VIETNAM ASSOCIATION FOR VICTIMS OF AGENT ORANGE, PHAN THI PHI PHI, NGUYEN VAN QUY, Individually and as parent and natural guardian of NGUYEN QUANG TRUNG, THUY NGUYEN THI NGA, His children, DUONG QUYNH HOA, Individually and as administratrix of the estate of her deceased child, HUYNH TRUNG SON, On behalf of themselves and others similarly situated, NGUYEN THANG LOI, TONG THI TU, NGUYEN LONG VAN, NGUYEN THI THOI, NGUYEN MINH CHAU, NGUYEN THI NHAM, LE THI VINH, NGUYEN THI HOA, Individually and as parent and natural guardian of VO THANH TUAN ANH, Her child, VO THANH HAI, NGUYEN THI THU, Individually and as parent and natural guardian of NGUYEN SON LINH and NGUYEN SON TRA, Her children, DANG THI HONG NHUT, NGUYEN DINH THANH, NGUYEN MUOI, HO THI LE, Individually and as administratrix of the estate of her deceased husband HO XUAN BAT, HO KAN HAI, Individually and as parent and natural guardian of NGUYEN VAN HOANG, Her child, and VU THI LOAN, Plaintiffs-Appellants, -v.- DOW CHEMICAL COMPANY, MONSANTO COMPANY, MONSANTO CHEMICAL CO., HERCULES, INC., OCCIDENTAL CHEMICAL CORPORATION, THOMPSON HAYWARD CHEMICAL CO., HARCROS CHEMICALS, INC., UNIROYAL CHEMICAL CO, INC., UNIROYAL, INC., UNIROYAL CHEMICAL HOLDING COMPANY, UNIROYAL CHEMICAL ACQUISITION CORPORATION, C.D.U. HOLDING, INC., DIAMOND SHAMROCK AGRICULTURAL CHEMICALS, INC., DIAMOND SHAMROCK CHEMICAL COMPANY, also known as DIAMOND SHAMROCK REFINING & MARKETING CO., also known as OCCIDENTAL ELECTRO CHEMICAL CORP., also known as MAXUS ENERGY CORP., also known as OCCIDENTAL CHEMICAL CORP., also known as DIAMOND SHAMROCK, DIAMOND SHAMROCK CHEMICAL, also known as DIAMOND SHAMROCK REFINING & MARKETING CO., also known as OCCIDENTAL ELECTRO CHEMICAL CORP., also known as MAXUS ENERGY CORP., also known as OCCIDENTAL CHEMICAL CORP., also known as DIAMOND SHAMROCK, DIAMOND SHAMROCK REFINING AND MARKETING COMPANY, OCCIDENTAL ELECTROCHEMICALS CORPORATION, HOOKER CHEMICAL CORPORATION, HOOKER CHEMICAL FAR EAST CORPORATION, HOOKER CHEMICALS & PLASTICS CORP., CHEMICAL LAND HOLDINGS, INC., T-H AGRICULTURE & NUTRITION CO., THOMPSON CHEMICAL CORPORATION, also known as THOMPSON CHEMICAL CORP., RIVERDALE CHEMICAL COMPANY, Defendants-Appellees, PHARMACIA CORP., formerly known as MONSANTO CO., ULTRAMAR DIAMOND SHAMROCK CORPORATION, MAXUS ENERGY CORP., DIAMOND ALKALI COMPANY, ANSUL INCORPORATED, AMERICAN HOME PRODUCTS CORPORATION, formerly known as AMERICAN HOME PRODUCTS, WYETH, INC., HOFFMAN-TAFF CHEMICALS, INC., ELEMENTIS CHEMICALS, INC., UNITED STATES RUBBER COMPANY, INC., SYNTEX AGRIBUSINESS, INC., ABC CHEMICAL COMPANIES 1-50, SYNTEX LABORATORIES, INC., VALERO ENERGY CORPORATION, doing business as VALERO MARKETING AND SUPPLY COMPANY, Defendants.
