Court of Appeals affirms dismissal of Agent Orange litigation.

• Author: Crook, John R.

In February 2008, the U.S. Court of Appeals for the Second Circuit affirmed (1) the 2005 dismissal of a suit against Dow Chemical Company and many other chemical companies that allegedly manufactured Agent Orange and other herbicides used by U.S. forces during the Vietnam War. (2) Inter alia, the Vietnamese plaintiffs sued under the Alien Tort Statute (ATS), (3) alleging that they were injured by exposure to Agent Orange and other herbicides, and that the herbicides use by U.S. forces violated international law prohibitions on poison weapons and on inflicting unnecessary suffering. The plaintiffs claimed that the corporate defendants aided or abetted those violations or were directly liable. (Plaintiffs also asserted claims of genocide, crimes against humanity, and torture, but these claims were not pursued on appeal.)

The court of appeals found that the plaintiffs' international law claims did not involve violations of well-defined and universally accepted rules, as required by the Supreme Court in Sosa v. Alvarez-Machain. (4) In the court's view, applicable international law at the time of the Vietnam War did not prohibit the use of chemical agents such as Agent Orange as defoliants.

[B]ecause 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. 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 history, albeit sparse, of the ATS, the Court limited the types of claims that could be recognized under the statute to those bearing the same character as the claims originally contemplated by Congress at the time of drafting--tort claims alleging violations of the law of nations of the sort that would have been recognized within the common law at the time of its enactment.... In particular, Sosa held that "courts should require any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms" that informed the legislation....

... Plaintiffs ... [p]rimarily ... rely upon the 1907 Hague Regulations ... ; the...