# Vietnam Ass'n for Victims of Agent Orange/Dioxin v. Dow Chemical Co.

> District Court, E.D. New York · March 10, 2005 · 373 F. Supp. 2d 7

URL: https://www.frixlaw.com/law-library/cases/8687390

## Case

- **Full name:** 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 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 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 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,"
- **Court:** District Court, E.D. New York
- **Decided:** March 10, 2005
- **Citations:** 373 F. Supp. 2d 7; 2005 U.S. Dist. LEXIS 3644; 2005 WL 729177
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Weinstein
- **Judges:** Weinstein
- **Cited by:** 2 later opinions in the Frix Law Library

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## Opinion text

AMENDED MEMORANDUM, ORDER and JUDGMENT
WEINSTEIN, Senior District Judge.
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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 usé 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, Isaac-son 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 Damrosoh, Louis Heniun, Riohard Crawford Pugh, Oscar SohaChter & 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 Malanczuic, Aicehurst’s Modern INTRODUCTION to International Law 112 (Routledge 7th rev. ed. 1997) (“[International 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 Lazo 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 meed 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.CivP. 44.1; ef. 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 kk-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 k.k-1 FRCP and CPLR Jp511 (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 Counoil 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 Natuke 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 Miohael 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 can-celled the research project under the 2003 United States-Vietnam agreement that would have looked at the health effects of dioxin), http://www.newscientist.com/arti-cle.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-tetrachlorodiben-zo-p-dioxin (TCDD). Herbicide mixtures used are listed in Table I.
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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 Trad 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 Vulca-nus 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 (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 member's 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. Ill (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, Dept 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 the Stephenson 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. Dow Chem. Co., *43 304 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 Agent 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.l. 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), (Z) 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 Lan-ham 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 “[ijnfeasible and [inappropriate.” Ban o 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 “[ojrdering 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 (Seoond) 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 “Pin-feasible 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 plaintiffs 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.... [Plaintiffs’ 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 “[cjompensation 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) (“[hjistorically, 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 “[njecessarily, 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 plaintiffs 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.l. 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); Presbyte *53 rian 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.[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. [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 1.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 posi *55 tion. See generally, e.g., Steven R. Rat-neR & Jason S. AjbRAMS, Agcountability foe Human Rights Atkooities 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.l.
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, “[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.” 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 “[ajbsent 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 píen. 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 Deck ¶¶ 91-92.
Yet, despite the strength of authority supporting defendants’ position, in view of the Nuremberg and post-Nuremberg tri *57 als, 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 (“[IJndividu-als 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 Deel. ¶ 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. But corporations act through individuals and, under the conception of personal individual guilt to which previous reference has been made, the prosecution, to discharge the burden imposed tipon it in this case, must establish by competent proof beyond a reasonable doubt that an individual defendant ivas either a participant in the illegal act or that, being aware thereof, he authorized or approved it. Responsibility does not automatically attach to an act proved to be criminal merely by virtue of a defendant’s membership in the Vorstand. Conversely, one may not utilize the corporate structure to achieve an immunity from criminal responsibility for illegal acts which he directs, counsels, aids, orders or abets. But the evidence must establish action of the character we have already indicated, with knowledge of the essential elements of the crime. In some instances, individuals performing these acts are not before this Tribunal. In other instances, the record has large gaps as to where or when the policy was set. In some instances, a policy is set without clear indication that essential factual elements required to make it criminal were disclosed. Difficulties of establishing such proof due to the destruction of records or other causes does not relieve the prosecution of its burden in this respect.
One cannot condone the activities of Farben in the field of spoilation. If not actually marching with the Wehrmacht, Farben at least was not far behind. But translating the criminal responsibility to personal and individual criminal acts is another matter.
United States v. Krauch (I.G. Farben Case), 8 TRIALS of War Criminals 1081, 1152-53 (photo, reprint 1997) (1952) (emphasis added) (footnote omitted). Even accepting this quotation’s suggestion of corporate immunity at its face value, limitations on criminal liability of corporations do not necessarily apply to civil liability of corporations. It is interesting to note that Telford Taylor in his masterful text, The Anatomy of the Nuremberg Trials, heads chapter 18 “The Indicted Organizations,” which describes the German corporate or *58 ganizations that were essential to execution of widespread Nazi bestiality. See TelfoRD Taylor, The ANATomy of the Nuremberg Trials: A PERSONAL Memoir 501 (Little Brown & Co.1992) (emphasis added).
It is not necessary to decide whether, if the corporations had been made parties at Nuremberg — as they surely could have been under United States criminal jurisprudence' — they could have been found guilty. Farben as a corporation was not a named defendant. See also United States v. Krupp, 9 Trials of War CRIMINALS 1327-1452. The Zyklon B Case (Trial of Bruno Tesch and Two Others) involved an individual proprietorship; corporate liability was not implicated. 1-5 Law Reports of Trials of War CrimiNAls 93-102; see also infra Part IX.C.
