Practice Relating to Rule 76. Herbicides
Geneva Gas ProtocolThe 1925 Geneva Gas Protocol provides:
Whereas the use in war of asphyxiating, poisonous or other gases, and of all analogous liquids, materials or devices, has been justly condemned by the general opinion of the civilized world;
To the end that this prohibition shall be universally accepted as a part of International Law, binding alike the conscience and the practice of nations;
That the High Contracting Parties, so far as they are not already Parties to Treaties prohibiting such use, accept this prohibition.
ENMOD Convention Article I(1) of the 1976 ENMOD Convention provides:
Each State Party to this convention undertakes not to engage in military or any other hostile use of environmental modification techniques having widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State Party.
Article II of the 1976 ENMOD Convention provides:
As used in article I, the term “environmental modification techniques” refers to any technique for changing – through the deliberate manipulation of natural processes – the dynamics, composition or structure of the Earth, including its biota, lithosphere, hydrosphere and atmosphere, or of outer space.
Chemical Weapons Convention The seventh preambular paragraph of the 1993 Chemical Weapons Convention states: “Recognizing the prohibition, embodied in the pertinent agreements and relevant principles of international law, of the use of herbicides as a method of warfare, …”.
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AustraliaAustralia’s Commanders’ Guide (1994) states:
It is prohibited to use methods or means of warfare which are intended or may be expected to cause widespread, long-term and severe damage to the natural environment and thereby prejudice the health or survival of the population.
Australia’s Defence Force Manual (1994) states:
Any method or means of warfare which is planned, or expected, to cause widespread, long-term and severe damage to the natural environment and thereby jeopardise the survival or seriously prejudice the health of the population is prohibited … Means and methods which are not expected to cause such damage are permitted even if damage results.
Australia’s LOAC Manual (2006) states:
4.11 Environmental modification techniques having widespread, long lasting or severe effects are prohibited. An example of this is defoliant chemicals used by militaries to deprive the enemy of ground cover or kill food crops. The United States used Agent Orange during the Vietnam War for this purpose. These chemicals are not discriminating and are difficult to contain, often resulting in effects to water supplies and creation of toxins dangerous to humans.
7.14 Any method or means of warfare which is planned, or expected, to cause widespread, long-term and severe damage to the natural environment and thereby jeopardise the survival or seriously prejudice the health of the population is prohibited … Means or methods which are not expected to cause such damage are permitted even if damage results.
BelgiumBelgium’s Law of War Manual (1983) states that it is uncertain whether “chemical products that do not cause widespread, long-term and severe damage to the environment” are covered by the prohibition on the use of asphyxiating and other analogous gases.
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment].
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment].
NetherlandsThe Military Manual (1993) of the Netherlands states: “Opinion is divided over whether [the prohibition on the use of chemical weapons] applies to … defoliants.” Concerning defoliants, the manual states that Article 35 of the 1977 Additional Protocol I was drafted in the light of the large-scale use of defoliants in the Vietnam War.
The Military Manual (2005) of the Netherlands states:
0457. Defoliation agents
The Chemical Weapons Convention says nothing about herbicides, such as defoliation agents …
0458. Because of the military significance of modern chemical weapons, many States still allow for the possible use of such weapons.
NigeriaNigeria’s Manual on the Laws of War mentions the 1925 Geneva Gas Protocol and states:
There is no rule to prevent measures being taken to dry up springs and destroy water-wells from which the enemy may draw water or devastate crops by means of chemicals and bacterias which are not harmful to human beings.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states:
[The 1977] Additional Protocol I is concerned with the protection of the environment from the effects of hostilities … [The Protocol] relates to widespread, long-term and severe damage. The terms are not defined. … These provisions do not … automatically prevent the use of certain means of warfare such as herbicides or chemical agents. The effects of … using these means must be considered.
United States of AmericaThe US Field Manual (1956) states:
It is the position of the United States that the Geneva [Gas] Protocol of 1925 does not prohibit the use in war of … chemical herbicides … In this connection, however, the United States has unilaterally renounced, as a matter of national policy, certain uses in war of chemical herbicides … The policy and provisions of Executive Order No. 11850 do not, however, prohibit or restrict the use of chemical herbicides … by US armed forces either (1) as retaliation in kind during armed conflict or (2) in situations when the United States is not engaged in armed conflict. Any use in armed conflict of herbicides … however, requires Presidential approval in advance.
The US Air Force Pamphlet (1976) restates Executive Order No. 11850 of 8 April 1975 and specifies:
The legal effect of this Executive Order is to reflect national policy. It is not intended to interpret the Geneva [Gas] Protocol of 1925 or change the interpretation of the US that the Protocol does not restrain the use of chemical herbicides as such.
The US Air Force Commander’s Handbook (1980) states:
The United States does not regard the Geneva [Gas] Protocol as forbidding use of … herbicides in armed conflict. However, the United States has, as a matter of national policy, renounced the first use of … herbicides, with certain limited exceptions specified in Executive Order 11850, 8 April 1975. Using … herbicides in armed conflict requires Presidential approval.
