In Re Agent Orange Product Liability Litigation

373 F.Supp.2d 7 (2005)

In re "AGENT ORANGE" PRODUCT LIABILITY LITIGATION.

The Vietnam Association for Victims of Agent Orange/Dioxin; Phan Thi Phi Phi; Nguyen Van Quy and Vu Thi Loan, Individually and as Parents and Natural Guardians of Nguyen Quang Trung and Nguyen Thi Thuy Nga, Their Children; Duong Quynh Hoa, Individually and as Administratix of the Estate of Her Deceased Child, Huynh Trung Son; Ho Kan Hai, Individually and as Parent and Natural Guardian of Nguyen Van Hoang, Her Child; Ho Thi Le, Individually and as Administratix of the Estate of Her Deceased Husband, Ho Xuan Bat; Nguyen Muoi; Nguyen Dinh Thanh; Dang Thi Hong Nhut; Nguyen Thi Thu, Individually and as Parent and Natural Guardian of Nguyen Son Linh And Nguyen Son Tra, Her Children; Vo Thanh Hai, Nguyen Thi Hoa, Individually and as Parents and Natural Guardians of Vo Thanh Tuan Anh, Their Child; Le Thi Vinh; Nguyen Thi Nham; Nguyen Minh Chau; Nguyen Thi Thoi; Nguyen Long Van; Tong Thi Tu and Nguyen Thang Loi; On Behalf of Themselves and Others Similarly Situated, Plaintiffs,

v.

The Dow Chemical Company; Monsanto Company; Monsanto Chemical Company; Pharmacia Corporation; Hercules Incorporated; Occidental Chemical Corporation; Ultramar Diamond Shamrock Corporation; Maxus Energy Corporation; Thompson Hayward Chemical Company; Harcros Chemicals Inc.; Uniroyal, Inc; Uniroyal Chemical, Inc.; Uniroyal Chemical Holding Company; Uniroyal Chemical Acquisition Corporation; C.D.U. Holding, Inc.; Diamond Shamrock Agricultural Chemicals, Inc.; Diamond Shamrock Chemicals; Diamond Shamrock Chemicals Company; Diamond Shamrock Corporation; Diamond Shamrock Refining and Marketing Company; Occidental Electrochemicals Corporation; Diamond Alkali Company; Ansul, Incorporated; Hooker Chemical Corporation; Hooker Chemical Far East Corporation; Hooker Chemicals & Plastics Corp.; Hoffman-Taff Chemicals, Inc. Chemical Land Holdings, Inc.; T-H Agriculture & Nutrition Company, Inc.; Thompson Chemical Corporation; Riverdale Chemical Company; Elementis Chemicals Inc.; United States Rubber Company, Inc.; Syntex Agribusiness Inc.; Syntex Laboratories, Inc. and "ABC Chemical Companies 1-100," Defendants.

No. MDL 381, No. 04-CV-400.

United States District Court, E.D. New York.

March 10, 2005.

As Amended March 28, 2005.

*8 *9 *10 *11 *12 Constantine P. Kokkoris, Esq., by Constantine P. Kokkoris, Esq., Moore & Goodman, LLP, by Jonathan C. Moore, Esq., William H. Goodman, Esq., David Milton, Esq., New York, NY, Law Offices of Kathleen A. Melez, by Kathleen A. Melez, Esq., Los Angeles, CA, Cartee & Morris, LLC, by Jonathan W. Cartee, Esq., R. Stan Morris, Esq., Shelby Roden LLC, by Robert B. Roden, Esq., Davis & Norris, LLP, by Frank Davis, Esq., John E. Norris, Esq., Birmingham, AL, for Plaintiffs.

Rivkin Radler LLP, by Steven Brock, Esq., James V. Aiosa, Esq., Uniondale, NY, Orrick, Herrington & Sutcliffe LLP, by James L. Stengel, Esq., Laurie Strauch Weiss, Esq., Mayer Brown Rowe & Maw *13 LLP, by Andrew Frey, Esq., New York, NY, for Defendant The Dow Chemical Company.

King & Spalding LLP, by Michael M. Gordon, Esq., New York, NY, for Defendants Occidental Chemical Corporation, as successor by merger to Diamond Shamrock Chemicals Company; Maxus Energy Corporation; Tierra Solutions, Inc., formerly known as Chemical Land Holdings, Inc.; and Valero Energy Corporation, as successor by merger to Ultramar Diamond Shamrock Corporation.

Seyfarth Shaw LLP, by John C. Sabetta, Esq., New York, NY, Latham & Watkins LLP, by James E. Tyrrell, Esq., Newark, NJ, Latham & Watkins LLP, by Richard P. Bress, Esq., Sidley Austin Brown & Wood LLP, by Joseph R. Guerra, Esq., Washington, DC, for Defendants Monsanto Company and Monsanto Chemical Company.

Kelley Drye & Warren LLP, by William A. Krohley, Esq., William C. Heck, Esq., New York, NY, for Defendant Hercules Incorporated.

Myron Kalish, Esq., New York, NY, for Defendants Uniroyal, Inc.; Uniroyal Chemical Holding Company; Uniroyal Chemical Acquisition Corporation; Uniroyal Chemical Co.; and CDU Holding, Inc.

Clark, Gagliardi & Miller, P.C., by Lawrence T. D'Aloise, Esq., White Plains, NY, for Defendants T.H. Agriculture & Nutrition Co., Inc.; Thompson-Hayward Chemical Co.; and Harcros Chemicals Inc.

Debevoise & Plimpton LLP, by Anne E. Cohen, Esq., Anthea E. Roberts, Esq., New York, NY, for Defendants Hooker Chemical Corporation; Hooker Chemical Far East Corporation; and Hooker Chemicals & Plastics Corp.

McDermott Will & Emery, by Chryssa V. Valletta, Esq., New York, NY, McDermott Will & Emery, by Steven H. Hoeft, Esq., Chicago, IL, for Defendant Riverdale Chemical Company.

U.S. Department of Justice, Civil Division, by Daniel Meron, Acting Assistant Attorney General, Joseph H. Hunt, Branch Director, Vincent M. Garvey, Deputy Branch Director, Ori Lev, Esq., Washington, DC, Roslynn Mauskopf, United States Attorney, by Roslynn Mauskopf, United States Attorney, Kathleen Mahoney, Assistant United States Attorney, Brooklyn, NY, for the United States.

Center for Constitutional Rights, by Judith Brown Chomsky, Esq., Jennifer Green, Esq., Beth Stephens, Esq., New York, NY, Earthrights International, by Rick Herz, Esq., Tyler Giannini, Esq., Washington, DC, International Human Rights Law Clinic, University of Virginia School of Law, by Professor Deena Hurwitz, Esq., Charlottesville, VA, for Amici Curiae.

AMENDED MEMORANDUM, ORDER and JUDGMENT

WEINSTEIN, Senior District Judge.

Table of Contents

I. Introduction .....................................................................15

A. Domestic Law Tort Claims Defeated by Government Contractor

Defense ....................................................................15

B. International Law Claims .....................................................17

1. General Approach of United States Courts .................................17

2. Government Contractor Defense Not Applicable .............................18

3. Substantive Merit Lacking ................................................19

*14

II. Use of Agent Orange and Other Herbicides in Vietnam War...........................19

III. Prior Phases of Agent Orange Litigation ..........................................23

IV. Pleadings by Vietnamese Plaintiffs and Motions by Defendants......................27

A. Pleadings by Plaintiffs ......................................................27

1. Jurisdiction and Venue ...................................................27

2. Parties ..................................................................28

3. Spraying Herbicides in Vietnam ...........................................30

4. Herbicides Used ..........................................................30

5. Supply of Herbicides by Defendants .......................................31

6. Harm to Plaintiffs .......................................................32

7. Legal Basis for Claims ...................................................35

8. Theories .................................................................36

a. War Crimes ...........................................................36

b. Genocide .............................................................36

c. Crimes Against Humanity ..............................................37

d. Torture ..............................................................37

e. Assault and Battery ..................................................37

f. Intentional Infliction of Emotional Distress .........................37

g. Negligent Infliction of Emotional Distress ...........................37

h. Negligence ...........................................................38

i. Wrongful Death .......................................................38

j. Strict Products Liability ............................................38

k. Public Nuisance ......................................................38

l. Unjust Enrichment ....................................................38

m. Injunctive and Declaratory Relief ....................................38

B. Motions by Defendants ........................................................38

1. Motions under Rule 12(b)(6) and Rule 56 ..................................38

2. Law Applicable to Motions ................................................39

a. Rule 56 ..............................................................39

b. Rule 12(b)(6) ........................................................39

3. Context ..................................................................40

4. Different Treatment of Veteran and Vietnamese Plaintiffs .................41

V. Position of the Government Opposing Plaintiffs' Claims ...........................43

VI. Insufficiency of Plaintiffs' Domestic Law and Equitable Claims ...................44

VII. Application of Sosa v. Alvarez-Machain ...........................................46

VIII. Legal Concepts ...................................................................49

A. Standing of VAVAO ............................................................49

B. Right to Sue Individually ....................................................51

C. Liability of Corporations for Violation of International Law .................52

1. Aiding and Abetting ......................................................52

2. Corporate Culpability ....................................................54

D. Statutes of Limitations ......................................................59

E. Justiciability ...............................................................64

1. Generally ................................................................64

2. Application of Baker v. Carr to Foreign Affairs and War ..................69

3. Judicial Power ...........................................................78

a. Interference with Management of Foreign Affairs ......................78

b. Incompatibility with Norm of Proportionality .........................79

c. Preemption of State Tort Claims by Executive's Power to

Conduct Foreign Relations ..........................................79

F. Causation ....................................................................81

G. Retroactivity ................................................................81

*15

H. Choice of Law ................................................................82

IX. Inapplicability of Government Contractor Defense .................................85

A. Position of the Government that Defense Applies to International Law-Based

Claims .....................................................................85

B. Government Position Not Supported by Facts or Law ............................91

C. Zyklon B Case ................................................................91

D. Nuremberg Military Tribunals .................................................94

E. Necessity Distinguished ......................................................96

X. History of Abuse of Civilians and Land During War and Attempts to Limit

Harm ...........................................................................99

A. History ......................................................................99

B. Attempts to Protect Civilians and Land by Treaties, Custom and

Religious Edicts ..........................................................102

XI. Insufficiency of Plaintiffs' International Law Claims............................105

A. Position of the Government ..................................................105

B. Statutes of the United States ...............................................110

1. Torture .................................................................110

2. War Crimes ..............................................................112

3. Genocide ................................................................114

C. Treaties and Other International Instruments ................................115

1. 1907 Hague Convention IV ................................................115

2. 1925 Geneva Protocol ....................................................118

3. 1945 London Charter .....................................................121

4. United Nations Charter ..................................................122

5. 1949 Geneva Conventions .................................................122

6. 1969 United Nations General Assembly Resolution .........................123

7. Environmental Law .......................................................127

D. Customary International Law .................................................130

1. Generally ...............................................................130

2. Crimes Against Humanity .................................................134

3. Proportionality .........................................................136

XII. 1975 Presidential and Congressional Action ......................................138

A. President ...................................................................138

B. Congress ....................................................................139

XIII. Conclusion ......................................................................145

I. Introduction

This case involves claims by Vietnamese nationals and an organization, The Vietnamese Association for Victims of Agent Orange/Dioxin ("VAVAO"), for harms allegedly done to them and their land by the United States' use of Agent Orange and other herbicides during the Vietnam War from 1965 to 1971 and the South Vietnamese government's subsequent use of such herbicides until 1975. They allege that the manufacturer-defendants are responsible under domestic tort law and under international law.

All claims are dismissed for the reasons stated below. Because of the comprehensive nature of the dismissal the court has not addressed individual motions by defendants claiming no connection with the use of herbicides in Vietnam.

A. Domestic Law Tort Claims Defeated by Government Contractor Defense

In Stephenson v. Dow Chemical Company (No. 99-CV-3056), Isaacson v. Dow Chemical Company (No. 98-CV-6383) and other like cases, United States veterans of *16 the Vietnam War sought damages against the defendants for exposure to Agent Orange during their service in Vietnam. Defendants moved in those cases for summary judgment based on the government contractor defense — in essence, the claim that the government told us to do it and knew at least as much as we did about the dangers. The court granted defendants' motion to dismiss those tort-based claims on the grounds that the contractor defense applied. See Isaacson v. Dow Chem. Co., 304 F.Supp.2d 404 (E.D.N.Y.2004) (granting dismissal based on government contractor defense); see also In re "Agent Orange" Prod. Liab. Litig., 818 F.2d 187 (2d Cir.1987) (holding that government contractor defense applies, plus no causation), aff'g 611 F.Supp. 1223 (E.D.N.Y.1985) (holding that government contractor defense applies, plus no causation). The government has expressed agreement with this position. See Statement of Interest of the United States, Jan. 12, 2005, at 1 n. 2 [hereinafter U.S. Statement of Interest].

Based on plaintiffs' contention that the veterans had had insufficient time for discovery, the court stayed the judgment of dismissal and granted plaintiffs six months of additional discovery. Isaacson, 304 F.Supp.2d at 442 . On plaintiffs' request, further time for discovery and preparation of briefs was then afforded. The magistrate judge, the Clerk of this court, the Special Master, and the National Archives cooperated in making the material sought by plaintiffs available. After full discovery and argument on February 28, 2005, the stay was lifted and judgments of dismissal entered in the veterans' cases because the government contractor defense had been established, warranting summary judgment of dismissal in favor of all defendants. Isaacson v. Dow Chem. Co., 344 F.Supp.2d 873 (E.D.N.Y.2004). The materials submitted by the parties after November 16, 2004 furnished additional strong support for dismissal. See order and judgments for defendants issued on March 2, 2005.

The same government contractor issue was raised in defendants' motions under Rule 12(b)(6) of the Federal Rules of Civil Procedure in the instant case as a defense to all claims brought by the Vietnamese. Those claims based on domestic law — but not international law — of the United States, of any state of the United States and of Vietnam are dismissed on this ground. See infra Parts IV.B.; VI.

The alleged delicts of the manufacturer-defendants occurred with a center of gravity in the United States, where the herbicides were ordered, manufactured and delivered to the government. Whatever the substantive domestic law applicable under any conflicts of law rule, the government contractor defense applies to that law. See Sosa v. Alvarez-Machain, 542 U.S. 692 , ___, 124 S.Ct. 2739, 2752 , 159 L.Ed.2d 718 (2004) ("It is true that the traditional approach to choice of substantive tort law has lost favor, [Gary J.] Simson, The Choice-of-Law Revolution in the United States: Notes on Rereading Von Mehren, 36 CORNELL INT'L L.J. 125, 125 (2003) (`The traditional methodology of place of wrong ... has receded in importance, and new approaches and concepts such as governmental interest analysis, most significant relationship, and better rule of law have taken center stage' (footnotes omitted))."); In re "Agent Orange" Prod. Liab. Litig., 580 F.Supp. 1242, 1254-55 (E.D.N.Y.1984) (finding that negligence, if any, of corporate suppliers of herbicides took place in United States); In re "Agent Orange" Prod. Liab. Litig., 580 F.Supp. 690 (E.D.N.Y.1984) (finding that federal or national consensus law applies under conflicts rules); infra Part VIII.H.; cf. Sosa, 542 U.S. at ___ , 124 S.Ct. at 2754 (holding *17 that the Federal Tort Claims Act's foreign country exception "bars all claims based on any injury suffered in a foreign country, regardless of where the tortious act or omission occurred").

For domestic conflicts of law purposes the government contractor defense is a federal substantive rule. Neither the rule of Erie R.R. Co. v. Tompkins, 304 U.S. 64 , 58 S.Ct. 817 , 82 L.Ed. 1188 (1938), nor comity in recognizing the internal substantive law of another nation can trump this federal substantive rule of law. See infra Part VIII.H. For the same reasons that the veterans' claims in Stephenson, Isaacson and similar cases were dismissed, all domestic law claims of the Vietnamese are dismissed. See infra Parts IV.B.; VI.

B. International Law Claims

1. General Approach of United States Courts

In judging international human rights claims against domestic corporations or others, courts in the United States with jurisdiction act as quasi international tribunals. See, e.g., LORI FISLER DAMROSCH, LOUIS HENKIN, RICHARD CRAWFORD PUGH, OSCAR SCHACHTER & HANS SMIT, INTERNATIONAL LAW CASES AND MATERIALS 645 (4th ed. 2001) ("The international law of human rights parallels and supplements national law, superseding and supplying the deficiencies of national constitutions and laws...." (quoting THE INTERNATIONAL BILL OF RIGHTS: THE COVENANT ON CIVIL AND POLITICAL RIGHTS 7 (Louis Henkin ed., 1981))); PETER MALANCZUK, AKEHURST'S MODERN INTRODUCTION TO INTERNATIONAL LAW 112 (Routledge 7th rev. ed. 1997) ("[I]nternational law allows states to exercise universal jurisdiction over certain acts which threaten the international community as a whole and which are criminal in all countries, such as war crimes...."); Paul R. Dubinsky, Human Rights Law Meets Private Law Harmonization: The Coming Conflict, 30 YALE J. INT'L L. 211, 268-82 (2005) (discussing universal jurisdiction); Thomas H. Lee, The Supreme Court of the United States as Quasi-International Tribunal: Reclaiming the Court's Original and Exclusive Jurisdiction over Treaty-Based Suits by Foreign States Against States, 104 COLUM. L.REV. 1765 (2004). Our courts will treat foreigners relying on international law with the same due process and courtesy as they would our own nationals.