Limiting civil liability to individuals while exonerating the corporation directing the individual’s action through its complex operations and changing personnel makes little sense in today’s world. Cf 1 Restatement (Third) of The Foreign Relations Law of the United States § 421(2)(e) (stating, generally, that a state’s exercise of jurisdiction to adjudicate with respect to “a corporation or comparable judicial person” is reasonable if it “is organized pursuant to the law of the state”). Our vital private activities are conducted primarily under corporate auspices, only corporations have the wherewithal to respond to massive toxic tort suits, and changing personnel means that those individuals who acted on behalf of the corporation and for its profit are often gone or deceased before they or the corporation can be brought to justice. While the legal effects of outsourcing to private contractors is unclear, it cannot be ignored under international or United States law. See Myriam Gilíes, Private Parties as Defendants in Civil Rights Litigation, 26 Cardozo L.Rev. 1, 6 & nn.21-22, 7 (2004) (discussing use of private contractors in war).
A corporation is not immune from civil legal action based on international law. The opinion on this point of Professor Paust is compelling. Paust Op. at 3 (“Companies and corporations can have duties under international law, especially with respect to laws of war and human rights. Moreover, they have never been granted immunity under any known treaty or customary law with respect to violations of treaty-based or customary international law.”).
For the purposes of the present motion the court adopts the submission of the Amici Brief on the point:
The potential liability of corporations under the ATS has been widely recognized or assumed by federal courts. The Supreme Court acknowledged that corporations can be sued under the ATS. Sosa v. Alvarez-Machain, [542 U.S. at -, n. 20], 124 S.Ct. at 2766, n. 20 . The Second Circuit has considered numerous cases where plaintiffs sued a corporation under the ATCA for alleged breaches of international law. Jota v. Texaco, Inc., 157 F.3d 153 (2d Cir.1998) (vacating the district court’s dismissal, on the grounds of forum non conveniens, international comity and failure to join an indispensi-ble party, and remanding); Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88 (2d Cir.2000) (reversing dismissal on forum non conveniens grounds and finding personal jurisdiction over the defendant corporations); Bigio v. Coca-Cola Co., 239 F.3d 440 (2d Cir.2000) (affirming dismissal of the ATS claim because the defendant corporation did not “act under color of law” simply by purchasing property from the government); Aguinda v. Texaco, Inc., 303 F.3d 470 (2d Cir.2002) (dismissed based on forum non conveniens). Although none of *59 these cases explicitly addressed the liability of corporations under the ATS, the disposition of these cases is inconsistent with the assertion that no claim under the ATS can be brought against corporations. In each of these cases, the Second Circuit acknowledged that corporations are potentially liable for violations of the law of nations that ordinarily entail individual responsibility. See also Carmichael v. United Technologies Corp., 835 F.2d 109, 113-14 (5th Cir.1988) (assuming explicitly that the ATS provided subject matter jurisdiction for a claim against a corporation).
The issue of corporate liability under the ATS was decided affirmatively in numerous district court cases. In Presbyterian Church of the Sudan v. Talisman, [244] F.Supp.2d at 311-19, the court reviewed the various precedents in federal common law and before international tribunals, which support the view that a corporation could be held liable for a violation of an international legal norm. The Talisman court noted with approval the same conclusion analyzed by Steven R. Ratner in “Corporations and Human Rights: A Theory of Legal Responsibility,” 111 Yale L.J. 443 (2001) and International Counoil on Human Rights Policy, Beyond Voluntarism: Human Rights and The Developing International Legal Obligations of Companies (2002), available at http://www.ichrp.org/ ac/ excerpts/41.pdf. In Bowoto v. Chevron Texaco Corp., 312 F.Supp.2d 1229, 1247 (N.D.Cal.2004), the court held that sufficient evidence precluded summary judgment and permitted plaintiffs to proceed against a U.S. corporate defendant on the theory that its Nigerian subsidiary was acting as defendants’ agent or that the defendant corporation aided and abetted in the human rights abuses.
Defendants present no policy reason why corporations should be uniquely exempt from tort liability under the ATS, and no court has presented one either. Concluding that corporations could be subject to liability under the ATS, the Talisman court stated:
Such a result should hardly be surprising. A private corporation is a juridical person and has no per se immunity under U.S. domestic or international law. See Jordan J. Paust, Human Rights Responsibilities of Private Corporations, 35 Vand. J. Trans-nat’l L. 801, 803 (2002).... Given that private individuals are liable for violations of international law in certain circumstances, there is no logical reason why corporations should not be held liable, at least in cases of jus cogens violations. Indeed, while Talisman disputes the fact that corporations are capable of violating the law of nations, it provides no logical argument supporting its claim.
244 F.Supp.2d at 318.
In any event, even if it were not true that international law recognizes corporations as defendants, they still could be sued under- the ATS.- As noted -above, the Supreme Court made clear that an ATS claim is a federal common law claim and it is a bedrock tenet of American law that corporations can be held liable for their torts.
Amici Brief at 24-26 (footnote omitted).
