Full opinion text
AMENDED MEMORANDUM, ORDER and JUDGMENT WEINSTEIN, Senior District Judge. I.Introduction This case involves claims by Vietnamese nationals and an organization, The Vietnamese Association for Victims of Agent Orange/Dioxin (“VAVAO”), for harms allegedly done to them and their land by the United States’ use of Agent Orange and other herbicides during the Vietnam War from 1965 to 1971 and the South Vietnamese government’s subsequent use of such herbicides until 1975. They allege that the manufacturer-defendants are responsible under domestic tort law and under international law. All claims are dismissed for the reasons stated below. Because of the comprehensive nature of the dismissal the court has not addressed individual motions by defendants claiming no connection with the usé of herbicides in Vietnam. A.Domestic Law Tort Claims Defeated by Government Contractor Defense In Stephenson v. Dow Chemical Company (No. 99-CV-3056), Isaacson v. Dow Chemical Company (No. 98-CV-6383) and other like cases, United States veterans of the Vietnam War sought damages against the defendants for exposure to Agent Orange during their service in Vietnam. Defendants moved in those cases for summary judgment based on the government contractor defense — in essence, the claim that the government told us to do it and knew at least as much as we did about the dangers. The court granted defendants’ motion to dismiss those tort-based claims on the grounds that the contractor defense applied. See Isaacson v. Dow Chem. Co., 304 F.Supp.2d 404 (E.D.N.Y.2004) (granting dismissal based on government contractor defense); see also In re “Agent Orange” Prod. Liab. Litig., 818 F.2d 187 (2d Cir.1987) (holding that government contractor defense applies, plus no causation), aff'g 611 F.Supp. 1223 (E.D.N.Y.1985) (holding that government contractor defense applies, plus no causation). The government has expressed agreement with this position. See Statement of Interest of the United States, Jan. 12, 2005, at 1 n. 2 [hereinafter U.S. Statement of Interest], Based on plaintiffs’ contention that the veterans had had insufficient time for discovery, the court stayed the judgment of dismissal and granted plaintiffs six months of additional discovery. Isaacson, 304 F.Supp.2d at 442. On plaintiffs’ request, further time for discovery and preparation of briefs was then afforded. The magistrate judge, the Clerk of this court, the Special Master, and the National Archives cooperated in making the material sought by plaintiffs available. After full discovery and argument on February 28, 2005, the stay was lifted and judgments of dismissal entered in the veterans’ cases because the government contractor defense had been established, warranting summary judgment of dismissal in favor of all defendants. Isaacson v. Dow Chem. Co., 344 F.Supp.2d 873 (E.D.N.Y.2004). The materials submitted by the parties after November 16, 2004 furnished additional strong support for dismissal. See order and judgments for defendants issued on March 2, 2005. The same government contractor issue was raised in defendants’ motions under Rule 12(b)(6) of the Federal Rules of Civil Procedure in the instant case as a defense to all claims brought by the Vietnamese. Those claims based on domestic law — but not international law — of the United States, of any state of the United States and of Vietnam are dismissed on this ground. See infra Parts IV.B.; VI. The alleged delicts of the manufacturer-defendants occurred with a center of gravity in the United States, where the herbicides were ordered, manufactured and delivered to the government. Whatever the substantive domestic law applicable under any conflicts of law rule, the government contractor defense applies to that law. See Sosa v. Alvarez-Machain, 542 U.S. 692, -, 124 S.Ct. 2739, 2752, 159 L.Ed.2d 718 (2004) (“It is true that the traditional approach to choice of substantive tort law has lost favor, [Gary J.] Simson, The Choice-of-Law Revolution in the United States: Notes on Rereading Von Mehren, 36 Cornell Int’l L.J. 125, 125 (2003) (‘The traditional methodology of place of wrong ... has receded in importance, and new approaches and concepts such as governmental interest analysis, most significant relationship, and better rule of law have taken center stage’ (footnotes omitted)).”); In re “Agent Orange” Prod. Liab. Litig., 580 F.Supp. 1242, 1254-55 (E.D.N.Y.1984) (finding that negligence, if any, of corporate suppliers of herbicides took place in United States); In re “Agent Orange” Prod. Liab. Litig., 580 F.Supp. 690 (E.D.N.Y.1984) (finding that federal or national consensus law applies under conflicts rules); infra Part VIII.H.; cf. Sosa, 542 U.S. at -, 124 S.Ct. at 2754 (holding that the Federal Tort Claims Act’s foreign country exception “bars all claims based On any injury suffered in a foreign country, regardless of where the tortious act or omission occurred”). For domestic conflicts of law purposes the government contractor defense is a federal substantive rule. Neither the rule of Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), nor comity in recognizing the internal substantive law of another nation can trump this federal substantive rule of law. See infra Part VIII.H.' For the same reasons that the veterans’ claims in Stephenson, Isaac-son and similar cases were dismissed, all domestic law claims of the Vietnamese are dismissed. See infra Parts IV.B.; VI. B. International Law Claims 1. General Approach of United States Courts In judging international human rights claims against domestic corporations or others, courts in the United States with jurisdiction act as quasi international tribunals. See, e.g., Lori FisleR Damrosoh, Louis Heniun, Riohard Crawford Pugh, Oscar SohaChter & Hans Smit, International Law Cases and Materials 645 (4th ed. 2001) (“The international law of human rights parallels and supplements national law, superseding and supplying the deficiencies of national constitutions and laws .... ” (quoting The International Bill of Rights: The Covenant on Civil and PolitiCal Rights 7 (Louis Henkin ed., 1981))); Peter Malanczuic, Aicehurst’s Modern INTRODUCTION to International Law 112 (Routledge 7th rev. ed. 1997) (“[International law allows states to exercise universal jurisdiction over certain acts which threaten the international community as a whole and which are criminal in all countries, such as war crimes.... ”); Paul R. Dubinsky, Human Rights Law Meets Private Lazo Harmonization: The Coming Conflict, 30 Yale J. Int’l L. 211, 268-82 (2005) (discussing universal jurisdiction); Thomas H. Lee, The Supreme Court of the United States as Quasi-International Tribunal: Reclaiming the Court’s Original and Exclusive Jurisdiction over Treaty-Based Suits by Foreign States Against States, 104 Colum. L.Rev. 1765 (2004). Our courts will treat foreigners relying on international law with the same due process and courtesy as they would our own nationals. Federal common law, not Erie, governs. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 427 n. 25, 84 S.Ct. 923, 11 L.Ed.2d 804 (1964) (noting that constitutional and statutory provisions indicate “a desire to give matters of international significance to the jurisdiction of federal institutions”); Paul S. Ryerson, Inconsistent Consistency: A Comment on Arrested Development of the Federal Common Law of Foreign Relations, 16 Fla. J. Int’l L. (forthcoming 2005, filed and docketed); infra Part VIII.H. International law is internalized by our courts as law of the United States. As recognized by the Restatement (Third) of the Foreign Relations Law of the United States, “the jurisprudence of the United States has considered ... rules of international law themselves (and many international agreements) to be incorporated into the law of the United States.” 