Federal common law, not Erie, governs. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 , 427 n. 25, 84 S.Ct. 923 , 11 L.Ed.2d 804 (1964) (noting that constitutional and statutory provisions indicate "a desire to give matters of international significance to the jurisdiction of federal institutions"); Paul S. Ryerson, Inconsistent Consistency: A Comment on Arrested Development of the Federal Common Law of Foreign Relations, 16 FLA. J. INT'L L. (forthcoming 2005, filed and docketed); infra Part VIII.H.

International law is internalized by our courts as law of the United States. As recognized by the Restatement (Third) of the Foreign Relations Law of the United States, "the jurisprudence of the United States has considered ... rules of international law themselves (and many international agreements) to be incorporated into the law of the United States." 1 RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 1 cmt. a (1987); see also id. § 1 reporters' note 4 ("Courts interpret the laws and international agreements of the United States and they determine international law as law of the United States."). "From the beginning, the law of nations, later referred to as international law, was considered to be incorporated into the law of the United States without the need for any action by *18 Congress or the President...." Id. introductory note to pt. I, ch. 2, at 41. Reflecting general understanding, the Restatement's position permits individual court actions within the United States for at least some violations of international law. It declares: "A person of foreign nationality ... may pursue any remedy provided by ... the law of another state...." 2 id. § 713(2)(c); see also id. § 703 reporters' note 7 (discussing individual remedies under United States law). See also infra Part VIII.H. on choice of law.

In deciding the scope and nature of applicable substantive rules of international law, this court has followed Rule 44.1 of the Federal Rules of Civil Procedure which governs the determination of foreign law. FED.R.CIV.P. 44.1; cf. N.Y. C.P.L.R. § 4511 (McKinney 1992 & Supp.2005) (addressing judicial notice). A federal court has wide discretion to do its own research as well as to rely upon experts in the somewhat similar fields of foreign or international law. See, e.g., Arthur R. Miller, Federal Rule 44.1 and the "Fact" Approach to Determining Foreign Law: Death Knell for a Die-Hard Doctrine, 65 MICH. L.REV. 613 (1967); Comm. on Int'l Commercial Dispute Resolution, Ass'n of the Bar of the City of N.Y., Proof of Foreign Law after Four Decades with Rule 44.1 FRCP and CPLR 4511 (forthcoming 2005). The lack of judicial expertise and the complexity of sources in these two fields — foreign and international law — often make it desirable for the court to seek assistance. In this case academic experts for defendants, plaintiffs and the government, as well as counsel, have supplemented the court's own research and furnished helpful and reliable professional advice on the subject of international law. See, e.g., Burger-Fischer v. Degussa AG, 65 F.Supp.2d 248, 257 (D.N.J.1999) (relying heavily on an international law expert's submission to the court). The opinions of Professor George P. Fletcher [hereinafter Fletcher Op.] and Professor Jordan J. Paust [hereinafter Paust Op.] submitted on behalf of plaintiffs and the brief of amici were learned and compelling except for their view that military use of Agent Orange in Vietnam was a tort in violation of the law of nations. See infra Part XI. Other learned opinions submitted on behalf of defendants, relied upon and quoted in the body of this memorandum, were compelling in their conclusion that no violation of international law by defendants can be shown.

2. Government Contractor Defense Not Applicable

As indicated in more detail below in Part IX, the government contractor defense does not apply to violations of human rights, norms of international law and related theories. See, e.g., Zyklon B Case (Trial of Bruno Tesch and Two Others), 1-5 LAW REPORTS OF TRIALS OF WAR CRIMINALS 93-102 (William S. Hein & Co.1997) (U.N. War Crimes Comm'n ed., 1949); United States v. Krupp , 9 TRIALS OF WAR CRIMINALS BEFORE THE NUERNBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO. 10, at 1327, 1437-39 (photo. reprint 1997) (1950) [hereinafter TRIALS OF WAR CRIMINALS]; United States v. Flick, 6 TRIALS OF WAR CRIMINALS 1187, 1198, 1202 (photo. reprint 1997) (1952); see also infra Part IX. Defendants' motion to dismiss the international law claims on the ground of the government contractor defense is denied. Even in light of the Supreme Court's restrictive interpretation of applicable international law in Sosa v. Alvarez-Machain, 542 U.S. 692 , 124 S.Ct. 2739 , 159 L.Ed.2d 718 (2004), plaintiffs' international law based causes of action under the Alien Tort Statute ("ATS"), 28 U.S.C. § 1350 (2000), (which caselaw has also referred to as the Alien Tort Claims Act ("ATCA") or *19 Alien Tort Act ("ATA"), see Flores v. S. Peru Copper Corp., 343 F.3d 140 , 143 & n. 1 (2d Cir.2003)), are not barred by the government contractor defense. See infra Part IX.

3. Substantive Merit Lacking

Detailed analysis of international law claims of the Vietnamese plaintiffs establishes that use of herbicides by or on behalf of the United States in Vietnam before 1975 was not a violation of international law. Use by the United States ended in early 1971; responsibility of defendants for that use did not extend beyond 1971 since private corporate liability in this case could arise only from the foreseeable action of a customer — the United States. Herbicide spraying by the United States violated no rights of plaintiffs under international law. See infra Part XI.

II. Use of Agent Orange and Other Herbicides in Vietnam War

There has been a great deal written on the development and use of herbicides in war. See also infra Parts IV.A.3.-4. The most recent comprehensive description is by Professor Jeanne Mager Stellman of Columbia University, New York, and her associates; it is heavily relied upon and in part copied without specific attribution in the rest of this Part. See Jeanne Mager Stellman et al., The Extent and Patterns of Usage of Agent Orange and Other Herbicides in Vietnam, 422 NATURE 681 (2003); see also Declan Butler, Flight Records Reveal Full Extent of Agent Orange Contamination, 422 NATURE 649 (2003) (stating that Stellman's study shows that herbicides were directly sprayed on hamlets containing between two and four million people); David A. Butler, Connections — The Early History of Scientific and Medical Research on "Agent Orange" (Feb. 17, 2005) (unpublished manuscript, filed and docketed). No study or technique presented to the court has demonstrated how it is now possible to connect the herbicides supplied by any defendant to exposure by any plaintiff to dioxin from that defendant's herbicide. See generally MICHAEL GOUGH, DIOXIN, AGENT ORANGE: THE FACTS (1986) (discussing scientific problems in proving causation); see also Jonathan Walter, US Cancels Agent Orange Study in Vietnam, NEW SCIENTIST, Mar. 20, 2005 (reporting that the United States National Institute of Environmental Science cancelled the research project under the 2003 United States-Vietnam agreement that would have looked at the health effects of dioxin), http://www.newscientist.com/ article.ns?id=dn7146.

Between 1961 and 1971, herbicide mixtures — nicknamed by the colored identification band painted on their 208-litre storage barrels — were used by the United States and Republic of Vietnam ("RVN") forces to defoliate forests and mangroves, to clear perimeters of military installations and to destroy "unfriendly" crops, as a tactic for decreasing enemy armed forces protective cover and food supplies. United States participation ended in 1971 but the RVN forces allegedly continued independently to use leftover barrels of herbicides until 1975.

The best-known mixture was Agent Orange. About 65% of the herbicides contained 2,4,5-trichlorophenoxyacetic acid (2,4,5-T), which was contaminated with varying levels of 2,3,7,8-tetrachlorodibenzo-p-dioxin (TCDD). Herbicide mixtures used are listed in Table I.

Table I

Use of military herbicides in Vietnam by United States (1961-1971)

(Source: Stellman, supra, at 682.)

*20

------------------------------------------------------------------------------------------------------------------------

Concentration Estimated

Chemical active quantities

Name constituents ingredient Years used sprayed (litres)

------------------------------------------------------------------------------------------------------------------------

Agent Pink 60%-40% n-Butyl; 961-1,081 gl -1 acid 1961; 1965 50,312 sprayed;

isobutyl ester of equivalent 413,852 additional

2,4,5-T on procurement

records

------------------------------------------------------------------------------------------------------------------------

Agent Green n-Butyl ester 2,4,5-T (Should have same (Unclear 31,026 shown on procurement

acid equivalent as but within records

Agent Pink) time

frame for

Agent

Pink)

------------------------------------------------------------------------------------------------------------------------

Agent Purple 50% n-Butyl ester 2,4-D; 1,033 gl -1 acid 1962-1965 1,892,773

30% n-butyl ester equivalent

2,4,5-T; 20% isobutyl

ester 2,4,5-T

------------------------------------------------------------------------------------------------------------------------

Agent 50% n-Butyl ester 2,4-D; 1,033 gl -1 acid 1965-1970 45,677,937 (may

Orange 50% n-butyl ester equivalent include Agent

2,4,5-T Orange II)

------------------------------------------------------------------------------------------------------------------------

Agent 50% n-Butyl ester 2,4-D; 910 gl -1 acid After Unknown but at

Orange II 50% isooctyl ester equivalent 1968(?) least 3,591,000

2,4,5-T shipped

------------------------------------------------------------------------------------------------------------------------

Agent White Acid weight basis: By acid weight: 1966-1971 20,556,525

21.2% tri-isopropanolamine 240.2 gl -1 2,4-D

salts of 2,4-D and 64.9 gl -1

and 5.7% picloram picloram

------------------------------------------------------------------------------------------------------------------------

Agent Blue Cacodylic acid (dimethylarsinic Acid: 65% active 1962-1964 25,650

(powder) acid) and ingredient; salt:

sodium cacodylate 70% active

ingredient

------------------------------------------------------------------------------------------------------------------------

Agent Blue 21% sodium cacodylate Acid weight: 360.3 1964-1971 4,715,731

(H20 solution) + cacodylic acid to gl -1

yield at least 26%

total acid equivalent

by weight

------------------------------------------------------------------------------------------------------------------------

Military herbicide operations in Vietnam became a matter of scientific controversy almost from their inception. In April 1970, 2,4,5-T was banned from most United States domestic uses on the basis of evidence of its possible teratogenicity. Long after the war, the Agent Orange Act of 1991 requested the Institute of Medicine ("IOM") to assess the strength of the evidence for association between exposure to military herbicides and disease in veterans and the feasibility of conducting further epidemiological studies.

The Department of Defense's Advanced Research Project Agency's ("ARPA") Project Agile was instrumental in the United States' development of herbicides as a military weapon, an undertaking inspired by the British use of 2,4,5-T to destroy jungle-grown crops during the insurgency in Malaya. ARPA supported tests on combinations and concentrations of herbicides; calibration studies of the spray delivery system to achieve the desired 281ha -1 (3 gallons/acre) rate; and experiments on optimal conditions to minimize spray drift. ARPA also developed the Hamlet Evaluation System ("HES") which collected the political census data used for estimating population exposures.

The first large-scale United States military defoliation took place in Camp Drum, *21 New York, in 1959, using Agent Purple (a 50-50 mixture of 2,4-D and 2,4,5-T) and a spray system which was the model for those used in Vietnam. Herbicide tests were run from August to December 1961 in the RVN using dinoxol and trinoxol. An insecticide test series was also undertaken. The first major herbicide shipment arrived in RVN in January 1962; defoliation targets were sprayed during September and October 1962 (Agent Purple); crop destruction targets were sprayed in November 1962 (Agent Blue). Systematic testing of herbicides and calibration of herbicide delivery systems continued for several years.

United States Air Force ("USAF") operations, codenamed Operation Ranch Hand, dispersed more than 95% of all herbicides used in Operation Trail Dust, the overall herbicide program. Other branches of the United States armed services and RVN forces, generally using hand sprayers, spray trucks (Buffalo turbines), helicopters and boats, sprayed much smaller quantities of herbicide. Crop destruction required White House approval until 1963, after which final approval was delegated to the United States Ambassador to the RVN.

In total about 1.9 million litres of Agent Purple were sprayed between 1962 and 1965. This timing is a particularly significant because herbicides manufactured in the early 1960s were almost certainly more heavily TCDD-contaminated than those produced later. Pre-1965 spraying was limited to a relatively small area which may be at particular risk for current TCDD contamination.

Contamination of 2,4,5-T with TCDD varied widely by production run, manufacturer, and the percentage of 2,4,5-T in the formulation. In early 1966, Agent White, which did not contain 2,4,5-T and hence was not TCDD-contaminated, began to replace Agent Orange. From a tactical perspective Agent White was less satisfactory than Agent Orange because several weeks were required for defoliation to begin. Agent White was accepted by the Department of Defense because Agent Orange was apparently no longer available in sufficient quantities. Agent Blue was the agent of choice for crop destruction by desiccation throughout the Vietnam War, but more than four million litres of the other agents, primarily containing 2,4,5-T, were also used on crops.

Procurement records show that at least 464,164 litres of Agent Pink and 31,026 litres of Agent Green, with comparatively high TCDD levels, were purchased. Identified missions dispersed about 1.9 million litres of Agent Purple.

Estimates of how much TCDD was deposited in Vietnam are based on estimates of the volume of 2,4,5-T-containing herbicide sprayed and on TCDD contamination levels. After Agent Orange spraying by the United States ended, the USAF was required to dispose of very large stockpiles of surplus herbicide that were ultimately incinerated aboard the M/T Vulcanus in 1977. TCDD concentrations ranged from 6.2 to 14.3 p.p.m., and averaged 13.25 p.p.m. in samples drawn for incineration-effluent modelling studies from 28 different barrels chosen by the USAF as representative of the seven manufacturers contributing to the stockpile. In other samples drawn from the stockpile, the TCDD range was about 0.05 to 13.3 p.p.m. (weighted average 1.77 p.p.m). Documentation also reports dioxin levels to be heterogeneous even within the same production run.

In 1971 an analysis by the National Academy of Science's comprehensive study of ecological and physiological effects of defoliation in Vietnam ("NAS-1974") found TCDD levels ranging from non-detectable *22 (

Although Agent Purple is likely to have been more highly contaminated with TCDD, it is not unlikely that mean TCDD levels in Agent Orange were higher than 3 p.p.m. for much of the herbicide used. An average value closer to 13 p.p.m. may be realistic. If 3 p.p.m., the mean associated with the "low dioxin" series, is conservatively applied, the estimate of total TCDD present in the spray grows to 221 kg. Applying 32.8 p.p.m. and 65.5 p.p.m. as the average TCDD in Agents Purple and Pink provides an additional 165 kg, or 366 kg in total (which does not take into account the herbicides sprayed by RVN forces, and possibly by United States Army and Navy forces by trucks, boats, hand sprayers and helicopters, nor the more than 400,000 litres of Agent Pink shown in procurement records but not found in any recorded missions).

A HES in which United States district advisors and Vietnamese district chiefs filled out monthly political survey and census forms was established in June 1967, and a gazetteer of place names and precise geographical locations was also created. The HES data provide a comprehensive rural census that permits estimates of the numbers of hamlets and size of the population directly sprayed.

More than 20,585 unique hamlets are represented in the corrected version of the Stellman database. Population data are not available for 18% of these hamlets and population data are not systematically reported each month for all years. Among the hamlets with some population data, 3,181 were sprayed directly and at least 2.1 million but perhaps as many as 4.8 million people would have been present during the spraying. Another 1,430 hamlets were also sprayed, but there is no estimate of the population involved. In all, at least 3,851 out of 5,958 known fixed-wing missions had flight paths directly over the hamlet coordinates given in the HES and gazetteer data. About 35% of the total herbicide sprayed was flown by these missions, although, in general, flight paths extended beyond hamlet borders.

In 1971, NAS-1974 analyzed five soil samples from an area in which large amounts of Agent Orange had been dumped in December 1968. No 2,4,5-T could be detected.

Empty barrel residues led to inadvertent defoliation of trees and gardens in Da Nang, Nha Trang, Bien Hoa, Phu Cat and Saigon civilian areas near USAF airbases that handled the herbicides when the empty barrels were transported to local merchants for commercial use. The ultimate fate of most of the empty barrels is not known. Also unknown is the extent of possible exposure of people who used the barrels for other purposes.

Large numbers of Vietnamese civilians appear to have been directly exposed to herbicidal agents, some of which were sprayed at levels at least an order of magnitude greater than for similar United States domestic purposes. Yet, according to Professor Stellman, no large-scale epidemiological study of herbicides and the health of either the Vietnamese population or war veterans has yet been carried out. The data from mortality and morbidity records, at least in the United States, should be available for causation studies, but no such study of significance has been made. Those studies supporting Veterans Administration decisions to declare some *23 diseases presumptively caused by Agent Orange as a basis for disability payments (extremely low probability required) are of almost no use in determining causation for litigation purposes (more probable than not shown by admissible proof required).