D. Statutes of Limitations
Defendants argue that the applicable statutes of limitations require dismissal. See Defs.’ Notice of Mot. for Partial Summ. J. Based on Statutes of Limitations, Nov. 2, 2004, at 1 [hereinafter Defs.’ Notice of Mot. for Partial Summ J.]. They rely on the notice given to possible claimants by the extensive publicity in Vietnam *60 about contentions that the United States was spraying herbicides to harm people both in the north and south of that country. See Exs. to Defs.’ Notice of Mot. for Partial Summ. J.; see also Defs.’ Mem. of Law in Supp. of Mot. for Partial Summ. J. Dismissing Personal Injury Claims of Individual Pis. Based on Statutes of Limitations, Nov. 2, 2004, at 19-27.
The ATS contains no statute of limitations. The contention of defendants is that the ten-year statute of limitations in the Torture Victim Protection Act, Pub.L. 102-256, § 2 (c), 106 Stat. 73 , 73 (1992), should be applied to all federal claims under the ATS. See Manliguez v. Joseph, 226 F.Supp.2d 377, 386 (E.D.N.Y.2002) (“It is well-established that the ten-year statute of limitations of the [TVPA] applies to all [ATS] claims.”). They also argue that analogous and applicable shorter New York State statutes should bar the state law claims. See, e.g., N.Y. C.P.L.R. § 202 (McKinney 2003) (borrowing statute); N.Y. C.P.L.R. § 208 (McKinney 2003) (addressing disability due to infancy or insanity); N.Y. C.P.L.R. § 209 (a) (McKinney 2003) (addressing cause of action accruing in a foreign country during war); N.Y. C.P.L.R. § 213 (1) (McKinney 2003 & Supp.2005) (specifying six-year statute of limitations generally); N.Y. C.P.L.R. § 214 (4), (5) (McKinney 2003) (specifying three-year statute of limitations for property and personal injury claims, except as otherwise provided); N.Y. C.P.L.R. § 214 -c (McKinney 2003) (providing statutes of limitations based on discovery of injury, notwithstanding three-year limitations period in' section 214); N.Y. C.P.L.R. § 215 (3) (McKinney 2003) (providing one-year statute of limitations for, inter alia, assault and battery); N.Y. Est. Poweks & Trusts § 5-4.1 (McKinney 1999 & Supp. 2005) (providing, inter alia, for two-year statute of limitations for wrongful death suit by personal representative). But cf. Pickett v. Brown, 462 U.S. 1 , 16 n. 15, 103 S.Ct. 2199 , 76 L.Ed.2d 372 (1983) (“[Statutes of limitations generally are tolled during a child’s minority.”); United States v. Kubrick, 444 U.S. 111 , 100 S.Ct. 352 , 62 L.Ed.2d 259 (1979) (holding that discovery of injury and its cause is the date from which to measure statute of limitations); Kronisch v. United States, 150 F.3d 112 (2d Cir.1998) (same).
If a federal substantive rights statute enacted before December 1, 1990 does not specify a statute of limitations, a court applies the statute of limitations from the forum state, unless there is a federal law which “clearly provides a closer analogy than available state statutes, and when the federal policies at stake and the practicalities of litigation make that rule a significantly more important vehicle for interstitial lawmaking.” North Star Steel Co. v. Thomas, 515 U.S. 29, 35 , 115 S.Ct. 1927 , 132 L.Ed.2d 27 (1995) (internal quotation marks and citation omitted).
Section 1658 of title 28 of the United States Code, effective December 1, 1990, provides for time limitations on the commencement of civil actions arising under acts of Congress. It provides:
(a) Except as otherwise provided by law, a civil action arising under an Act of Congress enacted after the date of the enactment of this section may not be commenced later than 4 years after the cause of action accrues.
(b) Notwithstanding section (a), a private right of action that involves a claim of fraud, deceit, manipulation, or contrivance in contravention of a regulatory requirement concerning the securities laws, as defined in section 3(a)(47) of the Securities Exchange Act of 1934 (15 U.S.C. 78c(a)(47)), may be brought not later than the earlier of — ■
*61 (1) 2 years after the discovery of the facts constituting the violation; or
(2) 5 years after such violation.
28 U.S.C.A. § 1658 (1994 & Supp.2004) (emphasis added); see also Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369 , 124 S.Ct. 1836 , 158 L.Ed.2d 645 (2004) (interpreting section 1658(a) of title 28 of the United States Code). Depending upon date of enactment, statutes such as those described below in Part XI.B. would be governed by these limitations. Treaties and other instruments of international law and non-statutory customary international law would not be. See law described infra Parts XI.C.-D.
