From Ecocide to Voluntary Remediation Projects: Legal Responses to Environmental Warfare in Vietnam and the Spectre of Colonialism

Full text

1
FROM ECOCIDE TO VOLUNTARY REMEDIATION
PROJECTS:
LEGAL RESPONSES TO ‘ENVIRONMENTAL WARFARE’ IN
VIETNAM AND THE SPECTRE OF COLONIALISM
From Ecocide to Voluntary Remediation
ELIANA CUSATO *
This article examines legal responses to the pervasive legacy of ‘environmental warfare’ during
the Vietnam War, most notably the use of Agent Orange and other chemical herbicides. It
engages in a historical analysis of the different efforts to establish American accountability
under international law, including within the United Nations General Assembly and before
American courts, until the more recent United States-funded environmental remediation projects
in dioxin contaminated areas and assistance to persons with disabilities. In doing so, the article
draws attention to the unaccomplished quest for justice of the Vietnamese people and to some
problematic dimensions of legal debates surrounding the environmental and human
consequences of the Vietnam conflict. Borrowing insights from the postcolonial critique of
international law, it suggests that the ‘dynamics of exclusion’ embedded in the laws of armed
conflict may help to explain not only the way in which the war was fought in Vietnam, but also
the reaction of the US and legal institutions to its deleterious impacts on humans and ecosystems.
Revisiting past and current initiatives to address the effects of ‘environmental warfare’ in
Vietnam raises hard questions on the role of international law and remedies vis-a-vis
environmental degradation associated with contemporary conflicts in the Global South. It invites
also to reflect on unintended consequences of proposals for law reforms that seek to reinforce
environmental protection in war-torn countries, while reproducing injustices and discrimination.
CONTENTS
I Introduction ............................................................................................................... 2
II ‘Environmental Warfare’ in Vietnam and Its Legacy ............................................... 5
III The Long Quest for Justice: Efforts to Establish Accountability for
Human and Environmental Devastation ................................................................... 7
A The Mobilisation of the Academic Community against ‘Ecocide’ .............. 7
B More than Words? UNGA Resolutions and the International
War Crimes Tribunal for the Vietnam War .................................................. 9
C Seeking Redress before American Domestic Courts .................................. 12
IV The Turn to ‘Voluntary Remediation’: The US-Funded Environmental
and Health Projects in Vietnam .............................................................................. 13
V Understanding the Exclusion of the ‘Savage’ and Her Environment from the
Protection of the Laws of War ................................................................................ 20
VI Conclusion: Vietnam and Beyond .......................................................................... 26
* PhD Candidate, Faculty of Law, National University of Singapore. An earlier draft of this
article was presented at the Research Workshop on Protecting Nature in Conflicts and
Building Peace: Success Stories in Conflicts and their Aftermaths, 15th Annual Colloquium
of IUCN-AEL, Cebu (Philippines), 30 May 2017. I also benefited from comments received
during the APCEL Seminar Series at the Faculty of Law, National University of Singapore,
23 March 2018. Special thanks are owed to Dr Jayson Lamchek for his thoughtful
comments on a more advanced version of this piece. I am truly grateful to the three
anonymous reviewers for very helpful suggestions to improve the article. Errors and
omissions remain, as usual, my own.

2 Melbourne Journal of International Law [Vol 19
I INTRODUCTION
Pham Thi Phuong Khanh, 21, is another such patient. She quietly pulls a towel
over her face as a visitor to the Peace Village ward in Tu Du Hospital in Ho Chi
Minh City, starts to take a picture of her enlarged, hydrocephalic head. … Perhaps
Ms Khanh does not want strangers to stare at her. Perhaps she feels ashamed. But
if she does feel shame, why is it that those who should do not?
1
Recent decades have witnessed a growing interest among scholars,
international institutions and civil society in the adverse environmental impact of
armed conflict.
2
This focus on environmental protection in the context of warfare
can be explained in light of a broader concern of states and peoples about the
ecological challenges of our interconnected world, including severe pollution,
natural resource scarcity and climate change. From earlier legal debates centred
on the direct impact of means and methods of warfare upon the environment, a
wider approach is slowly emerging which examines the multiple correlations
between environmental issues and violent conflict.
3
Yet at a closer look, a story
is absent within the larger narrative on the topic: the Vietnam War. This is
particularly surprising given the massive use of chemical herbicides (eg Agent
Orange) and other environmentally harmful tactics during the war, and the
enduring legacy of that conflict. Dioxin contamination caused by deployment of
Agent Orange has been (and is still) affecting the lives and health of millions of
Vietnamese people. Extant discussions recognise that the Vietnam War is the
‘event’ that led to the adoption of specific provisions in the laws of armed
conflict proscribing ‘widespread, long-term, and severe environmental damage’.
4
In other words, in the literature, the Vietnam conflict is relegated to the past, to a
time where international law was still underdeveloped and international
institutions had their hands tied due to the Cold War confrontation. As a result,
1
Viet Thanh Nguyen and Richard Hughes, ‘The Forgotten Victims of Agent Orange’, The
New York Times (online), 15 September 2017
<https://www.nytimes.com/2017/09/15/opinion/agent-orange-vietnam-effects.html>
archived at <https://perma.cc/4F33-JJNV>.
2
See, eg, Elizabeth Maruma Mrema, Carl Bruch and Jordan Diamond, Protecting the
Environment during Armed Conflict: An Inventory and Analysis of International Law
(United Nations Environment Programme, 2009); Richard Matthew and David Jensen,
From Conflict to Peacebuilding: The Role of Natural Resources and the Environment
(United Nations Environment Programme, 2009). The topic ‘protection of the environment
in relation to armed conflict’ has been included in the work of the International Law
Commission in 2011. See International Law Commission, Report of the International Law
Commission on the Work of its Sixty-Third Session (26 April – 3 June and 4 July – 12
August 2011), UN GAOR, 66th sess, Supp No 10, UN Doc A/66/10 (2011) annex E.
3
See, eg, Onita Das, Environmental Protection, Security and Armed Conflict: A Sustainable
Development Perspective (Edward Elgar, 2013); Rosemary Rayfuse (ed), War and the
Environment: New Approaches to Protecting the Environment in Relation to Armed Conflict
(Brill, 2014) vol 45; Daniëlla Dam-de Jong, International Law and Governance of Natural
Resources in Conflict and Post-Conflict Situations (Cambridge University Press, 2015);
Carsten Stahn, Jens Iverson and Jennifer S Easterday (eds), Environmental Protection and
Transitions from Conflict to Peace (Oxford University Press, 2017).
4
See Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts (Protocol I), opened for signature 8
June 1977, 1125 UNTS 3 (entered into force 7 December 1978) arts 35(3), 55 (‘Additional
Protocol I’).

2018] From Ecocide to Voluntary Remediation 3
present-day scholarship often discusses it as part of the historical context or in a
footnote.
5
This article moves the Vietnam War from the peripheries to the core of
international debates and practices and, by doing so, aims to show its importance
to a deeper understanding of how international law regulates conflict-related
environmental issues. Through a historical analysis of the different efforts to
establish American responsibility for the use of chemical herbicides, until the
more recent implementation of environmental remediation projects in dioxin
contaminated areas and assistance to persons with disabilities, this article revisits
the long quest for justice of Vietnamese victims and thereby illuminates the
limitations of legal avenues for redress. In 2006, based on a renewed economic
and political cooperation between the American and Vietnamese governments, a
Joint Advisory Committee was established and the United States started to fund
environmental remediation projects in areas characterised as ‘hot spots’ for the
high dioxin contamination. Given the controversies surrounding the use of Agent
Orange during the conflict, the recent practice of the US raises the question of
the legal nature of these initiatives under international law. Although the US has
consistently denied any liability and qualified the funding of environmental
restoration and health programmes in Vietnam as a form of development aid, a
closer look at the features of these programmes may lead to a different
conclusion. Ongoing initiatives to address dioxin contamination and human
suffering in Vietnam also pose broader concerns. Borrowing insights from the
postcolonial critique of international law,
6
this article suggests that the dynamics
of exclusion embedded in the laws of armed conflict may help to explain not
only the massive use of herbicides in Vietnam, but also the reaction of the US
and the international institutions to its deleterious impact on humans and
ecosystems, including the recent turn to ‘voluntary remediation’.
7
Revisiting past and present responses to ‘environmental warfare’ in Vietnam
raises novel questions on the relevance of international law vis-a-vis the hidden
5
An exception is the work of Richard Falk. See, eg, Richard A Falk, ‘Environmental Warfare
and Ecocide — Facts, Appraisal, and Proposals’ (1973) 4 Bulletin of Peace Proposals 80;
Richard Falk, ‘The Inadequacy of the Existing Legal Approach to Environmental Protection
in Wartime’ in Jay E Austin and Carl E Bruch (eds), The Environmental Consequences of
War: Legal, Economic and Scientific Perspectives (Cambridge University Press, 2000) 137.
6
I am profoundly indebted to the teaching of Professor Antony Anghie for everything I know
about the postcolonial critique of international law and Third World Approaches to
International Law (‘TWAIL’) scholarship. Among his vast contribution, see, eg, Antony
Anghie, ‘Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century
International Law’ (1999) 40 Harvard International Law Journal 1; Antony Anghie, ‘The
Heart of My Home: Colonialism, Environmental Damage, and the Nauru Case’ (1993) 34
Harvard International Law Journal 445; Antony Anghie and B S Chimni, ‘Third World
Approaches to International Law and Individual Responsibility in Internal Conflicts’ (2003)
2 Chinese Journal of International Law 77; Antony Anghie, Imperialism, Sovereignty and
the Making of International Law (Cambridge University Press, 2004); Antony Anghie,
‘Imperialism and International Legal Theory’ in Anne Orford and Florian Hoffmann with
Martin Clark (eds), The Oxford Handbook of The Theory of International Law (Oxford
University Press, 2016) 156.
7
For this part of the analysis, I borrow from the scholarship of Frédéric Mégret. See
especially Frédéric Mégret, ‘Theorizing the Laws of War’ in Anne Orford and Florian
Hoffmann with Martin Clark (eds), The Oxford Handbook of The Theory of International
Law (Oxford University Press, 2016) 762; Frédéric Mégret, ‘From “Savages” to “Unlawful
Combatants”: A Postcolonial Look at International Humanitarian Law’s “Other”’, in Anne
Orford (ed), International Law and its Others (Cambridge University Press, 2006) 265.