By 1970, or certainly by 1971, herbicide spraying by United States forces had ceased. David A. Butler, Connections — The Early History of Scientific and Medical Research on "Agent Orange" 8 (Feb. 17, 2005) (unpublished manuscript, filed and docketed) ("On January 7, 1971, aerial spray missions came to an end."). Plaintiffs concede that "military use of 2,4,5-T, including Agent Orange," was suspended on April 15, 1970, and other herbicides were not used after "January 1971, when the last Ranch Hand Mission took place." Mem. of Law in Opp'n To Defs.' Mot. to Dismiss All Claims for Failure to State a Claim Under the Law of Nations, Jan. 18, 2004, at 147 [hereinafter Pls.' Mem. of Law in Opp'n to Defs.' Mot.]. This is long before the 1975 termination claimed by plaintiffs. See Figure 1. The discussion below in Part XI demonstrates that international law did not outlaw the kind of use of herbicides complained of before 1975.

Figure l. Time course of herbicide sorties. At least 19,905 sorties were run between 1961-1971 (1-34 daily, with a daily average of 10.7 sorties). Source: Stellman, supra, at 685.

III. Prior Phases of Agent Orange Litigation

The extensive prior procedure in other phases of the Agent Orange litigation is assumed to be known or available to the reader. See Dow Chem. Co. v. Stephenson, 539 U.S. 111 , 123 S.Ct. 2161 , 156 L.Ed.2d 106 (2003) (per curiam); Stephenson v. Dow Chem. Co., 346 F.3d 19 (2d Cir.2003) (per curiam) (vacating dismissal because, inter alia, All Writs Act did not provide removal jurisdiction); Stephenson v. Dow Chem. Co., 273 F.3d 249 (2d Cir.2001) (vacating dismissal because plaintiffs were not adequately represented in prior litigation that resulted in Agent Orange settlement and thus res judicata did not bar them from pursuing their claims), aff'd *24 in part, vacated in part by 539 U.S. 111 , 123 S.Ct. 2161 , 156 L.Ed.2d 106 (2003); Miller v. Diamond Shamrock Co., 275 F.3d 414 (5th Cir.2001) (holding that plaintiff's claims were barred by the government contractor defense); Winters v. Diamond Shamrock Chemical Co., 149 F.3d 387 (5th Cir.1998) (holding that plaintiffs' claims were barred by the government contractor defense); Jenkins v. Agent Orange Settlement Fund, No. 97-7538, 1997 WL 774394 (2d Cir. Dec 17, 1997) (unpublished disposition); Addington v. Agent Orange Veterans Payment Program, No. 97-7071, 1997 WL 738070 (2d Cir. Nov 24, 1997) (unpublished disposition); Gough v. Agent Orange Settlement Fund, No. 96-6067, 1996 WL 636536 (2d Cir. Nov 5, 1996) (unpublished disposition); In re Agent Orange Prod. Liab. Litig., 996 F.2d 1425 (2d Cir.1993); In re Ivy, 901 F.2d 7 (2d Cir.1990) (MDL Panel had jurisdiction to transfer); In re "Agent Orange" Prod. Liab. Litig., 821 F.2d 139 (2d Cir.1987) (holding there was no abuse of discretion in unsealing documents); In re "Agent Orange" Prod. Liab. Litig., 818 F.2d 179 (2d Cir.1987) (appeal reviewing settlement plan); In re "Agent Orange" Prod. Liab. Litig., 818 F.2d 194 (2d Cir.1987) (affirming dismissal of Federal Tort Claims Act claims of servicemen);

In re "Agent Orange" Prod. Liab. Litig., 818 F.2d 204 (2d Cir.1987); In re "Agent Orange" Prod. Liab. Litig., 818 F.2d 210 (2d Cir.1987); In re "Agent Orange" Prod. Liab. Litig., 818 F.2d 216 (2d Cir.1987); In re "Agent Orange" Prod. Liab. Litig., 818 F.2d 226 (2d Cir.1987); In re "Agent Orange" Prod. Liab. Litig., 800 F.2d 14 (2d Cir.1986) (denying motion to disqualify plaintiffs' attorneys from appealing settlement); In re "Agent Orange" Prod. Liab. Litig., 804 F.2d 19 (2d Cir.1986) (denying repeal of stay on settlement funds pending appeal); In re "Agent Orange" Prod. Liab. Litig., 787 F.2d 822 (2d Cir.1986) (dismissing claims of non-class plaintiffs against defendant not named in complaints); Vietnam Ass'n for Victims of Orange/Dioxin v. Dow Chem. Co., 327 F.Supp.2d 198 (E.D.N.Y.2004) (inviting U.S. government to submit brief as amicus curiae); Isaacson v. Dow Chem. Co., 304 F.Supp.2d 404 (E.D.N.Y.2004) (holding that defendants were entitled to government contractor defense but staying decision pending discovery); Isaacson v. Dow Chem. Co., 304 F.Supp.2d 442 (E.D.N.Y.2004) (holding that defendants were entitled to remove action to federal court under federal officer removal statute); In re "Agent Orange" Prod. Liab. Litig., No. 97 CV 1976, 1999 WL 1045197 (E.D.N.Y. Jan.21, 1999); Ryan v. Dow Chem. Co., 781 F.Supp. 902 (E.D.N.Y.1991) (plaintiffs cannot collaterally attack prior settlement); In re "Agent Orange" Prod. Liab. Litig., 689 F.Supp. 1250 (E.D.N.Y.1988) (modifying class assistance program as required by 818 F.2d 179 , approved settlement and granting opt-out plaintiffs opportunity to opt into class for purposes of benefitting from settlement fund); In re "Agent Orange" Prod. Liab. Litig., 603 F.Supp. 239 (E.D.N.Y.1985) (dismissing claims of veterans' wives and children against government), aff'd in part, vacated in part, 818 F.2d 201 (2d Cir.1987), cert. denied, 484 U.S. 1004 , 108 S.Ct. 695 , 98 L.Ed.2d 647 (1988); In re "Agent Orange" Prod. Liab. Litig., 104 F.R.D. 559 (E.D.N.Y.1985) (modifying protective orders);

In re "Agent Orange" Prod. Liab. Litig., 618 F.Supp. 625 (E.D.N.Y.1985) (approving distribution plan of Agent Orange settlement fund allocated to Australia and New Zealand); In re "Agent Orange" Prod. Liab. Litig., 618 F.Supp. 623 (E.D.N.Y.1985) (approving settlement of class action and dismissing with prejudice claims of class members) (Special Masters for Settlement Kenneth R. Feinberg and David I. *25 Shapiro); In re "Agent Orange" Prod. Liab. Litig., 611 F.Supp. 1452 (E.D.N.Y.1985) (denying motion to set aside attorney fee-sharing arrangement), rev'd in part, 818 F.2d 216 (2d Cir.1987), cert. denied, 484 U.S. 926 , 108 S.Ct. 289 , 98 L.Ed.2d 249 (1987); In re "Agent Orange" Prod. Liab. Litig., 611 F.Supp. 1396 (E.D.N.Y.1985) (establishing plan for disbursement of settlement fund pending appeals), aff'd in part, rev'd in part, 818 F.2d 179 (2d Cir.1987); In re "Agent Orange" Prod. Liab. Litig., 611 F.Supp. 1296 (E.D.N.Y.1985) (determining class-action plaintiffs' attorney fees and reaffirming settlement); aff'd in part, rev'd in part, 818 F.2d 226 (2d Cir.1987); In re "Agent Orange" Prod. Liab Litig., 611 F.Supp. 1290 (E.D.N.Y.1985) (dismissing claim of civilian physician for failure to demonstrate exposure to herbicides), aff'd in part, vacated in part, 818 F.2d 210 (2d Cir.1987), cert. denied, 484 U.S. 1004 , 108 S.Ct. 695 , 98 L.Ed.2d 648 (1988); In re "Agent Orange" Prod. Liab. Litig., 611 F.Supp. 1285 (E.D.N.Y.1985) (dismissing action brought by Hawaiian civilians), aff'd in part, vacated in part, 818 F.2d 210 (2d Cir.1987), cert. denied, 484 U.S. 1004 , 108 S.Ct. 695 , 98 L.Ed.2d 648 (1988); In re "Agent Orange" Prod. Liab. Litig., 611 F.Supp. 1267 (E.D.N.Y.1985) (same), aff'd, 818 F.2d 187 (2d Cir.1987), cert. denied, 487 U.S. 1234 , 108 S.Ct. 2898 , 101 L.Ed.2d 932 (1988); In re "Agent Orange" Prod. Liab. Litig., 611 F.Supp. 1223 (E.D.N.Y.1985) (ruling as to admissibility of opt-out plaintiffs' scientific evidence and expert testimony and granting summary judgment in favor of defendants for plaintiffs' failure to establish causation), aff'd, 818 F.2d 187 (2d Cir.1987), cert. denied, 487 U.S. 1234 , 108 S.Ct. 2898 , 101 L.Ed.2d 932 (1988);

In re "Agent Orange" Prod. Liab. Litig., 611 F.Supp. 1221 (E.D.N.Y.1985) (dismissing defendants' claim for indemnity from government for settlement payments to veterans' families), aff'd, 818 F.2d 204 (2d Cir.1987); In re "Agent Orange" Prod. Liab. Litig., 105 F.R.D. 577 (E.D.N.Y.1985) (affirming with modification magistrate's order that defendants in two non-settled cases produce deponents); In re "Agent Orange" Prod. Liab. Litig., 597 F.Supp. 740 (E.D.N.Y.1984) (approving settlement of class action subject to fairness hearings); In re "Agent Orange" Prod. Liab. Litig., 101 F.R.D. 97 (E.D.N.Y.1984) (ordering in camera disclosure of names of scientists deleted from government report); In re "Agent Orange" Prod. Liab. Litig., 580 F.Supp. 1242 (E.D.N.Y.1984) (reinstating third-party plaintiffs' claim for indemnity against government with respect to claims of veterans' wives and children), mandamus denied, 733 F.2d 10 (2d Cir.1984), appeal denied, 745 F.2d 161 (2d Cir.1984), cert. denied, 465 U.S. 1067 , 104 S.Ct. 1417 , 79 L.Ed.2d 743 (1984); In re "Agent Orange" Prod. Liab. Litig., 580 F.Supp. 690 (E.D.N.Y.1984) (finding national consensus law on issues of liability, government contractor defense and punitive damages); In re "Agent Orange" Prod. Liab. Litig., 100 F.R.D. 778 (E.D.N.Y.1984) (denying motion to implead suppliers of chemical components); In re "Agent Orange" Prod. Liab. Litig., 100 F.R.D. 718 (E.D.N.Y.1983) (certifying Rule 23(b)(3) and Rule 23(b)(1)(B) classes), appeal denied, 100 F.R.D. 735 (E.D.N.Y.1983), mandamus denied, 725 F.2d 858 (2d Cir.1984), aff'd, 818 F.2d 145 (2d Cir.1987), cert. denied, 484 U.S. 1004 , 108 S.Ct. 695 , 98 L.Ed.2d 648 (1988); In re "Agent Orange" Prod. Liab. Litig., 99 F.R.D. 645 (E.D.N.Y.1983) (lifting prior protective order applying to government documents obtained during discovery); In re "Agent Orange" Prod. Liab. Litig., 99 F.R.D. 338 (E.D.N.Y.1983) (approving discovery recommendations of special master); In re "Agent Orange" Prod. *26 Liab. Litig., 571 F.Supp. 481 (E.D.N.Y.1983) (granting motion of law firm to be relieved as lead counsel for plaintiffs and appointing new plaintiffs' management committee);

In re "Agent Orange" Prod. Liab. Litig., 570 F.Supp. 693 (E.D.N.Y.1983) (clarifying program for discovery); In re "Agent Orange" Prod. Liab. Litig., 98 F.R.D. 558 (E.D.N.Y.1983) (approving special master's order of additional discovery to clarify circumstances surrounding document destruction); In re "Agent Orange" Prod. Liab. Litig., 98 F.R.D. 557 (E.D.N.Y.1983) (ordering special master to review discovery decisions in light of court's decision to try causality and liability issues); In re "Agent Orange" Prod. Liab. Litig., 98 F.R.D. 554 (E.D.N.Y.1983) (denying request for reconsideration of order to unseal documents); In re "Agent Orange" Prod. Liab. Litig., 98 F.R.D. 539 (E.D.N.Y.1983) (adopting special master's order to unseal documents in connection with summary judgment motions); In re "Agent Orange" Prod. Liab. Litig., 98 F.R.D. 522 (E.D.N.Y.1983) (adopting order of special master concerning discovery of government documents); In re "Agent Orange" Prod. Liab. Litig., 565 F.Supp. 1263 (E.D.N.Y.1983) (granting summary judgment for four defendants on government contractor defense; denying summary judgment for other defendants); In re "Agent Orange" Prod. Liab. Litig., 97 F.R.D. 542 (E.D.N.Y.1983) (affirming special master's denial of discovery request); In re "Agent Orange" Prod. Liab. Litig., 97 F.R.D. 541 (E.D.N.Y.1983) (denying interlocutory appeal of decision deferring certification of class and determination of appropriate notice); In re "Agent Orange" Prod. Liab. Litig., 97 F.R.D. 427 (E.D.N.Y.1983) (adopting special master's procedures for discovery of documents possibly subject to executive privilege); In re "Agent Orange" Prod. Liab. Litig., 97 F.R.D. 424 (E.D.N.Y.1983) (adopting special master's protective order for Department of Agriculture documents); In re "Agent Orange" Prod. Liab. Litig., 97 F.R.D. 424 (E.D.N.Y.1983) (adopting protective order);

In re "Agent Orange" Prod. Liab. Litig., 96 F.R.D. 587 (E.D.N.Y.1983) (adopting with modifications special master's order regarding videotaped depositions); In re "Agent Orange" Prod. Liab. Litig., 96 F.R.D. 582 (E.D.N.Y.1983) (rejecting first amendment challenge to protective order); In re "Agent Orange" Prod. Liab. Litig., 96 F.R.D. 578 (E.D.N.Y.1983) (adopting special master's protective order for discovery of government documents); In re "Agent Orange" Prod. Liab. Litig., 95 F.R.D. 192 (E.D.N.Y.1982) (affirming special master's ruling as to location of depositions); In re "Agent Orange" Prod. Liab. Litig., 95 F.R.D. 191 (E.D.N.Y.1982) (clarifying that denial of motion to implead suppliers was without prejudice); In re "Agent Orange" Prod. Liab. Litig., 544 F.Supp. 808 (E.D.N.Y.1982) (denying motion to disqualify defense attorneys; provisionally dismissing claims against certain non-manufacturer defendants, and denying motion to implead suppliers); In re "Agent Orange" Prod. Liab. Litig., 94 F.R.D. 173 (E.D.N.Y.1982) (appointing special master to supervise discovery); In re "Agent Orange" Prod. Liab. Litig., 537 F.Supp. 977 (E.D.N.Y.1982) (provisionally dismissing claims against non-manufacturer defendant); In re "Agent Orange" Prod. Liab. Litig., 534 F.Supp. 1046 (E.D.N.Y.1982) (denying reargument on dismissal of government as third-party defendant, denying interlocutory appeal, provisionally dismissing claims against non-manufacturer defendants, denying motion to form steering committee for plaintiffs' counsel, denying motion for decertification of class, deferring decision on statute of limitations *27 issues, and establishing elements of government contractor defense); In re "Agent Orange" Prod. Liab. Litig., 93 F.R.D. 514 (E.D.N.Y.1982) (allowing defendant to proceed with scheduled destruction of documents); In re "Agent Orange" Prod. Liab. Litig., 91 F.R.D. 618 (E.D.N.Y.1981) (allowing motion to amend caption, denying motion to amend complaint, denying defendants' motion for summary judgment on government contractor defense);

In re "Agent Orange" Prod. Liab. Litig., 91 F.R.D. 616 (E.D.N.Y.1981) (establishing committee to review procedures for videotaped depositions); In re "Agent Orange" Prod. Liab. Litig., 506 F.Supp. 762 (E.D.N.Y.1980) (dismissing claims against government as third-party defendant, establishing case management plan, conditionally certifying Rule 23(b)(3) class, and denying defendants' motion for summary judgment); In re "Agent Orange" Prod. Liab. Litig., 506 F.Supp. 757 (E.D.N.Y.1980) (requiring plaintiffs to file individual notices to retain right to bring actions against federal government); In re "Agent Orange" Prod. Liab. Litig., 506 F.Supp. 756 (E.D.N.Y.1980) (establishing agenda for status conference); In re "Agent Orange" Prod. Liab. Litig., 506 F.Supp. 754 (E.D.N.Y.1980) (ordering videotaped deposition); In re "Agent Orange" Prod. Liab. Litig., 506 F.Supp. 753 (E.D.N.Y.1980) (various orders concerning modification of complaint and answers); In re "Agent Orange" Prod. Liab. Litig., 506 F.Supp. 750 (E.D.N.Y.1980) (ordering government to refrain from destruction of documents pursuant to internal procedure); In re "Agent Orange" Prod. Liab. Litig., 28 Fed. R. Serv.2d 993 (E.D.N.Y.1980) (granting motion of terminally ill plaintiff to videotape his own deposition); In re "Agent Orange" Prod. Liab. Litig., 506 F.Supp. 737 (E.D.N.Y.1979) (finding subject matter jurisdiction on basis of federal common law issues), rev'd, 635 F.2d 987 (2d Cir.1980), cert. denied, 454 U.S. 1128 , 102 S.Ct. 980 , 71 L.Ed.2d 116 (1981); In re "Agent Orange" Prod. Liab. Litig., 475 F.Supp. 928 (E.D.N.Y.1979) (dismissing federal constitutional and statutory claims, reserving possible federal common law claims, denying motion to limit communications to third parties); see also Ryan v. Dow Chem. Co., 781 F.Supp. 934 (E.D.N.Y.1992); Ryan v. Dow Chem. Co ., Nos. 79 CIV. 747, MDL 381, 89 CIV. 3361 & 90 CIV. 3928, 1991 WL 243311 (E.D.N.Y. Nov 12, 1991); In re Agent Orange Fee Application of Yannacone, 139 F.R.D. 581 (E.D.N.Y.1991); Ryan v. Dow Chem. Co., 781 F.Supp. 902 (E.D.N.Y.1991).

