By Anh Nguyen

[Anh Nguyen is a law graduate of the University of Vienna and trainee in international dispute resolution at Knoetzl Haugeneder Netal, currently completing her judicial clerkship in the Vienna Circuit. She tweets at @mikanguyen27. Her previous article on Jus Cogens can be found here]

On 10th May the High Court of Évry dismissed Ms. Tran To Nga’s lawsuit against Agent Orange manufacturers, amongst them Dow Chemicals and Monsanto. Ms. Tran sought compensation for the severe cross-generational illnesses and diseases, and environmental destruction caused by Agent Orange, which the defendants produced for the US military as part Operation Ranch Head. From a modern perspective, this would likely constitute an act of “ecocide”, which was previously discussed on this blog here. The High Court of Évry reasoned that the manufacturers were acting “on orders” of the US military, whose “wartime conduct” was part of its “politique de défense”, for which the US enjoys sovereign immunity before French courts. Ms. Tran has announced her intention to appeal the court’s jurisdictional dismissal. 

This blog post will examine the French court’s implicit finding that private actors benefit from a “sovereign immunity shield”, as well as the tension between domestic courts’ “judicial abdication” in relation to states’ “political acts” and the imperative of access to justice and victim redress for jus cogens violations. 

The Applicability of the UN Convention on Jurisdictional Immunities of States and Their Property 

While the full text of the High Court of Évry’s decision has not been made public, the president of the court issued a communiqué, which reveals the court based its decision on Art 5 of the UN Convention on Jurisdictional Immunities of States and Their Property (2004) (hereinafter UNCJIS). While France is party to the UNCJIS, the Convention has yet to enter into force. Commentators have noted that the UNCJIS does not cover “such issues as State immunity in respect of human rights violations, the notion of jus cogens and its possible effect on State immunity”, since they were and still are subject of intense debate and controversy. Readers will recall that the ICJ held in the Jurisdictional Immunities case that the question of state immunity is “a question entirely separate from whether the international responsibility of that State is engaged and whether it has an obligation to make reparation” (para. 100).

Furthermore, upon finalisation of the UNCJIS’s draft Chairman of the Ad Hoc Committee, Gerhard Hafner noted that military activities were not covered by the Convention, which “did not affect the question of diplomatic immunities or situations involving armed conflicts”. Such situations would instead continue to be governed by customary international law. Given that the French court found  the matter to concern “wartime conduct”, express reference to Art 5 UNCJIS seems to be on shaky ground. 

Sovereign Immunity of Private Actors Acting on Orders Related to Wartime Conduct 

Notwithstanding the inapplicability of the UNCJIS as a legal instrument, various articles in the convention are codification of rules of customary international law on sovereign immunity, Art 5 being one of such rules, setting out that a state enjoys immunity from the jurisdiction of the courts of another state. The notion of “state” in Art 5 UNCJIS refers to “all types or categories of entities and individuals so identified which may benefit from the protection of State immunity” (Cf 1991 Commentaries to the Draft Articles for UNCJIS). 

Sovereign immunity is one of the areas of international law whose case law has largely been developed by domestic courts. To determine which entities befit from a sovereign immunity shield courts have generally relied on the rules of attribution according to the ILC Articles of State Responsibility (“ARISWA”). In relation to private actors, two modes of attribution are most common: (1) the entity is entrusted with public authority (Art 5 ARISWA) or (2)

 the entity’s conduct carried out upon direction of or control by the State (Art 8 ARISWA). In the latter case courts must further distinguish conduct falling under acta jure imperii and acta jure gestionis, which is not covered by immunity. 

The French Cour de cassation affirmed in the National Iranian Gas Corporation case that foreign states, as well as bodies acting under their instructions or on their behalf, enjoyed jurisdictional immunity for acts of sovereign power (“puissance public”). The Cour de cassation ruled in Gouvernement espagnol v. Casaux that absolute immunity was granted for the purchase of boots for the Spanish army. In Hanukiew v . Ministere de l’Afghanistan the Cour de cassation again affirmed this position and granted immunity for claims arising out of a contract concluded between the Government of Afghanistan and a private company for the supply of arms, thus qualifying the sales of arms as a “puissance public”. Thus, it is not surprising that the High Court of Évry ruled similarly in the present case, since the defendants manufactured Agent Orange and herbicide as part of a procurement agreement with the US military. 