Docket No. 05-1953-cv
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August Term, 2006 (Argued: June 18, 2007 Decided: February 22, 2008)
MINER, SACK, and HALL, Circuit Judges.
Judgment affirmed.
SETH P. WAXMAN, Wilmer Cutler Pickering Hale & Dorr LLP, Washington, DC (Paul R.Q. Wolfson and Leondra R. Kruger, Wilmer Cutler Pickering Hale & Dorr LLP, Washington, DC, Joseph R. Guerra and Maria T. DiGiulian, Sidley Austin LLP, Washington, DC, Richard P. Bress and Matthew K. Roskoski, Latham & Watkins LLP, Washington, DC, James E. Tyrrell Jr., Latham & Watkins, Newark, NJ, and John C. Sabetta and Andrew T. Hahn, Seyfarth Shaw LLP, New York, NY, on the brief), for Defendants-Appellees Monsanto Co., Monsanto Chemical Co., and Pharmacia Corp.
Andrew L. Frey, Charles A. Rothfeld, and Lauren R. Goldman, Mayer Brown Rowe & Maw LLP, New York, NY, James L. Stengel, Laurie Strauch Weiss, and Adam Zimmerman, Orrick, Herrington & Sutcliffe LLP, New York, NY, and Steve Brock and James V. Aiosa, Rivkin Radler LLP, Uniondale, NY, for Defendant-Appellant Dow Chemical Co.
William A. Krohley and William C. Heck, Kelley Drye & Warren LLP, New York, NY, for Defendant-Appellee Hercules, Inc.
Michael M. Gordon, McKee Nelson, New York, NY, for Defendants-Appellants Occidental Chemical Corp., as successor to Diamond Shamrock Chemicals Co.; Maxus Energy Corp.; Tierra Solutions, Inc., f/k/a Chemical Land Holdings, Inc.; and Valero Energy Corp., as successor to Ultramar Diamond Shamrock Corp.
Myron Kalish, New York, NY, for Defendants-Appellees C.D.U. Holding, Inc., Uniroyal Chemical Acquisition, Uniroyal Chemical Co., Inc., Uniroyal Chemical Holding Co., and Uniroyal, Inc.
Anne E. Cohen and Anthea E. Roberts, Debevoise & Plimpton LLP, New York, NY, for Defendants-Appellees Hooker Chemical Entities.
Steven H. Hoeft, McDermott Will & Emery LLP, Chicago, IL, and Chryssa V. Valletta, McDermott Will & Emery LLP, New York, NY, for Defendant-Appellant Riverdale Chemical Co.
Jeffrey Sedgwick, Acting Assistant Attorney General, Benton J. Campbell, United States Attorney for the Eastern District of New York, Brooklyn, NY, Mark B. Stern, Sharon Swingle, Attorneys, Appellate Staff Civil Division, U.S. Department of Justice, John B. Bellinger III, Legal Advisor, Department of State, Daniel J. Dell‘Orto, Principal Deputy General Counsel, Department of Defense, for Amicus Curiae the United States of America.
Paul R. Friedman, John Townsend Rich, William F. Sheehan, Goodwin Procter LLP, Washington, DC, Robin S. Conrad, Amar D. Sarwal, National Chamber Litigation Center, Inc., Washington, DC, for Amicus Curiae the Chamber of Commerce of the United States of America.
Daniel J. Popeo, Paul D. Kamenar, David Price, Washington Legal Foundation, Washington, DC, for Amicus Curiae Washington Legal Foundation.