Some courts that have considered the international law issue have held that the TVPA, which contains a ten-year statute of limitations period, provides the closest federal analogy to the ATS. See, e.g., Papa v. United States, 281 F.3d 1004, 1012-13 (9th Cir.2002) (holding that the TVPA’s ten-year limitations period is applicable to ATS claims); Manliguez v. Joseph, 226 F.Supp.2d 377, 386 (E.D.N.Y.2002) (applying the TVPA’s limitations period to ATS claims because “the TVPA is ... both the most analogous statute and the one that best accommodates federal policies”); Iwanowa v. Ford Motor Co., 67 F.Supp.2d 424, 462 (D.N.J.1999) (applying the TVPA’s statute of limitations to ATS claims); Wiwa v. Royal Dutch Petroleum Co., No. 96 Civ. 8386, 2002 WL 319887 , at *18-*19 (S.D.N.Y. Feb.28, 2002) (discussing statute of limitations for the ATS and finding that the TVPA’s ten-year statute of limitations is the appropriate period of limitations for ATS claims). A court has applied limitations periods provided by state law, Forti v. Suarez-Mason, 672 F.Supp. 1531, 1548 (N.D.Cal.1987) (holding, albeit pre-TVPA, that the most analogous statute to the ATS is section 1983 of title 42 of the United States Code and that, since state statutes of limitations are applicable to section 1983 claims, the same limitations period is applicable to ATS claims); alternatively, a court may apply the limitations period of the foreign country where the act occurred, or the limitations period of international law, see Beth Stephens & Miohael RatneR, International Human Rights Litigation in U.S. Courts 148 (1996).
No specific statute of limitations is applicable to the claims of international law violations now at issue, with the exception of the Torture Victim Protection Act. As part of federal common law (when no specific statutory limitation is applicable), federal courts may create applicable statutes of limitations and tolling provisions as well as bases for application of laches. See Steven R. Ratner & Jason S. Abrams, Aocountability for Human Rights Atrocities in International Law: Beyonb the Nuremberg Legaoy 143-44 (2d ed. 2001) (“[I]t is difficult to conclude that mandatary non-applicability of statutes of limitations has yet entered the realm of custom.... [International law at least permits states to eliminate statutes of limitations for crimes against humanity and war crimes.”) (emphasis in original).
There is good reason not to create or apply general hard and fixed rules of lach-es or relatively short statutes of limitation, newly minted by judicial fiat, in the developing area of international law. In many instances a foreign government, group or individuals may be involved both in the violation and in threats that make it impossible for individuals harmed to complain until there is a new administration or the plaintiff can escape to freedom in another country. In the present case the lack for many years of any recognition by the United States of the Vietnam communist government as well as embargos and limits on travel arguably made it difficult for those within Vietnam to file any claims in United *62 States courts or to obtain assistance from United States counsel. There has been no proof yet of laches here. Cf. Paul R. Du-binsky, Human Rights Law Meets Private Law Harmonization: The Coming Conflict, 30 Yale J. Int’l L. 211, 286 (2005) (“Some EU member states have enacted legislation reviving causes of action.... In some instances, courts have upheld these statutes. In other instances, these revival statutes have been struck down. In still other states, statutes of limitations have been lengthened judicially, rather than legislatively, by tolling....”). But cf. Stogner v. California, 539 U.S. 607 , 123 S.Ct. 2446 , 156 L.Ed.2d 544 (2003) (invalidating California statute permitting prosecution of sex-related child abuse crimes even where the prior statute of limitations has expired).
The possible issues of statutes of limitations, tolling and laches requires further factual development should the case go forward on order of the Court of Appeals for the Second Circuit. In such an inquiry the courts may consider the significance of the United States Department of the Treasury’s designations of North Vietnam and South Vietnam on May 5, 1964 and April 30, 1975, respectively, as foreign countries subject to the Foreign Assets Control Regulations, 31 C.F.R. § 500 (2004); apparently they did not prevent plaintiffs from filing suits in the United States. The regulations did not by their terms prohibit or restrict filing of a personal injury lawsuit. Nor did they appear to prevent retaining of attorneys in this country to prosecute their suit. There is no indication that any plaintiff applied for a waiver to the Secretary of the Treasury. See 31 C.F.R. § 500.201 (a) (2004) (providing that otherwise prohibited transactions involving North Vietnam or South Vietnam, or its nationals, may be specifically authorized by the Secretary of the Treasury). There is no showing that permission to retain an attorney or commence a suit would have been denied. See Am. Airways Charters, Inc. v. Regan, 746 F.2d 865 , 868 n. 3 (D.C.Cir.1984) (noting that practice may have permitted obtaining representation without a license); id. at 870 (concluding that advance government approval apparently was not needed for bare representation); id. at 867-68 (noting licenses obtained to permit payment to counsel).
In any event, tolling for infants and for Vietnamese as prospective plaintiffs in Vietnam raise questions of law and fact that are not necessarily governed by the Foreign Assets Control Regulations of the United States; the inhibitions, if any, provided by Vietnamese conditions would also need to be considered before the issue of laches and tolling — at least in part equitable doctrines — could be decided. See Hilao v. Estate of Marcos, 103 F.3d 767, 771-73 (9th Cir.1996) (including in “extraordinary conditions” that victims suffered intimidation and fear of reprisal and thus concluding that claims were tolled until the defendant left office); Johnson v. Nyack Hosp., 86 F.3d 8 , 12 (2d Cir.1996) (noting that equitable tolling has been applied if plaintiff was “prevented in some extraordinary way from exercising his rights” (citation and internal quotation marks omitted)).