1 Restatement (Third) of the Foreign Relations Law of the United States § 1 cmt. a (1987); see also id. § 1 reporters’ note 4 (“Courts interpret the laws and international agreements of the United States and they determine international law as law of the United States.”). “From the beginning, the law of nations, later referred to as international law, was considered to be incorporated into the law of the United States without the meed for any action by Congress or the President....” Id. introductory note to pt. I, ch. 2, at 41. Reflecting general understanding, the Restatement’s position permits individual court actions within the United States for at least some violations of international law. It declares: “A person of foreign nationality ... may pursue any remedy provided by ... the law of another state ....” 2 id. § 713(2)(c); see also id. § 703 reporters’ note 7 (discussing individual remedies under United States law). See also infra Part VIII.H. on choice of law. In deciding the scope and nature of applicable substantive rules of international law, this court has followed Rule 44.1 of the Federal Rules of Civil Procedure which governs the determination of foreign law. Fed.R.CivP. 44.1; ef. N.Y. C.P.L.R. § 4511 (McKinney 1992 & Supp.2005) (addressing judicial notice). A federal court has wide discretion to do its own research as well as to rely upon experts in the somewhat similar fields of foreign or international law. See, e.g., Arthur R. Miller, Federal Rule kk-1 and the “Fact” Approach to Determining Foreign Law: Death Knell for a Die-Hard Doctrine, 65 Mich. L.Rev. 613 (1967); Comm, on Int’l Commercial Dispute Resolution, Ass’n of the Bar of the City of N.Y., Proof of Foreign Law after Four Decades with Rule k.k-1 FRCP and CPLR Jp511 (forthcoming 2005). The lack of judicial expertise and the complexity of sources in these two fields — foreign and international law— often make it desirable for the court to seek assistance. In this case academic experts for defendants, plaintiffs and the government, as well as counsel, have supplemented the court’s own research and furnished helpful and reliable professional advice on the subject of international law. See, e.g., Burger-Fischer v. Degussa AG, 65 F.Supp.2d 248, 257 (D.N.J.1999) (relying heavily on an international law expert’s submission to the court). The opinions of Professor George P. Fletcher [hereinafter Fletcher Op.] and Professor Jordan J. Paust [hereinafter Paust Op.] submitted on behalf of plaintiffs and the brief of amici were learned and compelling except for their view that military use of Agent Orange in Vietnam was a tort in violation of the law of nations. See infra Part XI. Other learned opinions submitted on behalf of defendants, relied upon and quoted in the body of this memorandum, were compelling in their conclusion that no violation of international law by defendants can be shown. 2. Government Contractor Defense Not Applicable As indicated in more detail below in Part IX, the government contractor defense does not apply to violations of human rights, norms of international law and related theories. See, e.g., Zyklon B Case (Trial of Bruno Tesch and Two Others), 1-5 Law Reports of TRIALS of WaR Criminals 93-102 (William S. Hein & Co.1997) (U.N. War Crimes Comm’n ed., 1949); United States v. Krupp, 9 Trials of War Criminals Before the Nuernberg Military Tribunals under Control Counoil Law No. 10, at 1327, 1437-39 (photo, reprint 1997) (1950) [hereinafter Trials of War Criminals]; United States v. Flick, 6 Trials of War Criminals 1187, 1198, 1202 (photo, reprint 1997) (1952); see also infra Part IX. Defendants’ motion to dismiss the international law claims on the ground of the government contractor defense is denied. Even in light of the Supreme Court’s restrictive interpretation of applicable international law in Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004), plaintiffs’ international law based causes of action under the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350 (2000), (which caselaw has also referred to as the Alien Tort Claims Act (“ATCA”) or Alien Tort Act (“ATA”), see Flores v. S. Peru Copper Corp., 343 F.3d 140, 143 & n. 1 (2d Cir.2003)), are not barred by the government contractor defense. See infra Part IX. 3. Substantive Merit Lacking Detailed analysis of international law claims of the Vietnamese plaintiffs establishes that use of herbicides by or on behalf of the United States in Vietnam before 1975 was not a violation of international law. Use by the United States ended in early 1971; responsibility of defendants for that use did not extend beyond 1971 since private corporate liability in this case could arise only from the foreseeable action of a customer— the United States. Herbicide spraying by the United States violated no rights of plaintiffs under international law. See infra Part XI. II. Use of Agent Orange and Other Herbicides in Vietnam War There has been a great deal written on the development and use of herbicides in war. See also infra Parts IV.A.3.-4. The most recent comprehensive description is by Professor Jeanne Mager Stellman of Columbia University, New York, and her associates; it is heavily relied upon and in part copied without specific attribution in the rest of this Part. See Jeanne Mager Stellman et al., The Extent and Patterns of Usage of Agent Orange and Other Herbicides in Vietnam, 422 Natuke 681 (2003); see also Declan Butler, Flight Records Reveal Full Extent of Agent Orange Contamination, 422 Nature 649 (2003) (stating that Stellman’s study shows that herbicides were directly sprayed on hamlets containing between two and four million people); David A. Butler, Connections— The Early History of Scientific and Medical Research on “Agent Orange” (Feb. 17, 2005) (unpublished manuscript, filed and docketed). No study or technique presented to the court has demonstrated how it is now possible to connect the herbicides supplied by any defendant to exposure by any plaintiff to dioxin from that defendant’s herbicide. See generally Miohael Gough, Dioxin, Agent Orange: The Facts (1986) (discussing scientific problems in proving causation); see also Jonathan Walter, US Cancels Agent Orange Study in Vietnam, New Scientist, Mar. 20, 2005 (reporting that the United States National Institute of Environmental Science can-celled the research project under the 2003 United States-Vietnam agreement that would have looked at the health effects of dioxin), http://www.newscientist.com/arti-cle.ns?id=dn7146. Between 1961 and 1971, herbicide mixtures — nicknamed by the colored identification band painted on their 208-litre storage barrels — were used by the United States and Republic of Vietnam (“RVN”) forces to defoliate forests and mangroves, to clear perimeters of military installations and to destroy “unfriendly” crops, as a tactic for decreasing enemy armed forces protective cover and food supplies. United States participation ended in 1971 but the RVN forces allegedly continued independently to use leftover barrels of herbicides until 1975. The best-known mixture was Agent Orange. About 