4 Melbourne Journal of International Law [Vol 19
ecological and human costs of contemporary armed conflict. This analysis will
especially resonate with ongoing discussions on more pragmatic approaches to
environmental degradation and pollution associated with modern warfare.
Acknowledging the difficulties in implementing ex post facto responsibility for
conflict-related environmental harms, some scholars claim that, in the
environmental field, priority should be given to remedial measures adopted
voluntarily by the wrongdoer or through multilateral cooperation.
8
It cannot be
denied that international law faces challenges in addressing environmental
damage. From the vagueness of primary rules, to the need to establish attribution
and causation, to evidence collection and assessment,
9
it may be apposite to start
a reflection on alternative ways to confront environmental harm and the threats it
poses to human health and survival. Nonetheless, a voluntary approach to post-
conflict environmental remediation, like the one implemented in Vietnam and
discussed in this article, is also problematic. By exposing the dark sides of the
idea of ‘voluntary remediation’, this article hopes to pave the way for more just
and contextualised approaches to the ecological consequences of war.
The remainder of the article proceeds as follows. Part II provides a brief
overview of ‘environmental warfare’ in Vietnam and its persistent legacy. Part
III explores the different efforts to establish accountability for the environmental
and human costs of the US military strategy, namely: first, the mobilisation of
the academic community against ecocide; second, the United Nations General
Assembly’s (‘UNGA’) resolutions and the International War Crimes Tribunal for
the Vietnam War (‘Russell Tribunal’); third, domestic litigation before American
courts under the Alien Tort Claims Act (‘ATCA’).
10
One of the purposes of this
8
See, eg, Cymie R Payne, ‘The Norm of Environmental Integrity in Post-Conflict Legal
Regimes’ in Carsten Stahn, Jennifer S Easterday and Jens Iverson (eds), Jus Post Bellum:
Mapping the Normative Foundations (Oxford University Press, 2014) 502, 505, suggesting
that there are two approaches to the topic: one asks ‘what is moral?’, while the other focuses
on ‘what works?’. In her view, ‘[d]eterrence, revenge, and accountability … are not the
primary aim’ in relation to the environment. The conclusion is that ‘jus post bellum theories
that prioritize peacebuilding over retribution accord best with environmental integrity, in
terms of explanatory power and consonance with goals’. The importance of post-conflict
remediation is also emphasised by the International Law Commission Special Rapporteur on
the Protection of the Environment in Relation to Armed Conflict. Among the draft
principles applicable to the post-conflict phase, draft principle 15 ‘Post-armed conflict
environmental assessments and remedial measures’, encourages the establishment of forms
of cooperation ‘among relevant actors’, including international organizations, in the area of
post-conflict environmental assessment and remedial measures. The principle refers to
forms of cooperation and leaves unaddressed the issue of who (if anyone) should bear the
responsibility for damage. See Marie G Jacobsson, Special Rapporteur, Third Report on the
Protection of the Environment in Relation to Armed Conflicts, 68th sess, UN Doc
A/CN.4/700 (3 June 2016) annex I (‘Protection of the Environment in Relation to Armed
Conflicts: Proposed Draft Principles’).
9
For some references on this debate, see, eg, Alexandre Kiss, ‘Present Limits to the
Enforcement of State Responsibility for Environmental Damage’ in Francesco Francioni
and Tullio Scovazzi (eds), International Responsibility for Environmental Harm (Kluwer
Law International, 1991) 3; Tullio Scovazzi, ‘Some Remarks on International Responsibility
in the Field of Environmental Protection’, in Maurizio Ragazzi (ed), International
Responsibility Today: Essays in Memory of Oscar Schachter (Koninklijke Brill, 2005) 209;
Catherine Redgwell, ‘The Wrong Trousers: State Responsibility and International
Environmental Law’ in Malcolm Evans and Panos Koutrakos (eds), The International
Responsibility of the European Union: European and International Perspectives (Hart,
2013) 257.
10
Alien Tort Claims Act, 28 USC § 1350 (1789) (‘ATCA’).

2018] From Ecocide to Voluntary Remediation 5
historical excursus is to outline how legal arguments, which draw upon the laws
of war, were used both to affirm and to deny the responsibility of the US for
‘environmental warfare’ and related harms. Part IV considers the more recent
cooperation between the American and Vietnamese governments in the area of
dioxin contamination removal and reflects on the legal nature, under
international law, of ongoing environmental and health projects funded by the
US government. This discussion lays the foundation for the introduction of the
concept of ‘voluntary remediation’. Part V draws upon the postcolonial critique
of the laws of armed conflict (and international law more generally) to argue that
the use of herbicides during the Vietnam War and its legal justifications posit a
vision of the enemy and her environment as ‘savage’, while the turn to
‘voluntary remediation’ for environmental war damage may reproduce a similar
postcolonial mindset. Part VI concludes.
II ‘ENVIRONMENTAL WARFARE’ IN VIETNAM AND ITS LEGACY
The Vietnam War of 1961–75 is notorious for the disastrous environmental
and human impact of the US counterinsurgency warfare.
11
Having to confront
guerrilla tactics by its enemy, with which it was not particularly familiar, and
relying on a relatively small ground force, the US Army compensated this deficit
by employing technologically advanced weaponry to manipulate the
environment for hostile purposes.
12
In other words, it engaged in what has been
called ‘environmental warfare’.
13
According to commentators, three military
tactics were responsible for extensive environmental damage: the use of
chemical herbicides, ‘Rome Plows’ and high-explosive bombs.
14
Their declared
military rationale was essentially twofold: first, removing the vegetation cover to
facilitate the enemy’s targeting and limit the enemy’s freedom of movement and
second, destroying crops and thereby denying the enemy food supply and
support from the civilian population.
15
There can be scarcely any doubt as to the severity and long-term nature of the
damage caused to the Vietnamese environment. High-explosive munitions (14
million tonnes, according to an estimate) destroyed the flora and fauna and left
moonscape-like craters in the Vietnamese landscape, with a consequent increase
of soil erosion.
16
‘Rome Plows’, which are heavy caterpillar bulldozers (33 000
11
Richard Falk argues that the deliberate targeting of the environment was based on the
consideration that the only way to defeat the enemy ‘was to deny him the cover, the food
and the life-support of the countryside’ and that ‘just as counter-insurgency warfare tends
toward genocide with respect to the people, so it tends toward ecocide with respect to the
environment’. See Falk, ‘Environmental Warfare’, above n 5, 80. I will return to this point
in Part V.
12
Arthur H Westing, Arthur H Westing: Pioneer on the Environmental Impact of War
(Springer, 2013) 40.
13
The term is defined by Falk as denoting ‘all those weapons and tactics which either intend to
destroy the environment per se or disrupt normal relationship between man and nature on
sustained basis’. See Falk, ‘Environmental Warfare’, above n 5, 85. See also Arthur
Westing, ‘Environmental Warfare’ (1985) 15 Environmental Law 645, 646: conceptualising
environmental warfare as ‘warfare in which the environment is manipulated for hostile
military purposes’.
14
Karen Hulme, War Torn Environment: Interpreting the Legal Threshold (Koninklijke Brill,
2004) 5.
15
Westing, above n 12, 48.
16
Hulme, above n 14, 5.

6 Melbourne Journal of International Law [Vol 19
kilograms) employed to remove trees and destroy cropland, cleared 325 000
hectares of South Vietnamese forest and thousands of hectares of agricultural
areas.
17
Yet it was the massive use of herbicides that received the strongest
condemnation for its devastating effects on ecosystems and human health.
18
The
most widely used herbicides were Agent Orange, Agent White and Agent Blue,
the latter employed against crops and the formers against the forest vegetation.
19
The infamous Operation Ranch Hand started in January 1962 and ended in
January 1971.
20
During these nine years, herbicides were sprayed from cargo
planes over forests, cropland, roads, villages in South Vietnam and along the
demilitarised zone. Although the exact quantity remains unknown, it is estimated
that around 20 million gallons of herbicides were sprayed over 5 million acres of
forests and fields, an area representing more than 10 per cent of South
Vietnam.
21
Even after the end of Operation Ranch Hand, herbicides continued to
be used around military bases and stored in local facilities.
22
Further to its ecological impact (eg in terms of soil and water pollution, loss
of forests and biodiversity), it has been demonstrated that exposure to herbicides
increases the risk of contracting serious diseases. Chemical defoliants contain a
high dose of dioxin, which is associated with several cancers, birth defects,
respiratory problems, liver damage and other grave illnesses.
23
Considering that
the alleged quantity of herbicides sprayed over Vietnam was 25 times the normal
range of agricultural use in the US, and that dioxin can persist for 100 years or
more once it penetrates the soil and aquifers,
24
the impacts of ‘environmental
warfare’ in Vietnam can only be described as dramatic. Millions of people, both
civilians and soldiers, were exposed to high levels of herbicides without being
aware of the health risks; hence, precautions were not adopted. Since the end of
the war, millions more Vietnamese people have been exposed to dioxin remnants
in the soil and the water.
25
It remains difficult to determine the exact number of
17
Westing, above n 12, 47.
18
For a history of the development and military use of herbicides, see R Scott Frey, ‘Agent
Orange and America at War in Vietnam and Southeast Asia’ (2013) 20 Human Ecology
Review 1, 2–3. Frey explains that, although scientists started to develop herbicides to
increase agricultural productivity since the beginning of 20th century, it was during World
War II that the major Western powers, notably the US and the UK, conducted studies on the
military use of herbicides. Herbicides were not employed as weapons during World War II,
but only for mosquito control in the Pacific theatre of warfare and lice control in Europe. In
the post-World War II period the US Department of Defence developed the so-called
‘Rainbow Herbicides’ that were used as weapons in South-East Asia. Dow Chemical and
Monsanto were among the corporations involved in the production and supply of herbicides
for Operation Ranch Hand.
19
Falk, ‘Environmental Warfare’, above n 5, 85.
20
More precisely, in 1971 herbicides were substituted with Rome Plows. See Hulme, above
n 14, 5.
21
Frey, above n 18, 3. See also David Zierler, The Invention of Ecocide: Agent Orange,
Vietnam, and the Scientists Who Changed the Way We Think about the Environment
(University of Georgia Press, 2011) 85.
22
Frey, above n 18, 3.
23
Ibid.
24
Ibid.
25
Michael F Martin, ‘Vietnamese Victims of Agent Orange and US–Vietnam Relations’
(Report, Congressional Research Service, 29 August 2012) 15
<https://fas.org/sgp/crs/row/RL34761.pdf> archived at <https://perma.cc/F8LQ-R8X7>
(‘Vietnamese Victims’).