The US Operational Law Handbook (1993) states:
The following measures are expressly prohibited by the law of war and are not excusable on the basis of military necessity:
The US Naval Handbook (1995) states:
i. Using weapons which cause unnecessary suffering, prolonged damage to the natural environment, or poison weapons. This prohibition does not preclude the use of herbicides or riot control agents by US forces in wartime when authorized by the President of the US or his delegate.
The United States considers that use of herbicidal agents in wartime is not prohibited by either the 1925 [Geneva] Gas Protocol or the 1993 Chemical Weapons Convention but has formally renounced the first use of herbicides in time of armed conflict except for control of vegetation within U.S. bases and installations or around their immediate defensive perimeters. Use of herbicidal agents during armed conflict requires NCA approval.
The US Naval Handbook (2007) states:
Herbicidal agents are gases, liquids, and analogous substances that are designed to defoliate trees, bushes, or shrubs, or to kill long grasses and other vegetation that could shield the movement of enemy forces. The United States considers that use of herbicidal agents in wartime is not prohibited by either the 1925 [Geneva] Gas Protocol or the 1993 Chemical Weapons Convention but has formally renounced the first use of herbicides in time of armed conflict except for control of vegetation within U.S. bases and installations or around their immediate defensive perimeters. Use of herbicidal agents during armed conflict requires presidential approval.
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BrazilBrazil’s Military Penal Code (1969) prohibits the spreading of epidemics or infestations in a location under military control which could result in damage to forests, crops, grazing pastures or animals used for economic or military purposes.
EcuadorEcuador’s National Civil Police Penal Code (1960) states that members of the National Civil Police “who use or order to be used … herbicides” commit a punishable offence.
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United States of America
The Agent Orange case in 2005 involved a class action suit filed on behalf of various Vietnamese nationals and an organization, The Vietnamese Association for Victims of Agent Orange/Dioxin, against Dow Chemical and other US chemical manufacturers, for harms allegedly done to them and their land through the United States’ use of Agent Orange and other herbicides during the Vietnam War from 1965 to 1971 and by the South Vietnamese government’s subsequent use of such herbicides until 1975. In dismissing the claims, the Court found that, while recognizing the evolution of international law since 1975, the use of herbicides did not violate, at the time they were used, either customary or conventional international law binding on the United States. In its consideration of various sources of law that might have prohibited the use of herbicides during the Vietnam War, the Court stated:
Hague Convention IV
Hague Convention IV does not define the phrase “poison or poisoned weapons.” The International Court of Justice (“ICJ”) has noted that “different interpretations exist” as to what this undefined phrase means. See Advisory Opinion No. 95, Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 226, at 248 (July 8). State practice under the treaty indicates that the proscriptions of “poison or poisoned weapons” did not apply even to chemical gas weapons designed and intended to be lethal, such as shells containing chlorine or mustard gas … Inasmuch as Hague Convention IV’s ban on “poison or poisoned weapons” does not apply to chemical gas weapons designed and intended to kill humans, a fortiori it does not prohibit military use of herbicides designed and intended as defoliants.
Under Sosa [Sosa v. Alvarez-Machain, US Supreme Court, 2004], the imprecise scope of the Hague Convention IV’s prohibition on the use of “poison or poisoned weapons,” and the uncertainty as to whether that prohibition even applies to lethal chemical weapons designed to kill human beings, is fatal to any claim that the Convention sets forth a sufficiently definite prohibition on military use of herbicides that could be enforced in United States courts.
Hague Convention IV does not provide a basis for recognizing a common law cause of action against defendants for manufacturing and selling herbicides for military use during the Vietnam War. The Convention did not outlaw the use of herbicides in Vietnam.
1925 Geneva [Gas] Protocol
The 1925 Geneva [Gas] Protocol entered into force for the United States on April 10, 1975.
The 1925 Geneva Protocol prohibits “the use in war of asphyxiating, poisonous or other gases, and of all analogous liquids, material or devices.” 26 U.S.T. at 575. This proscription – whether based on the protocol or the customary international law that hypothetically could have developed from it – did not prohibit military use of herbicides at the time of the Vietnam War.
As leading scholars have pointed out, the 1925 Geneva Protocol’s prohibition on use of “asphyxiating, poisonous or other gases” and “analogous liquids, materials or devices” leaves “considerable room for divergent interpretations.” DOCUMENTS ON THE LAWS OF WAR 155 (Adam Roberts & Richard Guelff, eds., 3d ed. 2004 reprint).
The 1925 Geneva Protocol has given rise to a customary international legal prohibition on first use of lethal gas weapons, such as those used during World War I. Anderson Decl. [Decl. of Professor Kenneth Howard Anderson, Jr., Nov. 2, 2004] ¶ 39. At the time of the Vietnam War, however, this prohibition was, for the United States – a non-party – merely a rule predicated on reciprocity, not on customary international law. See Reisman Op. [Op. of W. Michael Reisman Submitted in Support of Defendants’ Motion to Dismiss, Nov. 1, 2004] at 35–36. It did not, in any event, encompass military use of herbicides. See Anderson Decl. ¶ 49. There is “no indication that the 1925 [Geneva] Protocol was designed to encompass herbicides.” See Reisman Op. at 34.