65% of the herbicides contained 2,4,5-trichlorophenoxyacetic acid (2,4,5-T), which was contaminated with varying levels of 2,3,7,8-tetrachlorodiben-zo-p-dioxin (TCDD). Herbicide mixtures used are listed in Table I. Military herbicide operations in Vietnam became a matter of scientific controversy almost from their inception. In April 1970, 2,4,5-T was banned from most United States domestic uses on the basis of evidence of its possible teratogenicity. Long after the war, the Agent Orange Act of 1991 requested the Institute of Medicine (“IOM”) to assess the strength of the evidence for association between exposure to military herbicides and disease in veterans and the feasibility of conducting further epidemiological studies. The Department of Defense’s Advanced Research Project Agency’s (“ARPA”) Project Agile was instrumental in the United States’ development of herbicides as a military weapon, an undertaking inspired by the British use of 2,4,5-T to destroy jungle-grown crops during the insurgency in Malaya. ARPA supported tests on combinations and concentrations of herbicides; calibration studies of the spray delivery system to achieve the desired 281ha_1 (3 gallons/acre) rate; and experiments on optimal conditions to minimize spray drift. ARPA also developed the Hamlet Evaluation System (“HES”) which collected the political census data used for estimating population exposures. The first large-scale United States military defoliation took place in Camp Drum, New York, in 1959, using Agent Purple (a 50-50 mixture of 2,4-D and 2,4,5-T) and a spray system which was the model for those used in Vietnam. Herbicide tests were run from August to December 1961 in the RVN using dinoxol and trinoxol. An insecticide test series was also undertaken. The first major herbicide shipment arrived in RVN in January 1962; defoliation targets were sprayed during September and October 1962 (Agent Purple); crop destruction targets were sprayed in November 1962 (Agent Blue). Systematic testing of herbicides and calibration of herbicide delivery systems continued for several years. United States Air Force (“USAF”) operations, codenamed Operation Ranch Hand, dispersed more than 95% of all herbicides used in Operation Trad Dust, the overall herbicide program. Other branches of the United States armed services and RVN forces, generally using hand sprayers, spray trucks (Buffalo turbines), helicopters and boats, sprayed much smaller quantities of herbicide. Crop destruction required White House approval until 1963, after which final approval was delegated to the United States Ambassador to the RVN. In total about 1.9 million litres of Agent Purple were sprayed between 1962 and 1965. This timing is a particularly significant because herbicides manufactured in the early 1960s were almost certainly more heavily TCDD-contaminated than those produced later. Pre-1965 spraying was limited to a relatively small area which may be at particular risk -for current TCDD contamination. Contamination of 2,4,5-T with TCDD varied widely by production run, manufacturer, and the percentage of 2,4,5-T in the formulation. In early 1966, Agent White, which did not contain 2,4,5-T and hence was not TCDD-contaminated, began to replace Agent Orange. From a tactical perspective Agent White was less satisfactory than Agent Orange because several weeks were required for defoliation to begin. Agent White was accepted by the Department of Defense because Agent Orange was apparently no longer available in sufficient quantities. Agent Blue was the agent of choice for crop destruction by desiccation throughout the Vietnam War, but more than four million litres of the other agents, primarily containing 2,4,5-T, were also used on crops. Procurement records show that at least 464,164 litres of Agent Pink and 31,026 litres of Agent Green, with comparatively high TCDD levels, were purchased. Identified missions dispersed about 1.9 million litres of Agent Purple. Estimates of how much TCDD was deposited in Vietnam are based on estimates of the volume of 2,4,5-T-containing herbicide sprayed and on TCDD contamination levels. After’ Agent Orange spraying by the United States ended, the USAF was required to dispose of very large stockpiles of surplus herbicide that were ultimately incinerated aboard the M/T Vulca-nus in 1977. TCDD concentrations ranged from 6.2 to 14.3 p.p.m., and averaged 13.25 p.p.m. in samples drawn for incineration-effluent modelling studies from 28 different barrels chosen by the USAF as representative of the seven manufacturers contributing to the stockpile. In other samples drawn from the stockpile, the TCDD range- was about 0.05 to 13.3 p.p.m. (weighted average 1.77 p.p.m). Documentation also reports dioxin levels to be heterogeneous even within the same production run. In 1971 an analysis by the National Academy of Science’s comprehensive study of ecological and physiological effects of defoliation in Vietnam (“NAS-1974”) found TCDD levels ranging from non-detectable (<0.0012 p.p.m) to 0.0233 p.p.m, and 2,4,5-T residue from non-detectable (<0.02 p.p.m.) to 0.61 p.p.m in six core soil samples collected from the central calibration grid at Pran Buri, Thailand, over which all ARPA test flights had flown. NAS-1974 estimated the original herbicide from those tests to have contained <3 to 50 p.p.m. TCDD. Although Agent Purple is likely to have been more highly contaminated with TCDD, it is not unlikely that mean TCDD levels in Agent Orange were higher than 3 p.p.m. for much of the herbicide used. An average value closer to 13 p.p.m. may be realistic. If 3 p.p.m., the mean associated with the “low dioxin” series, is conservatively applied, the estimate of total TCDD present in the spray grows to 221 kg. Applying 32.8 p.p.m. and 65.5 p.p.m. as the average TCDD in Agents Purple and Pink provides an additional 165 kg, or 366 kg in total (which does not take into account the herbicides sprayed by RVN forces, and possibly by United States Army and Navy forces by trucks, boats, hand sprayers and helicopters, nor the more than 400,000 li-tres of Agent Pink shown in procurement records but not found in any recorded missions). A HES in which United States district advisors and Vietnamese district chiefs filled out monthly political survey and census forms was established in June 1967, and a gazetteer of place names and precise geographical locations was also created. The HES data provide a comprehensive rural census that permits estimates of the numbers of hamlets and size of the population directly sprayed. More than 20,585 unique hamlets are represented in the corrected version of the Stellman database. Population data are not available for 18% of these hamlets and population data are not systematically reported each month for all years. Among the hamlets with some population data, 3,181 were sprayed directly and at least 2.1 million but perhaps as many as 4.8 million people would have been present during the spraying. Another 1,430 hamlets were also sprayed, but there is no estimate of the population involved. In all, at least 3,851 out of 5,958 known fixed-wing missions had flight paths directly over the hamlet coordinates given in the HES and gazetteer data. About 35% of the total herbicide sprayed was flown by these missions, although, in general, flight paths extended beyond hamlet borders. In 1971, NAS-1974 analyzed five soil samples from an area in which large amounts of Agent Orange had been dumped in