IV. Pleadings by Vietnamese Plaintiffs and Motions by Defendants

Vietnamese nationals and a Vietnamese organization, VAVAO, sue corporations based in the United States for, in essence, committing violations of domestic and international law by manufacturing and supplying herbicides to the governments of the United States and South Vietnam, which were sprayed, stored and spilled in Vietnam from 1961 to 1975. Damages are sought for the deaths and injuries of the plaintiffs and the class that they seek to represent allegedly caused by exposure to the herbicides. Environmental abatement, clean-up of contaminated areas and disgorgement of profits are also sought.

A. Pleadings by Plaintiffs

1. Jurisdiction and Venue

Jurisdiction is invoked under the Alien Tort Statute ("ATS"), 28 U.S.C. § 1350 (2000); diversity, 28 U.S.C. § 1332 (2000); regulation of commerce, 28 U.S.C. § 1337 (2000); and federal question, 28 U.S.C. § 1331 (2000). Pendent jurisdiction over state law claims is alleged. 28 U.S.C. *28 § 1367 (2000). Venue is vested in the Eastern District of New York, 28 U.S.C.A. § 1391 (1993 & Supp.2004), under control of the Judicial Panel on Multidistrict Litigation, 28 U.S.C. § 1407 (2000), for pretrial purposes only. Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 , 118 S.Ct. 956 , 140 L.Ed.2d 62 (1998) (limiting power of multidistrict litigation transferee court to pretrial control).

2. Parties

A number of the individual plaintiffs appear to have been members of hostile military forces during the Vietnam War. They probably would have been entitled to less protection — if any — than civilians. Nevertheless, for purposes of this motion to dismiss and this memorandum, their status is not relevant. Their claims are analyzed as if they were civilians not involved in hostile acts against forces of the United States and its allies. The plaintiffs are self-described below:

VAVAO is a Vietnamese not-for-profit, non-governmental organization whose membership consists of victims of exposure to herbicides used during the Vietnam War as well as individuals and groups who volunteer to provide assistance to victims. The purpose of the organization is to represent and protect the interests of Vietnamese who allege exposure to herbicides produced by defendants, and to raise funds for their treatment and care and for mitigation of alleged harmful effects of environmental contamination. The organization is apparently run by an executive board consisting of such Vietnamese, medical and scientific researchers, as well as people from other disciplines.

Plaintiffs Phan Thi Phi Phi, Nguyen Van Quy, Vu Thi Loan, Nguyen Quang Trung, Nguyen Thi Thuy Nga, Duong Quynh Hoa, Huynh Trung Son, Ho Kan Hai, Nguyen Van Hoang, Ho Thi Le, Ho Xuan Bat, Nguyen Muoi, Nguyen Dinh Thanh, Dang Thi Hong Nhut, Nguyen Thi Thu, Nguyen Son Linh, Nguyen Son Tra, Vo Thanh Hai, Nguyen Thi Hoa, Vo Thanh Tuan Anh, Le Thi Vinh, Nguyen Thi Nham, Nguyen Minh Chau, Nguyen Thi Thoi, Nguyen Long Van, Tong Thi Tu and Nguyen Thang Loi were and are nationals and residents of Vietnam at relevant times.

Plaintiffs Nguyen Van Quy and Vu Thi Loan are the parents of plaintiffs Nguyen Quang Trung and Nguyen Thi Thuy Nga, who are under the age of 18 years. Plaintiff Duong Quynh Hoa is the administratrix of the estate of her deceased child, Huynh Trung Son. Plaintiff Ho Kan Hai is the mother of plaintiff Nguyen Van Hoang, who is under the age of 18 years. Plaintiff Ho Thi Le is the administratrix of the estate of her deceased husband, Ho Xuan Bat. Plaintiff Nguyen Thi Thu is the mother of plaintiffs Nguyen Son Linh and Nguyen Son Tra, who are under the age of 18 years.

Defendants are The Dow Chemical Company, a corporation incorporated under the laws of the State of Delaware that is registered to do business or in fact does business in the State of New York; Montsanto Chemical Company, a corporation incorporated under the laws of the State of Delaware that is registered to do business or in fact does business in the State of New York; Pharmacia Corporation, a corporation incorporated under the laws of the State of Delaware that is registered to do business or in fact does business in the State of New York; Hercules Incorporated, a corporation incorporated under the laws of the State of Delaware that is registered to do business or in fact does business in the State of New York; Occidental Chemical Corporation, a corporation incorporated under the laws of the State of New York that is registered to do business or in fact does business in the State *29 of New York; Ultramar Diamond Shamrock Corporation, a corporation incorporated under the laws of the State of Delaware that is registered to do business or in fact does business in the State of New York; Maxus Energy Corporation, a corporation incorporated under the laws of the State of Delaware that is registered to do business or in fact does business in the State of New York; Thompson Hayward Chemical Company, a corporation incorporated under the laws of the State of Missouri that is registered to do business or in fact does business in the State of New York; Harcros Chemicals Inc., a corporation incorporated under the laws of the State of Kansas that is registered to do business or in fact does business in the State of New York; Uniroyal, Inc., a corporation incorporated under the laws of the State of New Jersey that is registered to do business or in fact does business in the State of New York; Uniroyal Chemical, Inc., a corporation incorporated under the laws of the State of Delaware that is registered to do business or in fact does business in the State of New York; Uniroyal Chemical Holding Company, a corporation incorporated under the laws of the State of Delaware that is registered to do business or in fact does business in the State of New York; Uniroyal Chemical Acquisition Corporation, a corporation incorporated under the laws of the State of New Jersey that is registered to do business or in fact does business in the State of New York; C.D.U. Holding, Inc., a corporation incorporated under the laws of the State of Delaware that is registered to do business or in fact does business in the State of New York; Diamond Shamrock Agricultural Chemicals, Inc., a corporation incorporated under the laws of the State of Delaware that is registered to do business or in fact does business in the State of New York; Diamond Shamrock Chemicals, a corporation incorporated under the laws of the State of Delaware that is registered to do business or in fact does business in the State of New York; Diamond Shamrock Chemicals Company, a corporation incorporated under the laws of the State of Delaware that is registered to do business or in fact does business in the State of New York; Diamond Shamrock Corporation, a corporation incorporated under the laws of the State of Delaware that is registered to do business or in fact does business in the State of New York; Diamond Shamrock Refining and Marketing Company, a corporation incorporated under the laws of the State of Delaware that is registered to do business or in fact does business in the State of New York; Occidental Electrochemicals Corporation, a corporation incorporated under the laws of the State of Delaware that is registered to do business or in fact does business in the State of New York; Diamond Alkali Company, a corporation incorporated under the laws of the State of Delaware that is registered to do business or in fact does business in the State of New York; Ansul, Incorporated, a corporation incorporated under the laws of the State of Delaware that is registered to do business or in fact does business in the State of New York; Hooker Chemical Corporation, a corporation@ incorporated under the laws of the State of New York that is registered to do business or in fact does business in the State of New York; Hooker Chemical Far East Corporation, a corporation incorporated under the laws of the State of New York that is registered to do business or in fact does business in the State of New York; Hooker Chemicals & Plastics Corp., a corporation incorporated under the laws of the State of New York that is registered to do business or in fact does business in the State of New York; Hoffman-Taff Chemicals, Inc., a corporation incorporated under the laws of the State of Missouri that is registered to do business *30 or in fact does business in the State of New York; Chemical Land Holdings, Inc., a corporation incorporated under the laws of the State of Delaware that is registered to do business or in fact does business in the State of New York; T-H Agriculture & Nutrition Company, Inc., a corporation incorporated under the laws of the State of Delaware that is registered to do business or in fact does business in the State of New York; Thompson Chemical Corporation, a corporation incorporated under the laws of the State of Delaware that is registered to do business or in fact does business in the State of New York; Riverdale Chemical Company, a corporation incorporated under the laws of the State of Delaware that is registered to do business or in fact does business in the State of New York; Elementis Chemicals Inc., a corporation incorporated under the laws of the State of Delaware that is registered to do business or in fact does business in the State of New York; United States Rubber Company, Inc., a corporation incorporated under the laws of the State of New York that is registered to do business or in fact does business in the State of New York; Syntex Agribusiness Inc., a corporation incorporated under the laws of the State of Delaware that is registered to do business or in fact does business in the State of New York; and Syntex Laboratories, Inc., a corporation incorporated under the laws of the State of Delaware that is registered to do business or in fact does business in the State of New York. Some or all of the defendants are alleged to be successors-in-interest, parent companies, subsidiaries or otherwise associated with or related in interest with those defendants which manufactured and supplied the herbicides for use in the Vietnam War from 1961 to 1975 that allegedly caused the damage complained of.

3. Spraying Herbicides in Vietnam

It is contended that the United States in cooperation with the RVN implemented a widespread program to spray herbicides, primarily by aircraft. The stated purposes of the spraying were (1) to defoliate forests and mangroves in order to destroy the vegetative cover used by the Democratic Republic of Vietnam ("DRVN") troops and irregulars calling themselves the National Liberation Front ("NLF") for concealment, and (2) to destroy crops to deprive the DRVN and NLF of food. The spraying is alleged by plaintiffs to have lasted from 1961 until 1975.

4. Herbicides Used

The complaint indicates that various herbicides were used for defoliation and crop destruction in Vietnam. The different types of herbicides were identified by code names referring to the color of the band around the fifty-gallon steel herbicide container used to ship the materials from the manufacturer to the government which took delivery in the United States.

Herbicides included Agent Blue (cacodylic acid), Agent White (a mixture of 80% tri-isopropanol amine salt of 2,4-dichlorophenoxyacetic acid (2,4-D) and picloram), Agent Purple (a formulation of 50% n-butyl ester of 2,4-D, 30% n-butyl ester of 2,4,5-trichlorophenoxyacetic acid (2,4,5-T) and 20% isobutyl ester of 2,4-D), Agent Green (100% n-butyl ester of 2,4,5-T), Agent Pink (60% n-butyl ester of 2,4,5-T and 40% isobutyl ester of 2,4,5-T) and Agent Orange (50-50 mixture of the n-butyl esters of 2,4-D and 2,4,5-T). From 1962 to 1965, Agents Purple, Pink and Green were used. From 1965 to 1970, Agents Orange, White and Blue were used, and from 1970 to 1971, only Agents White and Blue were used. Agent Orange was the most extensively used herbicide.

*31 About two-thirds of the herbicides contained 2,4,5-T. A synthetic contaminant and by-product of the manufacture of 2,4,5-T is 2,3,7,8- tetracholorodibenzo-p-dioxin (TCDD), also known as dioxin. Dioxin is a toxic chemical. A by-product of cacodylic acid, contained in Agent Blue, is arsenic, and a contaminant of picloram, contained in Agent White, is hexachlorobenzene, both of which are toxic.

Phenoxy herbicides such as Agents Orange, Purple, White, Pink and Green are chemical growth regulators that kill certain plants by inducing malfunctions in the biological growth process. Agent Orange was an effective defoliant, used in regions containing a wide variety of woody and broadleaf herbaceous plants, causing discoloration and dropping of leaves. Agent White was especially useful in killing conifers. Agent Blue was used primarily for crop destruction.

Opposition to this herbicide program by scientists and others on the ground that it violated international law and was improper because it would cause harm to persons and land was brought to the attention of the United States beginning in early 1961. The United States officially ended its aircraft herbicide spraying campaign — also referred to as Operation Ranch Hand — in Vietnam in 1971. The complaint contends that unused United States stores of herbicides were provided to and used by the RVN up until its collapse in 1975. Am. Compl., Sept. 10, 2004, at 20.

During the course of United States' use of herbicides in Vietnam, Vietnamese combatants and civilians were directly exposed to herbicides by spraying. In addition to those who were sprayed directly with herbicides, others were exposed indirectly, by coming into contact with contaminated soil, plants, food and water. It has been estimated by plaintiffs that up to four million Vietnamese were exposed to herbicides during the period 1961-1975. Extensive environmental damage with serious ecological effects also allegedly resulted from the herbicide campaign, such as destruction of mangrove forests in southern Vietnam. Residues from herbicides transported, loaded and stored at or near United States bases in Vietnam allegedly led to continuing contamination up to the present of the soil and food chains in the surrounding areas, resulting in civilians' current exposure to herbicides.

5. Supply of Herbicides by Defendants

In the early 1960s, the United States government, pursuant to the Defense Production Act of 1950, entered into a series of fixed-price production or procurement contracts with the defendants. The contracts instructed the defendants not to label the contents of the fifty-gallon herbicide containers except by a color-coded three-inch band, in accordance with the type of herbicide (e.g., orange, purple, etc.). The government bought as much of Agent Orange as defendants were able to produce.

For the purpose of this phase of the case, it can be assumed that all defendants were aware at the time of procurement and production that the herbicides would be sprayed widely in Vietnam pursuant to chemical warfare operations in the form of defoliation and crop destruction; and that they did not object to the intended use of their product. Defendants were aware at the time of procurement and production that dioxin was a by-product and contaminant of 2,4,5-T and that dioxin was toxic to plants, some animals, and possibly humans. The defendants were also aware, it can be assumed, that the herbicides were sprayed in Vietnam in concentrations greater than those recommended for civilian use and without the precautions recommended for civilian use in the United *32 States. It is contended that the defendants were engaged in a conspiracy with the United States in violation of international law to manufacture, sell and supply these toxic herbicides to the United States government for use as chemical weapons in Vietnam during the period of 1961-1975.

6. Harm to Plaintiffs

The summary of the harms allegedly caused to plaintiffs or their progeny is set forth by plaintiffs in brief anecdotal form. The fact that diseases were experienced by some people after spraying does not suffice to prove general or specific causation, i.e., that the harm resulted to individuals because of the spraying. Post hoc ergo propter hoc remains a logical fallacy unacceptable in toxic tort law. Proof of causal connection depends primarily upon substantial epidemiological and other scientific data, particularly since some four million Vietnamese are claimed to have been adversely affected. Anecdotal evidence of the kind charged in the complaint and set out below can not suffice to prove cause and effect.

Availability of necessary scientific information from Vietnamese studies needed for epidemiological analysis has not been furnished to the court. It is not available with the richness of demographic and other data published in the United States. An agreement between the United States and Vietnam provides for some joint efforts to collect relevant data. Memorandum of Understanding, Mar. 10, 2002, between Vietnam and United States, http:// www.niehs.nih.gov/ external/usvcrp/mou31002.pdf. In view of the decision on the law in this memorandum there is no need to pursue this issue at this time. The matter is well summed up in the latest published study of Professor Stellman and her colleagues. It reads in part:

The Vietnam War ended in 1975, yet no large-scale epidemiological study of herbicides and the health of either the Vietnamese population or war veterans has been carried out....

....

Large numbers of Vietnamese civilians appear to have been directly exposed to herbicidal agents, some of which were sprayed at levels at least an order of magnitude greater than for similar U.S. domestic purposes.

Stellman, supra, at 686 (footnotes omitted); see also David Cyranoski, U.S. and Vietnam Join Forces to Count Cost of Agent Orange, 416 NATURE 262 (2002).

The harms allegedly suffered by plaintiffs are described in the complaint as follows:

From April 1966 through July 1971, plaintiff Dr. Phan Thi Phi Phi served as director of a multi-unit mobile hospital stationed at various locations in the provinces of Quang Nam and Quang Ngai in southern Vietnam, which were heavily sprayed with herbicides. She, along with the hospital staff and patients, ingested food and water from areas that were heavily sprayed with herbicides manufactured by the defendants. Allegedly as a result of her exposure to contaminated food and water, she had four pregnancies that ended in miscarriages.

From April 1972 until the end of Vietnam War in 1975, plaintiff Nguyen Van Quy served in the DRVN army repairing communication lines at various southern Vietnam locations. He ingested food and water from areas that had been sprayed with herbicides. He periodically suffered from headaches, exhaustion and skin irritation while he was stationed in southern Vietnam; the skin irritation disappeared after he left Quang Ngai province in 1973 but the headaches and exhaustion continued, *33 worsening over time. In 1983, his first wife's pregnancy ended in a stillbirth; they divorced. His spells of weakness and exhaustion worsened. His second wife, plaintiff Vu Thi Loan, gave birth to two children, plaintiffs Nguyen Quang Trung and Nguyen Thi Thuy Nga, who were born developmentally disabled. In October 2003, Nguyen Van Quy was diagnosed with stomach cancer and liver damage and found to have fluid in the lung. It is alleged that these diseases, conditions and birth defects were caused by his exposure to defendants' herbicides during the Vietnam War.