This appeal challenges the District Court‘s dismissal of an action brought by a purported class of Vietnamese nationals (“Plaintiffs“) on behalf of themselves and all others similarly situated for injuries allegedly sustained by their exposure to Agent Orange and other herbicides manufactured by defendants-appellees United States companies (collectively, “Defendants“) and deployed by the United States military during the Vietnam War. Plaintiffs brought this action seeking relief under the Alien Tort Statute,
Defendants moved to dismiss the Complaint for failure to state a claim upon which relief could be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). In their motion, Defendants contended that the Complaint failed to state a claim under the Alien Tort Statute because it did not allege a violation of any well-defined and universally-accepted rule of international law as required by Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). Defendants also argued that Plaintiffs lacked standing to bring suit, that their claims under the Alien Tort Statute were nonjusticiable under the political question doctrine, and that all of their claims were barred
The District Court made several rulings that were favorable to Plaintiffs, but it ultimately determined that Plaintiffs had failed to allege a violation of international law because Agent Orange was used to protect United States troops against ambush and not as a weapon of war against human populations. The District Court also determined that Plaintiffs’ domestic tort law claims were barred by the government-contractor defense, which the court previously had found to bar similar claims brought by United States veterans against some of the same defendants named as defendants-appellees in the companion appeal decided herewith. Accordingly, the court denied Plaintiffs’ claims for relief under both international and domestic law and granted Defendants’ motion dismissing the Complaint. Because we agree with the conclusions reached by the District Court in this case, we affirm the judgment for the reasons set forth in this Opinion.
BACKGROUND
I. United States Authorization of Herbicide Use in Vietnam
Early in the Vietnam conflict, the United States government began exploring the possibility of using herbicides to deprive enemy forces infiltrating South Vietnam of the benefit of vegetation that provided them with cover and sustenance. In late 1961, the United States
Herbicides were effective in meeting important United States and allied military objectives in Vietnam. As Assistant Secretary of Defense William Lemos explained: “[O]ne of the most difficult problems of military operations in South Vietnam is the inability to observe the enemy in the dense forest and jungle.” After summarizing the military‘s herbicide operations, Admiral Lemos then concluded: “The result is that our forces have been better able to accomplish their mission with significantly reduced U.S. and Vietnamese casualties.” Another Assistant Secretary later explained that the “use of . . . herbicides [in Vietnam] was appropriate and had one purpose — to [s]ave the lives of Americans and our allies.” The record in this case reveals that the policy of the Department of Defense at that time was to “carefully select[]” crop destruction targets “so as to attack only those crops known to be grown by or from the [Viet Cong] or [North Vietnamese Army],” and the Department “ha[d] issued instructions to the Joint Chiefs of Staff to reemphasize the already existing policy that [chemical herbicides] be utilized only in areas remote from population.” Admiral Lemos also stressed that the military had instituted policies intended to ensure that the herbicides were applied only to targets of military significance.
Congress was well aware of the herbicide program, and while it denied funds for certain
Congress likewise was aware of the controversy over the legality of the use by the United States of herbicides in Vietnam. Indeed, a congressional report observed that, although it was highly desirable that the United States adhere to the 1925 Geneva Protocol, such adherence could be difficult to attain if it would require acceptance of the view that the use of herbicides would violate international law, a position the United States had consistently rejected. See REPORT OF THE SUBCOMM. ON NATIONAL SECURITY, 91ST CONG., CHEMICAL-BIOLOGICAL WARFARE: U.S. POLICIES & INTERNATIONAL EFFECT 5–6, 9 (Comm. Print 1970). Even after the United States terminated the use of herbicides, the government continued to maintain that the 1925 Geneva Protocol did not prohibit the use of herbicides in war. When President Nixon
II. Post-War Adjustments with Vietnam
The Paris Peace Accords of January 1973 ended the United States’ participation in the Vietnam War. After the fall of Saigon in 1975, the United States severed relations with Vietnam and imposed a trade embargo prohibiting most commercial transactions between United States nationals and Vietnamese nationals. See
III. Procurement of Agent Orange
The facts relevant to the manufacture and procurement of Agent Orange are the principal focus of the appeals in the veterans’ cases (especially with regard to the government-contractor defense) and are set forth in this Court‘s opinion resolving the veterans’ claims before this Court. With respect to the instant appeals by Vietnamese nationals, a brief summary of the facts
The herbicidal properties of the components of Agent Orange, 2,4-dicholorophenoxyacetic acid (2,4-D) and 2,4,5-tricholorophenoxyacetic acid (2,4,5-T), were identified in research conducted by the United States military during the 1940s. In the 1950s, the military conducted field tests to demonstrate the feasibility of dispensing those substances from aircraft; these dissemination trials, and work on aerial spray systems, laid the groundwork for the defoliation systems used in Vietnam. In 1961, the Advanced Research Projects Agency of the Department of Defense evaluated the feasibility of defoliating tropical vegetation in Vietnam and recommended that appropriate formulations of 2,4-D and 2,4,5-T be exploited for immediate use. In January 1962, the United States Air Force began the operational phase of the defoliation program in South Vietnam, using a substance code-named Agent Purple. Later in 1962, a research team concluded that a 50/50 mixture of 2,4-D and 2,4,5-T was most effective — that formulation became known as Agent Orange. See In re “Agent Orange” Prod. Liab. Litig., 304 F. Supp. 2d 404, 424–31 (E.D.N.Y. 2004).