In developing a federal statute of limitations applicable in international law cases, account should be taken of the fact that many states of the United States provide for tolling. See Young v. United States, 535 U.S. 43, 49 , 122 S.Ct. 1036 , 152 L.Ed.2d 79 (2002) (noting that “limitations periods are customarily subject to equitable tolling, unless tolling would be inconsistent with the text of the relevant statute” (internal quotation marks and citations omitted)). Their terms differ. For example, the New York tolling statute on Agent Orange only covers, claims of United States *63 veterans; it does not cover the claims of Vietnamese nationals. See, e.g., N.Y. C.P.L.R. § 214 -b (McKinney 2003 & Supp. 2005) (providing for a renewed two-year discovery statute of limitations for actions to recover damages for injury caused by phenoxy herbicides while serving as a member of the United States armed forces in Indo-China from January 1, 1962 through May 7, 1975); 2004 N.Y. Laws 68 (reviving and extending up to June 16, 2006 any cause of action for injury or death caused by phenoxy herbicides while serving as a member of the United States armed forces from December 22, 1961 through May 7, 1975 which is or would be barred prior to June 16, 1985 because the applicable statute of limitation had expired).
Adopted, for the purposes of this phase of the litigation, subject to reconsideration, is the position of Professor Paust that “[u]nder international law, there are no statutes of limitation with respect to war crimes and other violations of international law,” Paust Op. at 12 (citations omitted) — excluding the TVPA. The principle of non-applicability of statutory limitations to certain violations of international law has been recognized in international instruments. The Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity provides that “[n]o statutory limitations period shall apply” to war crimes and crimes against humanity, including genocide. Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, Nov. 26, 1968, art. 1, 754 U.N.T.S. 73, 75 (entered into force Nov. 11, 1970); see also Rome Statute of the International Criminal Court (“Rome Statute”), July 17, 1998, arts. 5, 29, U.N. Doc. A/Conf. 183/9 (1998) (entered into force July 1, 2002) (“The crimes within the jurisdiction of the Court [(i.e., genocide, crimes against humanity, war crimes and “the crime of aggression”)] shall not be subject to any statute of limitations.”), http://157.150.195.4/Liberty-IMS : :/sidRStQP3qgcXTLsnOI/Cmd=Xml GetRequest;N ame=64;N oUI=1 ;F0= 2187;F1=English;F2® D38544;F3=90 ;style=XmlPageViewer©xsl (last visited Mar. 6, 2005). Although the United States is not a signatory to either the United Nations Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity or the Rome Statute, these instruments suggest the need to recognize a rule under customary international law that no statute of limitations should be applied to war crimes and crimes against humanity. The United States’ Genocide Convention Implementation Act of 1987, 18 U.S.C.A. § 1091 (e) (2000 & Supp.2004), provides that there is no statute of limitations to indict a person who commits genocide in the form of killing members of a specified group.
Apart from the difficulties of law presented by statutes of limitations and tolling, the defendants have failed to establish with the requisite probability required by Rule 56 when plaintiffs knew, or could be deemed to have known, that they were diseased because of the spraying of herbicides supplied by defendants. They rely on articles in two Vietnam newspapers alleging Agent Orange destructive effects, but there is no showing that plaintiffs read or even had access to these papers. Plaintiffs have denied that they were aware of such publications during the period when a statute might bar their claim and that they were unaware that Agent Orange might have caused the problems of which they now complain. The defendants have not *64 met the requirement of Rule 56. See supra Part IV.B.2.
E. Justiciability
Defendants’ motion to dismiss on the ground that plaintiffs’ claims are non-justi-ciable is denied. The government’s argument that plaintiffs’ claims raise non-justi-ciable political questions is not persuasive. See U.S. Statement of Interest at 13-22.
Defendants broadly construe the types of controversies whose adjudication would impermissibly interfere with the conduct of foreign relations. They unsuccessfully endeavor to include the present case among them. Their position does not square with the well-accepted principle that “[i]nterna-tional law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination.” The Paquete Habana, 175 U.S. 677, 700 , 20 S.Ct. 290 , 44 L.Ed. 320 (1900); see also Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 423 , 84 S.Ct. 923 , 11 L.Ed.2d 804 (1964) (“[I]t is, of course, true that United States courts apply international law as a part of our own in appropriate circumstances.... ”); The Nereide, 9 Crunch 388, 423, 3 L.Ed. 769 (1815) (Marshall, C.J.) (“[T]he Court is bound by the law of nations which is a part of the law of the land”); Filartiga v. Pena-Irala, 630 F.2d 876, 886 (2d Cir.1980) (“It is an ancient and a salutory feature of the Anglo-American legal tradition that the Law of Nations is a part of the law of the land to be ascertained and administered, like any other, in the appropriate case.”).