From 1964 to 1968, plaintiff Dr. Duong Quynh Hoa often traveled to the cities of Bien Hoa and Song Be, which became heavily contaminated with herbicides manufactured by the defendants. From 1968 to 1976, she resided in Tay Ninh province, where she was told several times to cover her head with plastic bags because U.S. aircraft were spraying chemicals. In 1970, she gave birth to a son, Huynh Trung Son. He was born developmentally disabled and suffered from epileptic convulsions; he died from a convulsion at the age of eight months. She had two miscarriages, in July 1971 and January 1972. She was diagnosed with diabetes in 1985 and breast cancer, for which she underwent a mastectomy, in 1998. In 1999, a test revealed relatively high levels of dioxin in her blood. She attributes all these problems to exposure to herbicides manufactured by defendants.

Since 1972, plaintiff Ho Kan Hai, a farmer, has resided in Aluoi (formerly Ashau) Valley in southern Vietnam, near the United States military base in A So where herbicides manufactured and supplied by the defendants were stored, transferred, spilled and sprayed. Her family's diet included local rice, vegetables, manioc, fish and poultry. She had four miscarriages and two of her children died at the age of 16 days and two years, respectively. She also had ovarian tumors which were surgically removed. One of her living children, Nguyen Van Hoang, was born in 1992 with severe physical and mental developmental disabilities. It is alleged that the miscarriages, ovarian tumors and developmental disabilities were caused by ingestion of food and water contaminated by herbicides manufactured by the defendants.

During the Vietnam War, plaintiff Ho Xuan Bat, now deceased, was active with the NLF in Aluoi Valley and observed the spraying of herbicides on several occasions. Herbicides were stored, transferred and spilled at several military bases in the Aluoi Valley region. In 1978, he married plaintiff Ho Thi Le and they continued to live in Aluoi Valley. They cultivated rice and vegetables for their own consumption and to sell in the local market, and consumed wild vegetables, fish and poultry. In 1980, Ho Thi Li gave birth to their first child, who died from a nose infection in 1982. She then had a miscarriage. In 1982, she gave birth to their second child, who died for unknown reasons after 16 days. Ho Xuan Bat's health began to deteriorate: he experienced fatigue, headaches, coughing with blood, chest pain, loss of appetite and weight, fever, and other symptoms. In 2003, he was diagnosed with lung cancer and died from it a year later. Ho Thi Le attributes her miscarriage, the deaths of her two children and her husband's death from lung cancer to their ingestion of food and water contaminated by herbicides manufactured by the defendants.

From 1970 through 1975, plaintiff Nguyen Dinh Thanh served in the RVN army, and was stationed in the Aluoi Valley in southern Vietnam. In 1983, his wife gave birth to their son, Nguyen Muoi, who at some point began to periodically experience *34 severe pain in his mid-section and back. In July 2003, Nguyen Muoi was diagnosed with spina bifida, which was allegedly caused by his father's exposure to herbicides and ingestion of food and water contaminated by herbicides manufactured by defendants.

In 1965, plaintiff Dang Thi Hong Nhut traveled to Cu Chi, an area heavily sprayed with herbicides, and spent approximately one month there visiting her husband. She often noticed a fog or mist and a strong odor in the air, and a white substance on plant leaves. During her time in Cui Chi, she ate wild vegetables, poultry and fish, and drank stream water; she experienced skin rashes. In 1966, she was arrested by the RVN regime and imprisoned in Bien Hoa until 1972. After her release, she lived in areas that had been heavily sprayed with herbicides. She had given birth to a healthy son in 1960 but then had three miscarriages between 1974 and 1980 and terminated a pregnancy in 1977 after an ultrasound examination showed that the fetus had spina bifida and other deformities. She had an intestinal tumor removed in 2002 and a non-functioning thyroid removed in 2003. She alleges that her miscarriages and other health problems were caused by her exposure to herbicides and her ingestion of food and water contaminated by herbicides manufactured by defendants.

From 1973 to 1975, plaintiff Nguyen Thi Thu repaired roads in Nam Dong in southern Vietnam, which was heavily sprayed with herbicides. From 1970 to 1975, her husband was stationed with the DRVN army in Quang Tri, which was heavily sprayed with herbicides. During this period, each consumed wild vegetables and fish and drank stream water. She has had five pregnancies, one resulting in a miscarriage and two resulting in the births of plaintiffs Nguyen Son Linh and Nguyen Son Tra, who were born with congenital birth defects and are paralyzed from the waist down. Her miscarriages and her sons' birth defects were allegedly caused by her and her husband's ingestion of food and water contaminated by herbicides manufactured by defendants.

From 1978 until 1993, plaintiff Vo Thanh Hai served in the Vietnamese army in Nam Dong, an area defoliated by herbicides. He and his family resided in Nam Dong and they cultivated rice and vegetables for their own consumption. His wife, plaintiff Nguyen Thi Hoa, miscarried in 1986. She gave birth to their son, plaintiff Vo Thanh Tuan Anh, in 1987. In 2001, Vo Thanh Tuan Anh began experiencing fatigue and dizzy spells; he was diagnosed with osteosarcoma and treated with surgery, radiotherapy and chemotherapy. Vo Thanh Hai was diagnosed with Hodgkins Disease. Both father and son experience chronic fatigue and have difficulty performing routine activities requiring physical exertion. Their diseases were allegedly caused by their exposure to herbicides and their ingestion of food and water contaminated by herbicides manufactured by defendants.

From 1969 to 1973, plaintiff Le Thi Vinh repaired roads in Quang Tri, which was heavily sprayed with herbicides. She often saw mist in the air, ate wild vegetables and drank stream water. After the war, she began to experience fatigue, joint pain and swollen glands and suffered two miscarriages; she had to stop working in 1986. In 2002, she was diagnosed with lung cancer, which persists even though several tumors were removed. She suffers from chest pain, breathing difficulty and fluid in the lungs. Her cancer and miscarriages were allegedly caused by her exposure to herbicides and her ingestion of food and water contaminated by herbicides manufactured by defendants.

*35 In 1989[sic], plaintiff Nguyen Thi Nham, her husband and her son, plaintiff Nguyen Minh Chau, moved to Bien Hoa in southern Vietnam. Bien Hoa was exposed to herbicides due to spraying, storage, transfer and spillage of herbicides at a United States military air base in the city. They regularly cultivated vegetables and poultry for their own consumption and regularly ate fish and rice purchased from the local market. Nguyen Thi Nham's first baby was born prematurely and died after one month, her second was born with defective intestines and died after ten days, and her third, Nguyen Minh Chau, was born in 1981[sic] and suffers from chloracne. In 1999 tests revealed abnormally high levels of dioxin in the blood of Nguyen Thi Nham and Nguyen Minh Chau. In 2003, Nguyen Thi Nham began to experience serious headaches and fatigue. She was diagnosed with diabetes. It is alleged that their diseases and the deaths of the other children were caused by their ingestion of food and water contaminated by herbicides manufactured by defendants.

In 1966, plaintiff Nguyen Thi Thoi and her husband moved to Bien Hoa, which was exposed to herbicides due to spraying, storage, transfer, and spillage at a local United States military air base. They regularly cultivated and ate local vegetables, poultry, fish and rice. In 1967, she gave birth to her first child, who died at the age of three after high fever and convulsions. She subsequently had a miscarriage. She suffers from frequent headaches, fatigue and joint pain. In 2000, a test revealed that she had an abnormally high level of dioxin in her blood. She alleges that her condition, miscarriage and the death of her child were caused by her ingestion of food and water contaminated by herbicides manufactured by defendants.

From 1961 and throughout the war, plaintiffs Dr. Nguyen Long Van and Tong Thi Tu, his wife, each served as medics with the NLF, mostly in areas which were heavily sprayed with herbicides. Dr. Nguyen Long Van was allegedly sprayed directly with herbicides on at least ten occasions. Both ate wild vegetables, rice, manioc and poultry and drank stream water exposed to herbicides. Tong Thi Tu gave birth to a healthy daughter in each of 1966 and 1974. She also gave birth in 1967 to a son who died from a lung infection after one day, in 1968 to a son with a deformed head who died after a few hours, in 1969 to a son with urinary system complications who died after one day and in 1970 to plaintiff Nguyen Thang Loi, who was born with deformed feet, is developmentally disabled and is dependent on his parents. She was diagnosed with diabetes in 1997. Dr. Nguyen Long Van was diagnosed with a prostate tumor in 2002 and diabetes in 2003. Alleged is that their diseases, their children's deaths and their sons' birth defects were caused by their exposure to herbicides manufactured by defendants.

7. Legal Basis for Claims

It is alleged that defendants' actions have violated, and plaintiffs' causes of action arise from, the following laws, treaties, conventions and resolutions, which constitute specific examples of the applicable law of nations or customary international law, as well as from domestic national and state laws:

a. Alien Tort Statute ("ATS"), 28 U.S.C. § 1350 ;

b. Torture Victim Protection Act ("TVPA"), 28 U.S.C. § 1350 note;

c. War Crimes Act, 18 U.S.C. § 2441 ;

d. 1925 Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare;

*36 e. Article 23 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed October 18, 1907;

f. Geneva Convention relative to Protection of Civilian Persons in Time of War, signed at Geneva on August 12, 1949;

g. Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis and Charter of the International Military Tribunal at Nuremberg, signed and entered into force on August 8, 1945;

h. United Nations Charter, signed at San Francisco on June 26, 1945, and entered into force on October 24, 1945;

i. United Nations General Assembly Resolution No. 2603-A (1969);

j. Customary international law;

k. Common law of the United States of America;

l. Laws of Vietnam;

m. Common law of the State of New York, including but not limited to product liability, assault and battery, negligence, recklessness, intentional infliction of emotional distress, negligent infliction of emotional distress, civil conspiracy, unjust enrichment and public nuisance.

Class certification is sought. In view of the dismissal of all individual claims, there is no reason to consider the motion for class certification.

8. Theories

a. War Crimes

It is contended that the acts of defendants adversely affecting plaintiffs constitute violations of the laws and customs of war, also known as war crimes, which prohibit: the employment of poison or poisoned weapons or other weapons calculated to cause superfluous injury or unnecessary suffering; the wanton destruction of cities, towns, villages or the natural environment, or devastation not justified by military necessity; the use of biological or chemical agents of warfare, whether gaseous, liquid or solid, employed because of their direct toxic effects on people, animals or plants; and the poisoning of food and water supplies in the course of war. Leaders, organizers, facilitators, conspirators and accomplices participating in the formulation and execution of these acts are claimed to be responsible for all acts performed by any person in the execution of this plan. The acts described allegedly constitute war crimes in violation of the ATS, TVPA, customary international law, the common law of the United States, the common law of the State of New York, the laws of Vietnam, and international treaties, agreements, conventions and resolutions.

b. Genocide

It is contended that the acts against plaintiffs constitute genocide, in violation of customary international law which prohibits the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; or imposing measures intended to prevent births within the group. Leaders, organizers, facilitators, conspirators and accomplices participating in the formulation and execution of these acts are claimed to be responsible for all *37 acts performed by any person in execution of such plan.

c. Crimes Against Humanity

It is contended that the acts against plaintiffs constitute crimes against humanity in violation of customary international law, which prohibits inhumane acts of a very serious nature such as willful killing and torture and other inhumane acts committed as part of a widespread or systematic attack against any civilian population or persecutions on political, racial or religious grounds. Leaders, organizers, facilitators, conspirators and accomplices participating in the formulation and execution of these acts are responsible for all acts performed by any person in execution of such plan.

d. Torture

It is contended that the acts constitute torture of the plaintiffs, in violation of the TVPA, treaties and customary international law, because they were placed in great fear for their lives, were caused to suffer severe physical and psychological pain and suffering, and were subjected to extrajudicial killing, the threat of severe physical pain and suffering and the threat of imminent death. The torture of the plaintiffs was allegedly inflicted deliberately and intentionally for purposes which included punishing the victims for acts they or third persons committed or were suspected of having committed, and intimidating or coercing the victim or third persons. The torture was also claimed to have been intentionally inflicted for discriminatory reasons. Leaders, organizers, facilitators, conspirators and accomplices participating in the formulation and execution of these acts are said to be responsible for all acts performed by any person in execution of a plan to carry out these acts.

In addition to the above theories based on international law, the following claims are based on domestic tort law of the United States, Vietnam or New York.

e. Assault and Battery

Plaintiffs were allegedly placed in great fear for their lives, causing them to suffer severe physical and psychological abuse and agony because of defendants' acts which were willful, intentional, wanton, malicious and oppressive in conjunction with the acts of the United States. This allegedly constituted assault and battery, actionable under the laws of the United States, Vietnam and New York.

f. Intentional Infliction of Emotional Distress

Defendants are alleged to have committed outrageous conduct in violation of all normal standards of decency without privilege or justification, intentionally and maliciously. This conduct allegedly constitutes the intentional infliction of emotional distress.

g. Negligent Infliction of Emotional Distress

Defendants, it is claimed, carelessly and negligently inflicted emotional distress through wanton and reckless conduct in manufacturing and supplying herbicides contaminated with dioxin for use in herbicidal warfare. As a direct result of defendants' wrongful acts, it is contended, plaintiffs and plaintiffs' immediate family members have suffered and will continue to suffer significant physical injury, pain and suffering and extreme and severe mental anguish and emotional distress. This conduct allegedly constituted the negligent infliction of emotional distress.

*38 h. Negligence

Defendants are charged with having failed to use ordinary or reasonable care in order to avoid injury to plaintiffs. Defendants' negligence was allegedly a cause of injury, damage, loss or harm to plaintiffs and their next of kin. This constituted, according to the pleadings, negligence.

i. Wrongful Death

Now deceased Huynh Trung Son, child of plaintiff Duong Quynh Hoa, and now deceased Ho Xuan Bat, husband of plaintiff Ho Thi Le, died, it is charged, as a direct result of the defendants' acts and omissions. As a result of their deaths, plaintiffs Duong Quynh Hoa and Ho Thi Le have allegedly sustained pecuniary damage from loss of society, comfort, attention, services and support of the decedents because of defendants' conduct. Plaintiffs Duong Quynh Hoa and Ho Thi Le seek relief on behalf of their deceased family members. These wrongful deaths are claimed to be actionable.

j. Strict Product Liability

The negligence of the defendants, their servants, employees and agents consisted, according to the complaint, in manufacturing and supplying the herbicides without making proper and sufficient tests to determine their dangers and contraindications, in that defendants knew, or in the exercise of reasonable diligence, should have known that the herbicides were unsafe and unfit for use by reason of the dangerous effects to human health and the environment, in negligently failing to adequately warn the public and the United States and RVN governments of the dangers and contraindications of the herbicides, in failing to properly inspect the herbicides, and in concealing the dangers and contraindications of the herbicides from the public and from the United States and RVN governments in order to profit from the manufacture and supply of the herbicides. It is contended that defendants are liable jointly and severally to the plaintiffs under the doctrine of strict product liability.

k. Public Nuisance

According to plaintiffs, defendants' acts and omissions constituted a public nuisance, and were injurious to the health and well-being of the plaintiffs, members of the plaintiffs' organization, members of the plaintiffs' families as well as neighbors and guests of plaintiffs with no adequate remedy at law, entitling them to money damages and environmental remediation for public nuisance.

l. Unjust Enrichment

As a result of what is claimed to have been defendants' unjust enrichment, plaintiffs say they have been damaged in an amount to be determined upon an accounting of the profits received by defendants for the manufacture and supply of herbicides used in the Vietnam War. Interest is sought from the date of the first procurement contract.

m. Injunctive and Declaratory Relief

Plaintiffs seek both injunctive and declaratory relief to prevent future additional harm, as by cleaning up geographic areas now contaminated by residues of the sprayed herbicides.

B. Motions by Defendants

1. Motions under Rule 12(b)(6) and Rule 56

Defendants move under Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the complaint for failure to state a claim upon which relief can be granted. They also move under Rule 56 for partial *39 summary judgment to dismiss all claims on the ground of statute of limitations. At the hearing defendants and plaintiffs agreed that the court could consider the motion under Rule 12(b)(6) as a motion for summary judgment against all the domestic law claims, but not against the international law claims. They also agreed that the extensive record assembled by defendants and plaintiffs in the Isaacson v. Dow Chemical Company, Stephenson v. Dow Chemical Company and related cases of United States veterans could be relied upon by the court on the summary judgment motions. As already stated in Isaacson v. Dow Chemical Company, 304 F.Supp.2d 404 (E.D.N.Y.2004), Isaacson v. Dow Chemical Company, 344 F.Supp.2d 873 (E.D.N.Y.2004), and above in Part I.A., all domestic law claims by veterans were dismissed under Rule 56; the motion for dismissal under Rule 12(b)(6), expanded to Rule 56, as to the Vietnamese plaintiffs' domestic law claims is granted for the same reasons. The motion for partial summary judgment on statute of limitations grounds is denied. See infra Part VIII.D.

2. Law Applicable to Motions

a. Rule 56

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 , 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986).

The party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion," and identifying which materials "it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323 , 106 S.Ct. 2548 . The burden then shifts to the nonmoving party to "`set forth specific facts showing that there is a genuine issue for trial.'" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 , 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986) (quoting Rule 56(e) of the Federal Rules of Civil Procedure).