Formal specifications for 2,4-D and 2,4,5-T were prepared and promulgated by the military. These specifications established the design and specific characteristics of the mixture of 2,4-D and 2,4,5-T that the government had requested. The same specifications also were later used as the basis for the military‘s procurement of Agent Orange. The government supplied manufacturers with copies of these specifications and incorporated them into the manufacturers’ Agent Orange contracts. The government also strictly prescribed the markings that were to be placed on the drums of herbicides manufactured by the Defendants. The names of the various
In 1966, the government became concerned that the pace of production of Agent Orange was insufficient to meet its projected needs and decided instead to compel production from the manufacturers. In so doing, the government acted under the authority of the Defense Production Act of 1950 (“DPA“),
IV. End of the Herbicide Program
In June 1966, a government study on the long-term health effects of pesticides, including 2,4,5-T (known as the Bionetics Study), uncovered evidence of teratogenicity (birth defects) in mice. The completed Bionetics Study was delivered to the National Cancer Institute (NCI), a
V. Nature of the Complaint & Proceedings Below
Plaintiffs in the instant action include individual Vietnamese nationals residing in both North and South Vietnam, as well as the Vietnamese Association for Victims of Agent Orange (“VAVAO“), a Vietnamese non-profit, non-governmental organization representing persons who were exposed to Agent Orange and other herbicides during the war and whose purpose is to protect the interests of its members and to raise funds for their care and treatment. Plaintiffs brought this action on behalf of themselves and all others similarly situated who sustained injuries as a result of their exposure to dioxin. As the District Court enumerated in extensive detail below, Plaintiffs’ alleged injuries included, among other things, miscarriages, birth defects, breast cancer, ovarian tumors, lung cancer, Hodgkins’ Disease, and prostate tumors.
On November 2, 2004, Defendants filed several dispositive motions. They first moved under Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the Complaint for failure
At a hearing before the District Court, the parties agreed that the court could consider the motion under Rule 12(b)(6) as a motion for summary judgment against all of the domestic law claims but not against the international law claims. They also agreed that the extensive record assembled by both parties in the related veterans’ cases could be relied upon by the court on the summary judgment motions. On March 10, 2005, the District Court issued an opinion and order, which was amended on March 28, 2005. In re Agent Orange Prod. Liab. Litig., 373 F. Supp. 2d 7 (E.D.N.Y. 2005). In its order, the District Court rejected Defendants’ contentions and found in Plaintiffs’ favor on a number of issues. Initially, although the court cited rulings denying associational standing to pursue damages claims, it held that VAVAO had standing because it also sought injunctive relief. Id. at 49–50. The court next rejected Defendants’ position that
Nevertheless, the District Court ultimately determined that none of Plaintiffs’ claims could proceed. With respect to the ATS claims, the court concluded that Plaintiffs had failed to state a cause of action because neither the military‘s use of Agent Orange nor Defendants’ agreement to supply it to the military violated a well-defined and universally-accepted international norm prohibiting the use of herbicides in war. See id. at 105–38 The court concluded that Plaintiffs’ domestic and Vietnamese law claims were barred by the government-contractor defense for the same reasons as set forth in the companion case brought by the U.S. veterans, Isaacson v. Dow Chem. Co., 304 F. Supp. 2d 404 (E.D.N.Y. 2004). See In re Agent Orange Prod. Liab. Litig., 373 F. Supp. 2d at 15–17. The court also denied Plaintiffs’ claims for injunctive relief, concluding that implementing such relief would be “wholly impracticable” and “could compromise Vietnam‘s sovereignty.” See id. at 45–46. Final judgment dismissing the Complaint was entered on March 25, 2005, and this timely appeal by Plaintiffs followed.