December 1968. No 2,4,5-T could be detected. Empty barrel residues led to inadvertent defoliation of trees and gardens in Da Nang, Nha Trang, Bien Hoa, Phu Cat and Saigon civilian areas near USAF airbases that handled the herbicides when the empty barrels were transported to local merchants for commercial use. The ultimate fate of most of the empty barrels is not known. Also unknown is the extent of possible exposure of people who used the barrels for other purposes. Large numbers of Vietnamese civilians appear to have been directly exposed to herbicidal agents, some of which were sprayed at levels at least an order of magnitude greater than for similar United States domestic purposes. Yet, according to Professor Stellman, no large-scale epidemiological study of herbicides and the health of either the Vietnamese population or war veterans has yet been carried out. The data from mortality and morbidity records, at least in the United States, should be available for causation studies, but no such study of significance has been made. Those studies supporting Veterans Administration decisions to declare some diseases presumptively caused by Agent Orange as a basis for disability payments (extremely low probability required) are of almost no use in determining causation for litigation purposes (more probable than not shown by admissible proof required). By 1970, or certainly by 1971, herbicide spraying by United States forces had ceased. David A. Butler, Connections— The Early History of Scientific and Medical Research on “Agent Orange” 8 (Feb. 17, 2005) (unpublished manuscript, filed and docketed) (“On January 7, 1971, aerial spray missions came to an end.”). Plaintiffs concede that “military use of 2,4,5-T, including Agent Orange,” was suspended on April 15, 1970, and other herbicides were not used after “January 1971, when the last Ranch Hand Mission took place.” Mem. of Law in Opp’n To Defs.’ Mot. to Dismiss All Claims for Failure to State a Claim Under the Law of Nations, Jan. 18, 2004, at 147 [hereinafter Pis.’Mem. of Law in Opp’n to Defs.’ Mot.]. This is long before the 1975 termination claimed by plaintiffs. See Figure 1. The discussion below in Part XI demonstrates that international law did not outlaw the kind of use of herbicides complained of before 1975. Figure 1. Time course of herbicide sorties. At least 19,905 sorties were run between 1961-1971 (1-34 daily, with a daily average of 10.7 sorties). Source: Stell-man, supra, at 685. III. Prior Phases of Agent Orange Litigation The extensive prior procedure in other phases of the Agent Orange litigation is assumed to be known or available to the reader. See Dow Chem. Co. v. Stephenson, 539 U.S. 111, 123 S.Ct. 2161, 156 L.Ed.2d 106 (2003) (per curiam); Stephenson v. Dow Chem. Co., 346 F.3d 19 (2d Cir.2003) (per curiam) (vacating dismissal because, inter alia, All Writs Act did not provide removal jurisdiction); Stephenson v. Dow Chem. Co., 273 F.3d 249 (2d Cir.2001) (vacating dismissal because plaintiffs were not adequately represented in prior litigation that resulted in Agent Orange settlement and thus res judicata did not bar them from pursuing their claims), aff'd in part, vacated in part by 539 U.S. 111, 123 S.Ct. 2161, 156 L.Ed.2d 106 (2003); Miller v. Diamond Shamrock Co., 275 F.3d 414 (5th Cir.2001) (holding that plaintiffs claims were barred by the government contractor defense); Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387 (5th Cir.1998) (holding that plaintiffs’ claims were barred by the government contractor defense); Jenkins v. Agent Orange Settlement Fund, No. 97-7538, 1997 WL 774394 (2d Cir. Dec 17, 1997) (unpublished disposition); Addington v. Agent Orange Veterans Payment Program, No. 97-7071, 1997 WL 738070 (2d Cir. Nov 24, 1997) (unpublished disposition); Gough v. Agent Orange Settlement Fund, No. 96-6067, 1996 WL 636536 (2d Cir. Nov 5, 1996) (unpublished disposition); In re “Agent Orange” Prod. Liab. Litig., 996 F.2d 1425 (2d Cir.1993); In re Ivy, 901 F.2d 7 (2d Cir.1990) (MDL Panel had jurisdiction to transfer); In re “Agent Orange” Prod. Liab. Litig., 821 F.2d 139 (2d Cir.1987) (holding there was no abuse of discretion in unsealing documents); In re “Agent Orange” Prod. Liab. Litig., 818 F.2d 179 (2d Cir.1987) (appeal reviewing settlement plan); In re “Agent Orange” Prod. Liab. Litig., 818 F.2d 194 (2d Cir.1987) (affirming dismissal of Federal Tort Claims Act claims of servicemen); In re “Agent Orange” Prod. Liab. Litig., 818 F.2d 204 (2d Cir.1987); In re “Agent Orange” Prod. Liab. Litig., 818 F.2d 210 (2d Cir.1987); In re “Agent Orange” Prod. Liab. Litig., 818 F.2d 216 (2d Cir.1987); In re “Agent Orange” Prod. Liab. Litig., 818 F.2d 226 (2d Cir.1987); In re “Agent Orange” Prod. Liab. Litig., 800 F.2d 14 (2d Cir.1986) (denying motion to disqualify plaintiffs’ attorneys from appealing settlement); In re “Agent Orange” Prod. Liab. Litig., 804 F.2d 19 (2d Cir.1986) (denying repeal of stay on settlement funds pending appeal); In re “Agent Orange” Prod. Liab. Litig., 787 F.2d 822 (2d Cir.1986) (dismissing claims of non-class plaintiffs against defendant not named in complaints); Vietnam Ass’n for Victims of Agent Orange/Dioxin v. Dow Chem. Co., 327 F.Supp.2d 198 (E.D.N.Y.2004) (inviting U.S. government to submit brief as amicus curiae); Isaacson v. Dow Chem. Co., 304 F.Supp.2d 404 (E.D.N.Y.2004) (holding that defendants were entitled to government contractor defense but staying decision pending discovery); Isaacson v. Dow Chem. Co., 304 F.Supp.2d 442 (E.D.N.Y.2004) (holding that defendants were entitled to remove action to federal court under federal officer removal statute); In re “Agent Orange” Prod. Liab. Litig., No. 97 CV 1976, 1999 WL 1045197 (E.D.N.Y. Jan.21, 1999); Ryan v. Dow Chem. Co., 781 F.Supp. 902 (E.D.N.Y.1991) (plaintiffs cannot collaterally attack prior settlement); In re “Agent Orange” Prod. Liab. Litig., 689 F.Supp. 1250 (E.D.N.Y.1988) (modifying class assistance program as required by 818 F.2d 179, approved settlement and granting opt-out plaintiffs opportunity to opt into class for purposes of benefitting from settlement fund); In re “Agent Orange” Prod. Liab. Litig., 603 F.Supp. 239 (E.D.N.Y.1985) (dismissing claims of veterans’ wives and children against government), aff'd in part, vacated in part, 818 F.2d 201 (2d Cir.1987), cert. denied, 484 U.S. 1004, 108 S.Ct. 695, 98 L.Ed.2d 647 (1988); In re “Agent Orange” Prod. Liab. Litig., 104 F.R.D. 559 (E.D.N.Y.1985) (modifying protective orders); In re “Agent Orange” Prod. Liab. Litig., 618 F.Supp. 625 (E.D.N.Y.1985) (approving distribution plan of Agent Orange settlement fund allocated to Australia and New Zealand); In re “Agent Orange” Prod. Liab. Litig., 618 F.Supp. 623 (E.D.N.Y.1985) (approving settlement of class action and dismissing with prejudice claims of class members) (Special Masters for Settlement Kenneth R. Feinberg and David I. Shapiro); In re “Agent Orange” Prod. Liab. Litig., 611 F.Supp. 1452 (E.D.N.Y.1985) (denying motion to set aside attorney fee-sharing arrangement), rev’d in part, 818 F.2d 216 (2d Cir.1987), cert. denied, 484 U.S. 926, 108 S.Ct. 289, 98 L.Ed.2d 249 (1987); In re “Agent Orange” Prod. Liab. Litig., 611 F.Supp. 1396 (E.D.N.Y.1985) (establishing plan for disbursement of settlement fund pending appeals), aff'd in part, rev’d in part, 818 F.2d 179 (2d Cir.1987); In re “Agent Orange” Prod. Liab. Litig., 611 F.Supp. 1296 (E.D.N.Y.1985) (determining class-action plaintiffs’ attorney