Agent Orange: One of these things is not like the other by mattsteinglass
May 27, 2009, 10:32 am
Filed under: Law, United States, Vietnam

In today’s Wall Street Journal, former State Department legal adviser John Bellinger pens an op-ed arguing that US courts are being improperly used as a venue for disputes that have nothing to do with the US, under the Alien Tort Statute of 1789. Bellinger supplies a few examples; see you if you can spot the one that seems strikingly out of place.

In recent years, for example, Caterpillar Inc. was sued for selling bulldozers to Israel that were eventually used to demolish Palestinian homes. Dow Chemical Co. was sued for manufacturing the Agent Orange defoliant used during the Vietnam War. And Yahoo Inc. has been sued for sharing user information with the Chinese government, which resulted in the arrest of Chinese dissidents.

In the Caterpillar and Yahoo cases, US companies were sued for providing equipment or information to foreign governments that allegedly used them in ways that violate international law. But in the Agent Orange case, Dow Chemical and other manufacturers were sued for providing chemicals to the US government, which allegedly used them in ways that violate international law. Bellinger is trying to argue that US courts are not the proper venue for a suit involving actions by US corporations and the US government. That seems like a pretty weird argument to make.

As a matter of record, the suit by Vietnamese plaintiffs against US manufacturers of Agent Orange has failed at every level of appeal and in the Supreme Court. But it’s failed for a combination of concrete and technical legal reasons. At the sharpest end of the stick, US courts have ruled that while Agent Orange’s toxicity was due to manufacturer negligence — it shouldn’t have contained as much dioxin as it did — the manufacturers had made the US government aware of the high dioxin levels, and the government ordered them to keep producing it anyway. That means the government, not the manufacturers, is responsible for the defects. And the government has “sovereign immunity” from suits of this nature. So the Vietnamese plaintiffs are left with nobody to sue in US court. But the various appeals court judges who have looked at this suit have never argued that US courts are the wrong venue in which to bring a suit against US companies that carried out actions at the behest of the US government. That would be a bizarre thing to say.


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