ANALYSIS
Plaintiffs limit the scope of their appeal to three primary claims. They first contend that the District Court erred by dismissing their ATS claims, arguing that Defendants violated customary international law norms prohibiting the use of “poisoned weapons” and the infliction
For their part, Defendants contend that Plaintiffs failed to state a cognizable claim under the ATS because the wartime use of herbicides solely for defoliation purposes did not violate international law and that prudential considerations counsel against the recognition of Plaintiffs’ claims. Defendants also argue that the ATS claims present nonjusticiable political questions because those claims require an inquiry into executive and legislative judgments relating to the prosecution of a war. In addition, Defendants assert that there is no basis in international law for either corporate liability or civil aiding and abetting liability, and they argue that Plaintiffs’ ATS claims are barred by both the government-contractor defense and the statute of limitations. Defendants argue that Plaintiffs’ state law claims are preempted by the federal foreign affairs power and the government-contractor defense, and they incorporate by reference the same contentions raised in the veterans’ cases. Defendants also argue that the District Court properly denied injunctive relief because it would be impracticable for the court to supervise remediation of 5.5 million acres of distant foreign land. Finally, Defendants argue that the District Court acted within its discretion in denying additional discovery on Plaintiffs’ claims relating to Agent White and Agent Blue, because these claims fail for the same reasons as the claims based on
We “review a district court‘s grant of a motion to dismiss under Rule 12(b)(6) de novo.” E & L Consulting, Ltd. v. Doman Indus. Ltd., 472 F.3d 23, 28 (2d Cir. 2006). “For the purposes of such review, this Court must accept as true all allegations in the complaint and draw all reasonable inferences in favor of the non-moving party.” Gorman v. Consol. Edison Corp., 488 F.3d 586, 591–92 (2d Cir. 2007) (quoting Taylor v. Vt. Dep‘t of Educ., 313 F.3d 768, 776 (2d Cir. 2002)). We also “review de novo [a] district court‘s grant of summary judgment, construing the facts in the light most favorable to the non-moving party.” Gorman, 488 F.3d at 595 (citing Cioffi v. Averill Park Cent. Sch. Dist. Bd. of Educ., 444 F.3d 158, 162 (2d Cir. 2006)).
“Summary judgment is appropriate only where ‘there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.‘” Gorman, 488 F.3d at 595 (quoting
A. Alien Tort Statute and the Sosa Rule
The ATS provides that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”
In the broader context, the law of nations has become synonymous with the term “customary international law,” which describes the body of rules that nations in the international community “universally abide by, or accede to, out of a sense of legal obligation and mutual concern.” Flores v. S. Peru Copper Corp., 414 F.3d 233, 248 (2d Cir. 2003). In ascertaining whether a rule constitutes a norm of customary international law, courts have traditionally consulted “the works of jurists, writing professedly on public law; or by the general usage and practice of nations; or by judicial decisions recognizing and enforcing that law.” Filartiga, 630
- international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
- international custom, as evidence of a general practice accepted as law;
- the general principles of law recognized by civilized nations;
- . . . judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of the rules of law.
Filartiga, 630 F.2d at 881 n.8 (citing Statute of the International Court of Justice, art. 38(1), June 26, 1945, 59 Stat. 1055, 1060, 33 U.N.T.S. 993 (entered into force Oct. 24, 1945)); United States v. Yousef, 327 F.3d 56, 100–01 (2d Cir. 2003) (same; also noting that scholarly works are not included among the authoritative sources of customary international law); see also Restatement (Third) of the Foreign Relations Law of the United States § 102 (1987). While not exhaustive, the list of principles that may be said to have “ripened into universally accepted norms of international law,” Kadic v. Karadzic, 70 F.3d 232, 243 n.8 (1995), includes the proscriptions against piracy, slave trade, attacks on or hijacking of aircraft, genocide, and war crimes, see Restatement (Third) of the Foreign Relations Law of the United States § 404 (1987). With respect to other types of violations, because customary international law “is created by the general customs and practices of nations and therefore does not stem from any single, definitive, readily-identifiable source,” we have advised district courts to exercise “extraordinary care and restraint” in deciding whether an offense will violate a customary norm. Flores, 414 F.3d at 248.