2018] From Ecocide to Voluntary Remediation 7
deaths and diseases that can be attributed to the use of Agent Orange and other
toxic substances.
26
Nonetheless, scientists have identified health conditions
directly linked to herbicide exposure, such as leukemia, non-Hodgkinson
lymphoma and sarcoma, recurrent among the Vietnamese population.
27
The US
Department of Veteran Affairs compiled a list of diseases and conditions
associated with Agent Orange/dioxin exposure, which includes Hodgkin’s
disease, prostate cancer, respiratory cancers and soft tissue sarcoma, as well as
diseases and malformations in the children of exposed parents.
28
Stories of
young Vietnamese people still suffering from conditions supposedly related to
dioxin contamination, which are reported in international media,
29
show how
Operation Ranch Hand continues to inflict ‘casualties’ more than 50 years after it
was launched.
III THE LONG QUEST FOR JUSTICE: EFFORTS TO ESTABLISH ACCOUNTABILITY
FOR HUMAN AND ENVIRONMENTAL DEVASTATION
A The Mobilisation of the Academic Community against ‘Ecocide’
‘Environmental warfare’ in Vietnam, and most notably the massive use of
chemical herbicides, spawned condemnation across the civil society. The term
‘ecocide’ started to be employed to describe the devastating environmental and
human impact of American military tactics in Vietnam. The concept was first
coined by a plant biologist and chair of the department of botany at Yale
University, Arthur Galston, to characterise the ‘wilful and permanent destruction
of the environment in which people can live in a manner of their own
choosing’.
30
At a conference on ‘War Crimes and the American Conscience’
held in 1970, Galston condemned Operation Ranch Hand and asked the
international community, through the United Nations, to come together against
ecocide like the world did after World War II against genocide and crimes
against humanity.
31
Richard Falk developed this set of ideas and framed them in legal terms. In
his 1973 publication, ‘Environmental Warfare, Facts, Appraisal and Proposals’,
Falk proceeded in two steps: first, he explored whether the laws of war
proscribed ‘environmental warfare’ (ie the use of herbicides, bulldozers and
high-explosive bombs); second, he proposed legal reforms to address ecological
devastation in Vietnam.
32
Falk concluded that, by deploying herbicides, the US
26
According to the Vietnam Association of Victims of Agent Orange/Dioxin, 2.1 million to
4.8 million Vietnamese were exposed to herbicides during the war, and at least 3 million
suffered diseases related to the exposure: ibid 22.
27
Frey, above n 18, 5.
28
Vietnamese Victims, above n 25, 22. The list of diseases is also available online at US
Department of Veterans Affairs, Veterans’ Diseases Associated with Agent Orange (3 June
2015) <https://www.publichealth.va.gov/exposures/agentorange/conditions/> archived at
<https://perma.cc/8GYJ-J48W>.
29
See, eg, Nguyen and Hughes, above n 1. An entire section of the War Remnants Museum in
Ho Chi Minh City displays pictures documenting the effects of Agent Orange and other
defoliants on Vietnamese people across generations.
30
Zierler, above n 21, 19, 114.
31
Bronwyn Leebaw, ‘Scorched Earth: Environmental War Crimes and International Justice’
(2014) 12 Perspectives on Politics 770, 777.
32
Falk, ‘Environmental Warfare’, above n 5.

8 Melbourne Journal of International Law [Vol 19
violated the 1925 Geneva Protocol on Gas, Chemical and Bacteriological
Warfare (‘Geneva Protocol’).
33
In relation to the targeting of cropland, Falk
contended that the military use of herbicide was also in violation of the jus in
bello principle of discrimination.
34
As for the use of bulldozing tractors and
bombs over extensive areas covered by forests, Falk observed that the legal
standards in force did not prohibit these tactics, as pure environmental
considerations were alien to the law’s purview.
35
Falk’s analysis captures well
the ambivalent character of jus in bello as it stood in the 1970s. On the one hand,
it appeared to proscribe the use of chemical defoliants to destroy crops as
contrary to the principle of discrimination; on the other, it ended up justifying
different forms of environmental destruction and related human suffering if
proportional and necessary to achieve the war’s objectives.
To fill gaps in the legal landscape, Falk called for the development of new
instruments, namely an International Convention on the Crime of Ecocide and a
Draft Protocol on Environmental Warfare.
36
He argued that such normative
agenda had gained momentum and that
[t]he Indochina context, given the public outrage over the desecration of the land
at a time of rising environmental consciousness, creates a target of opportunity
comparable to Nuremberg. Surely it is no exaggeration to consider the forests and
plantations treated by Agent Orange as an Auschwitz for environmental values,
certainly not from the perspective of such a distinct environmental species as the
mangrove tree or nipa palm. And just as the Genocide Convention came along to
formalize part of what has already been condemned and punished at Nuremberg,
so an Ecocide Convention could help carry forward into the future a legal
condemnation of environmental warfare in Indochina.
37
Falk’s Convention on the Crime of Ecocide defined ecocide as encompassing
‘acts committed with intent to destroy, in whole or in part, a human ecosystem’,
both in peacetime or wartime.
38
The Draft Protocol on Environmental Warfare
proscribed conduct of the type described above (eg use of chemicals, bombs and
bulldozing) and made violations of its provisions international crimes.
39
Despite the advocacy from the scientific and legal communities, a far less
ambitious result was achieved. The Convention on the Prohibition of Military or
Any Other Hostile Uses of Environmental Modification Techniques (‘ENMOD
Convention’) was adopted in 1976, the scope of which was limited to military
and hostile environmental modification techniques (ie the use of the environment
33
Ibid 87; Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other
Gases, and of Bacteriological Methods of Warfare, opened for signature 17 June 1925, 94
LNTS 65 (entered into force 9 May 1926) (‘Geneva Protocol’).
34
Falk, ‘Environmental Warfare’, above n 5, 87.
35
Ibid 88.
36
Ibid 91.
37
Ibid 84.
38
Ibid 93 app 1.
39
Ibid 95 app 2.

2018] From Ecocide to Voluntary Remediation 9
as a ‘weapon’).
40
Further, two provisions proscribing ‘widespread, long-term and
severe’ environmental damage were included in the 1977 Protocol Additional to
the Geneva Conventions of 12 August 1949, and Relating to the Protection of
Victims of International Armed Conflicts (Protocol I) (‘Additional Protocol I’),
namely arts 35(3) and 55.
41
Compared with the calls for the introduction of an
international crime of ecocide, the protection outlined in the ENMOD
Convention and Additional Protocol I was more modest and did not entail any
criminal sanction.
42
Only in 1998 was a specific provision criminalising
environmental damage as a war crime included in the Rome Statute of the
International Criminal Court, which nonetheless has been criticised for its high
threshold of damage and applicability only to international armed conflict.
43
B More than Words? UNGA Resolutions and the International War Crimes
Tribunal for the Vietnam War
The reaction of international institutions to ‘environmental warfare’ was
tepid, although a few attempts were made to establish accountability for the US’s
conduct of warfare. With the UN Security Council blocked by the Cold War
confrontation, the UNGA emerged as the place for advancing legal and political
struggles. In 1966 a debate started within the UNGA, with Hungary accusing the
US of violating international law and the Geneva Protocol by using herbicides in
Vietnam.
44
The UNGA passed Resolution 2162 (XXI), calling for a ‘strict
observance by all States of the principles and objectives of the Protocol’ and
40
Michael Bothe, ‘The Protection of the Environment in Times of Armed Conflict: Legal
Rules, Uncertainty, Deficiencies and Possible Developments’ (1991) 34 German Yearbook
of International Law 54, 57; Convention on the Prohibition of Military or Any Other Hostile
Use of Environmental Modification Techniques, opened for signature 10 December 1976,
1108 UNTS 151 (entered into force 5 October 1978) (‘ENMOD Convention’). A non-
exclusive list of ‘phenomena that could be caused by the use of environmental modifications
techniques’ is included in the Understanding Relating to Article II of the ENMOD
Convention and includes ‘earthquake, tsunamis; an upset in the ecological balance of a
region; changes in weather patterns … changes in climate patters, changes in ocean currents;
changes in the state of the ozone layer; changes in the state of the ionosphere’. See Report of
the Conference on the Committee on Disarmament, Volume I, UN GAOR, 31st sess, Supp
No 27, UN Doc A/31/27 (1976) 92.
41
Additional Protocol I arts 35(3), 55.
42
Violations of arts 35(3) and 55(1) of Additional Protocol I were not listed as grave breaches
and the ENMOD Convention did not impose individual criminal liability for the violation of
its provisions.
43
See Rome Statute of the International Criminal Court, opened for signature 17 July 1998,
2187 UNTS 90 (entered into force 1 July 2002) art 8(2)(b)(iv) (‘Rome Statute’). For a
discussion on the role of the International Criminal Court (‘ICC’) in relation to
environmental degradation and the limitations of international criminal justice in the
ecological field, see, eg, Eliana Cusato, ‘Beyond Symbolism: Problems and Prospects with
Prosecuting Environmental Destruction Before the ICC’ (2017) 15 Journal of International
Criminal Justice 491.
44
Question of General and Complete Disarmament, UN GAOR, 21st session, 1st Comm, 1451st
mtg, UN Doc A/C.1/SR.1451 (11 November 1966) paras 27–37; Geneva Protocol. The
Hungarian delegation also submitted a draft resolution proposing that the United Nations
General Assembly, after recalling that the Geneva Protocol of 1925 had been recognised by
many states, would declare that the use of chemical and bacteriological weapons for the
purpose of destroying human beings and the means of their existence constituted and
international crime. See Hungarian Draft Resolution Submitted to the First Committee of the
General Assembly: Use of Chemical and Bacteriological Weapons, UN GAOR, 21st sess, 1st
Comm, UN Doc A/C.1/L.374 (7 November 1966).

10 Melbourne Journal of International Law [Vol 19
condemning ‘all actions contrary to those objectives’.
45
Although the resolution
did not address the scope of the Geneva Protocol with regard to specific
weapons and used general language, it marked the first time that the US had to
defend its military strategies in Vietnam before the international community.
46
In
1969 the UNGA went further and adopted Resolution 2603 to clarify the scope
of the Geneva Protocol.
47
It declared as
contrary to the generally recognized rules of international law, as embodied in the
Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or
Other Gases and of Bacteriological Methods of Warfare, signed at Geneva on 17
June 1925, the use in international armed conflicts of: a) Any chemical agent of
warfare — chemical substances, whether gaseous, liquid or solid — which might
be employed because of their direct toxic effects on man, animals, or plants.
48
The significance of this paragraph is twofold. First, it recognises that the
Geneva Protocol embodies ‘generally recognized rules of international law’,
hence binding even those states that did not ratify the instrument (ie the US);
second, it expressly includes within the scope of the Protocol ‘any chemical
agent[s] of warfare’, notably those which might be employed for their toxic
effects on plants.
49
Both statements, however, were opposed by the American
government, whose official position was that the rules of international law,
including the Geneva Protocol, did not prohibit the military use of herbicides.
50
The silence of international institutions was broken by a group of
philosophers, lawyers and activists that in 1966 created the Russell Tribunal. The
founder of the tribunal was the English philosopher Bertrand Russell and Jean-
Paul Sartre was the executive president.
51
The reference was the Nuremberg
Tribunal, but, lacking any international support, the Russell Tribunal was
obviously unable to enforce its decisions.
52
Its declared purpose was to expose
the truth about what was happening in Vietnam to ‘arouse the conscience of the
world’.
53
The indirect objective was to put pressure on the US to end the war,
which was still ongoing.
54
Because of the obstacles in finding a seat for the
tribunal, the initial idea of establishing the criminal responsibility of the
45
Question of General and Complete Disarmament, GA Res 2162 (XXI), UN GAOR, 21st
sess, 1484th plen mtg, Supp No 16, UN Doc A/RES/2162(XXI) (5 December 1966) pt B.
46
Zierler, above n 21, 145.
47
Question of Chemical and Bacteriological (Biological) Weapons, GA Res 2603(XXIV), UN
GAOR, 24th sess, 1836th plen mtg, Supp No 30, UN Doc A/RES/2603(XXIV) (16 December
1969) pt A (‘Resolution 2603’).
48
Ibid (emphasis added).
49
Ibid.
50
Falk, ‘Environmental Warfare’, above n 5, 86. It should be noted that, on 22 January 1975,
the US President Gerald Ford signed the instrument of ratification of the 1925 Geneva
Protocol. See Zierler, above n 21, 157.
51
John Duffett (ed), Against the Crime of Silence: Proceedings of the Russell International
War Crimes Tribunal (Bertrand Russell Peace Foundation, 1968) 17.
52
‘Jean Paul Sartre’s Inaugural Statement to the Tribunal’ in Duffett (ed), above n 51, 40, 42–
3: affirming, however, that the ‘Russell tribunal considers … that its legitimacy derives
equally from its total powerlessness, and from its universality’: at 43.
53
‘Aims and Objectives of the Tribunal’ in Duffett (ed), above n 51, 14, 15.
54
‘Bertrand Russell’s Final Address to the Tribunal: Copenhagen, December 1967’ in Duffett
(ed), above n 51, 654.