All inferences are to be drawn from the underlying facts in the light must favorable to the party opposing the summary judgment motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 , 106 S.Ct. 1348 , 89 L.Ed.2d 538 (1986). The mere existence of some peripheral factual disputes will not defeat an otherwise properly supported motion for summary judgment. Anderson, 477 U.S. at 247 , 106 S.Ct. 2505 . "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248 , 106 S.Ct. 2505 .

b. Rule 12(b)(6)

A defendant may move for dismissal for "failure to state a claim upon which relief can be granted." FED.R.CIV.P. 12(b)(6). The moving party has the burden of proving "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 , 78 S.Ct. 99 , 2 L.Ed.2d 80 (1957); see also King v. Simpson, 189 F.3d 284, 287 (2d Cir.1999). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 , 94 S.Ct. 1683 , 40 L.Ed.2d 90 (1974). A court must accept the plaintiff's *40 factual allegations as true and draw all reasonable inferences in plaintiff's favor. King, 189 F.3d at 287 .

In reviewing a Rule 12(b)(6) motion, the task of the court "is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir.1980). When material outside the complaint is presented to and not excluded by the court, the motion to dismiss will usually be treated as one for summary judgment and disposed of in accordance with Rule 56 of the Federal Rules of Civil Procedure. FED.R.CIV.P. 12(b); see also Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002). But see infra Part IV.B.3. "A complaint is deemed to include any written instrument attached to it as an exhibit, materials incorporated in it by reference, and documents that, although not incorporated by reference, are `integral' to the complaint." Sira v. Morton, 380 F.3d 57, 67 (2d Cir.2004) (citations omitted). A document is "integral" to the complaint if the complaint "relies heavily upon its terms and effect." Chambers, 282 F.3d at 153 (internal quotation marks omitted). "[A] plaintiff's reliance on the terms and effect of a document in drafting the complaint is a necessary prerequisite to the court's consideration of the document on a dismissal motion; mere notice or possession is not enough." Id. (emphasis in original).

3. Context

In considering 12(b)(6) motions directed at the pleadings, the court should place allegations and supporting and opposing materials in context of the total dispute. It may take judicial notice of undisputed and undisputable facts revealed in its own files. See Leonard F. v. Israel Disc. Bank of New York, 199 F.3d 99, 107 (2d Cir.1999) ("In adjudicating a Rule 12(b)(6) motion, a district court must confine its consideration to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.") (internal quotation marks omitted); Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1092 (2d Cir.1995) ("We may consider all papers and exhibits appended to the complaint, as well as any matters of which judicial notice may be taken."). Much of the material considered in connection with the motion for summary judgment directed to the domestic law claims is helpful in understanding the pleadings on the international law claims. This includes the entire history of the Agent Orange litigation and such matters as the way herbicides were manufactured and used. The nature of the spraying and contents of the sprays used are based upon all available information available viewing the facts which are not disputable most favorably to plaintiffs. See discussion supra Part II.

A "herbicide" is an agent used to destroy or inhibit plant growth, while a "poison" is a substance that through its chemical action kills, injures or impairs an animal organism. A highly toxic herbicide may be poisonous and poisons may harm plants. Characterization as both, or as one or the other, depends upon design and degree. Cf., e.g., Wax v. Aventis Pasteur Inc., 240 F.Supp.2d 191 (E.D.N.Y.2002) (noting that thimerosal with mercury in a vaccine for children did not change a "vaccine" into a poison); Jones v. Lederle Labs., 785 F.Supp. 1123 (E.D.N.Y.1992) (discussing content of vaccine and granting defendant summary judgment as a matter of law); see also 21 C.F.R. § 165.110 (2005) (discussing limits on parts of arsenic and dioxin in bottled water); 29 C.F.R. § 1910.1018 (2005) (discussing *41 limits on parts of arsenic in air to which employees are exposed). Regular and sustained total exposure of employees in industrial plants containing such toxic substances as dioxin or asbestos in the air is often orders of magnitude greater than that experienced in the transient exposure of other people; where an explosion in a chemical plant involves heavy doses of dioxin the huge concentrations and exposure are not comparable to that alleged in the instant case. Cf. Mancuso v. Consol. Edison Co. of N.Y., 967 F.Supp. 1437, 1445 (S.D.N.Y.1997) (pointing out that "[a] central tenet of toxicology is that the dose makes the poison") (internal quotation marks and citation omitted); CASARETT & DOULL'S TOXICOLOGY: THE BASIC SCIENCE OF POISONS 3 (Curtis D. Klaassen et al., eds., 3d ed.1986) (noting, as Paracelsus explained in the sixteenth century, "[a]ll substances are poisons; there is none which is not a poison. The right dose differentiates a poison and a remedy." (citations omitted)). Herbicides in Vietnam were sprayed as small droplets, not as a gas.

As already indicated in Part II, the spray applied contained on average in the order of 10 parts per million (p.p.m.) of dioxin, spread at the rate of approximately 3 gallons per acre by airplanes. Dioxin is a poison. The amount of dioxin in Agent Orange and other herbicides used that actually landed on the ground was attenuated by its collection in trees, wind dispersal and deterioration in the sunlight so that in the order of less than 10 p.p.m. can be estimated as landing on people, fields and water. Once the herbicides landed at the ground level, it can be assumed for the purposes of this discussion, as plaintiffs contend, to have had a long half-life, the length of which is unclear. Given these circumstances it is concluded for 12(b)(6) purposes that the Agent Orange touched the ground or people in the order of approximately ≥999,990 herbicide or benign substance, and 10 dioxin.

Agent Orange and the other agents used, see Table I supra Part II, for the purposes of this 12(b)(6) motion, should be characterized as herbicides and not poisons. While their undesired effects may have caused some results analogous to those of poisons in their impact on people and land, such collateral consequences do not change the character of the substance for present purposes.

4. Different Treatment of Veteran and Vietnamese Plaintiffs

During the course of the argument the government suggested that it would be unfair to apply the government contractor's defense to the veteran plaintiffs' claims, but not to the Vietnamese plaintiffs' claims.

It may seem anomalous that because of the government contractor defense members of the United States armed forces may be theoretically entitled to fewer substantive rights than citizens of a foreign country — in this case, the Vietnamese allegedly affected by Agent Orange and other herbicides. Cf. U.S. Statement of Interest at 1 n.2 (stating that the analysis of the government contractor defense in Isaacson v. Dow Chem. Co., 304 F.Supp.2d 404, 424-39 (E.D.N.Y.2004), should apply to Vietnamese plaintiffs' state law claims and that "[i]t would be anomalous indeed if American veterans were precluded from bringing such state law claims, but aliens, including former soldiers in an enemy army, were permitted to assert such claims"). While citizens of the United States are themselves possessors of rights established through international law, the ATS applies only to a civil action by an alien. It reads in full: "The district courts shall have original jurisdiction of any civil *42 action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." 28 U.S.C. § 1350 (2000) (emphasis added); see also infra Part VII.

The question of whether this country can cut off litigation by its own citizens on the basis of a defense not available against foreigners raises an interesting constitutional domestic and international equal protection issue. The Nuremberg case of United States v. Alstoetter (The Justice Case) held that a government and its personnel and other entities working for it, could be guilty of international law violations against its own nationals. See 3 TRIALS OF WAR CRIMINALS 954, 973 (photo. reprint 1997) (1951) ("[A]cts committed by Germans against other Germans are punishable as crimes under Law No. 10 ...." (quoting General Telford Taylor, Chief of Counsel for the prosecution, in United States v. Flick )). This question need not be decided now.

It is appropriate to point out that United States nationals who served in Vietnam in our armed forces are not being deprived of the protection of United States laws. As a practical matter, our veterans' protections are much greater than any the Vietnamese might possess: the United States has by statute arranged to compensate members of its armed forces arguably exposed to Agent Orange by providing extensive and generous administrative protections through Veterans Administration benefits. See, e.g., Agent Orange Act of 1991, Pub.L. No. 102-4, 105 Stat. 111 (codified as amended at 38 U.S.C.A. § 1116 (2002)); 38 C.F.R. § 3.309 (e) (2004) (listing diseases associated with exposure to certain herbicides that are deemed to be service-related); 38 C.F.R. § 3.816 (2004) (listing diseases for which the Secretary of Veterans Affairs has established a presumption of connection with Agent Orange exposure for Vietnam veterans); McMillan v. Togus Reg'l Office, Dep't of Veteran Affairs, 294 F.Supp.2d 305 (E.D.N.Y.2003) (describing scientific studies on links between diseases and Agent Orange exposure); National Veterans Legal Services Program, Self-Help Guide on Agent Orange, Advice for Vietnam Veterans and their Families (2000 & Supp.2003).

Recall too that the United States veterans of the Vietnam War suing in Stephenson v. Dow Chemical Company, Isaacson v. Dow Chemical Company and other like cases, and their families, were entitled under the Agent Orange settlement and disbursement plan of this court to the protection of what amounted to a substantial term policy providing compensation and services to every veteran arguably exposed to herbicides in Vietnam who became ill. Had any of the present veteran plaintiffs become ill during the many years some 300 million dollars was being expended on behalf of the class, they would have received the same compensation as those who discovered their injury before the funds obtained in the original Agent Orange litigation were exhausted. A plan providing protection for the lifetimes of all Vietnam veterans would have resulted in very low individual recoveries because it would have had to cover diseases that tended to increase as peer groups age. This would have enormously increased the number of claims, and attenuated even further the probability that the later diseases were caused by Agent Orange rather than by pathogens, toxic chemicals, or other factors to which both veteran and the non-veteran populations were equally exposed. Compare In re Joint E. & S. Dists. Asbestos Litig., 878 F.Supp. 473 , 498-509 (E.D.N.Y.1995) (discussing prediction of future claims against the trust, which covers asbestos injury claims up to 2049), aff'd in part, vacated in part by 78 F.3d 764 (2d Cir.1996), with Isaacson v. *43 Dow Chem. Co., 304 F.Supp.2d 404, 421 (E.D.N.Y.2004) (noting that claims were paid by the settlement fund up to June 30, 1997, with a total distribution to veterans for claimed diseases of $196,595,085, and on behalf of their families of $71,306,758).

V. Position of the Government Opposing Plaintiffs' Claims

Because this case implicated restrictions on the United States' conduct of its international relations, exercise of its military powers, and capacity to procure material for its armed forces, the court invited the government to express its views. See Vietnam Ass'n for Victims of Orange/Dioxin v. Dow Chem. Co., 327 F.Supp.2d 198 (E.D.N.Y.2004). The government responded to the court's suggestion. U.S. Statement of Interest; see also 28 U.S.C. § 517 (2000) ("The Solicitor General, or any officer of the Department of Justice, may be sent by the Attorney General to any State or district in the United States to attend to the interests of the United States in a suit pending in a court of the United States, or in a court of a State, or to attend to any other interest of the United States.").

The extensive "Statement of Interest of the United States," dated January 12, 2005, is summed up by the government as follows:

At bottom, this litigation seeks to challenge the means by which the United States prosecuted the Vietnam war, and ineluctably draws into issue the President's constitutional Commander in Chief authorities and invites impermissible second-guessing of the Executive's war-making decisions.

... [T]he Executive branch considered — and repeatedly rejected — the contention that the use of chemical herbicides in Vietnam constituted a violation of the laws of war. Based in part on this determination, President Kennedy himself authorized the use of herbicides, and the United States requisitioned the chemicals at issue from the defendant manufacturers. In light of this background, plaintiffs' international law claims should be dismissed for a variety of reasons.

First, adjudication of plaintiffs' international law claims would require this Court to pass upon the validity of the President's decisions regarding combat tactics and weaponry, made as Commander in Chief of the United States during a time of active combat. Such judicial review would impermissibly entrench upon the Executive's Commander in Chief authority, and run afoul of basic principles of separation of powers and the political question doctrine.

Second, plaintiffs lack a cause of action to assert the international law claims set forth in the Amended Complaint. None of the statutes or treaties relied upon by plaintiffs provide them with a cause of action. Moreover, the Amended Complaint fails to state a cognizable claim for a violation of the law of nations under the Alien Tort Statute ("ATS"), 28 U.S.C. § 1350 , and the Supreme Court's recent decision in Sosa v. Alvarez-Machain, 542 U.S. 692 , 124 S.Ct. 2739 , 159 L.Ed.2d 718 (2004). Because the use of herbicides in war was not unlawful — let alone universally and specifically proscribed — the Court should not recognize a federal common law cause of action seeking damages for such conduct.

Third, because the Executive branch considered the very questions of customary international law now before the Court, expressly determined that the conduct at issue did not violate such law, and the President himself acted based upon that determination pursuant to his *44 constitutional authority as Commander in Chief, the President's actions displace any contrary international legal norm as a rule of decision in this case. Because these controlling executive acts preempt the application of customary international law in the domestic legal system, the Court should reject any claims based upon such law.

Fourth, were the Court to address plaintiffs' international law claims, it should give deference to the Executive's interpretation of the relevant treaties and customary international law. The Executive branch has significant expertise in the formulation and interpretation of both treaties and customary international law, which this Court should accord the substantial deference it is traditionally afforded. That interpretation has consistently been that the United States' use of chemical herbicides in Vietnam did not violate any applicable rules of international law.

Finally, even if the Court were to determine that plaintiffs have stated a cognizable claim for a violation of international law, the government contractor defense should be held applicable to those claims. All of the rationales set forth by the Supreme Court for the adoption of the defense as a matter of federal common law apply to the case at bar, and international legal principles do not foreclose its application to claims allegedly founded upon customary international law.

For all of these reasons, the Court should dismiss plaintiffs' international law claims.

U.S. Statement of Interest at 1-3. These contentions are discussed at appropriate points below.

VI. Insufficiency of Plaintiffs' Domestic Law and Equitable Claims

Claims (e) assault and battery; (f) intentional infliction of emotional distress; (g) negligent infliction of emotional distress; (h) negligence; (i) wrongful death; and (j) strict product liability, are each tort claims arising from acts by defendants within the United States. They are each subject to the government contractor defense.

The government contractor defense provides that liability for design defects in military equipment cannot be imposed on a government contractor by state law if "(1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States." Boyle v. United Techs. Corp., 487 U.S. 500, 512 , 108 S.Ct. 2510 , 101 L.Ed.2d 442 (1988). See also infra Part IX on non-applicability of government contractor defense to international law claims.

Defendants moved for summary judgment against all plaintiffs in the instant case on domestic law claims based upon, inter alia, the government contractor defense. See Defs.' Mem. Supp. Mot. for Summ. J. Based on the Government Contractor Defense, Nov. 2, 2004, at 5 (listing Vietnam Ass'n for Victims of Agent Orange/Dioxin v. Dow Chem. Co. (No. 04-CV-400) as one of the cases moved against); Reply Mem. of Law in Supp. of Defs.' Mot. For Summ. J. Based Upon the Government Contractor Defense, Feb. 8, 2005; supra Part IV.B.1. That defense has been established for summary judgment purposes in part in the instant case and in whole in veterans' cases that were pending concurrently with this one. See Isaacson v. Dow Chem. Co., 304 F.Supp.2d 404 (E.D.N.Y.2004) (granting summary judgment to defendants based on government *45 contractor defense but staying decision pending further discovery). The Vietnamese plaintiffs, like plaintiffs from the United States, are subject to that defense; it covers all domestic state and federal substantive law claims. Claims (e) to (j) are each barred by the government contractor defense and are dismissed.

A number of claims are phrased in terms of equitable rather than legal grounds for relief. They are (k) public nuisance; ( l ) unjust enrichment; and (m) injunctive and declaratory relief. These claims are based on internal, domestic United States law. In their gravamen they are legal in nature even though they seek equitable relief. They are subject to the same government contractor defense as are the explicit legally based tort claims. Claims (k), ( l ) and (m) are dismissed.

As already noted, plaintiffs seek, among other remedies, injunctive relief compelling defendants to abate and remediate ongoing health hazards allegedly caused by the United States military's environmental contamination of the soil and food chains in vast regions of Vietnam. Such injunctive relief is wholly impracticable. Furthermore, it could compromise Vietnam's sovereignty.

Injunctive relief is granted "not as a matter of right but in the exercise of a sound judicial discretion." Morrison v. Work, 266 U.S. 481, 490 , 45 S.Ct. 149 , 69 L.Ed. 394 (1925). In the exercise of that discretion, district courts may properly refuse to grant injunctive relief that is impracticable or otherwise contrary to the public interest. See, e.g., Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 , 102 S.Ct. 1798 , 72 L.Ed.2d 91 (1982) ("In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction."); O'Shea v. Littleton, 414 U.S. 488, 500 , 94 S.Ct. 669 , 38 L.Ed.2d 674 (1974) ("A federal court should not intervene to establish the basis for future intervention that would be ... intrusive and unworkable.").