fees and reaffirming settlement); aff'd in part, rev’d in part, 818 F.2d 226 (2d Cir.1987); In re “Agent Orange” Prod. Liab Litig., 611 F.Supp. 1290 (E.D.N.Y.1985) (dismissing claim of civilian physician for failure to demonstrate exposure to herbicides), aff'd in part, vacated in part, 818 F.2d 210 (2d Cir.1987), cert. denied, 484 U.S. 1004, 108 S.Ct. 695, 98 L.Ed.2d 648 (1988); In re “Agent Orange” Prod. Liab. Litig., 611 F.Supp. 1285 (E.D.N.Y.1985) (dismissing action brought by Hawaiian civilians), aff'd in part, vacated in part, 818 F.2d 210 (2d Cir.1987), cert. denied, 484 U.S. 1004, 108 S.Ct. 695, 98 L.Ed.2d 648 (1988); In re “Agent Orange” Prod. Liab. Litig., 611 F.Supp. 1267 (E.D.N.Y.1985) (same), aff'd, 818 F.2d 187 (2d Cir.1987), cert. denied, 487 U.S. 1234, 108 S.Ct. 2898, 101 L.Ed.2d 932 (1988); In re “Agent Orange” Prod. Liab. Litig., 611 F.Supp. 1223 (E.D.N.Y.1985) (ruling as to admissibility of opt-out plaintiffs’ scientific evidence and expert testimony and granting summary judgment in favor of defendants for plaintiffs’ failure to establish causation), aff'd, 818 F.2d 187 (2d Cir.1987), cert. denied, 487 U.S. 1234, 108 S.Ct. 2898, 101 L.Ed.2d 932 (1988); In re “Agent Orange” Prod. Liab. Litig., 611 F.Supp. 1221 (E.D.N.Y.1985) (dismissing defendants’ claim for indemnity from government for settlement payments to veterans’ families), aff'd, 818 F.2d 204 (2d Cir.1987); In re “Agent Orange” Prod. Liab. Litig., 105 F.R.D. 577 (E.D.N.Y.1985) (affirming with modification magistrate’s order that defendants in two non-settled cases produce deponents); In re “Agent Orange” Prod. Liab. Litig., 597 F.Supp. 740 (E.D.N.Y.1984) (approving settlement of class action subject to fairness hearings); In re “Agent Orange” Prod. Liab. Litig., 101 F.R.D. 97 (E.D.N.Y.1984) (ordering in camera disclosure of names of scientists deleted from government report); In re “Agent Orange” Prod. Liab. Litig., 580 F.Supp. 1242 (E.D.N.Y.1984) (reinstating third-party plaintiffs’ claim for indemnity against government with respect to claims of veterans’ wives and children), mandamus denied, 733 F.2d 10 (2d Cir.1984), appeal denied, 745 F.2d 161 (2d Cir.1984), cert. denied, 465 U.S. 1067, 104 S.Ct. 1417, 79 L.Ed.2d 743 (1984); In re “Agent Orange” Prod. Liab. Litig., 580 F.Supp. 690 (E.D.N.Y.1984) (finding national consensus law on issues of liability, government contractor defense and punitive damages); In re “Agent Orange” Prod. Liab. Litig., 100 F.R.D. 778 (E.D.N.Y.1984) (denying motion to implead suppliers of chemical components); In re “Agent Orange” Prod. Liab. Litig., 100 F.R.D. 718 (E.D.N.Y.1983) (certifying Rule 23(b)(3) and Rule 23(b)(1)(B) classes), appeal denied, 100 F.R.D. 735 (E.D.N.Y.1983), mandamus denied, 726 F.2d 858 (2d Cir.1984), aff'd, 818 F.2d 145 (2d Cir.1987), cert. denied, 484 U.S. 1004, 108 S.Ct. 695, 98 L.Ed.2d 648 (1988); In re “Agent Orange” Prod. Liab. Litig., 99 F.R.D. 645 (E.D.N.Y.1983) (lifting prior protective order applying to government documents obtained during discovery); In re “Agent Orange” Prod. Liab. Litig., 99 F.R.D. 338 (E.D.N.Y.1983) (approving discovery recommendations of special master); In re “Agent Orange” Prod. Liab. Litig., 571 F.Supp. 481 (E.D.N.Y.1983) (granting motion of law firm to be relieved as lead counsel for plaintiffs and appointing new plaintiffs’ management committee); In re “Agent Orange” Prod. Liab. Litig., 570 F.Supp. 693 (E.D.N.Y.1983) (clarifying program for discovery); In re “Agent Orange” Prod. Liab. Litig., 98 F.R.D. 558 (E.D.N.Y.1983) (approving special master’s order of additional discovery to clarify cnv cumstances surrounding document destruction); In re “Agent Orange” Prod. Liab. Litig., 98 F.R.D. 557 (E.D.N.Y.1983) (ordering special master to review discovery decisions in light of court’s decision to try causality and liability issues); In re “Agent Orange” Prod. Liab. Litig., 98 F.R.D. 554 (E.D.N.Y.1983) (denying request for reconsideration of order to unseal documents); In re “Agent Orange” Prod. Liab. Litig., 98 F.R.D. 539 (E.D.N.Y.1983) (adopting special master’s order to unseal documents in connection with summary judgment motions); In re “Agent Orange” Prod. Liab. Litig., 98 F.R.D. 522 (E.D.N.Y.1983) (adopting order of special master concerning discovery of government documents); In re “Agent Orange” Prod. Liab. Litig., 565 F.Supp. 1263 (E.D.N.Y.1983) (granting summary judgment for four defendants on government contractor defense; denying summary judgment for other defendants); In re “Agent Orange” Prod. Liab. Litig., 97 F.R.D. 542 (E.D.N.Y.1983) (affirming special master’s denial of discovery request); In re “Agent Orange” Prod. Liab. Litig., 97 F.R.D. 541 (E.D.N.Y.1983) (denying interlocutory appeal of decision deferring certification of class and determination of appropriate notice); In re “Agent Orange” Prod. Liab. Litig., 97 F.R.D. 427 (E.D.N.Y.1983) (adopting special master’s procedures for discovery of documents possibly subject to executive privilege); In re “Agent Orange” Prod. Liab. Litig., 97 F.R.D. 424 (E.D.N.Y.1983) (adopting special master’s protective order for Department of Agriculture documents); In re “Agent Orange” Prod. Liab. Litig., 97 F.R.D. 424 (E.D.N.Y.1983) (adopting protective order); In re “Agent Orange” Prod. Liab. Litig., 96 F.R.D. 587 (E.D.N.Y.1983) (adopting with modifications special master’s order regarding videotaped depositions); In re “Agent Orange” Prod. Liab. Litig., 96 F.R.D. 582 (E.D.N.Y.1983) (rejecting first amendment challenge to protective order); In re “Agent Orange” Prod. Liab. Litig., 96 F.R.D. 578 (E.D.N.Y.1983) (adopting special master’s protective order for discovery of government documents); In re “Agent Orange” Prod. Liab. Litig., 95 F.R.D. 192 (E.D.N.Y.1982) (affirming special master’s ruling as-to location of depositions); In re “Agent Orange” Prod. Liab. Litig., 95 F.R.D. 191 (E.D.N.Y.1982) (clarifying that denial of motion to implead suppliers was without prejudice); In re “Agent Orange” Prod. Liab. Litig., 544 F.Supp. 808 (E.D.N.Y.1982) (denying motion to disqualify defense attorneys; provisionally dismissing claims against certain non-manufacturer defendants, and denying motion to implead suppliers); In re “Agent Orange” Prod. Liab. Litig., 94 F.R.D. 173 (E.D.N.Y.1982) (appointing special master to supervise discovery); In re “Agent Orange” Prod. Liab. Litig., 537 F.Supp. 977 (E.D.N.Y.1982) (provisionally dismissing claims against non-manufacturer defendant); In re “Agent Orange” Prod. Liab. Litig., 534 F.Supp. 1046 (E.D.N.Y.1982) (denying reargument on dismissal of government as third-party defendant, denying interlocutory appeal, provisionally dismissing claims against non-manufacturer defendants, denying motion to form steering committee for plaintiffs’ counsel, denying motion for decertification of class, deferring decision on statute of limitations issues, and establishing elements of government contractor defense); In re “Agent Orange” Prod. Liab. Litig., 93 F.R.D. 514 (E.D.N.Y.1982) (allowing defendant to proceed with scheduled destruction of documents); In re “Agent Orange” Prod. Liab. Litig., 91 F.R.D. 618 (E.D.N.Y.1981) (allowing motion to amend caption, denying motion to amend complaint, denying defendants’ motion for summary judgment on government contractor defense); In re “Agent Orange” Prod. Liab. Litig., 91 F.R.D. 616 (E.D.N.Y.1981) (establishing committee to review procedures for videotaped depositions); In re “Agent