2018] From Ecocide to Voluntary Remediation 11
American President and other leaders was abandoned; rather, the Russell
Tribunal focused on state responsibility for international crimes.
55
In 1967 the Russell Tribunal held multiple sessions in Stockholm, Sweden
and Roskilde, Denmark. At the end of the first group of sessions, it found the US
responsible for aggression against Vietnam, deliberate attacks against the civilian
population and violation of Cambodian territorial sovereignty.
56
The session in
Denmark dealt with the charges for genocide and violations of the laws of war.
57
The issue of chemical warfare was addressed inter alia by Edgar Lederer, a
French professor of biology.
58
Lederer described the environmental devastation
and human suffering caused by the herbicidal warfare in Vietnam and argued
that Operation Ranch Hand captured the criminal dimension of the American
war in South Vietnam.
59
He concluded that ‘there can be no doubt that
defoliation of the forests, the jungle and the bush are already having dangerous
repercussions on the conditions of human environment’.
60
In its second verdict,
the Russell Tribunal found the US responsible for genocide against the
Vietnamese people and for the use of prohibited weapons.
61
The US and its allies
refused to be involved with the work of the tribunal, whereas the government of
North Vietnam praised its efforts, allowed witnesses to participate in its sessions
and even funded the tribunal’s trips to Vietnam to collect evidence.
62
The Russell Tribunal can be regarded as an attempt to expose a different
‘truth’ about the Vietnam conflict and to provide accountability for the American
conduct of warfare, including for Operation Ranch Hand. It gave a voice to the
Vietnamese victims of ‘environmental warfare’, whose suffering international
law was unable to fully capture.
63
Although in the short run the Russell Tribunal
was not successful in bringing the conflict to an end, it received international
attention and media coverage thanks to the reputation and standing of its
members.
64
As such it brought to the public attention what was happening in
South-East Asia, because, to use Russell’s words, ‘silence is complicity, a lie, a
crime’.
65
Together with the movement against ecocide, the Russell Tribunal
contributed to ‘arouse the conscience’ of antiwar activists in the West and,
ultimately, to the termination of the military use of herbicides in 1971.
55
Marcos Zunino, ‘Subversive Justice: The Russell Vietnam War Crimes Tribunal and
Transitional Justice’ (2016) 10 International Journal of Transitional Justice 211, 213–14.
56
‘Verdict of the Stockholm Session’ in Duffett (ed), above n 51, 302, 303–5.
57
Jean Paul Sartre, ‘Opening Address to the Second Session’ in Duffett (ed), above n 51, 315.
58
Edgar Lederer, ‘Report of the Sub-Committee on Chemical Warfare in Vietnam’ in Duffett
(ed), above n 51, 338–66.
59
Zierler above n 21, 20.
60
‘Report of the Sub-Committee on Chemical Warfare in Vietnam’ in Duffett (ed), above n
51, 363.
61
Dave Dellinger, ‘Summary and Verdict of the Second Session’ in Duffett (ed), above n 51,
650.
62
Zunino above n 55, 214.
63
For an insightful and inspiring discussion on people’s tribunals and their different
conceptualisation of justice, see Dianne Otto, ‘Beyond Legal Justice: Some Personal
Reflections on People’s Tribunals, Listening and Responsibility’ (2017) 5 London Review of
International Law 225.
64
Zunino, above n 55, 228.
65
‘Bertrand Russell’s Final Address to the Tribunal: Copenhagen, December 1967’ in Duffett
(ed), above n 51. 653.

12 Melbourne Journal of International Law [Vol 19
C Seeking Redress before American Domestic Courts
More recently, some (unsuccessful) attempts were made by Vietnamese
victims to seek justice before the American Courts. In 2004, relying on the
ACTA, the Vietnam Association for Victims of Agent Orange/Dioxin started a
civil lawsuit against the corporations that manufactured and sold Agent Orange
and other herbicides to the US government during the Vietnam War.
66
The
ATCA, a statute passed in 1789, grants American district court’s jurisdiction over
any civil action by an alien claiming damages for a tort committed ‘in violation
of the law of nations or a treaty of the United States’.
67
The American
corporations were sued for violation of international law and war crimes, and for
domestic tort law and strict product liability under US laws. Plaintiffs sought
monetary and punitive damages for personal injuries, wrongful death and birth
defects, as well as injunctive relief in the form of environmental clean-up of
contaminated areas in Vietnam.
68
The district court, however, upheld the government-contractor defence
invoked by the chemical corporations to dismiss the domestic law claims.
69
As
for international law, the court concluded that the military use of Agent Orange
did not violate a ‘well-defined and universally-accepted international norm’.
70
Central in the district court’s reasoning is the argument that Agent Orange was
used to protect United States troops against ambush and not as a weapon against
human populations.
71
In other words, the toxic effects of Agent Orange were
collateral, unintended consequences, and as such, the military use of herbicides
did not entail a violation of international law.
Interestingly, years before, in 1979, the same district court in New York was
called to decide on a lawsuit brought by a group of American war veterans who
became ill from the effects of Agent Orange and other defoliants.
72
In 1984,
there was a settlement with the manufacturing companies that led to the payment
of USD180 million, without any admission of liability.
73
After this settlement,
66
Nguyen Thang Loi v Dow Chemical Co (In re Agent Orange Product Liability Litigation),
373 F Supp 2d 7 (ED NY, 2005) (‘Product Liability Litigation’).
67
ATCA.
68
Edwin A Martini, Agent Orange: History, Science, and the Politics of Uncertainty
(University of Massachusetts Press, 2012) 222.
69
Takesh Uesugi, ‘Is Agent Orange a Poison? Vietnamese Agent Orange Litigation and the
New Paradigm of Poison’ (2013) 24 The Japanese Journal of American Studies 203, 208.
70
See Vietnam Association for Victims of Agent Orange v Dow Chemical Company, 517 F 3d
114 (Miner J) (2nd Cir, 2008) (‘Vietnam Association Case’). See generally Martini, above
n 68, 223–4.
71
Product Liability Litigation, 373 F Supp 2d 7, 121 (Weinstein J) (ED NY, 2005).
72
The legal history of Agent Orange litigation involving war veterans is very complex. It
started with In re Agent Orange Product Liability Litigation, 475 F Supp 928 (ED NY,
1979). For a list of all subsequent decisions, see Dennis K Rhoades, Michael R Leaveck and
James C Hudson (eds), The Legacy of Vietnam Veterans and Their Families: Survivors of
War, Catalysts for Change (Agent Orange Class Assistance Program, 1995) 489–92 app G.
73
Many Vietnam War veterans reported dissatisfaction with the settlement, claiming that the
money received was too little and that the settlement left many questions unanswered about
the responsibility of the manufacturers. See Alexis Abboud, In re Agent Orange Product
Liability Litigation (1979–1984) (3 July 2018) Embryo Project Encyclopedia
<http://embryo.asu.edu/handle/10776/11471> archived at <https://perma.cc/67GS-RDLN>.

2018] From Ecocide to Voluntary Remediation 13
other individual lawsuits were brought by war veterans, but they were all
dismissed because of lack of evidence of causation.
74
Even less successful were the efforts of obtaining compensation by the
Vietnamese victims. On 22 February 2008, the Court of Appeals confirmed the
decision of the lower court and found in a similar vein that
[t]he 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. 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.
75
Like the district court, the Court of Appeal reaffirmed the distinction between
the use of substances ‘intentionally’ harmful to humans (ie poisons) and those
‘only secondarily’ harmful (ie defoliant).
76
According to the Court, it was
controversial within the international community whether the prohibition on the
use of poisons, enshrined inter alia in art 23 of the 1907 Hague Regulations
Concerning the Laws and Customs of War on Land (‘Hague Regulations’),
would apply to defoliants that ‘had possible unintended toxic side effects’.
77
Other provisions in the laws of war relied on by the plaintiff (eg the norm of
proportionality and the prohibition of unnecessary suffering) were found to be
‘too indefinite’ to support the specificity requirement set out by the Supreme
Court in the Sosa Case.
78
In 2009 the Supreme Court declined to hear the case,
putting an end to the Vietnamese victims’ civil lawsuit.
79
IV THE TURN TO ‘VOLUNTARY REMEDIATION’: THE US-FUNDED
ENVIRONMENTAL AND HEALTH PROJECTS IN VIETNAM
For decades the legacy of Agent Orange has been a major issue in the bilateral
relations between the US and Vietnam. Things started to change only very
recently. In 2000, when President Bill Clinton visited Vietnam, the two
74
See Vietnamese Victims, above n 25, 30; Uesugi above n 69, 207–8.
75
Vietnam Association Case, 517 F 3d 104, 119–20 (Miner J) (2nd Cir, 2008) (emphasis
added).
76
Ibid.
77
Ibid 120; Convention (IV) Respecting the Laws and Customs of War on Land, opened for
signature 18 October 1907, 205 ConTS 227 (entered into force 26 January 1910) annex
(‘Regulation Concerning the Laws and Customs of War on Land’) art 23.
78
Vietnam Association Case, 517 F 3d 104, 122 (Miner J) (2nd Cir, 2008). See Sosa v Alvarez-
Machain, 542 US 692, 725 (Souter J) (2004), maintaining that ‘courts should require any
claim based on the present-day law of nations to rest on a norm of international character
accepted by the civilized world and defined with a specificity comparable to the features of
the 18th-century paradigms’ that informed the ATCA legislation.
79
It is worth noting that, in the recent case of Jesner v Arab Bank PLC, the US Supreme Court
ruled that aliens cannot bring a suit under the ATCA against foreign corporations. See Jesner
et al v Arab Bank PLC 138 S Ct 1386 (2018). Before that, in Kiobel v Royal Dutch
Petroleum, the Supreme Court held that aliens cannot bring a suit in a United States court
for conduct that occurred entirely, or primarily, in another country. See Kiobel v Royal
Dutch Petroleum Co, 569 US 108 (2013).

