Lecture Notes: “Toxic Legacies—Agent Orange as a Challenge”
In 2013, the Korean Supreme Court confirmed the liability of US manufacturers for damage caused by the defoliant Agent Orange in the 1965–72 Vietnam War. The 300,000 South Korean soldiers and their descendants constitute the third-largest group of Agent Orange victims, after the Vietnamese population and US veterans and their descendants. In the 1980s, the US veterans sued not their government, but the companies that profited from government orders for Agent Orange. The settlement totaled US$250 million, but the companies refused to acknowledge a causal connection between symptoms and exposure. The companies continue to reject the ongoing claims of the Vietnamese victims of Agent Orange.
In our June 2015 conference, “Toxic Legacies”—an analysis of the disaster—we asked questions about Agent Orange and comparable civil and military risks, and about responsibilities and long-term accountability of states and corporations. We discussed difficult and not easily resolvable problems. Quoting Bertolt Brecht, “wir sehn betroffen den Vorhang zu und alle Fragen offen” (It is a curious way of coping to close the play and leave the question open). We feel it is important to continue now our discussion around some of these interrelated issues. What are the risks and liabilities in the civil and military use of chemicals? How do we establish the accountability of corporations for state-enabled injustice? This covers past and present ground from profiting from cheap labor during the South African apartheid, to poor current working and environmental conditions around the world.
How can historical justice be applied in a world of disasters, be it through material or symbolic compensation,approaches to restitution, reparation, compensation, rehabilitation, truth commissions, and official apologies, which always come late and remain selective and incomplete? Each case develops its own temporal dimension, reappearing from time to time on the public agenda. What is the role of mass media and public perception here? Can limitation periods begin to run before a latent loss has manifested itself? Can a statute of limitations begin to run against a cause of action before a cause of action exists? Governments and corporations want “legal peace,” but how should future claimants be considered? These are also questions of inter-generational justice, about relations between non-contemporaries, and duties to past and future generations.
Thinking spatially as well as temporally, the concept of global justice comes into consideration. In global supply chains, product liability for losses caused by the defective products in the downstream supply chain is a result of the consumer protection movements of the 1960s and 1970s. Such legislation may prove to become a powerful instrument not only for consumers but also for victims of occupational and environmental risks; take the historical asbestos litigation in the US, or now the Korea case, for example. A more recent development is the involvement of corporations in critical occupational, environmental, or human rights issues of upstream suppliers: the ongoing litigation against KiK in Germany regarding the catastrophic 2012 textile fire in Pakistan.
Finally, what about the structures and financing of compensation schemes? This includes insurance, compensation funds or foundation solutions as alternatives to tort law. Who should pay? According to the “common burden” concept, the taxpayer pays, in contrast to “polluter pays,” which results in open causation disputes. Should we rely on retrospective ex post/ad hoc solutions (such as Ken Feinberg’s unrepeatable 9/11 compensation fund) or also think prospectively about ex ante (social security-like) solutions? Tort law may be helpful because it already exists around the globe, and when applied may have prospective deterrent effects …
It will undoubtedly take further analysis on a broad interdisciplinary scale to reach conclusions.
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