The numerous reservations made by many nations in acceding to the treaty demonstrate that the Protocol’s prohibitions, whatever their precise scope, were not compelled by customary international law. Reisman Op. at 35–37. As of the time of the Vietnam War, nineteen ratifying states considered themselves bound only in relation to other ratifying states, and declared that they would not be bound if any enemy state failed to respect the prohibition. Id. at 35–36. Thus, whatever the scope of the norm that ultimately developed post-1975 from the 1925 Geneva Protocol, during the Vietnam War it applied only to first use of proscribed gases as a matter of reciprocity, not international legal obligation. Id.
The 1925 Geneva Protocol provision was designed to outlaw poison gases such as mustard gas used in World War I. It cannot be interpreted to encompass the use of herbicides which were not then a known weapon and were far different in their purpose and effect. The gases outlawed in 1925 had an almost immediate disabling effect on those exposed and were intended to disable or kill human beings. In contrast, herbicides were designed to strip plants of leaves or kill them.
1949 Geneva Conventions
The four 1949 Geneva Conventions address a host of humanitarian concerns arising during war, such as the treatment of children, women, the sick and wounded; the protection of hospitals; evacuations of civilian populations; the treatment of refugees; the protection of relief agencies; and prevention of forced labor. None of these provisions address the type of weapons that may be used in warfare, let alone military use of herbicides.
1969 United Nations General Assembly Resolution
Plaintiffs rely upon a 1969 resolution of the General Assembly of the United Nation. [G.A. Res. 2603-A, U.N. GAOR, 24th Session, 16 December 1969: “Question of Chemical and Bacteriological (Biological) Weapons”] It condemned the use of herbicides in Vietnam.
General Assembly Resolution 2603-A does not provide a basis for plaintiffs’ causes of action. The General Assembly is not a law-making body, and – with narrow, defined exceptions not relevant here – is granted only recommendatory powers by the United Nations Charter.
This General Assembly resolution did not constitute a statement of applicable international law, nor was it binding on the United States. But cf. BASIC DOCUMENTS ON HUMAN RIGHTS 1 (Ian Brownlie, ed., 3d ed. 1998 reprint) (“The [United Nations], and especially the General Assembly and the Economic and Social Council, has given impetus to the development of standards concerning human rights.”). It is the Security Council, not the General Assembly, that holds whatever powers the United Nations has to make decisions that are binding on the United States. The General Assembly’s resolution on a subject such as the present one is, while important as an indication of the developing international law, precatory only. See, e.g., U.N. CHARTER arts. 9–22.
A General Assembly resolution, even though it is not binding, Flores, 343 F.3d at 166–67, may provide some evidence of customary international law when it is unanimous (or nearly so) and reflective of actual state practice. General Assembly Resolution 2603-A was neither near unanimous nor a reflection of practice. The resolution was adopted by a vote of 80-3, with thirty-six countries abstaining … By abstaining, approximately one-third of the nations addressing the question in effect refused to recognize the existence of a treaty or customary international legal prohibition on military use of herbicides. Anderson Decl. ¶ 57. It is possible, of course, that, apart from the merits, the abstainers had political reasons for not contesting the position of the United States, but, nevertheless, their failure to support the resolution drains it even of precatory force.
The General Assembly was not expressing generally accepted international law in its 1969 resolution on use of herbicides. Major military powers and more than forty other nations either opposed the resolution or abstained. It cannot be viewed as a statement of consensus.
1977 Additional Protocol I
The United States signed Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflict (Protocol I), June 8, 1977, 1125 U.N.T.S. 3 (entered into force Dec. 7, 1978), on December 12, 1977, but never ratified it … While it might be interpreted to apply to future use of herbicides in the way they were used in Vietnam, it had no application prior to 1975.
It was not until after the conclusion of the Vietnam War that Protocol I articulated for the first time an obligation to take care in warfare “to protect the natural environment against widespread, long-term and severe damages.” Id. The explicit recognition only in the late 1970s that this was a new obligation (one which the United States has yet to acknowledge) adds some weight to the conclusion that military use of herbicides did not violate customary international law during the Vietnam War. Anderson Decl. ¶¶ 62–63. Treatise writers remain uncertain whether, even today, customary international law prohibits military use of herbicides when arguably appropriate as an aspect of proportional military force protection. Id. ¶ 60.
Customary International Law
The United States was seeking to aid the Vietnamese, not wipe them out. And there was no internationally recognized human right that would have required an armed force to refrain from using herbicides to protect its troops and those of its allies. No recognized source of international law that might have applied up to 1975 could have been interpreted as outlawing use of herbicides in the way they were utilized in Vietnam.