In Sosa, the Supreme Court further cautioned courts to be careful in deciding whether an alleged violation of the law of nations could support an ATS claim. Mindful of the legislative
B. Plaintiffs’ Sources of Customary International Law
In support of their argument that the deployment of Agent Orange violated customary norms prohibiting use of “poisoned weapons” and the infliction of unnecessary suffering, Plaintiffs cite to a number of both domestic and international law sources. Primarily, they rely upon the 1907 Hague Regulations, Annex to the 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land, October 18, 1907, 36 Stat. 2277, T.S. No. 539 (the “1907 Hague Regulations“); the 1925 Geneva Protocol; and the 1949 Fourth Geneva Convention, The Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, August 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 (the “Fourth Geneva Convention“), as well as other sources derived from these documents. The 1907 Hague Regulations, which the United States ratified in 1909, address the range of military operations executed on land and set forth the rules
The United States did not ratify the 1925 Geneva Protocol until 1975. Accordingly, the Protocol cannot be said to have constituted “a treaty of the United States,”
the use of chemical agents . . . to destroy cultivations [sic] or retard their growth, would not violate any rule of international law prohibiting poison gas; upon condition, however, that such chemicals do not produce poisonous effects upon enemy personnel, either from direct contact, or indirectly from ingestion of plants and vegetables which have been exposed thereto. [W]hether [such herbicides] are toxic to such a degree as to poison an individual‘s system, is a question of fact which should be definitely ascertained.
In addition, Plaintiffs cite to the April 5, 1971 letter opinion of J. Fred Buzhardt (“Buzhardt Opinion“) from the Office of General Counsel for the Department of Defense, in response to a request from Senator J.W. Fulbright, Chairman of the Senate Foreign Relations Committee. That opinion relates to the application of Articles 23(a) and (e) of the Hague Regulations of 1907 — which were incorporated into the Department of the Army Field Manual — to the destruction of crops through chemical agents during the Vietnam War:
[N]either the Hague Regulations nor the rules of customary international law applicable to the conduct of war and to the weapons of war prohibit the use of antiplant chemicals for defoliation or the destruction of crops, provided that their use against crops does not cause such crops as food to be poisoned nor cause human beings to be poisoned by direct contact, and such use must not cause unnecessary destruction of enemy property.
In further support of their claim that the use of herbicides as “poison” violated international law, Plaintiffs rely on the opinions of their experts, Professors George P. Fletcher and Jordan Paust, as well as the works of other international law scholars, who generally contend that the use of chemical or biological warfare violates international law.
C. Whether Plaintiffs’ Claims Are Based on a Universally-Accepted International Norm
1. Application of Sosa to Plaintiffs’ International Law Claims
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
There is lack of a consensus in the international community with respect to whether the proscription against poison would apply to defoliants that had possible unintended toxic side effects, as opposed to chemicals intended to kill combatants. The prohibition on the use of “poison or poisoned weapons” in Article 23(a) of the 1907 Hague Regulations is certainly categorical, see 36 Stat. 2277, 2301, but its scope is nevertheless undefined and has remained so for a century. As the International Court of Justice (“ICJ“) has acknowledged in an authoritative interpretation of Article 23(a), that provision nowhere defines the critical term “poison,” and “different interpretations exist on the issue.” Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion No. 95, 1996 I.C.J. 226, 248, 255 (July 8, 1996) (“Nuclear Weapons Advisory Opinion“). Indeed, Plaintiffs’ own expert conceded that “[t]he concept of ‘poison’ is not
Plaintiffs ignore language from the Cramer Opinion that would permit the use of Agent Orange under the circumstances in which it was in fact used. Notably, that Opinion recognizes that “[a] distinction exists between the employment of poisonous and deleterious gases against enemy human beings, and the use of chemical agents to destroy property, such as natural vegetation, crop cultivations, and the like.” Moreover, the Cramer Opinion concludes that “[t]he proposed target of destruction, enemy crop cultivations, is a legitimate one, inasmuch as a belligerent is entitled to deprive the enemy of food and water, and to destroy his sources of supply whether in depots, in transit on land, or growing in his fields.” The Buzhardt Opinion, as it relates to permissible uses of herbicides, notes that “General Cramer‘s opinion clearly encompasses the activities that have taken place in Vietnam and reflects the same position which we have taken” in evaluating the legality of the destruction of crops through chemical agents and the application of the 1925 Geneva Protocol and the 1907 Hague Convention.
