Posting two expert declarations in the Agent Orange ATS litigation on international law and corporate liability on SSRN
In 2004-5, I submitted two expert declarations on behalf of defendant corporations in the Agent Orange ATS litigation before Judge Jack B. Weinstein. The declarations covered basic issues of determining the content of international law, customary law, opinio juris, and then laws of war issues related to the use of Agent Orange in the Vietnam war. The declarations then considered issues related to corporate liability in international law, and how it related to ATS cases in US district courts. I have received numerous requests for copies of the declarations, and Carlos Vazquez even referenced one in an article on corporate liability in international law in the Columbia Journal of Transnational Law, 43 CLMJTL 927 (2005). In order to make the declarations accessible, I have posted them to SSRN, here and here.
In addition to my affidavits, Michael Reisman also submitted one on behalf of the defendant corporations, and I am pleased (and slightly relieved) to report that his conclusions and indeed reasoning almost exactly matched mine although we had no contact in our research or drafting. Jordan Paust and George Fletcher wrote affidavits for the plaintiff Vietnamese individuals and associations. Judge Weinstein issued an opinion in favor of defendants, although the full holding is complicated ( and the opinion some 200 pages long) - here is the link to Westlaw if you have it.
Below is the abstract for the first declaration (the second is a reply largely to Professors Paust and Fletcher):
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.