In the U.S.
The Vietnamese Lawsuit
For many years, the Vietnamese pursued diplomatic channels to get the U.S. government to accept responsibility for the health and environmental consequences of toxic herbicides used during the war in Viet Nam. The negotiations did not get very far because, while Viet Nam stressed the immediate humanitarian needs, the U.S. insisted that there was an unclear correlation between human health problems and alleged exposure to Agent Orange and other herbicides.
But while ignoring the plight of Vietnamese, the U.S. has recognized veteran presumptive health conditions, through providing healthcare and financial assistance.
The 2004 Lawsuit
A small group of Vietnamese doctors, scientists and others, who previously worked with victims of Agent Orange over several decades, decided to pursue legal action, what they saw as the only viable path towards alleviation and redress. They formed the Viet Nam Association of Victims of Agent Orange in December 2003 and, along with several other individual plaintiffs, filed a lawsuit in U.S. courts.
The lawsuit, known as the Viet Nam Association for Victims of Agent Orange v. Dow Chemical Co., was filed on January 30, 2004, by a team of U.S. lawyers from the National Lawyers Guild. Since it was not possible to sue the U.S. government, because of “sovereign immunity,” the suit instead named over 33 chemical companies as defendants, among which were Dow Chemical, Monsanto, Hercules and Diamond Shamrock Corporation and more. Plaintiffs brought the suit to court under the Alien Tort Claims Act, which gave federal courts jurisdiction over lawsuits filed by foreign nationals for torts violating international law.
Filed pursuant to the Act, the suit claimed that the U.S.-registered chemical companies were in “violation of international law and war crimes, and under the common law for products liability negligent and intentional torts, civil conspiracy, public nuisance and unjust enrichment, seeking many damages for personal injuries, wrongful death and birth defects and seeking injunctive relief for environmental contamination and disgorgement of profits.”
Judge Jack B. Weinstein
At the same time, there were other lawsuits filed against the same chemical companies, though by U.S. veterans. Their cases went as far as the U.S. Supreme Court, but were sent to Judge Jack B. Weinstein, the judge who had presided over the famous 1984 settlement that founded the Agent Orange Settlement Fund. These cases followed the same hearing schedule as the lawsuit filed by the Viet Nam Association of Victims of Agent Orange.
The first hearing of the Vietnamese lawsuit was held on March 18, 2004. And on November 3, 2004, the chemical companies submitted motions to dismiss the case:
- In their Memo of Law on Statute of Limitations, the defendants claimed that the statute of limitations was not met.
- In their Memo of Law on Injunctive Relief, the defendants argued that the plaintiffs’ request, that the chemical companies provide resources to remediate the contamination caused by the herbicides, is both unfeasible and would infringe on Viet Nam’s sovereignty.
- The defendants argued that having U.S. courts oversee the process of providing assistance would infringe on U.S. foreign policy and the “fragile relations” between the U.S. and Vietnam.
The lawyers for the plaintiffs filed their response to the motions to dismiss on January 18, 2005. And on February 28, 2005, both sides met for oral arguments in front of Judge Weinstein. The U.S. Justice Department was asked to submit an amicus brief about the case in which they argued that the Judiciary could not rule on the actions of the Executive, as it would infringe upon the president’s ability to wage war.
On March 10, 2005, Judge Weinstein dismissed the lawsuit. In his 233-page decision, Judge Weinstein ruled that the use of chemicals during the war were not akin to “chemical warfare” and therefore did not violate international law. The court also granted the chemical companies, as contractors of the military, the same immunity as the U.S. government.
The court did rule, however, that the statute of limitations was not a factor to dismiss the case; that federal courts had jurisdiction over this case; and that the court was not infringing on the president’s executive power to wage war.
Court of Appeals
The lawyers for the plaintiffs filed an appeal of Judge Weinstein’s decision to the Second Circuit Court of Appeals. The defendants also filed their response to the appeal and a brief concerning the contractors’ defense, which the chemical companies believed absolved them from legal responsibility from the effects of herbicide spraying. Oral Arguments were heard before three judges of the Court of Appeals on June 18, 2007, and by February 2008, the court denied the appeal.
The judges ruled that the plaintiffs failed to show that the use of herbicides violated the ban on the use of poisons in warfare and that the chemical companies, not part of the original 1984 settlement, were again not liable as contractors of the military.
In October 2008, the lawyers for the Vietnamese plaintiffs filed a writ of certiorari, as did the lawyers for veterans, with the U.S. Supreme Court. The Supreme Court held a conference on February 27, 2009, to consider taking on the case, but denied both petitions.
By William Buckhingham (1982). This book is a model study of the process by which military policy was made in Southeast Asia.
“From Enemies to Partners: Vietnam, the U.S. and Agent Orange,” by Le Ke Son and Charles Bailey.
by Prof. Dr. Le Cao Dai (published in Vietnam – not currently available)