Read the attached situation and write an open memo in open memo format consisting of : issues, short answer, facts, discussion and conclusion.

You work for a law firm in New York City that does pro bono work for an international NGO, NODEET International.  NODEET helps people who have medical problems due to the originally unknown side effects of pesticide and defoliant chemical spraying.  NODEET has been doing a great deal of work with children and young adults in Krakistan, a country that endured a brutal civil war.  NODEET has asked your firm to look into bringing a suit in New York courts against one of the primary chemical defoliant producers, Nomsanto Corporation, on behalf of a group of Krakistani victims who are undergoing cancer treatments in New York.  The partner for whom you work has asked that you limit your research to the Alien Tort Claims Act.

Background:
In the 1970s, the Republic of Krakistan was the scene of a horrible civil war between government and secessionist forces. The secessionists, an ethnic minority group of Krakistan, fought to form their own breakaway republic. They employed guerilla warfare with great success and soon controlled most of the jungle surrounding their territory.  The secessionists funded the war by growing drugs in the jungle and selling them in the United States.  In order to undercut the secessionists’ funding, the Krakistani government appealed to the US for help.  In an effort to stop the sale of drugs in the US, the US government agreed to help Krakistan introduce a program of defoliation.  In 1974, the Krakistani and US governments signed a one year contract with Nomsanto Corporation to defoliate the jungle areas around the secessionists’ territories.  Nomsanto, which is incorporated in Delaware, was originally formed during WWII by US chemical warfare specialists and regularly supplied armed forces around the world with chemicals for both wartime and peacetime use.  Under the contract with the US and Krakistan, Nomsanto was to use its own equipment, airplanes, and personnel in Krakistan.  The Krakistani government rendered advice and aid in the selection of target areas.  Apart from funding the defoliation, the US government was not involved in the program.

Within a few months of the beginning of the spraying, the parties discovered an unintended side effect of the program; the defoliant, which had not been tested on human subjects, was a very noxious irritant that lingered in the soil, underground bunkers, water, and confined air. These properties made the defoliant a very potent weapon for flushing out secessionist troops from their concealed positions.

After the original contract with Nomsanto expired, the US government noticed a decrease in the amount of drugs being smuggled into the US from Krakistan.  As a result, the US decided to stop funding the Nomsanto program.  However, the Krakistani government, eagerly renegotiated the contract, not because it wanted to continue defoliating the crop fields, but because the chemical spraying made it much easier to find the secessionist troops.  Under the new contract, Nomsanto supplied the defoliant to the Krakistani Air Force, which took over the spraying. The Krakistani Air Force then deliberately targeted suspected enemy positions in an effort to flush them out of concealment. By doing so, the Krakistani Air Force effectively used the defoliant as a tactical weapon just as police would use tear gas to disperse crowds and quell riots.

In the meantime, Nomsanto’s studies on the effects of long term human exposure to the defoliant showed that the chemical has devastating effects. Upon disclosing its findings to the Krakistani government, Nomsanto was told that its only job was to produce the defoliant in accordance with its binding contract. Across the world, environmental groups independently confirmed that the defoliant’s effects were worse than even Nomsanto was willing to admit.  By 1980, the US, Western Europe, Australia, and India signed a treaty completely banning the use of the chemical in both wartime and peace.  The Krakistani government, on the other hand, ignored the global concern and continued to use the chemical against enemy troops.

Present day Krakistan:
The war in Krakistan is over.  The secessionists have been granted their own semi-autonomous region. All of the surviving secessionists have surrendered and rejoined society.  Nevertheless, the members of the autonomous region are afflicted by all sorts of ailments including: birth defects, sterility, cancer, tumors, and miscarriages. They also have one of the highest infant mortality rates in the world. Epidemiologists have isolated and identified the illnesses as a form of chemical poisoning linked to Nomsanto’s defoliant.

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