According to the Buzhardt Opinion, the prohibition of poisonous weapons “does not effect any prohibition on the use of other weapons and, in particular, it does not prohibit the use of chemical herbicides for depriving the enemy of food and water.” That Opinion interprets the 1956 Army Field Manual relied upon by Plaintiffs to permit “measures being taken . . . to destroy, through chemical or bacterial agents harmless to man, crops intended solely for consumption by the armed forces (if that fact can be determined)” but it draws a distinction between herbicides that are intended to destroy crops belonging to enemy soldiers and crops
In a further narrowing of the circumstances under which crop destruction is impermissible, the Buzhardt Opinion states:
Where it cannot be determined whether crops were intended solely for consumption by the enemy‘s armed forces, crop destruction would be lawful if a reasonable inquiry indicated that the intended destruction is justified by military necessity under the principles of Hague Regulation Article 23(g), and that the devastation occasioned is not disproportionate to the military advantage gained.
The Opinion concludes that the decision to refrain from using herbicides is a matter of United States policy and “is not compelled by the 1907 Hague Regulations, the Geneva Protocol of 1925 or the rules of customary international law.” Accordingly, neither the Cramer Opinion nor the Buzhardt Opinion recognizes a universally-accepted prohibition on the use of herbicides.
Plaintiffs’ reliance upon the trials at Nuremberg is inapposite for the same reasons. As the District Court correctly noted, the individuals who were found guilty in those criminal proceedings were found to have supplied poisonous Zyklon B gas in World War II concentration camps when “the accused knew that the gas was to be used for the purpose of killing human beings.” In re Agent Orange Prod. Liab. Litig., 373 F. Supp. 2d at 94. Because Agent Orange was “not used as [a] means of directly attacking enemy troops,” it was not prohibited by Article 23(e)‘s proscription of the calculated use of lethal substances against human beings and its use is distinguishable from the context in which Zyklon B gas was used in World War II.
Plaintiffs’ claims that the use of Agent Orange violated the norm of proportionality and caused unnecessary suffering rely upon international agreements requiring intentionality that Plaintiffs cannot establish. Article 23(e) prohibits the use of “arms, projectiles, or material calculated to cause unnecessary suffering.” Article 6 of the Nuremberg Charter proscribes “wanton destruction of cities, towns or villages, or devastation not justified by military necessity.” Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis Powers, Charter of the Int‘l Military Tribunal, Aug. 8, 1945, pt. II, art. 6, 59 stat. 1544, 1574, 82 U.N.T.S. 279 (“Nuremburg Charter“). Article 147 of the Fourth Geneva Convention defines “grave breaches” as “willfully causing great suffering or serious injury to body or health,” as well as “extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.” These norms are all simply too indefinite to satisfy Sosa‘s specificity requirement. As Plaintiffs’ expert opined, “norms that depend on modifiers such as ‘disproportionate’ or ‘unnecessary’ . . . invite a case-by-case balancing of competing interests . . . [and] black-letter rules become vague and easily
The main problem with the principle of proportionality is not whether or not it exists but what it means and how it is to be applied. It is relatively simple to state that there must be an acceptable relation between the legitimate destructive effect and undesirable collateral effects . . . . It is much easier to formulate the principle of proportionality in general terms than it is to apply it to a particular set of circumstances because the comparison is often between unlike quantities and values.