14 Melbourne Journal of International Law [Vol 19
governments agreed on a joint scientific research project to assess the impact of
herbicides in Vietnam, but the project fell apart.
80
In 2006 President George W
Bush and President Nguyen Minh Triet signed a joint statement, in which they
pleaded that ‘[f]urther joint efforts to address the environmental contamination
near former dioxin storage sites would make a valuable contribution to the
continued development of bilateral relations’.
81
Based on the renewed economic
and political cooperation between the two governments, a Joint Advisory
Committee was established and the US started to fund environmental
remediation programmes in areas characterised as ‘hot spots’ for the high dioxin
contamination.
82
Since 2007, the US Congress has appropriated more than
USD130 million to address the environmental and health consequences of the
Agent Orange/dioxin contamination.
83
The projects funded by the US Congress
have been administered by the US State Department and the US Agency for
International Development (‘USAID’), together with Vietnamese partners, such
as ministries and governmental agencies.
84
These initiatives include the clean-up of the area surrounding Danang Airport,
which was the main US military base during the Vietnam War and where huge
stock piles of defoliants were stored. In 2009, the US State Department and the
Vietnamese Ministry of Natural Resources and the Environment signed an
agreement establishing the framework for the environmental remediation project
in Danang.
85
According to the project timeline, the remediation activity was
completed at the end of 2017 and the treatment structure dismantled in early
2018.
86
The American and Vietnamese governments have recently agreed on a
further environmental remediation project involving Bien Hoa airbase, which is
considered another dioxin ‘hot spot’ due to the vast quantity of herbicides stored
there during the war.
87
Whilst some mitigation measures were implemented in
the past by the Vietnamese government, the contaminated area is wide and
requires further clean-up efforts.
88
In addition to environmental remediation, USAID has used the funds
Congress appropriated to finance health and disability programmes in areas
contaminated with dioxin as part of a broader programme to support persons
with disabilities. Assisting Vietnamese with disabilities, regardless of the cause
of their disability, is one of the oldest USAID programmes in Vietnam, active
80
Martini, above n 68, 207.
81
Ibid 208.
82
Vietnamese Victims, above n 25, 5.
83
Michael F Martin, ‘US Agent Orange/Dioxin Assistance to Vietnam’ (Report,
Congressional Research Service, 13 November 2015) 2
<https://fas.org/sgp/crs/row/R44268.pdf> archived at <https://perma.cc/3G5C-3DJH> (‘US
Agent Orange/Dioxin’).
84
Ibid 4.
85
Ibid 10.
86
The environmental remediation project timeline is available online at US Agency for
International Development, Environmental Remediation: Project Timeline (17 September
2018) <https://www.usaid.gov/vietnam/environmental-remediation-project-timeline>
archived at <https://perma.cc/6VAU-R583>.
87
See United States Agency for International Development, ‘United States and Vietnam Sign
Memorandum of Intent to Begin Dioxin Remediation at Bien Hoa’ (Press Release, 23
January 2018) <https://www.usaid.gov/vietnam/press-releases/jan-23–2018-united-states-
and-vietnam-sign-memorandum-intent-begin> archived at <https://perma.cc/Y536-SY9M>.
88
US Agent Orange/Dioxin, above n 83, 14.

2018] From Ecocide to Voluntary Remediation 15
since 1989.
89
Between 2007 and 2010, USAID worked with local governmental
and non-governmental organisations to fund health and rehabilitation
programmes in Danang.
90
However, commentators observe that the majority of
US funds have been directed at environmental clean-up, as the American
government remains reluctant to support initiatives meant to address health
conditions attributed to Agent Orange.
91
A question raised by the recent practice of the US concerns the legal nature of
these initiatives under international law. Although the US’s official position is
that the funding of environmental remediation and health programmes in
Vietnam is a form of development aid (the fact that USAID oversees their
implementation being a clear indication thereof), the question deserves further
attention. In what follows, I reflect on whether these projects may be qualified as
reparation, in its established meaning in international law before suggesting that
the category of ex gratia payments may better capture American practice in
Vietnam. This analysis paves the way for the subsequent critique of ‘voluntary
remediation’, which will draw upon postcolonial legal theory.
It is a well-established rule of international law that reparation must be made
for breaches of international obligations.
92
In the laws of armed conflict, art 91
of Additional Protocol I provides that: ‘[a] party to the conflict which violates
the provisions of the Conventions or of this Protocol shall, if the case demands,
be liable to pay compensation. It shall be responsible for all acts committed by
persons forming part of its armed forces’.
93
Article 31 of the International Law
Commission’s Articles on the Responsibility of States for Internationally
Wrongful Acts codifies the rule in the following terms: ‘[t]he responsible State is
under an obligation to make full reparation for the injury caused by the
internationally wrongful act’.
94
The duty to make reparation ensues from a
breach of an international obligation binding upon the state. Conversely, in the
absence of an international obligation or of a breach thereof, there is no
reparation, strictly speaking.
Attaching the label of reparation to environmental remediation and disability
projects funded by the US is problematic. To begin with, reparations are
distinguished from reconstruction and victim assistance first ‘by their roots as a
89
For more details on the Persons with Disabilities Support Programme, see information
available at United States Agency for International Development, Persons with Disabilities
Support Program (2012–2015) (17 September 2018)
<https://www.usaid.gov/vietnam/persons-with-disabilities-support-program> archived at
<https://perma.cc/H34U-SHVW>.
90
US Agent Orange/Dioxin, above n 83, 12.
91
Vietnamese Victims, above n 25, 8.
92
In the Chorzów Factory case, the Permanent Court of International Justice held that: ‘it is a
principle of international law, and even a general conception of the law, that any breach of
an engagement involves an obligation to make reparation … Reparation is the indispensable
complement of a failure to apply a convention, and there is no necessity for this to be stated
in the convention itself”. See Factory at Chorzów (Germany v Poland) (Claim for
Indemnity) (Merits) [1928] PCIJ (ser A) No 17, 29.
93
See also Convention (IV) Respecting the Laws and Customs of War on Land, opened for
signature 18 October 1907, 205 ConTS 227 (entered into force 26 January 1910) art 3.
94
Responsibility of States for Internationally Wrongful Acts, GA Res 56/83, UN GAOR, 56th
sess, 83rd plen mtg, Agenda Item 162, UN Doc A/RES/56/83 (28 January 2002, adopted 12
December 2001) annex (‘Responsibility of States for Internationally Wrongful Acts’) art 31
(‘Articles on Responsibility of States for Internationally Wrongful Acts’).

16 Melbourne Journal of International Law [Vol 19
legal entitlement based on an obligation to repair harm, and second, by an
element of recognition of wrongdoing, as well as harm, atonement or making
good’.
95
The position of the US government has always been that no rule of
international law prohibited, at the time, the military use of chemical herbicides,
nor proscribed the destruction of crops intended for use only by the enemy
forces. Further, the US has repeatedly denied any scientific evidence of a direct
causal link between the exposure to Agent Orange and diseases affecting the
Vietnamese population.
96
The US-funded environmental remediation
programmes and assistance to Vietnamese people suffering from disabilities
have been accompanied by the unequivocal denial of any legal liability for the
use of Agent Orange or ‘wrongdoing’. As seen before, in the official narrative,
the remediation projects have been framed as forms of development assistance to
Vietnam. Interestingly, the US has been unwilling to provide direct assistance to
purported victims of herbicides;
97
the disability projects recalled above have
been designed with a broad scope, not limited to Agent Orange victims but
embracing the broader category of ‘vulnerable populations’.
98
In a recent press
release, the US government recognised that:
Since 2000, the United States has worked with Vietnam to resolve humanitarian
and wartime legacy issues. These include the removal of unexploded ordinance,
the identification of remains of missing personnel, remediation of dioxin, and
addressing health consequences of the war.
99
This statement seems to acknowledge a correlation between the war, the use
of dioxin and health consequences for Vietnamese peoples. However, it does not
change the position of the American government that there is no legal
compulsion for its ongoing efforts to ‘resolve wartime legacy’.
The attitude of the Vietnamese government vis-a-vis the legacy of dioxin
contamination has also been ambivalent and shifted over time. In the past, the
government expressed concern over the condition of Vietnamese peoples
suffering from diseases correlated to the exposure to Agent Orange and
requested the US to take responsibility, especially considering the different
treatment of American veterans at home.
100
In the last decades, however,
political, security and economic considerations have taken priority over the
legacy of Agent Orange. Since the bilateral relations between the two countries
were re-established in the mid-1990s, the Vietnamese government has taken a
95
Naomi Roht-Arriaza and Katharine Orlovsky, ‘A Complementary Relationship: Reparations
and Development’ in Pablo De Greiff and Roger Duthie (eds), Transitional Justice and
Development: Making Connections (Social Science Research Council, 2009) 170, 172
(emphasis added).
96
In 2007 the US Ambassador to Vietnam affirmed that ‘honestly, I cannot say whether or not
I have myself seen a victim of Agent Orange. The reason for that is that we still lack good
scientific definitions of the causes of disabilities … that have occurred in Vietnam … We
just don’t have the scientific evidence to make that statement with certainty’. See Embassy
of the United States in Vietnam, ‘Remarks by Ambassador Michael W Marine’ (Press
Release, 5 February 2007), quoted in Vietnamese Victims, above n 25, 7–8.
97
Ibid 37.
98
US Agent Orange/Dioxin, above n 83, 15–16.
99
See United States Agency for International Development, above n 87 (emphasis added).
100
Vietnamese Victims, above n 25, 36–37.

2018] From Ecocide to Voluntary Remediation 17
prudent stand to avoid the Agent Orange issue to affect the renewed cooperation
with the powerful commercial partner.
101
The conduct and statements of both parties (the US and, more recently,
Vietnam) indicate that ongoing initiatives to address wartime legacies cannot be
framed as reparation. Even if one wanted to claim that the American
government’s intention to ‘make good’ could be implied facta concludentia, the
ways these programmes are implemented, and who their beneficiaries are, raise
further questions. The issue of whether individuals have rights under the laws of
armed conflict, including the right to reparation in case of violation, is highly
debated in the literature.
102
Historically, war reparations were settled through
inter-state agreements, which included the payment of a lump sum and waiver of
individual claims. As such, the beneficiary of the international obligation to
provide reparation remained the injured state.
103
Yet, in the last couple of
decades, a different perspective has emerged. In a few cases, individual victims
were granted the right to bring claims and ultimately awarded compensation for
violations of the laws of armed conflict.
104
In 2005, the UNGA Basic Principles
and Guidelines on the Right to a Remedy formally recognised that victims of
serious violations of international humanitarian law, occurring both in
101
Ibid 1–3.
102
For a review of debates in this field, see Lawrence Hill-Cawthorne, ‘Rights under
International Humanitarian Law’ (2017) 28 European Journal of International Law 1187.
This issue was also at the core of Jurisdictional Immunities of the State (Italy v Germany)
(Judgment) [2012] ICJ Rep 99.
103
See, eg, Marco Sassòli, ‘State Responsibility for Violations of International Humanitarian
Law’ (2002) 84 International Review of the Red Cross 401, 418. This is also the view
expressed by the American government in the context of the lawsuit filed by the Vietnamese
victims of Agent Orange before its domestic courts:
In light of the traditional rule of international law that war reparations are the subject
of government-to-government negotiations, and not individual claims, recognizing
such federal common law claims would be truly extraordinary … Claims based upon
the United States’ use of chemical herbicides as a tool of war readily fall within the
scope of war reparations claims.
See Statement of Interest of the United States, Product Liability Litigation, 373 F Supp 2d 7,
48–9 (ED NY, 2005).
104
Two examples are noteworthy: first, the United Nations Compensation Commission, created
by the UN Security Council, which awarded compensation to individuals and corporations
that claimed damage resulting from Iraq’s illegal invasion and occupation of Kuwait;
second, the Eritrea–Ethiopia Claims Commission, which heard claims of individual victims
against the other State for violations of international humanitarian law, although the claims
were submitted by the respective governments. For a recent analysis of the former, see
Eliana Cusato, ‘Overcoming the “Logic of Exception”: A Critique of United Nations
Security Council’s Response to Environmental Damage from the 1990–1991 Gulf War’
(2018) 9 Asian Journal of International Law. The different treatment of Iraq, which was
held liable inter alia for environmental damage caused by its illegal invasion and occupation
of Kuwait, compared with the voluntary nature of US’s initiatives to redress the impacts of
Agent Orange may be explained by a postcolonial logic. I will further develop this argument
in Part V of the present article.

