Editor’s note: This is the final installment of a four-part series on Agent Orange.
In 2002, Vietnam and the U.S. held a joint conference on Human Health and Environmental Impacts of Agent Orange. Following the conference, the U.S. National Institute of Environmental Health Sciences (NIEHS) began scientific exchanges between the U.S. and Vietnam and began discussions for a joint research project on the human health impacts of Agent Orange. These negotiations broke down in 2005, when neither side could agree on the research protocol and the research project was canceled. More progress has been made on the environmental front. In 2005, the first United States-Vietnam workshop on remediation of dioxin was held.
Starting in 2005, the EPA began to work with the Vietnamese government to measure the level of dioxin at the Da Nang Air Base. Also in 2005, the Joint Advisory Committee on Agent Orange, made up of representatives of Vietnamese and U.S. government agencies, was established. The committee has been meeting yearly to explore areas of scientific cooperation, technical assistance and environmental remediation of dioxin.
A breakthrough in the diplomatic stalemate on this issue occurred as a result of United States President George W. Bush’s state visit to Vietnam in November 2006. In the joint statement, President Bush and President Triet agreed “further joint efforts to address the environmental contamination near former dioxin storage sites would make a valuable contribution to the continued development of their bilateral relationship.” On May 25, 2007, President Bush signed the U.S. Troop Readiness, Veterans’ Care, Katrina Recovery, and Iraq Accountability Appropriations Act of 2007 into law for the wars in Iraq and Afghanistan that included an earmark of $3 million specifically for funding for programs for the remediation of dioxin “hotspots” on former U.S. military bases, and for public health programs for the surrounding communities; some authors consider this to be completely inadequate, pointing out that the Da Nang Airbase alone will cost $14 million to clean up, and that three others are estimated to require $60 million for cleanup. The appropriation was renewed in the fiscal year 2009 and again in FY 2010. An additional $12 million was appropriated in the fiscal year 2010 in the Supplemental Appropriations Act and a total of $18.5 million appropriated for fiscal year 2011.
Former Secretary of State Hillary Clinton stated during a visit to Hanoi in October 2010 that the U.S. government would begin work on the cleanup of dioxin contamination at the Da Nang Airbase. In June 2011, a ceremony was held at Da Nang airport to mark the start of U.S.-funded decontamination of dioxin hotspots in Vietnam. Thirty-two million dollars has so far been allocated by the U.S. Congress to fund the program. A $43 million project began in the summer of 2012, as Vietnam and the U.S. forge closer ties to boost trade and counter China’s rising influence in the disputed South China Sea.
On Jan. 31, 2004, a victim’s rights group, the Vietnam Association for Victims of Agent Orange/dioxin (VAVA), filed a lawsuit in the United States District Court for the Eastern District of New York in Brooklyn, against several U.S. companies for liability in causing personal injury, by developing, and producing the chemical, and claimed that the use of Agent Orange violated the 1907 Hague Convention on Land Warfare, 1925 Geneva Protocol, and the 1949 Geneva Conventions. Dow Chemical and Monsanto were the two largest producers of Agent Orange for the U.S. military and were named in the suit, along with the dozens of other companies (Diamond Shamrock, Uniroyal, Thompson Chemicals, Hercules, etc.). On March 10, 2005, Judge Jack B. Weinstein of the Eastern District (who had presided over the 1984 U.S. Veterans class-action lawsuit) dismissed the lawsuit, ruling there was no legal basis for the plaintiffs’ claims. He concluded Agent Orange was not considered a poison under international law at the time of its use by the U.S.; the U.S. was not prohibited from using it as a herbicide; and the companies which produced the substance were not liable for the method of its use by the government. Weinstein used the British example to help dismiss the claims of people exposed to Agent Orange in their suit against the chemical companies that had supplied it.
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-D and 2,4,5-T to destroy jungle-grown crops and bushes during the insurgency in Malaya. The United States considered British precedent in deciding that the use of defoliants was a legally accepted tactic of war. On Nov. 24, 1961, Secretary of State Dean Rusk advised President John F. Kennedy that herbicide use in Vietnam would be lawful, saying that “the use of defoliant does not violate any rule of international law concerning the conduct of chemical warfare and is an accepted tactic of war. Precedent has been established by the British during the emergency in Malaya in their use of helicopters for destroying crops by chemical spraying.”
George Jackson stated that “if the Americans were guilty of war crimes for using Agent Orange in Vietnam, then the British would be also guilty of war crimes as well since they were the first nation to deploy the use of herbicides and defoliants in warfare and used them on a large scale throughout the Malayan Emergency. Not only was there no outcry by other states in response to Britain’s use, but the United States viewed it as establishing a precedent for the use of herbicides and defoliants in jungle warfare.”
The U.S. government was also not a party in the lawsuit because of sovereign immunity, and the court ruled the chemical companies, as contractors of the U.S. government, shared the same immunity. The case was appealed and heard by the Second Circuit Court of Appeals in Manhattan on June 18, 2007. Three judges on the court upheld Weinstein’s ruling to dismiss the case. They ruled that, though the herbicides contained a dioxin (a known poison), they were not intended to be used as a poison on humans. Therefore, they were not considered a chemical weapon and thus not a violation of international law.
A further review of the case by the entire panel of judges of the Court of Appeals also confirmed this decision. The lawyers for the Vietnamese filed a petition to the U.S. Supreme Court to hear the case. On March 2, 2009, the Supreme Court denied certiorari and declined to reconsider the ruling of the Court of Appeals.
Harold B. Wolford is president of the Vietnam Veterans of America Chapter 1095. He served in the United States Army from 1970 to 1973.