Orange” Prod. Liab. Litig., 506 F.Supp. 762 (E.D.N.Y.1980) (dismissing claims against government as third-party defendant, establishing case management plan, conditionally certifying Rule 23(b)(3) class, and denying defendants’ motion for summary judgment); In re “Agent Orange” Prod. Liab. Litig., 506 F.Supp. 757 (E.D.N.Y.1980) (requiring plaintiffs to file individual notices to retain right to bring actions against federal government); In re “Agent Orange” Prod. Liab. Litig., 506 F.Supp. 756 (E.D.N.Y.1980) (establishing agenda for status conference); In re “Agent Orange” Prod. Liab. Litig., 506 F.Supp. 754 (E.D.N.Y.1980) (ordering videotaped deposition); In re “Agent Orange” Prod. Liab. Litig., 506 F.Supp. 753 (E.D.N.Y.1980) (various orders concerning modification of complaint and answers); In re “Agent Orange” Prod. Liab. Litig., 506 F.Supp. 750 (E.D.N.Y.1980) (ordering government to refrain from destruction of documents pursuant to internal procedure); In re “Agent Orange” Prod. Liab. Litig., 28 Fed. R. Serv.2d 993 (E.D.N.Y.1980) (granting motion of terminally ill plaintiff to videotape his own deposition); In re “Agent Orange” Prod. Liab. Litig., 506 F.Supp. 737 (E.D.N.Y.1979) (finding subject matter jurisdiction on basis of federal common law issues), rev’d, 635 F.2d 987 (2d Cir.1980), cert. denied, 454 U.S. 1128, 102 S.Ct. 980, 71 L.Ed.2d 116 (1981); In re “Agent Orange” Prod. Liab. Litig., 475 F.Supp. 928 (E.D.N.Y.1979) (dismissing federal constitutional and statutory claims, reserving possible federal common law claims, denying motion to limit communications to third parties); see also Ryan v. Dow Chem. Co., 781 F.Supp. 934 (E.D.N.Y.1992); Ryan v. Dow Chem. Co., Nos. 79 CIV. 747, MDL 381, 89 CIV. 3361 & 90 CIV. 3928, 1991 WL 243311 (E.D.N.Y. Nov 12, 1991); In re Agent Orange Fee Application of Yannacone, 139 F.R.D. 581 (E.D.N.Y.1991); Ryan v. Dow Chem. Co., 781 F.Supp. 902 (E.D.N.Y.1991). IV. Pleadings by Vietnamese Plaintiffs and Motions by Defendants Vietnamese nationals and a Vietnamese organization, VAVAO, sue corporations based in the United States for, in essence, committing violations of domestic and international law by manufacturing and supplying herbicides to the governments of the United States and South Vietnam, which were sprayed, stored and spilled in Vietnam from 1961 to 1975. Damages are sought for the deaths and injuries of the plaintiffs and the class that they seek to represent allegedly caused by exposure to the herbicides. Environmental abatement, clean-up of contaminated areas and disgorgement of profits are also sought. A. Pleadings by Plaintiffs 1. Jurisdiction and Venue Jurisdiction is invoked under the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350 (2000); diversity, 28 U.S.C. § 1332 (2000); regulation of commerce, 28 U.S.C. § 1337 (2000); and federal question, 28 U.S.C. § 1331 (2000). Pendent jurisdiction over state law claims is alleged. 28 U.S.C. § 1367 (2000). Venue is vested in the Eastern District of New York, 28 U.S.C.A. § 1391 (1993 & Supp.2004), under control of the Judicial Panel on Multidistrict Litigation, 28 U.S.C. § 1407 (2000), for pretrial purposes only. Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 118 S.Ct. 956, 140 L.Ed.2d 62 (1998) (limiting power of multidistriet litigation transferee court to pretrial control). 2. Parties A number of the individual plaintiffs appear to have been members of hostile military forces during the Vietnam War. They probably would have been entitled to less protection — if any — than civilians. Nevertheless, for purposes of this motion to dismiss and this memorandum, their status is not relevant. Their claims are analyzed as if they were civilians not involved in hostile acts against forces of the United States and its allies. The plaintiffs are self-described below: VAVAO is a Vietnamese not-for-profit, non-governmental organization whose membership consists of victims of exposure to herbicides used during the Vietnam War as well as individuals and groups who volunteer to provide assistance to victims. The purpose of the organization is to represent and protect the interests of Vietnamese who allege exposure to herbicides produced by defendants, and to raise funds for their treatment and care and for mitigation of alleged harmful effects of environmental contamination. The organization is apparently run by an executive board consisting of such Vietnamese, medical and scientific researchers, as well as people from other disciplines. Plaintiffs Phan Thi Phi Phi, Nguyen Van Quy, Vu Thi Loan, Nguyen Quang Trung, Nguyen Thi Thuy Nga, Duong Quynh Hoa, Huynh Trung Son, Ho Kan Hai, Nguyen Van Hoang, Ho Thi Le, Ho Xuan Bat, Nguyen Muoi, Nguyen Dinh Thanh, Dang Thi Hong Nhut, Nguyen Thi Thu, Nguyen Son Linh, Nguyen Son Tra, Vo Thanh Hai, Nguyen Thi Hoa, Vo Thanh Tuan Anh, Le Thi Vinh, Nguyen Thi Nham, Nguyen Minh Chau, Nguyen Thi Thoi, Nguyen Long Van, Tong Thi Tu and Nguyen Thang Loi were and are nationals and residents of Vietnam at relevant times. Plaintiffs Nguyen Van Quy and Vu Thi Loan are the parents of plaintiffs Nguyen Quang Trung and Nguyen Thi Thuy Nga, who are under the age of 18 years. Plaintiff Duong Quynh Hoa is the administra-trix of the estate of her deceased child, Huynh Trung Son. Plaintiff Ho Kan Hai is the mother of plaintiff Nguyen Van Hoang, who is under the age of 18 years. Plaintiff Ho Thi Le is the administratrix of the estate of her deceased husband, Ho Xuan Bat. Plaintiff Nguyen Thi Thu is the mother of plaintiffs Nguyen Son Linh and Nguyen Son Tra, who are under the age of 18 years. Defendants are The Dow Chemical Company, a corporation incorporated under the laws of the State of Delaware that is registered to do business or in fact does business in the State of New York; Mont-santo Chemical Company, a corporation incorporated under the laws of the State of Delaware that is registered to do business or in fact does business in the State of New York; Pharmacia Corporation, a corporation incorporated under the laws of the State of Delaware that is registered to do business or in fact does business in the State of New York; Hercules Incorporated, a corporation incorporated under the laws of the State of Delaware that is registered to do business or in fact does business in the State of New York; Occidental Chemical Corporation, a corporation incorporated under the laws of the State of New York that is registered to do business or in fact does business in the State of New York; Ultramar Diamond Shamrock Corporation, a corporation incorporated under the laws of the State of Delaware that is registered to do business or in fact does business in the State of New York; Maxus Energy Corporation, a corporation incorporated under the laws of the State of Delaware that is registered to do business or in fact does business in the State of New York; Thompson Hayward Chemical Company, a corporation incorporated under the laws of the State of Missouri that is registered to do business or in fact does business in the State of New York; Harcros Chemicals Inc., a corporation incorporated under the laws of the State of Kansas that is registered to do business or in fact does business in the State of New York; Uniroyal, Inc., a corporation incorporated under the laws of the State of New Jersey that is registered to do business or in fact does business in the State of New York; Uniroyal Chemical, Inc., a corporation incorporated under the laws of the State of Delaware