Summary of Key Legal Points in Weinstein Decision

Issue	Decision	Ruling in favor of	Judge’s Explanation	Page #s in decision
Do plaintiffs have standing to sue?	Yes	Plaintiffs	VAVA is a legitimate organization and can represent its members.	73-74
Can the plaintiffs sue under US laws, such as product liability and general tort claims laws?	No	Defendants	The government contractor defense covers all domestic US laws.	11-13
Can the plaintiffs sue under international laws?	Yes, in theory	Plaintiffs	The government contractor defense does not apply to international law.	16, 141
Does the court have jurisdiction over international law questions?	Yes	Plaintiffs	International law such as treaties and conventions also applies in US courts (rejecting US Justice Dept. brief)	15
Is it possible to sue corporations for violations of international law?	Yes	Plaintiffs	Corporations are not exempt from laws that also pertain to individuals.	78-90
Does a statute of limitations apply to international law?	No	Plaintiffs	The Alien Tort Statute, which covers violations of international law, has no statute of limitations.	90-97
Does the “political question doctrine” apply?	No	Plaintiffs	The US is bound by international law, and the courts have a role in ensuring the executive branch follows it (rejecting Justice Dept. brief)	98-116
Was US use of herbicides in Vietnam against international law?	No	Defendants	No law or convention existed at the time to make use illegal—though this may be different now. Treaties are not retroactive.	17, 129, 232
Did defendants know how herbicides would be used?	Yes	Plaintiffs	Defendants and the government both were aware of what they were doing.	141-154
Did defendants use herbicides with intent to inflict pain and suffering?	No	Defendants	Herbicides were used for the purpose of killing plants; any effects on humans were secondary and collateral.	175-6
Was use of herbicides a war crime?	No	Defendants	War crimes require criminal intent.	176-9
Did use of herbicides constitute genocide?	No	Defendants	Genocide requires specific intent to destroy a group. US did not join Genocide Convention until 1988.	180-1
Is Agent Orange a “poison” as defined by the 1907 Hague Convention and/or 1925 Geneva Protocol?	No	Defendants	Prohibitions were for specific weapons, not broad classes. “Poison” did not include chemical gases, hence also not AO. AO was a herbicide, not a poison.	60, 182-9
Was use of herbicides a violation of customary international law?	No	Defendants	Other countries also used herbicides and there was no international consensus against the practice until after US use stopped in Vietnam.	197-202
Were herbicides used in a disproportionate manner?	No	Defendants	Herbicides were sprayed extensively and sometimes excessively, but for military reasons.	218-221
Can plaintiffs prove that their injuries were a result of exposure to herbicides?	No (at least not yet)	Defendants	Plaintiffs’ claims are anecdotal, not backed by sufficient scientific and epidemiological data.	18-24, 42
Could the court order injunctive relief (environmental cleanup) in Vietnam?	No	Defendants	Relief would be too difficult for the court to supervise and impossible to enforce.	66-69

Summary by Andrew Wells-Dang, Fund for Reconciliation & Development