Summary of Key Legal Points in Weinstein Decision

 

Issue

Decision

Ruling in favor of

Judge’s Explanation

Page #s in decision

Do plaintiffs have standing to sue?

Yes

Plaintiffs

VAVA is a legitimate organization and can represent its members.

73-74

Can the plaintiffs sue under US laws, such as product liability and general tort claims laws?

No

Defendants

The government contractor defense covers all domestic US laws.

11-13

Can the plaintiffs sue under international laws?

Yes, in theory

Plaintiffs

The government contractor defense does not apply to international law.

16, 141

Does the court have jurisdiction over international law questions?

Yes

Plaintiffs

International law such as treaties and conventions also applies in US courts (rejecting US Justice Dept. brief)

15

Is it possible to sue corporations for violations of international law?

Yes

Plaintiffs

Corporations are not exempt from laws that also pertain to individuals.

78-90

Does a statute of limitations apply to international law?

No

Plaintiffs

The Alien Tort Statute, which covers violations of international law, has no statute of limitations.

90-97

Does the “political question doctrine” apply?

No

Plaintiffs

The US is bound by international law, and the courts have a role in ensuring the executive branch follows it (rejecting Justice Dept. brief)

98-116

Was US use of herbicides in Vietnam against international law?

No

Defendants

No law or convention existed at the time to make use illegal—though this may be different now. Treaties are not retroactive.

17, 129, 232

Did defendants know how herbicides would be used?

 

Yes

Plaintiffs

Defendants and the government both were aware of what they were doing.

141-154

Did defendants use herbicides with intent to inflict pain and suffering?

No

Defendants

Herbicides were used for the purpose of killing plants; any effects on humans were secondary and collateral.

175-6

Was use of herbicides a war crime?

No

Defendants

War crimes require criminal intent.

176-9

Did use of herbicides constitute genocide?

No

Defendants

Genocide requires specific intent to destroy a group. US did not join Genocide Convention until 1988.

180-1

Is Agent Orange a “poison” as defined by the 1907 Hague Convention and/or 1925 Geneva Protocol?

No

Defendants

Prohibitions were for specific weapons, not broad classes. “Poison” did not include chemical gases, hence also not AO. AO was a herbicide, not a poison.

60, 182-9

Was use of herbicides a violation of customary international law?

No

Defendants

Other countries also used herbicides and there was no international consensus against the practice until after US use stopped in Vietnam.

197-202

Were herbicides used in a disproportionate manner?

No

Defendants

Herbicides were sprayed extensively and sometimes excessively, but for military reasons.

218-221

Can plaintiffs prove that their injuries were a result of exposure to herbicides?

No (at least not yet)

Defendants

Plaintiffs’ claims are anecdotal, not backed by sufficient scientific and epidemiological data.

18-24, 42

Could the court order injunctive relief (environmental cleanup) in Vietnam?

No

Defendants

Relief would be too difficult for the court to supervise and impossible to enforce.

66-69

 

 

Summary by Andrew Wells-Dang, Fund for Reconciliation & Development