Requests for extraterritorial injunctions often raise serious concerns for sovereignty and enforceability which compel denial. See generally Vanity Fair Mills, Inc. v. T. Eaton Co., 234 F.2d 633, 647 (2d Cir.1956). The power to enjoin activities on foreign soil "should be exercised with great reluctance when it [would] be difficult to secure compliance ... or when the exercise of such power is fraught with possibilities of discord and conflict with the authorities of another country." Id. (holding that Lanham Act did not apply to actions committed by foreign citizens acting under presumably valid trademarks in a foreign country); see also McKusick v. City of Melbourne, 96 F.3d 478, 488 (11th Cir.1996) ("'There is not an absolute right to an injunction in a case in which it would impair or affront the sovereign powers or dignity of a state or a foreign nation.'" (quoting Hoover v. Wagner, 47 F.3d 845, 850 (7th Cir.1995))).

In Bano v. Union Carbide Corp ., an individual and three organizations sued Union Carbide and its former president for personal injuries and property damage allegedly caused by the corporation's pollution of groundwater with toxic chemicals and by-products that were dumped, stored or abandoned at its plant in India. The district court denied their request for an injunction to remediate soil and groundwater contamination as "[i]nfeasible and [i]nappropriate." Bano v. Union Carbide Corp ., Civ. No. 99-11329, 2003 WL 1344884 , at *8 (S.D.N.Y. Mar.18, 2003), aff'd in part, rev'd in part by 361 F.3d 696 (2d Cir.2004). The court noted that the former plant site is "located over 8,000 *46 miles away from the United States" and now is owned and controlled by the Indian State of Madhya Pradesh, and concluded that "[o]rdering remediation ... would be ineffectual as [defendants] have no means or authority to carry it out." Id. Moreover, although the Indian government apparently was willing to "cooperate with any measures imposed," the court stated that it did not wish "to direct a foreign government as to how that state should address its own environmental issues," and that it "would have no control over any remediation process ordered." Id.

In affirming the district court's dismissal of the remediation claim on an abuse-of-discretion standard, the Court of Appeals for the Second Circuit noted that "`[t]he practicability of drafting and enforcing an order or judgment for an injunction is one of the factors to be considered in determining the appropriateness of injunction against tort,'" Bano v. Union Carbide Corp., 361 F.3d 696, 716 (2d Cir.2004) (quoting RESTATEMENT (SECOND) OF TORTS § 943 (1979)), and that "injunctive relief may properly be refused when it would interfere with the other nation's sovereignty," id.

Ordering abatement and remediation in the present case would be far more "[i]nfeasible and [i]nappropriate" than in Bano. The remediation sought involves areas far larger and indeterminate than the discrete plant site and surrounding property in Bano. The court would be required to oversee complex environmental studies and make conclusive findings about contamination caused by chemicals used many decades ago in large regions of a foreign country. Enforcement would necessitate the administration of standards and procedures for the cleanup of lands over which the court has no jurisdiction. These difficulties make injunctive relief wholly impracticable. Injunctive relief is denied.

VII. Application of Sosa v. Alvarez-Machain

In Sosa v. Alvarez-Machain, 542 U.S. 692 , ___ - ___, 124 S.Ct. 2739, 2761-62 , 159 L.Ed.2d 718 (2004), the Supreme Court cautioned that "courts should require any claim [under the ATS, 28 U.S.C. § 1350 ,] 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 [the Court has] recognized," such as violation of safe conduct, infringement of the rights of ambassadors, and piracy. Emphasizing its narrow view of the ATS, it declared "Congress intended the ATS to furnish jurisdiction for a relatively modest set of actions alleging violations of the law of nations." Id. 124 S.Ct. at 2759 .

The Court stressed "judicial caution when considering the kinds of individual claims that might implement the jurisdiction conferred by" the ATS, while acknowledging "that a judge deciding in reliance on an international norm will find a substantial element of discretionary judgment in the decision." Id. at 2762. It noted that "the possible collateral consequences of making international rules privately actionable argue for judicial caution," and found "reason for a high bar to new private causes of action for violating international law" in the risk of adverse foreign policy consequences for the United States "impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs." Id. at 2763. Stressing "great caution," it declared, "the judicial power should be exercised on the understanding that the door is still ajar subject to vigilant doorkeeping, and thus open to a narrow class of international norms today." Id. at 2764. It wrote: "[W]e are persuaded that federal courts should not recognize private claims under *47 federal common law for violations of any international law norm with less definite content and acceptance among civilized nations than the historical paradigms familiar when § 1350 was enacted." Id. at 2765. It added: "And the determination whether a norm is sufficiently definite to support a cause of action should (and, indeed, inevitably must) involve an element of judgment about the practical consequences of making that cause available to litigants in the federal courts." Id. (footnotes omitted).

Based on these standards, the Sosa Court categorically rejected the plaintiff's argument that a binding customary norm of international law prohibited "arbitrary" detention in a case where the plaintiff was illegally detained in Mexico for less than one day and illegally brought against his will into the United States to transfer his custody to lawful authorities for a criminal prosecution. Id. at 2768-69. Given the cautions of Sosa , plaintiffs' substantive claims must be viewed skeptically.

The government urges the court to consider Sosa's warning about practical consequences as an independent reason for dismissal. It declares:

In addition to carefully cabining the Court's discretion to recognize new federal common law causes of action based on international law, Sosa also recognized that the "determination whether a norm is sufficiently definite to support a cause of action, should (and, indeed, inevitably must) involve an element of judgment about the practical consequences of making that cause available to litigants in federal courts." 542 U.S. at ___ , 124 S.Ct. at 2766 . This is a paradigmatic case in which the "practical consequences" of recognizing a cause of action counsel strongly against such a result.... [P]laintiffs' claims are based upon a challenge to the President's decision, as Commander in Chief, to use chemical herbicides to advance the war in Vietnam. The practical consequences of recognizing such a cause of action are extraordinarily problematic for several reasons.

....

First, allowing plaintiffs' claims to proceed would interfere with the United States' ongoing bilateral relationship with Vietnam, particularly as it relates to the effect of chemical herbicides used in Vietnam. That relationship has been characterized by measured and specific agreement on various issues relating to the war and its aftermath. Allowing claims such as plaintiffs' to proceed would serve to undermine and upset that relationship by usurping the authority to address issues relating to the use of chemical herbicides from the Executive Branch, where such authority properly resides.

The United States and Vietnam have entered into two agreements relevant to the matters here at issue. First, in 1995, the two countries entered into an Agreement Between the Government of the United States of America and the Government of the Socialist Republic of Vietnam Concerning the Settlement of Certain Property Claims ("1995 Property Agreement"). See 34 I.L.M. 685 (1995). The 1995 Property Agreement settled claims of nationals of both parties relating to the taking or expropriation of property, and addressed the disposition of blocked Vietnamese assets in the United States. Id. Notably, the 1995 Property Agreement did not address claims for war reparations by either country.

Subsequently, in 2002, the United States, represented by the Department of Health and Human Services, entered into a Memorandum of Understanding *48 with Vietnam, represented by the Vietnamese Ministry of Science, Technology and Environment. See Memorandum of Understanding ("MOU"), March 10, 2002, available at . The MOU addresses future cooperation and collaboration between scientists in both countries with respect to research regarding the health and environmental effects of dioxin. Id. The MOU was the result of years of diplomatic negotiations with the Vietnamese regarding the use of chemical herbicides containing dioxin during the war. It reflects the full extent of the United States' willingness to engage with Vietnam on the question of chemical herbicides at this time.

Recognizing a cause of action for the international law cum federal common law claims asserted by plaintiffs here would serve to undermine the Executive's conduct of the Nation's foreign relations with Vietnam. As demonstrated by both the 1995 Property Agreement and the MOU, to date, the United States has not agreed to provide reparations to the Vietnamese for the use of chemical herbicides during the war. Allowing plaintiffs' claims here to proceed would circumvent and defeat this Executive branch determination, and allow the plaintiffs to achieve via litigation that which their government failed to achieve via diplomacy. It is precisely such "potential implications for the foreign relations of the United States" that "should make courts particularly wary" of recognizing causes of actions such as plaintiffs', which have the effect of "impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs." Sosa, 542 U.S. at ___ , 124 S.Ct. at 2763 . Where, as here, the precise subject matter at issue has been the subject of diplomatic negotiations, Sosa's cautionary notes are particularly applicable, and no federal common law cause of action should be recognized.

....

A more general "practical consequence" also militates against recognizing a federal common law cause of action in the case at bar. Essentially, what plaintiffs seek is war reparations from the defendant chemical companies for the United States' conduct during the Vietnam war. They thus ask this Court to recognize a federal common law cause of action, by the United States' former enemies, against the United States' military contractors, for the United States' conduct during a war. The "practical consequences" of such a step are breathtaking, as it has the potential of opening federal courthouse doors to all of the Nation's past and future enemies. Such a step would likely have a chilling effect both on the President's exercise of his Commander in Chief powers, and on government contractors' willingness to provide the products necessary to ensure the defense of the Nation.... Particularly in light of the traditional rule of international law that war reparations are the subject of government-to-government negotiations, and not individual claims, recognizing such federal common law claims would be truly extraordinary.

War reparations include" `all the loss and damage to which ... Governments and their nationals have been subjected as a consequence of the war imposed upon them." Burger-Fischer v. Degussa AG, 65 F.Supp.2d 248, 275 (D.N.J.1999), quoting The Versaille[s] Treaty, art. 231. See also Black's Law Dictionary at 1325 (8th ed.2004) (defining reparations as "[c]ompensation for an injury or wrong, esp. for wartime damages or breach of an international obligation"). Claims based upon the United States' *49 use of chemical herbicides as a tool of war readily fall within the scope of war reparations claims.

Yet such war reparations claims have traditionally been, and as a matter of customary international law are, the subject of government-to-government negotiations, as opposed to private lawsuits. "Under international law claims for compensation by individuals harmed by war-related activity belong exclusively to the state of which the individual is a citizen." Burger-Fischer, 65 F.Supp.2d at 273 . Thus, "[l]ike other claims for violation of an international obligation, a state's claim for a violation that caused injury to rights or interests of private persons is a claim of the state and is under the state's control. ... Any reparation is, in principle, for the violation of the obligation to the state, and any payment made is to the state." Restatement (3d) Foreign Relations § 902, comment i (emphasis added); cf. Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 416 , 123 S.Ct. 2374 , 156 L.Ed.2d 376 (2003) ("[h]istorically, wartime claims against even nominally private entities have become issues in international diplomacy").

This latter point undermines any assertion that private claims for war reparations are as widely accepted as the eighteenth century paradigms discussed in Sosa . To the contrary, it establishes precisely the opposite — as a matter of international law war reparations claims such as plaintiffs' belong to states and not to individuals. To jettison this legal principle in order to recognize individual causes of actions for plaintiffs' claims would run counter to Sosa's admonition that the practical consequences of recognizing new causes of action "must" inform the Court's judgment in crafting federal common law. In sum, the determination of whether, when, and how to pay reparations for conduct of the United States' Armed Forces should stay where it has been for the past two-hundred-plus years by virtue of both the Constitution and principles of customary international law — with the Political Branches of government. For this reason as well, the Court should not recognize any federal common law cause of action in this case.

U.S. Statement of Interest at 39-43 (footnotes omitted).

VIII. Legal Concepts

A. Standing of VAVAO

Defendants assert that The Vietnam Association for Victims of Agent Orange/Dioxin ("VAVAO") has no standing. VAVAO claims to represent a putative class of some four million Vietnamese nationals who contend they have been exposed to, and injured by, herbicides manufactured by defendants. The size of the class and its appropriateness needs no attention now since, as already pointed out above in Part IV.A.7., there will be no certification of the class.

Defendants' argument is dubious on constitutional grounds, and is inappropriate on prudential grounds. Given the situation of those claimed to have been injured — their general relative poverty and constraints during and after the war, subjugation by a non-democratic communist government and the lack of a relatively sophisticated free and aggressive bar in Vietnam capable of prosecuting mass toxic tort actions — the most practical way to vindicate plaintiffs' rights, if there are such rights under international law, and if there is jurisdiction under the ATS, would be via some association such as VAVAO. Considering the geographic scope (much of the territory of Vietnam) of the claims, the nature of the claims (complex in law and *50 fact), the number of persons affected (millions), the difficulty of prosecution (in a foreign land with different procedures and substantive law), and the importance to this country and the world of the enforcement of international law, VAVAO's standing should be recognized. VAVAO, though apparently an ad hoc organization designed and organized primarily to prosecute Agent Orange claims, can be said to represent both itself and its members.

Under Article III of the Constitution, a court's power to redress injury extends only to parties who have suffered" `some threatened or actual injury'" resulting from an alleged illegal action. Warth v. Seldin, 422 U.S. 490, 498 , 95 S.Ct. 2197 , 45 L.Ed.2d 343 (1975) (quoting Linda R.S. v. Richard D., 410 U.S. 614, 617 , 93 S.Ct. 1146 , 35 L.Ed.2d 536 (1973)). As a prudential matter, such a litigant generally" `must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights and interests of third parties.'" Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 474 , 102 S.Ct. 752 , 70 L.Ed.2d 700 (1982) (quoting Warth, 422 U.S. at 499 , 95 S.Ct. 2197 ).

An association satisfies constitutional standing requirements when seeking judicial relief in its own right to redress injury to the organization itself. In limited circumstances, such as those in the instant case, an organization also may have "association standing" in a representative capacity to assert claims on behalf of its members. See Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343 , 97 S.Ct. 2434 , 53 L.Ed.2d 383 (1977); Warth, 422 U.S. at 515-16 , 95 S.Ct. 2197 . In Hunt , the Supreme Court constructed the framework for assessing association standing. 432 U.S. at 343 , 97 S.Ct. 2434 . The Court explained that an association has standing in a representative capacity to bring suit on behalf of its members when "(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Id.

VAVAO sufficiently meets all these requirements. The fact that not all members of VAVAO, which includes persons who suffered no injury such as "medical and scientific researchers and prominent people from other disciplines," would have standing to sue in their own right, does not defeat standing of the organization. See generally N.A.A.C.P. v. Acusport Corp., 210 F.R.D. 446, 455-61 (E.D.N.Y.2002) (discussing standing with citations); cf. Beth Van Schaack, Unfulfilled Promise: The Human Rights Class Action, 2003 U. CHI. LEGAL F. 279 (discussing class action as substitute for representative actions for procedural efficiency).

The Court of Appeals for the Second Circuit analyzed these issues in Bano v. Union Carbide Corp., 361 F.3d 696 (2d Cir.2004), a case already discussed above in Part VI. In Bano, an individual and three organizations sued Union Carbide and its former president, alleging personal injuries and property damage from groundwater pollution caused by the dumping, storage and abandonment of toxic chemicals and by-products at the corporation's former plant in India. Id. at 702-05.

Addressing the organizations' claims for money damages, the Court of Appeals for the Second Circuit affirmed the district court's determination that the organizations failed to meet Hunt's "association standing" requirements for pursuing the claims of their members. Id. at 713-16. As noted above, the third prong of the *51 Hunt test for "association standing" demands that "neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." 432 U.S. at 343 , 97 S.Ct. 2434 . The organizations' claims in Bano were that "individuals have suffered bodily harm and damage to real property they own." 361 F.3d at 714 . The court reasoned that "[n]ecessarily, each of those individuals would have to be involved in the proof of his or her claims," and concluded that the organizations lacked "association standing" to pursue these claims. Id. at 714-15 . Relative to the scope and nature of the claims in the instant case, those in Bano — arising from a single event in a limited geographic area — were relatively simple and arguably could be handled by consolidated individual claims or in an ordinary class action.

The Court of Appeals for the Second Circuit noted that it was aware of "no Supreme Court or federal court of appeals ruling that an association has standing to pursue damages claims on behalf of its members." Id. at 714 (emphasis added); see also, e.g., Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638 , 649 (2d Cir.1998) (confirming the district court's refusal to grant associational standing on compensatory damages claims as "obviously correct," because individualized proof of injuries was required); Am. Fed'n of R.R. Police, Inc. v. Nat'l R.R. Passenger Corp., 832 F.2d 14 , 16 (2d Cir.1987) (dismissing association plaintiff's damages claim based on physical injury because any injury that occurred "would have been peculiar to the individual policeman").

In the instant case substantial equitable remedies of injunctive relief such as disgorgement of profits and toxic chemical clean-up of a huge land mass are sought in addition to individual damages. See supra Parts IV.A.8., VI. Unlike claims for money damages, an association generally has standing on behalf of its members when its claims raise a "`pure question of law,'" Bano, 361 F.3d at 714 (quoting Int'l Union, United Auto. Aerospace & Agric. Implement Workers of Am. v. Brock, 477 U.S. 274, 287 , 106 S.Ct. 2523 , 91 L.Ed.2d 228 (1986)), or seek solely a forward-looking remedy such as "`a declaration, injunction, or some other form of prospective relief,'" id. (quoting Warth, 422 U.S. at 515 , 95 S.Ct. 2197 ). In such cases, the Supreme Court has held that prudential standing is possible, because" `it can reasonably be supposed that the remedy, if granted, will inure to the benefit of those members of the association actually injured.'" Id. (quoting Warth, 422 U.S. at 515 , 95 S.Ct. 2197 ). Thus, "where the organization seeks a purely legal ruling without requesting that the federal court award individualized relief to its members, the Hunt test may be satisfied." Id.; see also Northeastern Fla. Chapter of the Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656 , 113 S.Ct. 2297 , 124 L.Ed.2d 586 (1993) (allowing that an association had standing on an Equal Protection challenge to an ordinance); Brock, 477 U.S. at 284-88 , 106 S.Ct. 2523 (finding union had standing to challenge a policy directive of the United States Department of Labor because it raised a "pure question of law" that could be litigated without the participation of individual claimants); Warth, 422 U.S. at 515 , 95 S.Ct. 2197 .