As to destruction of jungle cover behind which the enemy could move and ambush troops, there appears to have been no generally accepted rule prohibiting the practice. But cf. DAVID J. BEDERMAN ET AL., INTERNATIONAL LAW: A HANDBOOK FOR JUDGES 111–13 (Am. Soc’y of Int’l Law 2001) (discussing destruction of environment during peace). Almost since walled cities were developed the procedure of clearing surrounding areas for outgoing fire and to prevent sneak attacks was accepted military convention. No theoretical basis for distinguishing clearings for military advantage by attackers rather than defenders is apparent …
No executive or legislative action prior to 1975 showed an understanding of international law that would support plaintiffs’ position. Despite the fact that Congress and the President were fully advised of a substantial belief that the herbicide spraying in Vietnam was a violation of international law, they acted on their view that it was not a violation at the time.
In 2008, in the Agent Orange case, the US Court of Appeals for the Second Circuit upheld the dismissal of the case by the District Court, finding that the Plaintiffs had failed to demonstrate a violation of international law. In its judgment, the Court of Appeals stated:
In support of their argument that the deployment of Agent Orange violated customary norms prohibiting use of “poisoned weapons” and the infliction of unnecessary suffering, Plaintiffs cite … a number of both domestic and international law sources … [including] the 1907 Hague Regulations … [and] the1925 Geneva [Gas] Protocol …
The United States did not ratify the 1925 Geneva Protocol until 1975. Accordingly, the Protocol cannot be said to have constituted “a treaty of the United States,” … during the period relevant to this appeal. Even at the time of ratification, the United States and other states reserved the right to respond in kind to a belligerent’s first use of poisonous weapons and further limited the treaty obligation to apply only against other treaty parties. … Given the nature and scope of the reservations to ratification, however, it would be an impermissible stretch to find that the 1925 Geneva Protocol had acquired the status of binding customary international law during the Vietnam conflict.
The sources of international law relied on by Plaintiffs do not support a universally-accepted norm prohibiting the wartime use of Agent Orange that is defined with the degree of specificity required by Sosa [Sosa v. Alvarez-Machain, 542 U.S. 692 (2004)]. Although the herbicide campaign may have been controversial, the record before us supports the conclusion that Agent Orange was used as a defoliant and not as a poison designed for or targeting human populations. Inasmuch as Agent Orange was intended for defoliation and for destruction of crops only, its use did not violate the international norms relied upon here, since those norms would not necessarily prohibit the deployment of materials that are only secondarily, and not intentionally, harmful to humans. In this respect, it is significant that Plaintiffs nowhere allege that the government intended to harm human beings through its use of Agent Orange. …
There is lack of a consensus in the international community with respect to whether the proscription against poison would apply to defoliants that had possible unintended toxic side effects, as opposed to chemicals intended to kill combatants. The prohibition on the use of “poison or poisoned weapons” in Article 23(a) of the 1907 Hague Regulations is certainly categorical … but its scope is nevertheless undefined and has remained so for a century. As the International Court of Justice (“ICJ”) has acknowledged in an authoritative interpretation of Article 23(a), that provision nowhere defines the critical term “poison,” and “different interpretations exist on the issue.” [Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion No. 95, 1996 I.C.J. 226, 248, 255 (July 8, 1996) (“Nuclear Weapons Advisory Opinion”)]. Indeed, Plaintiffs’ own expert conceded that “[t]he concept of ‘poison’ is not defined.” Plaintiffs themselves concede that the authorities “go both ways” as to whether the use of herbicides in war, “particularly to destroy crops not intended for use by enemy forces, did violate established norms of international law prior to 1975.”
Plaintiffs’ reliance upon the trials at Nuremberg is inapposite for the same reasons. As the District Court correctly noted, the individuals who were found guilty in those criminal proceedings were found to have supplied poisonous Zyklon B gas in World War II concentration camps when “the accused knew that the gas was to be used for the purpose of killing human beings.” … Because Agent Orange was “not used as [a] means of directly attacking enemy troops,” it was not prohibited by Article 23(e)’s proscription of the calculated use of lethal substances against human beings and its use is distinguishable from the context in which Zyklon B gas was used in World War II.
… In 1969, the United States 7 objected to a proposed United Nations resolution that would have “ma[d]e a clear affirmation that the prohibition contained in the Geneva Protocol applied to the use in war of all chemical, bacteriological and biological agents (including tear gas and other harassing agents) which presently existed or which might be developed in the future.” The following year, after the United States ceased its use of Agent Orange upon a study revealing its deleterious effects on humans, the Secretary of State wrote a letter to President Nixon recommending that the President transmit to the Senate for advice and consent the ratification of the 1925 Geneva Protocol. In his letter, the Secretary stated that “[i]t is the United States’ understanding of the Protocol that it does not prohibit the use in war of riot-control agents and chemical herbicides.” When President Ford ratified the Geneva Protocol in 1975, he clarified that “[a]lthough it is our position that the [P]rotocol does not cover riot control agents and chemical herbicides, I have decided that the United States shall renounce their use in war as a matter of national policy.” Moreover, in ratifying the 1925 Geneva Protocol in 1975, the Senate made clear its understanding that the United States’ prior use of herbicides in Vietnam had not violated that treaty and that the government intended the Protocol to be only prospective in effect.