18 Melbourne Journal of International Law [Vol 19
international and internal armed conflict, have the right to an ‘adequate, effective
and prompt reparation for the harm suffered’.
105
Although the Vietnamese people living in dioxin contaminated areas may be
the final beneficiaries of the US programmes, the sums are not directly handled
over to individual victims, nor to the affected communities. The recipients of the
funds appropriated by the US Congress and administered by USAID are local
and international NGOs helping people with disabilities, and private contractors
(mostly American corporations) implementing environmental remediation
projects.
106
Ultimately, given their features and scope, ongoing environmental
and disabilities projects cannot be qualified as reparation. If not reparation, then
what?
The funding of environmental clean-up projects in Vietnam presents some
similarity with the practice of ex gratia payments, often associated with episodes
of transboundary environmental damage or incidents involving the shutting-
down of civilian or military airplanes.
107
The offer to make ex gratia payments,
with no acknowledgment and irrespective of any legal liability, is frequent in the
105
See Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of
Gross Violations of International Human Rights Law and Serious Violations of
International Humanitarian Law, GA Res 60/147, 60th sess, UN Doc A/Res/60/147 (21
March 2006) para 11 (‘Basic Principles’). According to the Basic Principles, reparation
may take the forms of restitution, compensation, rehabilitation, satisfaction and guarantees
of non-repetition: at para 18. While the US–Vietnam scenario falls within the ambit of state
responsibility, individual perpetrators of international crimes may also be ordered to provide
reparation to victims. As a result of a guilty sentence, the ICC may impose individual or
collective reparations, or both. Under art 75 of the Rome Statute, reparations may be ordered
by the Court against a convicted person or may be made through the Trust Fund established
pursuant to art 79 of the Rome Statute. The Trust Fund for Victims has a two-fold mandate:
first, to implement reparations orders issued by the Court; and second, to provide physical,
psychological, and material support to victims and their families. See The Trust Fund for
Victims, Home Page <https://www.trustfundforvictims.org/en/> archived at
<https://perma.cc/LU2W-FTET>. When collective reparations are deemed more
appropriate, the Court can order that an award for reparation against the convicted person be
made through the Trust Fund. The Fund is financed by voluntary contributions from donors;
it can also receive and manage ‘money and other property collected through fines or
forfeiture’ by the ICC. See Rome Statute arts 75, 79.
106
Vietnamese Victims, above n 25, 12–13. See especially Table 2.
107
See Philippe Sands and Jacqueline Peel, Principles of International Environmental Law
(Cambridge University Press, 3rd ed, 2012) 717–18, citing Emanuel Margolis, ‘The
Hydrogen Bomb Experiments and International Law’ (1955) 64 Yale Law Journal 629,
638–9: referring to USD2 million paid by the US to Japan in 1955 for ‘the purposes of
compensation for the injuries or damage sustained’ by Japanese nationals as a consequence
of the thermonuclear tests carried out near the Marshall Island. Further, following the crash
of the satellite Cosmo 954 on Canadian territory, the Soviet Union and Canada agreed on an
ex gratia payment of CAD3 million for damage related to locating, recovering, removing
and testing radioactive debris and for cleaning up the affected area: at 718. See also the
examples of ex gratia payments for shooting down airlines mentioned in Marian Nash
Leich, ‘Denial of Liability: Ex Gratia Compensation on a Humanitarian Basis’ (1989) 83
American Journal of International Law 319, 322–3.

2018] From Ecocide to Voluntary Remediation 19
international practice of states.
108
In such instances, the voluntary payment of a
sum by a state is commonly seen as a diplomatic gesture without any legal
connotation. As noted in the literature, when states ‘act merely ex gratia, without
acknowledging legal compulsion, then the act is not evidence of consent to a
legal requirement to act in the way selected’.
109
The notion of ex gratia payment
seems to better fit the US’s approach vis-a-vis the legacy of Agent Orange in
Vietnam, notwithstanding two minor differences. First, the US and the
Vietnamese government have agreed to implement these projects on the basis of
a bilateral agreement; in other words, the environmental remediation and
disability programmes are not properly the result of a unilateral gesture by the
US. Second, the US does not only provide the funding necessary, but through
USAID, it is directly involved in the execution of the projects.
110
Given the peculiarities of the Vietnamese case, the term ‘voluntary
remediation’ may be appropriate to describe current efforts to address the
negative impacts of Agent Orange. The adjective ‘voluntary’ reflects the US’s
constant denial of any liability and emphasis on the humanitarian, rather than
legal motivation for assistance to the Vietnamese people and government
through environmental restoration and disability programmes. The difference,
however, with development assistance is that ‘voluntary remediation’, like ex
gratia payments, is linked to a specific event (or accident), not to general
development concerns. In both cases the state making the payment acts on
humanitarian grounds, not based on legal compulsion, but the rationale is
different. Qualifying the US’s projects as ‘voluntary remediation’ at least
underscores the reasons why they are in place, ie the military use of chemical
defoliants during the Vietnam War.
The turn to ‘voluntary remediation’ as a possible response to the
environmental impact of armed conflict may be appealing, given the legal,
political and practical difficulties in establishing a breach of international
obligation and enforcing the laws of war, as exemplified by the Vietnamese
108
The US seems to be a supporter of the practice of compensating States for damage caused
by warfare, without admission of fault. A notable example is the payment by the American
government of USD28 million to China for the accidental bombing of the Chinese embassy
in Belgrade during NATO intervention in 1999. See Payne, above n 8, 513 n 59, citing ‘US
to Pay China for Bombing’, New York Times (New York), 16 December 1999. It is however
apposite to acknowledge that ‘out of court’ dispute-settlement, or payment of compensation
without admission of fault, is not unique to international law. This practice is also common
at the domestic level and in relation to different types of claims, notably in cases involving
human rights violations by corporate actors. For a discussion on the ethical and theoretical
implications of settlement agreements in cases of corporate violations of human rights, see
Justin Jos, ‘Access to Remedies and the Emerging Ethical Dilemmas: Changing Contours
within the Business–Human Rights Debate’ (2018) 15 Revista de Direito Internacional 116.
109
Harold G Maier, ‘Ex Gratia Payments and the Iranian Airline Tragedy’ (1989) 83 American
Journal of International Law 325, 325. Maier argues that the utility of ex gratia payment
rests in the possibility of offering ‘de facto aid to the victims in circumstances where the
actual facts cannot be found and interpreted or where, for other reasons, acknowledging
legal liability might be politically unacceptable to the nation involved’: at 329.
110
For instance, the environmental remediation project around Danang airport has been
followed by USAID through completion, as illustrated by the different reports published on
its website. See United States Agency for International Development, Progress Highlights
(1 October 2018) <https://www.usaid.gov/vietnam/progress-reports-environmental-
remediation-dioxin-contamination-danang-airport> archived at <https://perma.cc/M8D5-
RP4Z>.

20 Melbourne Journal of International Law [Vol 19
case.
111
Yet, it is also questionable for several reasons. One order of concern
pertains to the weakening of the law’s capacity to influence the behaviour of
relevant actors, thereby compromising the goals that the laws of armed conflict
are purported to achieve, ie the regulation of the use of force and protection of
the civilian population and objects. While it may be true that ‘formal
enforcement remains, in international law as in domestic, of only partial
significance in securing compliance with law’,
112
pursuing remediation
initiatives that have no formal legal grounding would undermine the law’s
preventive and expressivist functions (ie social disapproval). Both functions are
considered essential in the environmental field, as environmental harm is often
irremediable and its injurious consequences may last years, if not decades.
113
That said, there is another way of approaching the turn to ‘voluntary
remediation’ in the case of Vietnam and the implications it bears for
contemporary armed conflict. Part V focuses on a subtler risk associated with the
idea of ‘voluntary remediation’ and on some problematic assumptions implicit in
‘soft’ responses (ie without legal compulsion) to the environmental
consequences of conflicts.
V UNDERSTANDING THE EXCLUSION OF THE ‘SAVAGE’ AND HER
ENVIRONMENT FROM THE PROTECTION OF THE LAWS OF WAR
Scholars have demonstrated that colonialism has been central to the formation
of international law and that many of its fundamental doctrines, notably
sovereignty, have been created through the colonial encounter.
114
More
essentially, this scholarship suggests that existing legal discourses and practices
still contain traces of the colonial foundations of the discipline and reproduce
patterns of exclusion, which are justified by the idea of the ‘other’ as savage or
111
Payne, above n 8, 514: Payne claims that the ‘unilateral reparations practice’ of the US (eg
in Kosovo) can be regarded as ‘an effort to do justice’, although she recognises that it could
also be seen as ‘an exercise of power by other means’ and that ‘the United States likely does
not consider it legally mandated’. Nonetheless, she contends that ‘in the field of
environment, which is perhaps more focused on physical results than on moral and ethical
concerns, the practical incentives to make the conquered land habitable and productive
might predominate and make it easier for powerful states to conform their behaviour to the
modes of justice’.
112
Deborah Pearlstein, ‘Armed Conflict at the Threshold?’ (Research Paper No 537, Cardozo
Legal Studies, 26 February 2018) 17.
113
See, eg, Gabcikovo-Nagymaros Project (Hungary v Slovakia) (Judgment) [1997] ICJ Rep 7,
78: ‘[t]he Court is mindful that, in the field of environmental protection, vigilance and
prevention are required on account of the often irreversible character of damage to the
environment and of the limitations inherent in the very mechanism of reparation of this type
of damage’.
114
See the fundamental work of Anghie cited above: see especially Anghie, Imperialism,
Sovereignty and the Making of International Law, above n 6.