That the case may call for an assessment of the President’s actions during wartime is no reason for a court to abstain. Presidential powers are limited even in wartime. See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 , 72 S.Ct. 863 , 96 L.Ed. 1153 (1952) (holding that the executive order to seize steel plants during the Korean War exceeded the President’s constitutional power); cf. Michael J. Glennon, Foreign Affairs and the Political Question Doctrine, 83 Am. J. Int’l L. 814, 814 (1989) (“The unevenness of congressional oversight, the proclivity of executive foreign affairs agencies for violating the law and the traditional responsibility of the courts as the last guardians of the Constitution — all point to the propriety of an active role for the judiciary in ensuring governmental compliance with the law.”). It is not a defense that the spraying of herbicides was on orders of the President: Authorization by the head of government does not provide carte blanche for a private defendant to harm individuals in violation of international law. See infra Part IX. In the Third Reich all power of the state was centered in Hitler; yet his orders did not serve as a defense at Nuremberg. Justiciability is not eliminated because of possible interference with executive power even in wartime. Rasul v. Bush, 542 U.S. 466 ,- - -, 124 S.Ct. 2686, 2698-99 , 159 L.Ed.2d 548 (2004) (holding that district court had jurisdiction over claims asserted under ATS by aliens being detained by United States government at its base in Guantanamo, Cuba); Youngstown, 343 U.S. 579 , 72 S.Ct. 863 .
1. Generally
A well-recognized, if not altogether clear, justiciability doctrine instructs federal courts to avoid deciding “political questions.” It reflects an assumption based on our separation of powers doctrine that there is a narrow class of claims best resolved by the branches of government directly responsible to the people through the vote. Federal courts, when faced with certain allegations of unconstitutional gov- *65 eminent conduct, are to dismiss such claims without ruling on the merits.
Experts have observed that “[t]he political question doctrine is in a state of some confusion.” Latoence H. Tribe, AmeriCan Constitutional Law 96 (2d ed.1988) (quotation omitted in third edition). Others have gone further, some saying that the doctrine is useless, still others that it does not exist. See, e.g., ERWin Chemerinsky, FedeRAL Jurisdiction 146 (Aspen Publishers, 4th ed.2003) (concluding that the Supreme Court criteria “seem useless in identifying what constitutes a political question”); Louis Henkin, Is There a “Political Question” Doctrine?, 85 Yale L.J. 597 , 622 (1976) (“The ‘political question’ doctrine ... is an unnecessary, deceptive packaging of several established doctrines that has misled lawyers and courts to find in it things that were never put there and make it far more than the sum of its parts.”); Martin H. Redish, Judicial Review and the “Political Question,” 79 Nw. U.L.Rev. 1031, 1031 (1984) (“The [political question] doctrine has always proven to be an enigma to commentators. Not only have they disagreed about its wisdom and validity ..., but they also have differed significantly over the doctrine’s scope and rationale.”); Louis Michael Seidman, This Essay is Brilliant/This Essay is Stupid: Positive and Negative Self-Reference in Constitutional Practice and Theory, 46 UCLA L.Rev. 501, 528-30 (1998) (arguing that a court cannot “decide whether there is a textually demonstrable commitment or judicially manageable standards without first taking a peek at the very merits it purports to be avoiding. In effect, the Court says that it must first decide the merits in order to avoid deciding the merits.... The doctrine says that courts should not decide political questions, yet the decision whether something is a political question is itself a political question that the doctrine requires the Court to decide.”); Linda Sandstrom Simard, Standing Alone: Do We Still Need the Political Question Doctrine?, 100 Dick. L.Rev. 303, 306 (1996) (“[D]uring the last several decades, the Court has rarely applied the political question doctrine.... ”); Michael E. Tigar, Judicial Power, The “Political Question Doctrine,” and Foreign Relations, 17 UCLA L.Rev. 1135, 1135 (1970) (“[TJhere is, properly speaking, no such thing [as a ‘political question doctrine’]. Rather, there are a cluster of disparate rules and principles any of which may, in a given case, dictate a result on the merits, lead to a dismissal for want of article three jurisdiction, prevent a party from airing an issue the favorable resolution of which might terminate the litigation in his favor, or authorize a federal court in its discretion and as a matter of prudence to decline jurisdiction to hear a ease or decide an issue.”).
The confusion expressed in the commentary is due in part to the Supreme Court’s different, and sometimes conflicting, approaches to the political question doctrine. In Marbury v. Madison, the Supreme Court declared:
By the Constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience .... The subjects are political.... [B]eing entrusted to the executive, the decision of the executive is conclusive.... Questions, in their nature political, or which are by the constitution and laws, submitted to the executive, can never be made in this court.
5 U.S. (1 Cranch) 137, 165-66, 170 , 2 L.Ed. 60 (1803). The Court’s definition of political questions in Marbury was narrow, in- *66 eluding only matters in which the president had unlimited discretion; under this original formulation, a claim alleging a violation of individual rights might have afforded standing, since it would not have been deemed a political question. See Howaed Fink & Mark V. Tushnet, FedeRAl JURISDICTION: POLICY AND PRACTICE 214 (1st ed. 1984) (“But notice the effect of Mar-bury’s classification: Standing is just the obverse of political questions. If a litigant claims that an individual right has been invaded, the lawsuit by definition does not involve a political question.”).
