case interferes
with US conduct of foreign relations is denied. This is what is known as the “political question doctrine,”
but Weinstein finds no coherent definition of what this doctrine actually
means. He criticizes the US Department of Justice (DOJ) for failing to accept
Commentary: Here Judge Weinstein throws out a large portion of the brief submitted by the US Government, in particular the contention that the executive branch can decide on its own what international laws to follow. Instead, he agrees with the friend-of-the court brief filed by the Center for Constitutional Rights and other NGOs.
10. Issues of war reparations do not apply in this case. This is not a government-to-government case but a tort suit between private parties (117, 124). Weinstein notes that no reparations were paid or even discussed after the Vietnam War, in contrast to World War II and other wars (121).
Commentary: This rejects the defendants’ and DOJ’s
contention that the plaintiffs are seeking reparations—as if that should be a
crime. Weinstein does not mention that then-Secretary of State Kissinger
promised reparations to
11. Judge Weinstein leaves open the possibility of more information about AO coming out in the appeals process. The judge writes, “Should the Court of Appeals for the Second Circuit reverse dismissal on the grounds addressed in the present memorandum, the court will grant extensive discovery on the relevant general epidemiological and individual medical causation issues before addressing that problem” (128).
Commentary: This means that Weinstein is not willing to throw the suit out solely because of what he sees as the lack of sufficient proof of causality discussed in #3 above. This seems to open the door for an appeal if there is new research on the linkages between dioxin and human health.
12. In order to prove their international law claims, plaintiffs need to show the following: (a) usage of herbicides was illegal under international law, (b) defendants knew how product would be used, (c) they supplied product and became party to illegal action (141). In the judge’s opinion, (b) and (c) can be shown, but not (a). Defendants could not use a necessity defense as there was no dire penalty to them if they did not comply with government contracts (154).
This section relies heavily on precedents from the
judge next evaluates the intent
of herbicide use in
Commentary: Plaintiffs argued that defendants were “wanton and reckless” in producing herbicides that they knew contained dioxin and thus would harm people. The fact that the agents were primarily designed to defoliate plants is no excuse. It seems that Judge Weinstein is confusing the defendants (chemical companies) with the people who directly used the herbicides (US soldiers). The soldiers did not know the extent to which herbicides were dangerous and did not use them to intentionally inflict pain and suffering. The companies, however, did know this and yet intentionally continued to produce products with high concentrations of dioxin. Of course, confusing the companies with soldiers and the government is exactly the strategy that the defendants took in several of their briefs to the court. The amount of the companies’ foreknowledge, and hence intent, should be taken into account in an appeal. Cigarettes, asbestos, and many other products were not designed to harm people, but they do, and the companies that produce them have been found liable for this harm since they knew about it in advance and said nothing.
Most of the remainder of the decision examines specific conventions and definitions of international law and whether
these apply to the Agent Orange case. Judge Weinstein believes that no law in force
at the time the
Commentary: Thus, if a legal ground is to be found, it needs to be on the basis of a convention that the US was party to at the time, or on the basis of “customary international law,” that is a practice that was accepted by the world community at the time and thus can be considered binding even on countries that have not acceded to relevant treaties. Plaintiffs also made arguments based on proportionality, that excessive use of herbicides could give rise to a violation even if limited use would not. Judge Weinstein did not accept this argument either.
Commentary: The argument that a convention does not apply to a class of weapons because the weapons were later used in combat seems circular. Could one not also say that the belligerents in World War I used gas illegally? The fact that they justified their actions by a technicality should not greatly matter.
Commentary: In his rulings on the applicability of the Alien Tort Statute (#2, 7, 8, 9 above), Judge Weinstein appears to favor a broader interpretation of the spirit of the law. Here he is restrictive. Why the contradiction?
17. Customary international law, the
judge believes, requires an international consensus. But other countries also
used herbicides, specifically the British in
The argument that there was no international consensus relies too heavily on US
opinions. It is incontestable that the
In 1969, the UN General Assembly
voted 80-3 for a resolution condemning herbicide use as a weapon of war. The
resolution was clearly aimed at
Again this relies far too much on US interpretations of what was legal or not.
It is reasonable to suggest that the countries who abstained might have done so
for a number of reasons, including a desire not to offend the
The judge concedes that international
environmental law has evolved since the US spraying of herbicides was
stopped, and what he believes was not illegal then may well be now. This
occurred in large part as a reaction to
It seems particularly convenient for the defendants in this case that herbicide
manufacture and use can be considered legal from 1961-71 and illegal only
starting in 1975. One wonders whether war crimes, genocide, and the like could
be defined so restrictively by a court. The fact that the
20. For these above reasons (#14-19), Judge Weinstein concludes that there is no international law that can apply in this case, and it is dismissed (232-3).
Commentary: The reader may agree or disagree with various aspects of the decision (just as this analyst does), and it is hoped that a more nuanced understanding than “wonderful” or “immoral” will result. The decision is not final and can be appealed to a higher court (first to the US Second Circuit Court of Appeals, finally to the US Supreme Court).
Fund for Reconciliation & Development