The Agent-Orange Litigation: Systemic Success and Political Injustice

The United States army sprayed an estimated 19 million gallons of agent orange in South Vietnam during the war. Every spray run, carried out by light, low-flying airplanes, destroyed 350 acres of forest. Agent orange is nowadays known as a cause of serious health damage. In 2004, Vietnamese victims filed product-liability claims against the companies that produced the chemical. The District Court of the Eastern District of New York now dismissed the case: “Neither a treaty to which the United States was a party, nor a statute, nor a binding declaration of the United States, nor a rule of international or human rights law applied to limit spraying of herbicides by the United States in Vietnam during the period up to April of 1975.”

From a purely systemic point of view, the judgment is good news to international lawyers in many ways:

• The District Court finds that it has jurisdiction over plaintiffs’ international law based claims under the Alien Tort Statute.

• The Court affirms that the judiciary must interpret treaties and customary international law, even when such interpretation leads to the conclusion that government has acted in violation of established international law principles.

• The US government had argued that a “controlling executive act” forecloses the application of customary international law. The Court rejects the argument and affirms that the President has no power to violate international law or to authorize others to do so.

• The Court further rejects the government’s contention that courts should defer to the executive’s interpretation of international law insofar as it suggests that the executive’s statement of the law is controlling. Courts cannot abandon their own duty to decide the law applicable to a case properly before them.

• The Court sides with the view that all customary international law has been included within federal common law.

Politically, however, the dismissal of the Vietnamese claims leaves a bitter after-taste. The judgment indirectly serves to legitimate the American war in Vietnam and thus risks to degrade the suffering of the Vietnamese population. This is particularly true in comparison with the agent orange litigation brought several years ago by US veterans: Due to domestic political pressure, the same chemical companies settled with veterans for US$ 180 million. No such settlement is on the horizon for Vietnamese victims. Do veterans suffer ‘more legitimately’ than the Vietnamese people?

"Sober Drunkenness": A Review of Kennedy's Critique of the Human Rights Movement

Human rights are often considered part of a leftist agenda. In an article for 2002 Harvard Human Rights Journal, David Kennedy – himself a “compassionate legal professional” whose political conviction is on the left of the spectrum – famously asked the question whether the human rights movement is “part of the problem” rather than the solution.

Kennedy’s critique focuses on the professional culture of the human rights movement. He argues that the human rights discourse dictates a vocabulary that makes other emancipatory projects likely to remain unheard; a vocabulary that blinds out other forms of suffering, such as suffering caused by private actors. His concern is that the human rights discourse attempts to cure the symptoms instead of addressing the causes. (One could perhaps interpret Kennedy as saying that the human rights discourse works as a kind of ‘opium for the people’, forcing them to translate their suffering into the language of legal claims rather than into concrete political action). Finally, Kennedy takes issue with the “18th through 20th century [Western] liberalism” embodied in the concept of human rights.

In his recent book entitled “The Dark Sides of Virtue”, Kennedy has further elaborated his theory. Alexandra Kemmerer, a German researcher at Würzburg University and a member of the editorial board of the German Law Journal, recently published a lucid and beautifully written review of Kennedy’s book in the Frankfurter Allgemeine Zeitung. Kemmerer convincingly argues that it would be wrong to light-heartedly give up the discourse of international human rights law as a whole. This – imperfect – “conversation of public international law” is a necessary pre-condition for the rational balancing of costs and benefits that Kennedy suggests.