As it evolved, the modern political question doctrine came to include questions incompatible with the Marbury formulation, including instances where individuals alleged the violation of specific constitutional principles and the existence of concrete injury. See, e.g., Luther v. Borden, 48 U.S. (7 How.) 1 , 12 L.Ed. 581 (1849) (determining nonjusticiable a suit brought under the republican form of government clause, U.S. Const, art IV, § 4, even though the effect was to leave people in jail who were contesting the constitutionality of their conviction).
The modern governing standard in this area was articulated in the landmark one person-one vote case of Baker v. Carr, 369 U.S. 186 , 82 S.Ct. 691 , 7 L.Ed.2d 663 (1962). In Baker , the Supreme Court held that the political question doctrine did not bar the federal courts from considering an equal protection challenge to a state’s voting apportionment structure. Plaintiffs from cities contended that malapportionment of the state legislature denied them equal protection because the weight of their votes would not be equal to those of voters in rural districts. Justice Brennan, writing for the Court, narrowly limited nonjusticiable political questions to a relatively few areas where the courts could not find or apply judicially enforceable standards or to areas requiring free executive or legislative control. The six areas he pointed to were the following:
Prominent on the surface of any case held to involve a political question is found [(1)] a textually demonstrable commitment of the issue to a coordinate political department; or [(2)] a lack of judicially discoverable and manageable standards for resolving it; or [(3)] the impossibility of deciding without, an initial policy determination of a kind clearly for nonjudicial discretion; or [(4)] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [(5)] an unusual need for unquestioning adherence to a political decision already made; or [(6)] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
Id. at 217 , 82 S.Ct. 691 . “Unless one or more of these formulations is inextricable from the case at bar, there should be no dismissal for non-justiciability on the ground of a political question’s presence.” Id.
Baker warned against reliance on the political question doctrine to avoid deciding controversies over which the court is assumed to have jurisdiction:
The doctrine of which we treat is one of ‘political questions,’ not one of ‘political cases.’ The courts cannot reject as ‘no law suit’ a bona fide controversy as to whether some action denominated ‘political’ exceeds constitutional authority. The cases we have reviewed show the necessity for discriminating inquiry into the precise facts and posture of the particular case, and the impossibility of resolution by any semantic cataloguing.
Id. (emphasis added).
With respect to foreign relations, the Baker court wrote:
*67 There are sweeping statements to the effect that all questions touching foreign relations are political questions. ... Yet it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance. Our cases in this field seem invariably to show a discriminating analysis of the particular question posed, in terms of the history of its management by the political branches, of its susceptibility to judicial handling in the light of its nature and posture in the specific case, and of the possible consequences of judicial action.
Id. at 211-12 , 82 S.Ct. 691 .
Since Baker, the Court has generally refused to hold that an individual’s claims of personal injury present nonjusticiable political questions. See, e.g., U.S. Dep’t of Commerce v. Montana, 503 U.S. 442, 442, 458 , 112 S.Ct. 1415 , 118 L.Ed.2d 87 (1992) (reversing a judgment holding unconstitutional a 1941 statute prescribing method of “equal proportions” as the method to be used for determining the number of representatives to which each State was entitled, concluding that the issue was “political” only insofar as it “raise[d] an issue of great importance to the political branches”); United States v. Munoz-Flores, 495 U.S. 385 , 110 S.Ct. 1964 , 109 L.Ed.2d 384 (1990) (holding that a dispute under the Origination Clause, U.S. Const, art. I, § 7, cl. 1, which mandates that all bills for raising revenue originate in the House of Representatives, did not present a nonjus-ticiable political question); Davis v. Bandemer, 478 U.S. 109 , 106 S.Ct. 2797 , 92 L.Ed.2d 85 (1986) (applying Baker to find a legislative districting case justiciable where the political “gerrymandering” alleged involved re-drawing of state legislative districts to hamper the electoral prospects of Democratic candidates); United States v. Nixon, 418 U.S. 683 , 94 S.Ct. 3090 , 41 L.Ed.2d 1039 (1974) (holding that the intra-executive nature of the dispute between President Nixon and Special Prosecutor Jaworski did not give rise to a political question); Powell v. McCormack, 395 U.S. 486 , 89 S.Ct. 1944 , 23 L.Ed.2d 491 (1969) (concluding that the political question doctrine did not bar review of the House of Representatives’ exercise of the Article I, section 5, power to judge the qualifications of its members).
Only a few times since Baker has the Supreme Court invoked the political question doctrine to hold issues nonjusticiable. In Gilligan v. Morgan, 413 U.S. 1 , 93 S.Ct. 2440 , 37 L.Ed.2d 407 (1973), plaintiffs sought evaluation by the federal court of the training of the Ohio National Guard under the Fourteenth Amendment of the Due Process Clause and sought injunctive relief in the event of a violation. The Supreme Court based its determination that the question was nonjusticiable on the following factors: (1) Article I, section 8 of the Constitution authorized Congress to engage in this kind of supervision; and (2) judicial review in this area would be essentially standardless. The Court reasoned that “it is difficult to conceive of an area of governmental activity in which the courts have less competence.” Id. at 10 , 93 S.Ct. 2440 .