2018] From Ecocide to Voluntary Remediation 21
primitive.
115
Arguably, a postcolonial look at the laws of armed conflict may
help to explain American ‘environmental warfare’ in Vietnam and the legal
arguments supporting the use of chemical herbicides during that conflict.
Further, the civilised versus uncivilised divide, at the core of the postcolonial
critiques of international law,
116
may offer a different conceptual framework to
explain American denial of responsibility for the use of Agent Orange and the
turn to voluntary responses to dioxin contamination and human suffering in
Vietnam.
As illustrated by Frédéric Mégret, despite the humanitarian impulse of some
scholars that argued for the universal character of the laws of war, the idea that
they did not apply beyond the European world was well accepted until the early
20th century.
117
A notable example is given by the use of chemical weapons and
poisonous gases during the war in Ethiopia by Italian troops. Interestingly, the
use of chemical weapons against Ethiopians led some commentators to expect
their employment during World War II. Yet it soon became clear that:
war among the industrialized nations of Europe was a different matter than
conflicts involving less technologically advanced areas, such as the colonies. The
surprising lack of gas warfare during World War II can thus be understood as
implicated in a process by which the conduct of war among ‘civilized’ nations
was demarcated from that involving ‘uncivilized’ nations … [Chemical weapons]
115
In relation to the human rights discourse, see, eg, Makau Mutua, ‘Savages, Victims, and
Saviors: The Metaphors of Human Rights’ (2001) 42 Harvard International Law Journal
201; Ratna Kapur, ‘Human Rights in the 21st Century: Take a Walk on the Dark Side’
(2006) 28 Sydney Law Review 665. For a TWAIL critique of the field of international
environmental law, see, eg, Usha Natarajan and Kishan Khoday, ‘Locating Nature: Making
and Unmaking International Law’ (2014) 27 Leiden Journal of International Law 573; Julia
Dehm, ‘Carbon Colonialism or Climate Justice? Interrogating the International Climate
Regime from a TWAIL Perspective’ (2016) 33(3) Windsor Yearbook of Access to Justice
129. For a postcolonial analysis of international criminal law, see, eg, John Reynolds and
Sujith Xavier, ‘The Dark Corners of the World: TWAIL and International Criminal Justice’
(2016) 14 Journal of International Criminal Justice 959. On the impact of international
institutions on peoples in Third World countries and a critique thereof, see B S Chimni,
‘International Institutions Today: An Imperial Global State in the Making’ (2004) 15
European Journal of International Law 1. For a critical approach to international law and
development, see, eg, Sundhya Pahuja, Decolonising International Law: Development,
Economic Growth and the Politics of Universality (Cambridge University Press, 2011). And
to international investment law, see M S Sornarajah, The International Law on Foreign
Investment (Cambridge University Press, 1994).
116
For a historical analysis of the concept of ‘civilisation’ in international law, see, eg, Liliana
Obregón Tarazona, ‘The Civilized and the Uncivilized’ in Bardo Fassbender and Anne
Peters (eds), The Oxford Handbook of the History of International Law (Oxford University
Press, 2012) 917. Anghie uses the term ‘dynamic of difference’ to indicate the ‘endless
process of creating a gap between two cultures’: see Anghie, Imperialism, Sovereignty, and
the Making of International Law, above n 6, 4. See also Martti Koskenniemi, The Gentle
Civilizer of Nations: Rise and Fall of International Law 1870–1960 (Cambridge University
Press, 2002).
117
Mégret, ‘From “Savages” to “Unlawful Combatants”’, above n 7, 275. The 1914 British
military manual, co-authored by Oppenheim, made it clear that ‘the rules of international
law apply only to warfare between civilized nations … they do not apply in wars with
uncivilized States and tribes’: at 279, quoting J E Edmonds and L Oppenheim, Land
Warfare: An Exposition of the Laws and Usages of War on Land, for the Guidance of
Officers of His Majesty’s Army (His Majesty’s Stationery Office, 1912) 14 [7].

22 Melbourne Journal of International Law [Vol 19
were implicated in the process of the hierarchical ordering of international politics
into the civilized and uncivilized arenas.
118
In other words, means and methods of warfare that were formally or
practically outlawed in Europe, were used across the non-European world, and
new weapons were tested in these ‘far away and isolated countries’.
119
The
underlying assumption was that war against savage or inferior populations had to
be more brutal, because those savages ‘were incapable of showing restraint in
warfare’.
120
Similar dynamics seem to underpin the massive use of chemical
defoliants and other environmentally harmful techniques in Vietnam, which
would not have been acceptable in a war opposing Western States, particularly in
the 1960s. To be fair, according to one commentator, the US was neither the first
country nor the last to use herbicides in war and was inspired by the British, who
used these substances in the 1950s to destroy forests and crops during the
Malaya insurgency.
121
Likewise, Israel used herbicides in 1972 for crop
destruction in Jordan on at least one occasion; Portugal used herbicides against
insurgents in Angola during the 1970s; and the US used chemical defoliants in
its ‘war on drugs’ in Central America during the 1980s and afterwards.
122
It is
nonetheless telling that all these military conflicts or operations took place in
distant, Third World countries.
In addition to the geographical and cultural distance, as observed by Falk,
‘environmental warfare’ in Vietnam cannot be understood without referring to
the counterinsurgency doctrine, ‘which seek[s] to dry up the sea of civilians in
which the insurgent fish attempt to swim. This drying up process is translated
militarily into making the countryside unfit for civilian habitation’.
123
The
systemic destruction of the environment in Vietnam was aimed at denying to the
enemy food, cover and support from the population. Such rationale was clearly
recognised by the US military:
There have been three choices open to the peasantry. One, to stay where they are;
two, to move into the areas controlled by us; three, to move off into the interior
towards the Vietcong. The application of our air power since February (1965) has
made the first choice impossible from now on. It is not possible to stay in the line
of fire and live. Our operations [eg Operation Ranch Hand] have been designed to
make the first choice impossible, the second attractive, and to reduce the
likelihood of anyone choosing the third to zero.
124
A vision transpires from this statement, and from the entire logic behind the
counterinsurgency doctrine, of the enemy and of Vietnamese peasants as
118
Richard Price, ‘A Genealogy of the Chemical Weapons Taboo’ (1995) 49 International
Organization 73, 96–7.
119
Giorgio Rochat, ‘L’impiego dei gas nella Guerra d’Etiopia 1935–1936’ (1988) 1 Rivista di
Storia Contemporanea 74, 103.
120
Mégret, ‘From “Savages” to “Unlawful Combatants”’, above n 7, 289 (emphasis altered)
(citation omitted).
121
Frey, above n 18, 4.
122
Ibid.
123
See Falk, above n 5, 80.
124
US military spokesman quoted in Robert Guillain, Vietnam: The Dirty War (A Carter trans,
Housman’s, 1966), cited in Malvern Lumsden, ‘“Conventional” War and Human Ecology’
(1975) 4 Ambio 223, 226.

2018] From Ecocide to Voluntary Remediation 23
‘uncivilised’ or ‘savage’, which justified the use of hazardous weapons and
tactics, the deleterious long-term impact of which was still unknown.
125
The
massive spraying of herbicides in Vietnam was done, in effect, without regard to
dioxin’s possible effect on human beings or its virulent afterlife.
A further step needs to be taken to illustrate how legal arguments were
developed and employed to deny the protection of the laws of war in relation to
the means and methods of warfare described above (highly explosive bombs,
Rome Plows, and chemical herbicides). After World War II, the 1949 Geneva
Conventions came into force to impose further restrictions on the conduct of
hostilities.
126
Indiscriminate attacks against the Vietnamese environment would
be, in principle, questionable under the tenets of jus in bello, notably distinction,
proportionality and humanity (or prohibition of unnecessary suffering).
Nevertheless, counterarguments were soon crafted by the US and its allies to
exclude from the protection of international law peoples and ecosystems.
According to the General Counsel to the US Department of Defense:
Neither The Hague Regulations nor the rules of customary international law
applicable to the conduct of war prohibit the use of anti-plant chemicals for
defoliation or the destruction of crops, provided that their use against crops does
not cause such crops as food to be poisoned by direct contact, and such use must
not cause unnecessary destruction of enemy property. The Geneva Protocol of
1925 adds no prohibitions relating either to the use of chemical herbicides or to
crop destruction to those above. Bearing in view that neither the legislative
history nor the practice of States draw chemical herbicides within its prohibitions,
any attempt by the United States to include such agents within the Protocol would
be the result of its own policy determination, amounting to a self-denial of the use
of weapons. Such a determination is not compelled by the 1907 Hague
Regulations, the Geneva Protocol of 1925, or the rules of customary international
law.
127
Similarly, as observed above, legal positivism arguments, grounded on the
principle of legal certainty, were used by the US during the UNGA debates in the
1960s to dismiss the relevance of the Geneva Protocol and, later, by American
courts in the context of the ATCA litigation to reject victims’ claims for
compensation. To dismiss the relevance of the Hague Convention IV as a basis
for a common law cause of action against the defendants, the District Court
relied on ‘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
125
For a discussion on the scientific uncertainty surrounding the toxicity of chemical herbicides
in 1960s–1970s and lack of appropriate studies on their latent health effects, see Uesugi
above n 69, 213–14.
126
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 31 (entered into
force 21 October 1950) (‘Geneva Convention I’); Geneva Convention for the Amelioration
of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at
Sea, opened for signature 12 August 1949, 75 UNTS 85 (entered into force 21 October
1950) (‘Geneva Convention II’); Geneva Convention Relative to the Treatment of Prisoners
of War, opened for signature 12 August 1949, 75 UNTS 135 (entered into force 21 October
1950) (‘Geneva Convention III’); Geneva Convention Relative to the Protection of Civilian
Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 135 (entered into
force 21 October 1950) (‘Geneva Convention IV’).
127
Letter from J Fred Buzhardt, General Counsel to the Department of Defense to Senator J
William Fulbright, 5 April 1971, quoted in Falk, ‘Environmental Warfare’, above n 5, 86.

24 Melbourne Journal of International Law [Vol 19
prohibition even applies to lethal chemical weapons designed to kill human
beings’.
128
Notable also is the contention of the US Court of Appeals that the
deployment of Agent Orange did not violate international law, because ‘the
deployment of materials that are only secondarily, and not intentionally, harmful
to humans’ was not clearly proscribed at the time of the Vietnam War.
129
Notwithstanding the recognition by the UNGA that chemical herbicides ‘which
might be employed because of their toxic effects on (…) plants’
130
would fall
within the scope of the Geneva Protocol, the Court found that the definition of
‘poison’ remained unsettled with respect to chemical agents not used as a
weapon of war (ie intentionally against humans).
131
One must bear in mind that, in the traditional doctrine of sources, UNGA
resolutions are not legally binding and that other efforts pursued by Third World
states through the UNGA have been constantly resisted by powerful states.
132
Although UNGA resolutions may provide some evidence of customary
international law, UNGA Resolution 2603 was not unanimous, with major
military powers and other states either opposing it or abstaining.
133
The absence
of universal acceptance for the prohibition, and significantly the persistent
objection by the US, were, in other words, essential to reach the conclusion that
the conduct of the American government was not in clear violation of
international law (at least at that time). As for the argument, upheld by the
American courts, that defoliants were used to destroy crops intended only for
consumption by armed forces, and as such they complied with international legal
standards in force at the time, other evidence showed that, on the contrary, those
who suffered the most from such tactics were civilians.
134
Present-day projects to clean-up the environment and assist persons with
disability in Vietnam can also be read from a postcolonial perspective. Mégret
has forcefully argued that, historically, the application of the laws of war to
‘savages’ or non-European people has been discretionary, as a result of charity or
chivalry rather than legal compulsion.
135
Even after the adoption of the Hague
128
Product Liability Litigation, 373 F Supp 2d 7, 117 (Weinstein J) (ED NY, 2005).
129
Vietnam Association Case, 517 F 3d 104 (2nd Cir, 2008).
130
Question of Chemical and Bacteriological (Biological) Weapons, GA Res 2603(XXIV), UN
GAOR, 24th sess, 1836th plen mtg, Supp No 30, UN Doc A/RES/2603(XXIV) (16 December
1969) pt A.
131
Vietnam Association Case, 517 F 3d 104, 119–23 (Miner J) (2nd Cir, 2008).
132
Anghie, Imperialism, Sovereignty, and the Making of International Law, above n 6, 236–7.
133
The resolution was opposed by Australia and Portugal, while 36 other states abstained. See
Zierler, above n 21, 146.
134
The effects of crop destruction were described by a former high official in the so-called
pacification program in Vietnam in the following terms:
In the course of investigations of the program in Saigon and in the provinces of
Vietnam, I found that the program was having much more profound effects on
civilian non-combatants than on the enemy. Evaluations sponsored by a number of
official and unofficial agencies have ail concluded that a very high percentage of ail
the food destroyed under the crop destruction program had been destined for civilian,
not military use. The program had its greatest effects on the enemy-controlled
civilian populations of central and northern South Vietnam. In Vietnam the crop
destruction program created widespread misery and many refugees.
See L Craig Johnstone, ‘Ecocide and the Geneva Protocol’ (1971) 49 Foreign Affairs 711,
719, quoted in Falk, ‘Environmental Warfare’, above n 5, 87.
135
Mégret, ‘From “Savages” to “Unlawful Combatants”’, above n 7, 281–3.