Final Report to the Prosecutor by the Committee Established to Review the Nato Bombing Campaign Against the Federal Republic of Yugoslavia ¶ 48 (June 8, 2000), reprinted in 39 I.L.M. 1257, 1271 (2000). The principle of proportionality implicates the element of intent, e.g., “calculated to cause unnecessary suffering,” “wanton destruction,” “willfully causing great suffering,” and “carried out unlawfully and wantonly.” See 1907 Hague Regulations, art. 23(e). Because Plaintiffs do not allege, nor could they on this record prove, the required mens rea, they fail to make out a cognizable basis for their ATS claim. The purpose behind spraying Agent Orange was only to destroy crops and “to [s]ave the lives of Americans and those of our allies,” and not to injure human populations.
Plaintiffs have, at best, alleged a customary international norm proscribing the purposeful use of poison as a weapon against human beings that is inapplicable in this case. We hold that Plaintiffs’ claim that “defendants manufactur[ed] and suppl[ied] a[n] herbicide laced with poison” and used as a defoliant fails to satisfy the standard set forth by the Supreme Court in Sosa for recognition of a tort in violation of international law and is, therefore, not cognizable under the ATS. See, e.g., Alvarez-Machain v. United States, 331 F.3d 604, 620 (9th Cir. 2003)
Defendants have argued that “civil aiding-and-abetting liability” may not be imposed on corporate entities for violations of the law of war and that, in any event, prudential considerations should preclude adjudication of Plaintiffs’ claims. Because Plaintiffs’ claims fail to assert a violation of international law norms that are universally accepted and as specific as the paradigmatic norms identified in Sosa, thereby resulting in a failure to establish a cognizable
III. Plaintiffs’ Claims Arising under Domestic Law
Plaintiffs argue that the District Court erred in dismissing their state law claims based on the government-contractor defense without discovery on Agents White and Blue, and Plaintiffs incorporate by reference the arguments of appellants United States veterans in the companion case decided herewith. With regard to discovery, Plaintiffs were granted access to the discovery conducted in the companion case brought by the veterans, and the record below shows that additional discovery was conducted on Agents White and Blue. Nevertheless, as set forth in the companion case decided herewith, the government contractor defense operates as a complete bar to Plaintiffs’ state law claims. See In re Agent Orange Prod. Liab. Litig., Nos. 05-1760-cv et al., ___ F.3d ___ (2d Cir. Nov. ___, 2007).
IV. Plaintiffs’ Claims for Injunctive Relief
The District Court found that the extraterritorial injunction Plaintiffs sought raised concerns over Vietnam‘s sovereignty and was rendered “wholly impracticable” by the difficulties involved in enforcing an order of abatement and remediation of vast areas of land over which it had no jurisdiction. In re Agent Orange Prod. Liab. Litig., 373 F. Supp. 2d at 46. Plaintiffs claim that they have adequately alleged an irreparable injury that no legal remedy can
CONCLUSION
Because of our disposition on the issues of law in this case, we need not address any of the parties’ other contentions on appeal. In accordance with the foregoing, we affirm the judgment of the District Court.
Notes
News of the Vietnamese President‘s visit to the United States in June 2007 confirmed that the United States and Vietnam currently are engaged in diplomatic efforts regarding the Agent Orange issue:
In the build-up to the hearing, a Vietnamese delegation is touring the United States screening documentaries of disfigurement and other health problems caused by dioxin, a small compound within the ‘agent orange’ herbicide that is one of the most toxic compounds known . . . . In the past year, the two countries have set a new tone in dealing with cleaning up toxins from former U.S. air bases where they were stored in barrels marked with an orange stripe. Government agencies and non-government organizations have plans to start clean-up in the central city of Danang this year. In late May, [President] Bush signed a bill that provides $3 million toward health and environment issues stemming from dioxin.
Grant McCool, Vietnam Leader Visits U.S. for Trade, Other Issues Weigh, Boston Globe, June 14, 2007.