In Goldwater v. Carter, 444 U.S. 996 , 100 S.Ct. 533 , 62 L.Ed.2d 428 (1979) (per curiam), the Court summarily vacated the decision of a court of appeals holding that the President had power to terminate a treaty with Taiwan without the approval of the Senate. The plurality postulated that the President’s power to abrogate a treaty presented a political question and therefore was nonjusticiable. Justice Powell concurred in the judgment on the ground that the suit was not ripe because neither the Senate nor the House had directly *68 challenged the issue. Id. at 997-98 , 100 S.Ct. 533 (Powell, J., concurring). He disagreed with Justice Rehnquist’s conclusion that the issue was a nonjusticiable political question, and argued to the contrary that “reliance upon the political-question doctrine is inconsistent with our precedents.” Id. at 998, 100 S.Ct. 533 .
In Nixon v. United States, 506 U.S. 224 , 113 S.Ct. 732 , 122 L.Ed.2d 1 (1993), the Court held that a challenge by Walter L. Nixon, former Chief Judge of the United States District Court for the Southern District of Mississippi, to the Senate’s use of a committee to hear testimony and gather other evidence in his impeachment trial amounted to a nonjusticiable political question. The Court’s analysis centered on Article I, section 3, clause 6 of the Constitution: “The Senate shall have the sole Power to try all Impeachments.” The Court determined that “the use of the ... word ‘try’ lack[ed] sufficient precision to afford any judicially manageable standard of review.” 506 U.S. at 230 , 113 S.Ct. 732 . The Court underscored the significance of the explicit grant of “sole” authority to the legislative branch, and further observed that judicial review would pose too great a threat to the legitimacy of the process, “placing] final reviewing authority with respect to impeachments in the hands of the same body that the impeachment process is meant to regulate.” Id. at 235 , 113 S.Ct. 732 . The Court concluded that the Constitution’s textually demonstrable commitment to the Senate of the conduct of impeachment trials made the issue a non-justiciable political question.
Bush v. Gore, 531 U.S. 98 , 121 S.Ct. 525 , 148 L.Ed.2d 388 (2000), is relied upon by some commentators as illustrating the lack of clarity and vitality of the political question doctrine. Commentators noted the significance of the Court’s failure to even mention the doctrine. See, e.g., Robert J. Pushaw, Jr., The Presidential Election Dispute; The Political Question Doctrine, and the Fourteenth Amendment: A Reply to Professors Krent and Shane, 29 Fla. St. U.L.Rev. 603, 612 (2001) (observing that, “[ijnterestingly, no Justice in Bush cited Baker or used the term ‘political question doctrine’ ”); Mark Tushnet, Law and Prudence in the Law of Justiciability, 80 N.C. L.Rev. 1203, 1229 (2002) (“What is most notable about Bush v. Gore in the present context is that no one said anything at all about justiciability questions.”).
In Vieth v. Jubelirer, 541 U.S. 267 , 124 S.Ct. 1769 , 158 L.Ed.2d 546 (2004), Justice Scalia’s plurality opinion held that a challenge to the political gerrymandering of Pennsylvania voting districts was a nonjus-ticiable political question because no judicially manageable standards could be applied. The plurality reasoned that “[t]he issue we have discussed is not whether severe partisan gerrymanders violate the Constitution, but whether it is for the courts to say when a violation has occurred, and to design a remedy.” Id. at 1785. It then concluded that there were no constitutionally appropriate and judicially manageable standards for determining when “political gerrymandering has gone too far.” Id. at 1787.
Vieth arguably demonstrated that there is still a viable political question doctrine and that, as a pre-Vieth commentator noted, “reports of [its] death ... have been greatly exaggerated.” The Supreme Court, 1992 Term — Leading Cases, 107 HaRV. L.Rev. 254, 294 (1993); see also David J. Bederman, Deference or Deception: Treaty Rights as Political Questions, 70 U. Colo. L.Rev. 1439, 1445-46 (1999) (“The [Court’s] recent decisions have all but given the political question doctrine a quiet burial. With [one exception], the political question doctrine has played almost no role in Supreme Court *69 jurisprudence — and virtually none at all in the foreign affairs realm.”).
Courts remain obliged to determine whether provisions may be interpreted as guarantees of enforceable rights. They must first construe the relevant text, paying close attention to whether the provision by its terms grants authority to another branch of government; if a provision recognizes such authority, the court will have to consider the possibility of conflicting conclusions, as well as whether parallel judicial and political remedies are necessary.
But ultimately, the political question inquiry turns as much on the court’s conception of judicial competence as on the constitutional text. Thus the political question doctrine, like other

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8687390. Public record. Not legal advice.