"The immunity from jurisdiction of sovereign states is a principle of
customary international law " (whereby) no sovereign state may impose its
jurisdiction upon another " The benefit
of this immunity in civil proceedings pursues the legitimate aim of observing
international law in order to promote courteousness and good relations between
states... A person governed by private law is entitled to avail himself of the
principle of immunity from jurisdiction when he intervenes in the performance
of an act on the orders or on behalf of a state, constituting an act of
sovereignty".
However, the judges continued, the defendant companies (Monsanto, Dow ...)
"By supplying and/or producing Agent Orange to the US Army, were obliged to act within the framework of the military programme "Operation Trail Dust", approved in 1961 by the President of the United States and implemented by the US Air Force, under the sub-programme "Operation Ranch Hand"... it is clear from the documents submitted to the court that the orders for Agent Orange made to the defendant companies were marked 'DO-C9 certified for national defence use', so that they had no other purpose than to satisfy the national defence needs of the US Government. This analysis is confirmed by the declassified US Army briefing note submitted to the court, which shows that in February 1967, the Secretary of Defense instructed the Army to prepare production plants with a view to diverting all commercial production of Agent Orange to meet military needs in South East Asia. Thus, by letter of 24 March 1967, addressed to Monsanto Company, Diamond Alkali, Hercules Incorporated and Dow Chemical Company, the US Department of Commerce "instructed the acceleration of delivery" of orders for defoliant orange and set the production rate for each of these companies... In the present case, this is not a request or order which the defendant companies were free to refuse, but a request which the defendant companies could not oppose without risking sanctions, in particular criminal sanctions."
This reasoning is hardly applicable. First of all, the US armed forces sent to Vietnam did not go there to "defend" their country. The reality is that the US was the aggressor and the Vietnamese resistance fighters were defending their country. The roles should not be reversed.
And what is the value of the argument that the Evry court could not prosecute the chemical companies because they were requisitioned by the US government and therefore enjoy state immunity from jurisdiction? To answer this question, consider the following statistics:
Herbicides and defoliants spread on Vietnam from 1961 to 1971
Herbicides
and defoliants
Periods
of use
Quantities **
(litres)
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