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ArgentinaFollowing the adoption of the Final Declaration of the Second ENMOD Review Conference by consensus, Argentina and Sweden “expressed their satisfaction with the ban on the use of herbicides as a method of warfare.”
AustraliaIn 1969, during a debate in the UN General Assembly on the question of chemical and bacteriological (biological) weapons, Australia stated:
The draft resolution [on chemical and bacteriological (biological) weapons under discussion] would declare as contrary to the [1925 Geneva Gas Protocol] “any chemical agent of warfare” with “direct toxic effects on man, animals and plants”. It is the view of the Australian Government that the use of non-lethal substances such as … herbicides and defoliants does not contravene the Geneva Protocol nor customary international law.
CanadaFollowing the adoption of the Final Declaration of the Second ENMOD Review Conference by consensus, Canada stated: “The work of the Conference demonstrated that all was not well with the Convention owing, in large measure, to significant problems with regard to the interpretation of its scope.”
While some parties maintained that the ENMOD was a futuristic document covering exotic technologies that had yet to be invented, they contended at the same time that it covered the use of herbicides, which was a low-technology environmental modification technique.
ChinaIn 1972, the head of the Chinese delegation to the Meeting on Human Environment condemned the United States for having caused “unprecedented damage to the human environment” in South Vietnam through the use of “chemical, toxic and poisonous gas”, having as a consequence to poison “rivers and other water resources”.
In 1980, the Government of China denounced actions taken by Israel and accused it of having “inhumanely sprayed defoliant on Palestinian lands”.
HungaryIn 1966, during a debate in the First Committee of the UN General Assembly, Hungary stated with respect to the use of chemical weapons by the United States in Viet Nam that “food and drinking water were being poisoned by toxic herbicides”.
NetherlandsThe Minister of Foreign Affairs of the Netherlands stated in a parliamentary debate in 1995:
Generally speaking, the use of herbicides as a means of warfare is prohibited according to international customary law, and also according to the ENMOD treaty and the Geneva Conventions (1949), if this use causes widespread, long-term and severe damage. Then, the prohibition is binding upon all states.
PolandDuring the Geneva Conference of 1925, the representative of Poland, a sponsor of the prohibition of biological weapons at this conference, repeatedly stated that unless biological warfare was outlawed, “great masses of men, animals and plants would be exterminated”.
Russian FederationThe commander of the Russian Defence Ministry RKhB Protection Troops said to reporters in 2000: “The Russian army is not planning to use any defoliants in the course of the anti-terrorism operation in Chechnya.” He was responding to reports that the army could use chemical herbicides to destroy natural cover throughout the highland areas of Chechnya.
SwedenIn 1969, during a debate in the UN General Assembly on the question of chemical and bacteriological (biological) weapons, Sweden stated:
195. It has … been said that, in any case, the prohibitory rule [concerning chemical weapons] could not cover anti-plant agents as they were not known in 1925, and that when they were discussed in the General Commission of the Geneva Disarmament Conference of 1933 it was only sought to prohibit the use of anti-plant chemical agents which also were harmful to man or animals.
196. We maintain that the indiscriminate use of anti-plant agents in armed conflict runs counter to the generally recognized rules of international law.
Following the adoption of the Final Declaration of the Second ENMOD Review Conference by consensus, Argentina and Sweden “expressed their satisfaction with the ban on the use of herbicides as a method of warfare.”
United Kingdom of Great Britain and Northern IrelandIn 1969, during a debate in the First Committee of the UN General Assembly on the question of chemical and bacteriological (biological) weapons, the United Kingdom stated with respect to the then still draft Resolution 2603 (XXIV): “The evidence seems to us to be notably inadequate for the assertion that the use in war of chemical substances specifically toxic to plants is prohibited by international law.”
United States of AmericaIn 1966, during a debate in the First Committee of the UN General Assembly, the United States stated that it supported the 1925 Geneva Gas Protocol, even though it had not ratified it, but that the use of herbicides in Viet Nam was neither covered by the Protocol, nor against accepted norms of behaviour.
In 1969, during a debate in the First Committee of the UN General Assembly on the question of chemical and bacteriological (biological) weapons, the United States stated with respect to the then still draft Resolution 2603 (XXIV):
Since chemical herbicides, unknown at the time the [1925 Geneva Gas Protocol] was negotiated, were not prohibited by that instrument, it is unwarranted for the General Assembly now to engage in lawmaking by attempting to extend the Geneva Protocol to include herbicides.
Executive Order No. 11850, issued by the US President on 8 April 1975, states:
The United States renounces, as a matter of national policy, first use of herbicides in war except use, under regulations applicable to their domestic use, for control of vegetation within U.S. bases and installations or around their immediate defensive perimeters.
Section 1. The Secretary of Defense shall take all necessary measures to ensure that the use by the Armed Forces of the United States of any … chemical herbicides in war is prohibited unless such use has Presidential approval, in advance.
The Report on US Practice states that the possibility of environmental damage caused by the use of herbicides during the Vietnam War was not a major issue in the Kennedy administration. On the other hand, one commentator notes that environmental concerns played a significant role in President Nixon’s decision to end the herbicidal programme.
