Saturday, February 23, 2008

Vietnam Association for Victims of Agent Orange v. Dow Chemical Co.

Yesterday, the U.S. Court of Appeals for the Second Circuit decided Vietnam Association for Victims of Agent Orange v. Dow Chemical Co. (opinion here). The plaintiffs alleged, among other things, that "the United States government violated international law by spraying toxic herbicides in areas of South Vietnam from 1962 to 1970 and that Defendants either aided and abetted the government's violations by supplying it with Agent Orange or that they were directly liable in their corporate capacities," in violation of the Alien Tort Statute. The district court dismissed the ATS claim (opinion here). The Second Circuit, in an opinion by Judge Miner, affirmed the lower court's decision, concluding:

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. [citations omitted]

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 cause of action that gives rise to jurisdiction under the ATS, we need not address these secondary arguments.FN6

[FN6. After the filing of briefs and oral argument in this appeal, this Court addressed in a different case whether a district court had subject matter jurisdiction over ATS claims alleging that domestic and foreign corporations aided and abetted the government of apartheid South Africa in committing various violations of customary international law. See Khulumani v. Barclay Nat'l Bank, 504 F.3d 254, 260 (2d Cir.2007) (per curiam) (holding that “in this Circuit, a plaintiff may plead a theory of aiding and abetting liability under the [ATS]”).]

Also on the panel were Judges Sack and Hall.