On the point of military procurement, under US domestic law the contractor and US government can raise a “government contract” defence (if procurement design requirements are met) and “derivative sovereign immunity” defence against damages, and injury claims. These defences were affirmed in the class action lawsuits of In re “Agent Orange” Product Liability Litigation case brought by Vietnam War veterans and the Vietnam Association for Victims of Agent Orange (VAVA) v. Dow Chemical Co. case. (VAVA has recently declared to be supporting Ms. Tran in her appeal). However, it is interesting to note that US courts hold that a foreign government’s purchase of military equipment or for military purposes falls under the commercial activity exception under §1605 (a)(2) Foreign Sovereign Immunities Act (FSIA). Thus, such acts, unlike their domestic counterpart, do not enjoy sovereign immunity. (See e.g. McDonnell Douglas Corp. v. Islamic Republic of Iran, Republic of Argentina. v. Weltover, Inc.; before the passing of the FSIA US courts did grant sovereign immunity to foreign governments purchasing arms in Aerotrade, Inc. v Republic of Haiti)

Reconciling Prudent Judicial Abdication with the Imperative of Victim Redress

The traditional rationale for granting sovereign immunity is based on the courtesy of the forum State, which acts upon “grace and comity” to not exercise its jurisdiction over another sovereign state in order to ensure good foreign relations. However, such reasoning does not seem to hold water in the face of crimes “shocking the conscience of mankind”. 

This tension is exemplified in the legal reasoning of the late Judge Ruth Bader Ginsburg (former SCOTUS Justice) and the late Judge Patricia Wald (former ICTY Judge) in the case of Princz v Germany before the DC Circuit. The point in dispute was whether the violation of jus cogens by the Third Reich constitutes an “implied waiver” of sovereign immunity under the FSIA. Judge Ginsburg held in the Opinion for the Court that no such waiver could be construed under the wording of the FSIA, elaborating the following on the need for judicial abdication (para 1175):

“We think that something more nearly express is wanted before we impute to the Congress an intention that the federal courts assume jurisdiction over the countless human rights cases that might well be brought by the victims of all the ruthless military juntas, presidents-for-life, and murderous dictators of the world, from Idi Amin to Mao Zedong. Such an expansive reading of § 1605(a)(1) would likely place an enormous strain not only upon our courts but, more to the immediate point, upon our country’s diplomatic relations with any number of foreign nations. In many if not most cases the outlaw regime would no longer even be in power and our Government could have normal relations with the government of the day — unless disrupted by our courts, that is.

Like Judge Wald, we recognize that this suit may represent Mr. Princz’s last hope of reparation. Still, we cannot responsibly make the inferential leap that would be required in order to provide him with the federal forum he seeks.” 

(emphasis mine)

As indicated, Judge Wald held in her Dissenting Opinion that an implied waiver must exist for jus cogens violations, while weaving in the history of the interaction between notions of jus cogens and state sovereignty within relations between nations (para 1181 et seq) – notice her comments of what should constitute judicial abdication and good foreign relations: 

The principle of nonderogable peremptory norms evolved due to the perception that conformance to certain fundamental principles by all states is absolutely essential to the survival of the international community […] Thus, to preserve the international order, states must abdicate any “right” to ignore or violate such norms. […] 

The Nuremberg trials thus permanently eroded any notion that the mantle of sovereign immunity could serve to cloak an act that constitutes a “crime against humanity,” even if that act is confined within the borders of a single sovereign state. […]

[…]The rise of jus cogens norms limits state sovereignty “in the sense that the “general will” of the international community of states, and other actors, will take precedence over the individual wills of states to order their relations.” [here citing Philippe Sands]” […]

(emphasis mine)

While the ICJ’s isolation of the procedural and substantive dimensions of sovereign immunity and ius cogens violations in the Jurisdictional Immunities case may make doctrinal sense, it nevertheless unsettles us. As one barrister frames it “Arguably, then, there is no substantive content in the procedural plea of state immunity upon which a jus cogens mandate can bite” (Fox, 2002, p.525). Consequently, this “toothlessness” of a substantive claim for ius cogens violations (e.g. Germany never denied this point before the ICJ) crystalizes into a serious problem of access to justice and victim redress. However, on this point the ECtHR has consistently held that while sovereign immunity is a restriction on the right of access to a court, it nevertheless pursues a legitimate aim of “grace and comity”. Therefore, it cannot be regarded as disproportionate, as it reflects a generally recognised rule of public international law. (See e,g, Al-Adsani v. the United Kingdom, Grosz v. France). 

This will prove a significant challenge, even if after exhaustion of local remedies in France the path to the ECtHR were open to Ms. Tran. Commentators have nevertheless noted that that the ECtHR relied on state practice (as the ICJ did) on sovereign immunity and jus cogens. Thus, its proportionality finding was only superficial (Cf Uerpmann-Wittzack, 2014). We are left to wonder if the ECtHR were to conduct a true proportionality test, would positions such as Judge Wald’s turn the tide? After all, unlike the ICJ majority of 12-13 in Jurisdictional Immunities, the ECtHR was split 9-8 in Al-Adsani on sovereign immunity overriding jus cogens. We can only stay optimistic. 

Concluding Remarks

Realistically, we must steel ourselves for the possibility that be Ms. Tran’s lawsuit will ultimately fail in obtaining a legal judgement, which does justice to the long-term and severe suffering endured by Agent Orange victims. The fight to attain such redress in both the legal and political area is thankless, especially when wins secured (if any at all) and awareness raised is only incremental. Yet, this may be the only path to achieve justice for Agent Orange victims. Reparations will not depend on the US’s good will, but on reconciliation with the Vietnam War’s fraught legacy, which has been left searing on US foreign policy and national conscience.