In 1998, in a legal review of Oleoresin Capsicum (OC) pepper spray, the Deputy Assistant Judge Advocate General of the US Department of the Navy stated: “The toxicity must affect humans or animals. Thus, herbicides would be excluded from the [Chemical Weapons Convention’s] proscriptions.” In a footnote on this point, he stated: “On the other hand, if a particular herbicide were toxic to humans and was intentionally employed against humans, it would be considered a chemical weapon.”
In 2005, the US Department of Justice submitted a Statement of Interest of the United States to the US District Court for the Eastern District of New York prior to that Court’s consideration of Agent Orange Product Liability Litigation (The Vietnam Association for Victims of Agent Orange/Dioxin, et al. v. Dow Chemical Company, et al). The statement reiterated the US position that no rule of international law barred the use of chemical herbicides in war generally nor barred the destruction of crops intended for use by enemy forces. With regard to the use of chemical herbicides in war generally, it stated:
The United States Consistently Has Taken the Position that No Rule of International Law Barred the Use of Chemical Herbicides in War Generally
The primary source of the alleged prohibition on the use of chemical herbicides in combat is the 1925 Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare (“1925 Geneva Protocol” or “Protocol”) … The Protocol, however, was not ratified by the United States until 1975, and thus was not binding upon the United States at the time of the Vietnam War. Because the Protocol “is evidence of the customary law norm,” John Norton Moore, Ratification of the Geneva Protocol on Gas and Bacteriological Warfare: A Legal and Political Analysis, 58 Va. L. Rev. 419, 450 (1972), however, and because discussion of the issue most often revolved around interpretation of the Protocol, we focus on the disputed scope of the Protocol to demonstrate the absence of any customary international law norm prohibiting the use of chemical herbicides in combat.
The Executive Branch has consistently taken the position that the Protocol does not apply to chemical herbicides, and that no other principle of international law prohibited their use in war. See generally Moore, 58 Va. L. Rev. at 444–47; Baxter & Buergenthal, 64 Am. J. Int’l L. at 864 & n. 59 (“The United States has consistently asserted that the use of these weapons did not violate the Protocol.”). Thus, as early as 1961, when the use of chemical defoliants was first being considered by President Kennedy, Secretary of State Dean Rusk informed him that “[t]he use of defoliant does not violate any rule of international law concerning chemical warfare and is an accepted tactic of war.” Memorandum from Secretary of State Rusk to President Kennedy, Nov. 24, 1961 (“Rusk Memorandum”), reprinted in I Foreign Relations of the United States 1961–1963, Vietnam, 1961, at 663 …
The United States consistently took this position publicly as well. In 1966, the United States Ambassador to the United Nations, James M. Nabrit, Jr., stated to the General Assembly that the 1925 Geneva Protocol does not apply to herbicides. See Moore, 58 Va. L. Rev. at 444–45, citing United States Arms Control and Disarmament Agency (“ACDA”), 1966 Documents on Disarmament (“1966 Documents on Disarmament”) at 800-01. See also 1966 Documents on Disarmament at 742r 43 (statement to same effect by William C. Foster, ACDA). Indeed, in that same year, notwithstanding the United States’ use of herbicides in Vietnam, but consistent with the United States’ position that the Protocol does not prohibit such use, the United States co-sponsored and voted for a General Assembly resolution calling for “strict observance by all States of the principles and objectives of the Geneva Protocol.” G.A. Res. 2162(B) (1966), reprinted in 1966 Documents on Disarmament 798–99, quoted in Moore, 58 Va. L. Rev. at 444.
On November 25, 1969 President Nixon announced that he would resubmit the Protocol to the Senate for ratification. In making this announcement the President again reiterated the Administration’s position that the Protocol did not apply to chemical herbicides. See 1969 House Hearings at 176–77, 181–83 (Statement of Mr. Pickering). This position was reiterated again when the Protocol was officially transmitted to the Senate for ratification on August 19, 1970. See Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous, or Other Gases, and of Bacteriological Methods of Warfare: Message from the President (“President’s Message”), S. Exec. J, 91st Cong., 2d Sess., at vi. In the Letter of Submittal attached to the President’s Message, Secretary of State Rogers expressly stated that “[i]t is the United States’ understanding of the Protocol that it did not prohibit the use in war of… chemical herbicides.” Id.
The Executive consistently reiterated this view throughout the Senate’s consideration of the Protocol, and it was this very issue that delayed ratification for an additional five years. Thus, during hearings before the Senate Foreign Relations Committee in 1971, Administration officials repeatedly asserted that the Protocol does not cover chemical herbicides. See The Geneva Protocol of 1925: Hearings Before the Senate Comm. on Foreign Relations, 92nd Cong. (“1971 Senate Hearings”) at 5–7, 27, 30, 37–38 (Testimony of Secretary of State Rogers), 304–05 (Testimony of G. Warren Nutter, Department of Defense) (1972). Indeed, the Secretary of State indicated that President Nixon would likely reject ratification if the Senate conditioned its advice and consent on an interpretation of the Protocol that covered herbicides. Id. at 37–38.
