Kenneth Anderson Declaration on Issues of the Laws of War, Corporate Liability and Other Issues of International Law in Agent Orange ATS Litigation, November 2004

Abstract:     
This 2004 expert declaration was offered on behalf of defendant corporations in Agent Orange litigation heard before Judge Jack Weinstein in 2005 as part of an Alien Tort Statute action by Vietnamese individuals and associations. I have posted it to SSRN because of the numerous requests I have had for it, and as it has been cited in scholarship.

The Declaration starts by offering a basic discussion of the sources of international and in particular customary international law and the meaning and role of opinio juris, and their relation to ATS cases following the Sosa case. It then addresses laws of war issues relevant to the use of Agent Orange in the Viet Nam War - the discussion focuses on the law in the 1960s, but frequently draws comparisons to contemporary law of war. It has a special discussion of proportionality in the law of jus in bello, both then and now. The declaration further offers a detailed discussion of the meaning of poison and poisoned weapon in the context of the Hague Regulations of 1907, the 1925 Geneva Protocol, and the Chemical Weapons Convention, among others.

The Declaration then turns and takes up the question of corporate liability in international law, taking the view that it does not exist, and that ATS cases in US courts have created from whole cloth both civil liability in international law as well as liability for corporate, rather than individual, actors. It does so by analyzing relevant portions of the Nuremberg cases, and concludes by pointing out that although several important international law treaties, including the Statute of the International Criminal Court, have affirmatively considered corporate liability, in fact it has not been created in international law, despite numerous opportunities to do so. This portion of the Declaration has been particularly of interest to scholars examining corporate liability and ATS cases.

Keywords: Agent Orange, Weinstein, Vietnam War, laws of war, international humanitarian law, Alien Tort Statute, ATS, corporate liability in international law, proportionality, Hague Regulations, Geneva Protocol, Chemical Weapons Convention, opinio juris, customary international law

JEL Classifications: K10, K13, K23, K32, K33

Accepted Paper Series