Second Circuit Rejects Agent-Orange Alien Tort Statute Lawsuit

The U.S. Court of Appeals for the Second Circuit has affirmed a lower court opinion dismissing a lawsuit brought seeking damages for the U.S. military’s use of Agent Orange during the Vietnam War (Vietnam Ass’n for Victims of Agent Orange v. Dow Chemical Co). For me, the most interesting and doctrinally significant part of the decision is the Second Circuit’s application of the “Sosa” standard for recognizing customary international law claims under the ATS. The Court, very plausibly in my view, held that international law at the time of the Vietnam War did not prohibit the use of a chemical as a defoliant even where such chemical had poisonous effects on humans.

. . . The sources of international law relied on by Plaintiffs do not support a universally-accepted norm prohibiting the wartime use of Agent Orange that is defined with the degree of specificity required by Sosa. Although the herbicide campaign may have been controversial, the record before us supports the conclusion that Agent Orange was used as a defoliant and not as a poison designed for or targeting human populations. Inasmuch as Agent Orange was intended for defoliation and for destruction of crops only, its use did not violate the international norms relied upon here, since those norms would not necessarily prohibit the deployment of materials that are only secondarily, and not intentionally, harmful to humans. In this respect, it is significant that Plaintiffs nowhere allege that the government intended to harm human beings through its use of Agent Orange. In their Amended Complaint, Plaintiffs recognize that “[t]he stated purpose of the [herbicide] spraying was twofold: (a) to defoliate forests and mangroves to destroy the vegetative cover used by the [Democratic Republic of Vietnam] and [National Liberation Front] troops for concealment, and (b) to destroy crops to deprive them of food.” In addition, Plaintiffs acknowledge that the herbicide defoliation campaign “heavily targeted,” among other things, vegetative cover adjacent to U.S. military bases and surrounding areas, making it all the more implausible that the government intended to use the herbicide as a poisonous weapon during war.

I don’t know much about the relevant international law of the period, although the Court’s analysis seems sound enough. It has distilled the “Sosa” standard into a rule requiring “universal acceptance”. While there were some claims that the use of herbicides with poisonous effects could constitute a “poison” within the meaning of Article 23(a) of the 1907 Hague Regulations, the Court argues that the definition remained unsettled with respect to chemical agents not used as a weapon of war.

All in all, this was an easy decision (too bad it took 3 years on appeal) and I would be shocked if the U.S. Supreme Court intervened here. This decision stands as one of the few cases where Sosa’s new standard for finding a violation of international law is shown to be a useful defense for ATS defendants. Not much of an defense, but some effect anyway is better than nothing.