2018] From Ecocide to Voluntary Remediation 25
Regulations, positive law was considered as not applicable to warfare with non-
European nations. Rather, it was ‘natural law’ that regulated the relations with
‘barbarians’, through reference to European ideals such as honour and
decency.
136
To put it differently, European states were not bound by hard-law
obligations vis-a-vis uncivilised peoples, but nonetheless they could choose to
behave in a ‘good way’ on the basis of voluntary commitments. A similar
rhetoric continues to underpin current responses to the pervasive legacy of
‘environmental warfare’ in Vietnam. As discussed earlier, past and ongoing
efforts to restore the environment in Vietnam have been consistently justified on
humanitarian grounds, with the unequivocal denial of any legal responsibility or
compulsion on the part of the US. The way in which dioxin-removal and
disabilities projects are designed and implemented through USAID confirms that
these are not forms of reparation for past wrongs, but they would fall within the
category of ex gratia payments.
This narrative of the non-applicability of the laws of war to the use of Agent
Orange has become so established (also thanks to the jurisprudence of American
courts in the ATCA litigation case) that even the Vietnamese government has
abandoned the old language of ‘responsibility’ and welcomed the renewed
‘cooperation’ with the US government. The times of the Russell Tribunal are far
away, the term ecocide is forgotten and the two governments express satisfaction
for the successful implementation of very expensive clean-up projects around
Danang military base and plan further remediation initiatives. Perhaps this is the
best result that the Vietnamese people and government could have expected to
achieve, given the complex historical, geopolitical and legal factors at play. A
pragmatic approach would indeed recognise that, after decades of inaction, the
projects funded by the US Congress represent a first step towards addressing the
ongoing impact of Agent Orange and, particularly, dioxin contamination in the
most polluted sites.
Yet there is a different way to look at the Vietnamese case that I sought to
suggest; that is, as a story of exclusion from the protection of the law, which
tends to repeat itself. As critical scholars have demonstrated, the dormant logic
of colonialism periodically re-emerges in legal debates and doctrines.
137
Likewise, the old distinction between legal obligations vis-a-vis other ‘civilised’
states and voluntary/discretional application of the laws of war to ‘savages’ is
illustrated by the nature of current efforts to address the consequences of
‘environmental warfare’ in Vietnam. Looking at these issues through a
136
Ibid 283, citing Friedrich de Martens, ‘La Russie et l’Angleterre dans l’Asie Centrale’
(1879) 11 Revue de droit international et de législation comparée 227, 241: de Martens
claimed that ‘[i]t is natural law, not international law, which is applicable to the relations
between civilized nations with the nations of Asia … In Asia, international law transforms
itself into natural law’ [Frédéric Mégret trans].
137
For instance, scholars have argued that the ‘war on terror’ replicates similar exclusionary
dynamics through a selective application of human rights law, the jus ad bellum and the jus
in bello and the development of new doctrines. On this point, see, eg, Anghie, Imperialism,
Sovereignty and the Making of International Law, above n 6, ch 6; Antony Anghie, ‘On
Critique and the Other’ in Anne Orford (ed) International Law and its Others (Cambridge
University Press, 2006) 389; Mégret, ‘From “Savages” to “Unlawful Combatants”’, above
n 7, 298–308; Obiara Chinedu Okafor, ‘Globalism, Memory and 9/11: A Critical Third
World Perspective’ in Fleur Johns, Richard Joyce and Sundhya Pahuja (eds), Events: The
Force of International Law (Taylor & Francis, 2010) 234.

26 Melbourne Journal of International Law [Vol 19
postcolonial lens provides key analytical tools to understand the failure of justice
for the Vietnamese people and the enduring denial of recognition of rights and
responsibility.
138
At a more general level, reflecting on the problematic
dimensions of ‘voluntary remediation’ in Vietnam helps shed light on some
unintended consequences of well-meaning arguments or legal proposals to
redress the environmental impact of contemporary armed conflict. While the idea
of remedial measures implemented unilaterally or through multilateral
cooperation may look appealing on an abstract level and offer practical solutions
to the environmental challenges faced by countries emerging from violent
conflict, it also has a less visible dark-side, which must be exposed.
Ultimately, the arguments above have implications for present-day military
conflicts, which are primarily fought in the Global South. One might think of the
armed conflicts in Afghanistan, Iraq, Syria and Yemen, where cluster bombs and
depleted uranium weapons have been widely used, often in association with the
idea of ‘smart wars’. Yet those ‘technologies, when they compromise the
environment, morph into long-term killers, creating landscapes that inflict
lingering, off-camera casualties’.
139
Depleted uranium and other toxic remnants
of war can seep into the soil and groundwater and enter the food chain, posing
threats that span across time and space. The increasing use of armed drones
raises similar concerns, given that airstrikes from drones typically use explosive
weapons which may generate toxic remnants and of which the long-term
environmental and human effects are still unknown;
140
as were, in the 1960s, the
effects of dioxin. The limited attention that the environmental costs of ‘smart
wars’ has attracted so far in mainstream legal debates and practices raises the
question of who counts as a war casualty. This question has a clear postcolonial
dimension. As Rob Nixon compellingly argues,
like most forms of pollution, cluster bombs and landmine pollution [are] only
semirandom. Just as in Western nations toxic waste sites tend to be placed near
poor or minority communities, so too unexploded ordnance pollution is
concentrated in the world’s most impoverished societies …
141
VI CONCLUSION: VIETNAM AND BEYOND
The Vietnam War, with its disastrous ecological and human impact, and the
quest for justice of the Vietnamese victims are worth revisiting, as they offer the
opportunity to reflect on the limitations of existing avenues of legal redress. A
review of academic debates and judicial and non-judicial initiatives to establish
accountability for ‘environmental warfare’ suggests that international law
138
For a postcolonial critique of the continued disapplication of legal norms and remedies in
the Chagos Case, see Kinnari Bhatt, ‘A Post-Colonial Legal Approach to the Chagos Case
and the (Dis)Application of Land Rights Norms’ (2018) International Journal of Law in
Context <https://doi.org/10.1017/S1744552318000095> archived at
<https://perma.cc/V9RR-XWEN>.
139
Rob Nixon, Slow Violence and the Environmentalism of the Poor (Harvard University Press,
2011) 210.
140
See, eg, Ray Acheson et al (eds), ‘The Humanitarian Impact of Drones’ (Report, Women’s
International League for Peace and Freedom, International Disarmament Institute, Pace
University and Article 36, October 2017) 29–47.
141
Nixon, above n 139, 226.

2018] From Ecocide to Voluntary Remediation 27
remains a powerful language, which may be used to ‘frame problems, suggest
fault and responsibility, [and] propose solutions and remedies’.
142
In 2004, the
Honorary President of the Vietnamese Association of Victims of Agent Orange
said that
[n]o excuse can justify that those who set on the planes and spread toxics have
been considered as catching or contracting disease, while those who had been
spread toxics on their heads or had to the use the food and water mixed with
toxics have not been recognized. This is an extremely severe violation of human
rights … The aspirations and requests of Vietnam are extremely legitimate, being
in accordance with ethics and international laws.
143
Yet the opposite is also true.
144
This article shows how legal arguments
grounded in the laws of war have been used to exclude the Vietnamese people
and their environment from the protection of international rules. Borrowing from
the postcolonial critique of international law, I claim that a similar exclusionary
dynamic is entrenched in ongoing efforts to address the legacy of Agent Orange
in Vietnam. Environmental restoration and health projects funded by the US and
implemented on the basis of a bilateral agreement with the Vietnamese
government are not forms of reparation under international law. They do not
imply any recognition of wrongdoing or legal responsibility and cannot be
regarded as efforts to do justice. Rather, they are justified by generic
humanitarian and development concerns, and present some similarities with the
category of ex gratia payments, as discussed above. The idea of ‘voluntary
remediation’ (ie reparation without legal compulsion), translated from the
Vietnamese case to instances of environmental degradation associated with
present-day conflicts, raises difficult questions of what compliance, prevention
and redress mean in situations of asymmetric warfare. Moving the abstract idea
to the practical reality of military conflicts fought in Third World countries and
keeping in mind the critical insights of postcolonial scholars help illuminate
problematic assumptions implicit in well-meaning legal proposals aimed at
reinforcing the protection of the environment in war-torn countries. This is
arguably the first step in rethinking what justice for conflict-related ecological
harms means and imagining a different international law that ‘fulfils its promise
of advancing the cause of justice’.
145
142
See Anghie and Chimni, above n 6, 101. Koskenniemi also argues that international law can
‘give voice to those who have been excluded from decision-making positions and are
regularly treated as the objects of other peoples’ policies; it provides a platform on which
claims about violence, injustice, and social deprivation may be made even against the
dominant elements’. See Martti Koskenniemi, The Politics of International Law (Hart
Publishing, 2011) 265–6.
143
Quote from the speech delivered by Mrs Nguyen Thi Binh at the Conference in Support of
Vietnamese Victims of Agent Orange, held on 25 July 2004 in Ho Chi Minh City. Reference
to the speech is taken from a picture at the War Remnants Museum in Ho Chi Minh City,
visited by the author in February 2016.
144
On the duality of international law and how ‘it is both regulatory and emancipatory, both
imperial and anti-imperial’, see Sundhya Pahuja, ‘Decolonization and the Eventness of
International Law’ in Johns, Joyce, and Pahuja, above n 138, 92.
145
Anghie, ‘Finding the Peripheries’, above n 6, 33.