that is registered to do business or in fact does business in the State of New York; Uniroyal Chemical Holding Company, a corporation incorporated under the laws of the State of Delaware that is registered to do business or in fact does business in the State of New York; Uniroyal Chemical Acquisition Corporation, a corporation incorporated under the laws of the State of New Jersey that is registered to do business or in fact does business in the State of New York; C.D.U. Holding, Inc., a corporation incorporated under the laws of the State of Delaware that is registered to do business or in fact does business in the State of New York; Diamond Shamrock Agricultural Chemicals, Inc., a corporation incorporated under the laws of the State of Delaware that is registered to do business or in fact does business in the State of New York; Diamond Shamrock Chemicals, a corporation incorporated under the laws of the State of Delaware that is registered to do business or in fact does business in the State of New York; Diamond Shamrock Chemicals Company, a corporation incorporated under the laws of the State of Delaware that is registered to do business or in fact does business in the State of New York; Diamond Shamrock Corporation, a corporation incorporated under the laws of the State of Delaware that is registered to do business or in fact does business in the State of New York; Diamond Shamrock Refining and Marketing Company, a corporation incorporated under the laws of the State of Delaware that is registered to do business or in fact does business in the State of New York; Occidental Electrochemicals Corporation, a corporation incorporated under the laws of the State of Delaware that is registered to do business or in fact does business in the State of New York; Diamond Alkali Company, a corporation incorporated under the laws of the State of Delaware that is registered to do business or in fact does business in the State of New York; Ansul, Incorporated, a corporation incorporated under the laws of the State of Delaware that is registered to do business or in fact does business in the State of New York; Hooker Chemical Corporation, a corporation incorporated under the laws of the State of New York that is registered to do business or in fact does business in the State of New York; Hooker Chemical Far East Corporation, a corporation incorporated under the laws of the State of New York that is registered to do business or in fact does business in the State of New York; Hooker Chemicals & Plastics Corp., a corporation incorporated under the laws of the State of New York that is registered to do business or in fact does business in the State of New York; Hoffman-Taff Chemicals, Inc., a corporation incorporated under the laws of the State of Missouri that is registered to do business or in fact does business in the State of New York; Chemical Land Holdings, Inc., a corporation incorporated under the laws of the State of Delaware that is registered to do business or in fact does business in the State of New York; T-H Agriculture & Nutrition Company, Inc., a corporation incorporated under the laws of the State of Delaware that is registered to do business or in fact does business in the State of New York; Thompson Chemical Corporation, a corporation incorporated under the laws of the State of Delaware that is registered to do business or in fact does business in the State of New York; River-dale Chemical Company, a corporation incorporated under the laws of the State of Delaware that-is registered to do business or in fact does business in the State of New York; Elementis Chemicals Inc., a corporation incorporated under the laws of the State of Delaware that is registered to do business or in fact does business in the State of New York; United States Rubber Company, Inc., a corporation incorporated under the laws of the State of New York that is registered to do business or in fact does business in the State of New York; Syntex Agribusiness Inc., a corporation incorporated under the laws of the State of Delaware that is registered to do business or in fact does business in the State of New York; and Syntex Laboratories, Inc., a corporation incorporated under the laws of the State of Delaware that is registered to do business or in fact does business in the State of New York. Some or all of the defendants are alleged to be successors-in-interest, parent companies, subsidiaries or otherwise associated with or related in interest with those defendants which manufactured and supplied the herbicides for use in the Vietnam War from 1961 to 1975 that allegedly caused the damage complained of. 3. Spraying Herbicides in Vietnam It is contended that the United States in cooperation with the RVN implemented a widespread program to spray herbicides, primarily by aircraft. The stated purposes of the spraying were (1) to defoliate forests and mangroves in order to destroy the vegetative cover used by the Democratic Republic of Vietnam (“DRVN”) troops and irregulars calling themselves the National Liberation Front (“NLF”) for concealment, and (2) to destroy crops to deprive the DRVN and NLF of food. The spraying is alleged by plaintiffs to have lasted from 1961 until 1975. 4. Herbicides Used The complaint indicates that various herbicides were used for defoliation and crop destruction in Vietnam. The different types of herbicides were identified by code names referring to the color of the band around the fifty-gallon steel herbicide container used to ship the materials from the manufacturer to the government which took delivery in the United States. Herbicides included Agent Blue (caco-dylic acid), Agent White (a mixture of 80% tri-isopropanol amine salt of 2,4-dichloro-phenoxyacetic acid (2,4-D) and picloram), Agent Purple (a formulation of 50% n-butyl ester of 2,4-D, 30% n-butyl ester of 2,4,5-trichlorophenoxyacetie acid (2,4,5-T) and 20% isobutyl ester of 2,4-D), Agent Green (100% n-butyl ester of 2,4,5-T), Agent Pink (60% n-butyl ester of 2,4,5-T and 40% isobutyl ester of 2,4,5-T) and Agent Orange (50-50 mixture of the n-butyl esters of 2,4-D and 2,4,5-T). From 1962 to 1965, Agents Purple, Pink and Green were used. From 1965 to 1970, Agents Orange, White and Blue were used, and from 1970 to 1971, only Agents White and Blue were used. Agent Orange was the most extensively used herbicide. About two-thirds of the herbicides contained 2,4,5-T. A synthetic contaminant and by-product of the manufacture of 2,4,5-T is 2,3,7,8-tetracholorodibenzo-p-dioxin (TCDD), also known as dioxin. Dioxin is a toxic chemical. A by-product of cacodylic acid, contained in Agent Blue, is arsenic, and a contaminant of picloram, contained in Agent White, is hexachloro-benzene, both of which are toxic. Phenoxy herbicides such as Agents Orange, Purple, White, Pink and Green are chemical growth regulators that kill certain plants by inducing malfunctions in the biological growth process. Agent Orange was an effective defoliant, used in regions containing a wide variety of woody and broadleaf herbaceous plants, causing discoloration and dropping of leaves. Agent White was especially useful in killing conifers. Agent Blue was used primarily for crop destruction. Opposition to this herbicide program by scientists and others on the ground that it violated international law and was improper because it would cause harm to persons and land was brought to the attention of the United States beginning in early 1961. The