VAVAO raises a number of pure questions of law and seeks forward-looking relief in cleanups. It has standing to seek injunctive relief. The fact that injunctive relief is denied, supra Part VI, does not affect the right to seek it.

B. Right to Sue Individually

It is the government's view that plaintiffs lack a cause of action allowing them to *52 assert their international law claims because the statutes and international materials they rely upon do not provide for a private right of action, their claims do not meet the exacting rules of Sosa , and no norm prohibited the use of herbicides in war or destruction of enemy crops during this country's participation in the Vietnam War. U.S. Statement of Interest at 23-36. Insofar as the government's contention is that no right of action can exist under plaintiffs' theories, it is rejected as too broad. As to particular failures of the specific claims under the specific facts of this litigation, the position is accurate and, as indicated below in Part XI, leads to dismissal.

The right to sue under international law for violations of human rights normally devolves on states or international tribunals enforcing criminal liability. Nonetheless, international agreements or the law of the United States may permit private civil suits in a court of this country. See 2 RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 703(3) ("An individual victim of a violation of a human rights agreement may pursue any remedy provided by that agreement or by other applicable international agreements."); id. § 907 (discussing private remedies under the law of the United States for violations of international law); supra Part I.B.1. on treatment of foreigners in United States courts; infra Part VIII.H. on choice of law. While Sosa limits ATS litigation, it recognizes the right of a private person to sue, depending upon the applicable international substantive law.

C. Liability of Corporations for Violation of International Law

1. Aiding and Abetting

The government and defendants argue that plaintiffs' claims are essentially that defendants were aiding and abetting, and that these claims must be dismissed because Congress has not authorized aiding and abetting liability under the ATS. U.S. Statement of Interest at 36-39; see also Cent. Bank of Denver v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 181-82 , 114 S.Ct. 1439 , 128 L.Ed.2d 119 (1994) (explaining that although "aiding and abetting is an ancient criminal law doctrine," there is no "general presumption" that a federal statute should be read as extending aiding and abetting liability to the civil context and that the doctrine permitting civil redress "has been at best uncertain in application").

While this position is applicable to any kind of defendant, here it is particularly relevant in the corporate context. But it misstates the plaintiffs' broad contention: defendants are charged in their corporate capacity with themselves violating international law under Nuremberg theories. The argument of the government is analogous to that of the defendants — that as corporations they cannot be held liable. See infra Part VIII.C.2.; see also infra Part IX regarding the inapplicability of the government contractor defense to plaintiffs' claims.

Even under an aiding and abetting theory, civil liability may be established under international law. As the Amici Brief on behalf of plaintiffs properly analyzes the matter:

Federal courts have repeatedly confronted the question of whether the ATS encompasses the liability of private actors, including private corporations, for violations of international law. Federal courts, including those of this jurisdiction, have consistently answered the question in the affirmative. See, Kadic v. Karadzic , 70 F.3d [232,] 239 [(2d Cir.1995)] (the reach of international law is not limited to []state actors); Presbyterian *53 Church of Sudan v. Talisman Energy, Inc., 244 F.Supp.2d [289,] 321 [(S.D.N.Y.2003)] (holding that "ATCA suits [may] proceed based on theories of conspiracy and aiding and abetting"); Abdullahi v. Pfizer, Inc., 77 Fed.Appx. 48 (2d Cir.2003); Wiwa v. Royal Dutch Petroleum Co., No. 96 Civ. 8386, 2002 WL 319887 (S.D.N.Y. Feb.28, 2002) (finding that private corporations could be held liable for "joint action" with state actors); Bodner v. Banque Paribas, 114 F.Supp.2d 117, 127-28 (E.D.N.Y.2000) (holding that subject matter jurisdiction existed under the ATCA, where plaintiffs alleged a French bank had been complicit with the Nazi regime); Iwanowa [v. Ford Motor Co .], 67 F.Supp.2d [424,] 445 [(D.N.J.1999)] ("No logical reason exists for allowing private individuals and corporations to escape liability for universally condemned violations of international law merely because they were not acting under color of law."); see also Doe v. Unocal, [ 395 F.3d 932, 975-78 ] (9th Cir.2002)[,] vacated [ by ] 395 F.3d 978 [(9th Cir.2003)]; Burnett v. Al Bar[aka] Investment & Development Corp., 292 F.Supp.2d 9 (D.D.C.2003); Mehinovic v. Vuckovic, 198 F.Supp.2d 1322, 1355 (N.D.Ga.2002) ("United States courts have recognized that principles of accomplice liability apply under the ATCA to those who assist others in the commission of torts that violate customary international law." (citing cases)); Eastman Kodak Co. v. Kavlin, 978 F.Supp. 1078, 1090-95 (S.D.Fla.1997) (holding that subject matter jurisdiction existed in an ATCA action against a Bolivian corporation); Carmichael v. United Technologies Corp., 835 F.2d 109, 113-114 (5th Cir.1998[1988]) (assuming without deciding that ATCA confers jurisdiction over private parties who aid, abet or conspire in human rights violations)....

U.S. courts have repeatedly determined that the ATS encompasses aiding and abetting liability, in a variety of different circumstances. For example, Presbyterian Church of the Sudan, 244 F.Supp.2d at 320-24, held that allegations that a Canadian oil company aided and abetted war crimes and other gross human rights violations were actionable. Similarly, the court in Mehinovic v. Vuckovic , 198 F.Supp.2d [1322,] 1355-1356 [(N.D.Ga.2002)], found a former Serb soldier liable for aiding and abetting war crimes and other human rights violations in Bosnia-Herzegovina. In Hilao v. Estate of Marcos, 103 F.3d 767, 776 (9th Cir.1996), the Ninth Circuit affirmed a jury instruction allowing a foreign leader to be held liable upon finding that he "directed, ordered, conspired with, or aided the military in torture, summary execution, and `disappearance.'" Likewise, Burnett v. Al Baraka Investment, 274 F.Supp.2d 86, 100 (D.D.C.2003), held that allegations by victims of the September 11 attacks that various entities aided and abetted the perpetrators stated a claim. In Bowoto v. Chevron Texaco [Corp.], 312 F.Supp.2d 1229, 1247 (N.D.Cal.2004), the court held that plaintiffs could proceed on their claims against an oil company for aiding and abetting military killings in Nigeria. Similarly, Bodner v. Banque Paribas, 114 F.Supp.2d 117, 128 (E.D.N.Y.2000), held that claims that defendant banks aided and abetted the Vichy and Nazi regimes in plundering plaintiffs' assets were actionable under the ATS. There is simply no question that the ATS provides for aiding and abetting liability.

... The liability of private actors, as aiders and abettors, for violations of international law was understood at the time the ATS was enacted. In a 1795 *54 opinion issued by Attorney General Bradford specifically states that individuals would be liable under the ATS for "committing, aiding, or abetting" violations of the laws of war. Breach of Neutrality, 1 Op. Att'y Gen. 57 , 59 (1795). In that opinion, the Attorney General considered an incident involving private actors, acting in concert with, but not controlling the French naval vessels. See id.

Six years after the passage of the ATS, the Supreme Court in Talbot v. Janson[Jansen], 3 U.S. (3 Dall.) 133, 156 , 1 L.Ed. 540 (1795), found that Talbot, a French citizen, who had assisted Ballard, a U.S. citizen, in unlawfully capturing a Dutch ship had acted in contravention with the law of nations and was liable for the value of the captured assets. See also id. at 167-68 (Iredell, J., concurring) ("It is impossible that Ballard can be guilty of a crime, and Talbot, who associated with him, in the wilful commission of it, can be wholly innocent of it."). Justice Paterson wrote that Talbot's liability sprang from his actions in aiding Ballard to arm and outfit, in cooperating with him on the high seas, and using him as the instrument and means of capturing vessels. Id. at 157 . In finding the defendant liable, Justice Paterson found that the defendant had surrendered his protection under international law when he supplied his accomplice's ship with guns and used him "as the instrument and means of capturing vessels." Id. at 156 . Judge Iredell, writing in concurrence, agreed, finding Talbot to have "abetted Ballard" when he "cruised before and after, in company with him [and] put guns on board of [Ballard's] vessel." Id. at 167 .... [F]ederal case law dating back more than two hundred years ... recognized liability for aiding and abetting violations of international law norms.

....

International law clearly and specifically defines aiding and abetting liability. United States courts applying such liability under the ATS have correctly held that under international law, the actus reas of aiding and abetting consists of "practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime," and that the mens rea required is the knowledge that these acts assist the commission of the offence; the accomplice need not share the principal's wrongful intent. Mehinovic, 198 F.Supp.2d at 1356 (quoting Prosecutor v. Furundzija, Case No. IT-95-17/1/T, judgment, ¶¶ 192-249 (ICTY Trial Chamber, Dec. 10, 1998), reprinted at 38 I.L.M. 317 (1999)); accord Presbyterian Church of the Sudan, 244 F.Supp.[2d] at 323-24. Critically, the jurisprudence of the International Criminal Tribunal for the Former Yugoslavia, upon which the Mehinovic and Talisman courts relied, was based on an exhaustive analysis of the jurisprudence of the post-World War II tribunals. See, e.g., Furundzija IT-95-17/1, ¶¶ 195-97, 200-25, 236-49. Clearly, customary international law provides a "specific, universal and obligatory" norm against aiding and abetting that was well-established long before the Vietnam War.

Br. Amici Curiae of the Center for Constitutional Rights, Earthrights International and the International Human Rights Law Clinic at the University of Virginia School of Law, Jan. 18, 2005, at 13-17 (emphasis added) (some footnotes omitted) [hereinafter Amici Brief].

2. Corporate Culpability

Defendants argue that corporations cannot be liable under international law. There is substantial support for this position. *55 See generally, e.g., STEVEN R. RATNER & JASON S. ARAMS, ACCOUNTABILITY FOR HUMAN RIGHTS ATROCITIES IN INTERNATIONAL LAW: BEYOND THE NUREMBERG LEGACY 16 (2d ed. 2001) ("It remains unclear ... whether international law generally imposes criminal responsibility on groups and organizations."); id. at 343-45 (discussing individual accountability); Albert G.D. Levy, Criminal Responsibility of Individuals and International Law, 12 U. CHI. L.REV. 313, 332 (1945) ("The element of individual responsibility is extraneous to international law."); Ernst Schneeberger, The Responsibility of the Individual under International Law, 35 GEO. L.J. 481, 489 (1947) ("In the last resort responsibility under international law can only be responsibility of an individual...."); Beth Stephens, Translating Filartiga: A Comparative and International Law Analysis of Domestic Remedies for International Human Rights Violations, 27 YALE J. INT'L L. 1, 56 (2002) ("International law permits states to allow civil claims [against individuals] for human rights violations."). But see to the contrary authorities collected in Amici Brief quoted above in Part VIII.C.1.

Defendants point out, for example, that corporate defendants cannot violate the TVPA because, by its terms, the statute imposes liability only on a human being who inflicts torture upon another human being. See infra Part XI.B.1. They suggest that even if there had been a binding prohibition on the wartime use of herbicides prior to 1971, when use by the United States ceased, it created no universally recognized prohibition on the manufacture and sale by private parties of herbicides intended for such use. They note that the general rule is that international legal norms impose obligations on states, not private actors. Decl. of Kenneth Howard Anderson, Jr., Nov. 2, 2004, ¶ 88 [hereinafter Anderson Decl.]. As a leading treatise explains:

States are the principal subjects of international law. This means that international law is primarily a law for the international conduct of States, and not of their citizens. As a rule, the subjects of the rights and duties arising from international law are states solely and exclusively, and international law does not normally impose duties or confer rights directly upon an individual human being....

Id. (quoting SIR ROBERT JENNINGS & SIR ARTHUR WATTS, 1 OPPENHEIM'S INTERNATIONAL LAW 16 (9th ed.1992)).

The defendants — all corporations — contend that plaintiffs cannot show that any international prohibition extended to corporate entities. They indicate that in the few instances in which international law imposes obligations on non-state actors, "[i]nternational law does not, in the context of international criminal law or elsewhere, impose obligations or liability on juridical actors or artificial persons such as corporations." Id. ¶ 89. It is apparently true that the international criminal tribunals beginning with Nuremberg have not provided for corporate criminal responsibility. Id. ¶¶ 91-92. In determining the jurisdiction of the newly created International Criminal Court the treaty drafters (including the United States) expressly rejected attempts to include corporate liability. Id. ¶ 92.

Throughout the TVPA the term "individual" describes both those who can violate its proscriptions against torture, as well as those who can be victims of torture. Specifically, the TVPA provides that "[a]n individual who ... subjects an individual to torture shall ... be liable for damages to that individual, " Torture Victim Protection Act of 1991, Pub.L. No. 102-256, § 2 (a)(1), 106 Stat. 73 , 73 (1992) (emphasis *56 added), and it defines "torture" as "any act, directed against an individual ... by which severe pain or suffering ... is intentionally inflicted on that individual, " id. § 3(b)(1) (emphasis added). Both from context and common sense only natural persons can be the "individual" victims of acts that inflict "severe pain and suffering." See id. Because the TVPA uses the same term "individual" to identify offenders, the definition of "individual" within the statute appears to refer to a human being, suggesting that only natural persons can violate the Act. See Desert Palace, Inc. v. Costa, 539 U.S. 90, 101 , 123 S.Ct. 2148 , 156 L.Ed.2d 84 (2003) (noting that "[a]bsent some congressional indication to the contrary, [courts] decline to give the same term in the same Act a different meaning depending on whether the rights of the plaintiff or the defendant are at issue"); see also Beanal v. Freeport-McMoRan, Inc., 969 F.Supp. 362, 381-82 (E.D.La.1997) ("[T]he plain meaning of the term `individual' does not ordinarily include a corporation."), aff'd by 197 F.3d 161 (5th Cir.1999).

All three of the international instruments plaintiffs rely upon that address the weapons that may be used in war follow the general rule of international law by imposing obligations only on states. The Hague Convention IV expressly provides that it does "not apply except between Contracting Powers, " Convention (IV) Respecting the Laws and Customs of War on Land, Oct. 18, 1907, art. 2, 36 Stat. 2277 , 2290 (emphasis added), and that "[a] belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation," id. art. 3 (emphasis added). The 1925 Geneva Protocol likewise provides that the "High Contracting Parties ... accept" the prohibition on use of bacteriological methods of warfare "and agree to be bound as between themselves. " Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, June 17, 1925, 26 U.S.T. 571, 575 (emphasis added). United Nations Resolution Number 2603-A, dealing with herbicides, relies upon the 1925 Geneva Protocol, which purports solely to bind States. See G.A. Res. 2603-A, U.N. GAOR, 24th Sess., 1836th plen. mtg. at 16 (1969) (claiming that "[t]he majority of States then in existence" adhered to the 1925 Geneva Protocol, that "further States have become parties" and that "other States have declared that they will abide by its principles and objectives"). Defendants argue that, because the terms of none of these documents refers to private actors, these instruments do not establish a binding international norm prohibiting private entities from making or selling herbicides for use during war prior to 1975.

Defendants argue that plaintiffs cannot rely wholly on domestic legal concepts such as conspiracy, aiding and abetting or "state actors" to expand either the type of conduct or "the type of perpetrator," that a customary international legal prohibition reaches. Instead, plaintiffs must show that a definite and universally accepted norm of international law prohibits the act of an individual working with a government to violate an international norm, and that this independent international prohibition extends to private actors. In the instances in which international law imposes obligations on non-state actors, traditionally international law does not, in the context of international criminal law or elsewhere, impose obligations or liability on juridical actors or artificial persons such as corporations. Anderson Decl. ¶¶ 91-92.

Yet, despite the strength of authority supporting defendants' position, in view of the Nuremberg and post-Nuremberg trials, *57 see infra Parts IX.C.-D., plaintiffs would have overcome this conceptual burden had international law prohibited the use of herbicides in Vietnam at the time they were used by the United States. See 1 RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES introductory note to pt. II, at 71 ("[I]ndividuals and corporations have some independent status as persons in international law...."); see also infra Part XI.

Professor Anderson writes that at the Nuremberg trials, several German businessmen and industrialists were tried as individuals (who had done their work as officers and directors of companies), but "the record contains no suggestion that corporations could themselves incur criminal liability." Anderson Decl. ¶ 91. In fact, in the Nuremberg trials, this point of lack of corporate liability appeared to have been explicitly stated. Nevertheless, in the quotation which follows, and in other proceedings regarding Krupp and other German corporate entities, the law cannot ignore the fact that it was the corporations through which the individuals acted:

We will now turn to the consideration of the individual responsibility of the defendants for the acts of spoilation [in various countries].... It is appropriate here to mention that the corporate defendant, Farben, is not before the bar of this Tribunal and cannot be subjected to criminal penalties in these proceedings. We have used the term "Farben" as descriptive of the instrumentality of cohesion in the name of which the enumerated acts of spoilation were committed.

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