In response to a request from Senator Fulbright during the course of the 1971 Senate Hearings, the General Counsel of the Department of Defense set forth the Department’s view that neither “the rules of customary international law,” the 1925 Geneva Protocol, nor the Hague Regulations governing land warfare prohibited the use of “anti-plant chemicals for defoliation or the destruction of crops,” provided that the use against crops met certain other criteria, discussed below. Letter from J. Fred Buzhardt, General Counsel for the Department of Defense to J.W. Fulbright, Chairman, Senate Comm. on Foreign Relations (“Buzhardt Letter”), April 5, 1971, reprinted in 1971 Senate Hearings at 315–17, quoted in Moore. 58 Va. L. Rev. at 444-45.
The administration reiterated its position that the 1925 Geneva Protocol does not apply to herbicides during hearings before the House of Representatives in the spring of 1974. See U.S. Chemical Warfare Policy: Hearings Before the Subcomm. on National Security Policy and Scientific Developments, House Comm. on Foreign Affairs, 93rd Cong. (“1974 House Hearings”) at 150 (Statement of Amos Jordan), Moreover, the testimony made clear that “the current interpretation [of the Protocol] was approved by the President” himself. Id. at 206 (Testimony of Len Sloss, Deputy Director, Politico-Military Affairs, Department of State).
Finally, in late 1974, President Ford announced that, “with a view to achieving Senate advice and consent to ratification” of the Protocol, he was prepared “in reaffirming the current U.S. understanding of the scope of the Protocol” as not covering herbicides, to renounce, as a matter of “national policy,” the first use of herbicides in war, except for use in limited circumstances. See Prohibition of Chemical and Biological Weapons: Hearings Before the Senate Comm. on Foreign Relations, 93rd Cong. (“1974 Senate Hearings”) at 12 (1974) (Statement of Fred C. Ickle, Director, ACDA). See also id. at 27. On December 16, 1974, the Senate unanimously voted its consent to ratification.120 Cong. Rec. 40,067–68 (Dec. 16, 1974). On January 22, 1975, President Ford signed the instrument of ratification of the Protocol, and it was deposited with France and entered into force with respect to the United States on April 10, 1975. See 26 U.S.T. 571 (1975). Two days earlier, on April 8, 1975, President Ford issued Executive Order 11850 renouncing, as a matter of national policy, the first use of herbicides in war, except in certain limited circumstances.
No Universally Adopted Norm Prohibited the Use of Chemical Herbicides in War Generally
[T]he United States consistently has taken the position that neither the Geneva Protocol nor any other rule of international law prohibited the use of chemical herbicides in war. And while certain Senators disagreed with this position – either as a matter of policy or interpretation – it was (and is) the President’s views that reflected (and continue to reflect) the official views of the United States. This consistent rejection by the United States of any rule of international law prohibiting the use of chemical herbicides in war by itself demonstrates that any norm of international law that might have existed at the time had “less … acceptance among civilized nations than the historical paradigms” discussed in Sosa [
Sosa v. Alvarez-Machain, US Supreme Court, 2004], 124 S. Ct. at 2765. Cf United States v. Yousef. 327 F.3d 56, 92 n.25 (2d Cir. 2003) (“it is highly unlikely that a purported principle of customary international law in direct conflict with the recognized practices and customs of the United States … could be deemed to qualify as a bonafide customary international law principle”); Flores. 343 F.3d at 164.
Not only did the United States take a consistent position that the Protocol did not apply to chemical herbicides, but there was also no international consensus on this issue. In their Amended Complaint, plaintiffs allege that the use of herbicides “was considered by most of the international community to be a violation of international law and a war crime,” and cite United Nations General Assembly Resolution 2603-A (1969) as support for this contention. Am. Compl., ¶ 75-76. Notably, Resolution 2603-A declared “as contrary to the generally recognized rules of international law, as embodied in the [1925 Geneva Protocol], the use in international armed conflict of: (a) [a]ny chemical agents of warfare … which might be employed because of their direct toxic effects on man, animals, or plants.” (emphasis added). G.A. Res. 2603A, 24 U.N. GAOR Supp. 30, at 16, U.N. Doc. A/7630 (1969). The resolution was thus directly targeted at the question of the applicability of the principles of the 1925 Geneva Protocol to chemical herbicides. The vote on the Resolution, however, demonstrates the lack of any international consensus with respect to the applicability of the Protocol to chemical herbicides.