United States officially ended its aircraft herbicide spraying campaign — also referred to as Operation Ranch Hand — in Vietnam in 1971. The complaint contends that unused United States stores of herbicides were provided to and used by the RVN up until its collapse in 1975. Am. Compl., Sept. 10, 2004, at 20. During the course of United States’ use of herbicides in Vietnam, Vietnamese combatants and civilians were directly exposed to herbicides by spraying. In addition to those who were sprayed directly with herbicides, others were exposed indirectly, by coming into contact with contaminated soil, plants, food and water. It has been estimated by plaintiffs that up to four million Vietnamese were exposed to herbicides during the period 1961-1975. Extensive environmental damage with serious ecological effects also allegedly resulted from the herbicide campaign, such as destruction of mangrove forests in southern Vietnam. Residues. from herbicides transported, loaded and stored at or near United States bases in Vietnam allegedly led to continuing contamination up to the present of the soil and food chains in the surrounding areas, resulting in civilians’ current exposure to herbicides. 5. Supply of Herbicides by Defendants In the early 1960s, the United States government, pursuant to the Defense Production Act of 1950, entered into a series of fixed-price production or procurement contracts with the defendants. The contracts instructed the defendants not to label the contents of the fifty-gallon herbicide containers except by a color-coded three-inch band, in accordance with the type of herbicide (e.g., orange, purple, etc.). The government bought as much of Agent Orange as defendants were able to produce. For the purpose .of this phase of the case, it can be assumed that all defendants were aware at the time of procurement and production that the herbicides would be sprayed widely in Vietnam pursuant to chemical warfare operations in the form of defoliation and crop destruction; and that they did not object to the intended use of their product. Defendants were aware at the time of procurement and production that dioxin was a by-product and contaminant of 2,4,5-T and that dioxin was toxic to plants, some animals, and possibly humans. The defendants were also aware, it can be assumed, that the herbicides were sprayed in Vietnam in concentrations greater than those recommended for civilian use and without the precautions recommended for civilian use in the United States. It is contended that the defendants were engaged in a conspiracy with the United States in violation of international law to manufacture, sell and supply these toxic herbicides to the United States government for use as chemical weapons in Vietnam during the period of 1961-1975. 6. Harm to Plaintiffs The summary of the harms allegedly caused to plaintiffs or their progeny is set forth by plaintiffs in brief anecdotal form. The fact that diseases were experienced by some people after spraying does not suffice to prove general or specific causation, i.e., that the harm resulted to individuals because of the spraying. Post hoc ergo propter hoc remains a logical fallacy unacceptable in toxic tort law. Proof of causal connection depends primarily upon substantial epidemiological and other scientific data, particularly since some four million Vietnamese are claimed to have been adversely affected. Anecdotal evidence of the kind charged in the complaint and set out below can not suffice to prove cause and effect. Availability of necessary scientific information from Vietnamese studies needed for epidemiological analysis has not been furnished to the court. It is not available with the richness of demographic and other data published in the United States. But see Margaret A. Berger, Science for Judges IV Introduction, 13 BROOK. J.L. & Pol’y 499, 500 (2005) (“Perhaps somewhat suprisingly, however, the Stellmans tell us that meaningful epidemiologic research on these veterans has never been conducted .... ”); Jeanne Mager Stellman & Steven D. Stellman, Characterization of Exposure to Agent Orange in Vietnam Veterans as a Basis for Epidemiological Studies, 13 BrooK. J.L. Pol’y 505, 506 (2005) (“Today, more that three decades after this massive environmental exposure, there is still a dearth of epidemiological data on the extent to which adverse health consequences resulted from the use, storage, and disposal of the herbicides in Vietnam.”); id. at 506 (“The degree to which these other studies correctly estimate health effects in Vietnam veterans is not known. Thus there continue to be practical ramifications to the paucity of definitive epidemiological studies on a sufficiently large exposed population of either veterans or Vietnamese citizens.”)An agreement between the United States and Vietnam provides for some joint efforts to collect relevant data. Memorandum of Understanding, Mar. 10, 2002, between Vietnam and United States, http://www.niehs.nih.gov/external/usvcrp /mou31002.pdf. In view of the decision on the law in this memorandum there is no need to pursue this issue at this time. The matter is well summed up in the latest published study of Professor-Stellman and her colleagues. It reads in part: The Vietnam War ended in 1975, yet no large-scale epidemiological study of herbicides and the health of either the Vietnamese population or war veterans has been carried out.... Large numbers of Vietnamese civilians appear to have been directly exposed to herbicidal agents, some of which were sprayed at levels at least an order of magnitude greater than for similar U.S. domestic purposes. Stellman, supra, at 686 (footnotes omitted); see also David Cyranoski, U.S. and Vietnam Join Forces to Count Cost of Agent Orange, 416 Nature 262 (2002). The harms allegedly suffered by plaintiffs are described in the complaint as follows: From April 1966 through July 1971, plaintiff Dr. Phan Thi Phi Phi served as director of a multi-unit mobile hospital stationed at various locations in the provinces of Quang Nam and Quang Ngai in southern Vietnam, which were heavily sprayed with herbicides. She, along with the hospital staff and patients, ingested food and water from areas that were heavily sprayed with herbicides manufactured by the defendants. Allegedly as a result of her exposure to contaminated food and water, she had four pregnancies that ended in miscarriages. From April 1972 until the end of Vietnam War in 1975, plaintiff Nguyen Van Quy served in the DRVN army repairing communication lines at various southern Vietnam locations. He ingested food and water from areas that had been sprayed with herbicides. He periodically suffered from headaches, exhaustion and skin irritation while he was stationed in southern Vietnam; the skin irritation disappeared after he left Quang Ngai province in 1973 but the headaches and exhaustion continued, worsening over time. In 1983, his first wife’s pregnancy ended in a stillbirth; they divorced. His spells of weakness and exhaustion worsened. His second wife, plaintiff Vu Thi Loan, gave birth to two children, plaintiffs Nguyen Quang Trung and Nguyen Thi Thuy Nga, who were born developmentally disabled. In October 2003, Nguyen Van Quy was diagnosed with stomach cancer and liver damage and found to have fluid in the lung. It is alleged that these diseases, conditions and birth defects were caused by his exposure to defendants’ herbicides during the Vietnam War. From 1964 to 1968, pl