As plaintiffs correctly note, the General Assembly adopted Resolution 2603-A by a vote of 80 to 3, with 36 abstentions. Am. Compl., ¶ 76; see Moore, 58 Va. L. Rev. at 445. As an initial matter, “since almost one third of the states that voted either voted against the resolution or abstained, the vote is perhaps another indication that the customary law concerning … herbicides [was] unclear.” Id at 451. See also 1971 Senate Hearings at 388: cf. Flores. 343 F.3d at 162–63 (“a treaty will only constitute sufficient proof of a norm of customary international law if an overwhelming majority of States have ratified the treaty, and those States uniformly and consistently act in accordance with its principles”) (emphasis in original). Moreover, the identity of the states voting against the resolution or abstaining belies the contention that the vote demonstrates widespread acceptance of the norm among “civilized nations.” Cf id at 163 (“The evidentiary weight to be afforded to a given treaty varies greatly depending on (i) how many, and which, States have ratified the treaty, and (ii) the degree to which those States actually implemented and abide by [its] principles”). The United States, Austria and Portugal voted against the Resolution. The abstaining states included “most of the NATO members and many major or significant military powers, such as … France, Great Britain, Italy, Japan, Belgium, Canada and Nationalist China,” states “whose views would be particularly important in shaping a norm of customary international law.” Moore, 58 Va. L. Rev. at 451. See also id at 463 (“Since less than half of the states [then] party to the Protocol expressed by their vote approval of a broad interpretation prohibiting … herbicides, and since more than one-third of the parties to the Protocol abstained, the resolution should not be deemed a conclusive interpretation of the Protocol.”); Flores, 343 F.3d at 163; Baxter & Buergenthal, 64 Am. J. Int’l L. at 854 n.7; 1971 Senate Hearings at 5 (Statement of Secretary of State William P. Rogers); 1969 House Hearings at 182 (Statement of Mr. Pickering).
In addition, a General Assembly Resolution – even one with greater support from the “civilized nations” of the international community – does not create any binding obligations under international law. As the Court of Appeals has noted, General Assembly resolutions:
are not proper sources of customary international law because they are merely aspirational and were never intended to be binding on member States of the United Nations … General Assembly resolutions and declarations do not have the power to bind member States because the member States specifically denied the General Assembly that power after extensively considering the issue … Flores. 343 F.3d at 165. See also id. at 165–67.
Finally, even if the Court determined that a norm of international law prohibiting the use of chemical herbicides existed at the time in question, such a norm would not be binding upon the United States as a matter of international law. It is a well-established principle of international law that a dissenting state, which indicates dissent while a customary international law rule is in the process of development, is not bound by that rule. See Siderman de Blake v. Argentina. 965 F.2d 699, 715 (9th Cir. 1992); Restatement (Third) Foreign Relations § 102, cmt. d; Jonathan I. Chamey, The Persistent Objector Rule and the Development of Customary International Law, 56 Brit. Y.B. Int’l L. 1, 2–3 (1985). Here, the United States’ persistent and consistent public pronouncements that customary international law did not prohibit the use of chemical herbicides qualify it as a persistent objector under international law, and thus not bound by any rule that might have developed.
In light of the consistent position of the United States that the 1925 Geneva Protocol does not apply to the use of chemical herbicides and the lack of any international consensus that the Protocol did so apply, plaintiffs cannot demonstrate that the use of chemical herbicides by the United States violated a norm of such widespread acceptance by the international community as to approach the acceptance of the prohibitions against violations of safe conduct, infringement of the rights of ambassadors, and piracy in the late 18th century. Pursuant to Sosa, therefore, this Court should not recognize a federal common law cause of action based on the such conduct.
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UN General AssemblyIn a resolution adopted in 1969, the UN General Assembly:
Recognizing … that the Geneva [Gas] Protocol embodies the generally recognized rules of international law prohibiting the use in international armed conflicts of all biological and chemical methods of warfare, regardless of any technical developments,
Declares as contrary to the generally recognized rules of international law, as embodied in the [1925 Geneva Gas Protocol] the use in international armed conflicts of:
(a) Any chemical agents of warfare – chemical substances, whether gaseous, liquid or solid – which might be employed because of their direct toxic effects on man, animals or plants.
In a resolution adopted in 1992 following the Second Review Conference of the Parties to the ENMOD Convention, the UN General Assembly:
Notes with satisfaction the confirmation by the Review Conference that the military or any other hostile use of herbicides as an environmental modification technique in the meaning of Article II is a method of warfare prohibited by Article I if such use of herbicides upsets the ecological balance of a region, thus causing widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State party.
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Second Review Conference of the Parties to the ENMOD Convention The Final Declaration of the Second Review Conference of the Parties to the ENMOD Convention in 1992 stated:
The conference reaffirms that the military and any other hostile use of herbicides as an environmental modification technique in the meaning of Article II is a method of warfare prohibited by Article I if such a use of herbicides upsets the ecological balance of a region, thus causing widespread, long-lasting or severe effects as the means of destruction, damage or injury to another State Party.
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RobinsonRobinson alleges that herbicides were used by the United Kingdom in Malaya in the 1950s, by France in North Africa in the 1950s, by the United States in Indochina in the 1960s, by Portugal in its African colonies in the 1970s and by Ethiopia in Eritrea in the early 1980s.
Voice of Resistance of the Black CockerelAccording to an opposition radio broadcast, the Angolan delegate to the Conference of States Parties to the 1925 Geneva Protocol and Other Interested States in 1989 “peremptorily denied having used chemical weapons on Angolan territory”.