Am I Eligible for the Agent Orange Presumption if I Flew Over Vietnam?

On January 29, 2019, in Procopio v. Wilkie, the United States Court of Appeals for the Federal Circuit decided that, for the purpose of agent orange claims, service in the Republic of Vietnam includes service in its territorial waters. This means that numerous Navy veterans previously denied presumptive service connection for agent orange connected diseases should be entitled to that presumption in the future.

However, one question raised on oral arguments, but not answered by the decision, was whether service members who flew over Vietnam are entitled to the same presumption. Whether they are or not will likely depend on similar reasoning the Court used in Procopio.

The Logic Behind the Procopio v. Wilkie Decision

The Court found in Mr. Procopio’s favor, that he did serve “in the Republic of Vietnam,” even though he did not set foot on the landmass of that country.  It reached this conclusion by referring to international law.

The Agent Orange Act, passed in 1991, allowed for a presumption of service connection for certain diseases due to exposure to harmful herbicide agents. It also allowed the VA to make rules allowing for presumptive service connection for additional diseases, if the scientific evidence shows that exposure to herbicide agents causes those diseases. The Act applied to veterans who served “in the Republic of Vietnam” anytime between January 9, 1962 and May 7, 1975.

The Procopio Court used international law to reach the conclusion that the phrase “in the Republic of Vietnam” was not ambiguous; as under international law, a nation’s territory includes its territorial seas; and that when the Agent Orange Act was passed, those territorial seas extended to not more than 12 nautical miles from the country’s land. So, as the ship Mr. Procopio was stationed on was in the territorial seas of the Republic of Vietnam, his service was indeed in that country; and he is entitled to the presumption that he as exposed to herbicide agents.

There is some description necessary to explain what the Court means by “international law,” and why it used it to help define the Agent Orange Act.

When Courts decide what a law means, they use various rules of interpretation. One of those rules of interpretation is that Congress, when passing a law, is aware of other laws; including laws already on the books, treaties, multinational agreements, and certain unwritten agreements between nations.

The Court can then use these other laws, if they were in effect at the time, to help interpret the law in question.

In Procopio’s case, the Court referred to two international agreements, a proclamation by the United States, and other treatises, when deciding that the Republic of Vietnam’s territory included its territorial seas.

One agreement cited was the 1958 Convention on the Territorial Sea and Contiguous Zone. In this international treaty, the U.S. agreed that the sovereignty of a State extends beyond its land territory to its territorial seas.

The Court also cited to 1982 United Nations Convention on the Law of the Sea (“UNCLOS”), which stated that the breadth of a nation’s territorial sea should not exceed 12 nautical miles.

What is odd is that the U.S. is not a party to this convention. So why would the Court cite to it?

Even if a country has not entered into a treaty, it can still be bound to unwritten laws. This type of law is called “customary international law.” If other countries agree to practices as a matter of course, even without a treaty, that practice can become customary international law. A country needs to object to the practice if it does not feel that the law applies to them. If a country does not object to a practice by persistently breaking it, or by saying that it does not believe the practice applies to them, that country can be bound to that unwritten law. For example, if the United States did not agree with the 12 nautical mile rule that other countries agreed to in UNCLOS, it could object to it. It could do this by saying that it does not feel that the rule applies to the United States. It could also show its objection by persistently entering the 12 nautical mile territorial sea zone of other countries; and by allowing other countries to enter our 12 nautical mile zone. In that case, the unwritten “customary international law” would not bind our country.

The Court in Procopio’s does cite to other evidence than UNCLOS to show that this 12 nautical mile rule probably binds the United States. One piece of evidence is a 1988 proclamation by President Ronald Regan. In this proclamation, the President stated that the territorial seas of the United States extend to 12 nautical miles from the baselines of the United States, determined in accordance with international law.  The Court also cites to other treatises that discuss this 12 nautical mile zone. Notably, the Court did not cite to any instances where the United States stated that the territorial sea limit did not apply to itself or other countries, either by word or action.

To make a long story short, the Court is probably citing to UNCLOS as it is an example where other nations agree to the 12 nautical mile territorial zone – even though the United States is not actually a party to this treaty. Other countries recognize the territorial zone, the United States recognizes it for its own territory, and the United States has not objected to other countries claiming that territory as their own. So, the 12 nautical mile territorial sea zone binds the United States as a matter of international law, even though the United States is not a party to UNCLOS.

As the 12 nautical mile territorial zone was binding on the United States when it passed the Agent Orange Act in 1991, the Court used this international law to help define the Agent Orange Act; as Congress was aware of the laws already in existence when it passed the Act.

The Procopio Decision and How it may Apply to Service Members who Flew Over Vietnam

So, we come to the point. Does Procopio mean that service members who flew over Vietnam, as pilots, aircrew, or otherwise, even if they did not set foot in Vietnam, are entitled to the presumption that they were exposed to Agent Orange?

If we use Procopio as a guide, it will depend on if the same rules of international law used to interpret a nation’s territorial seas can also be used to interpret a nation’s territorial airspace. The 1958 Convention on the Territorial Sea and Contiguous Zone cited in Procopio states that the sovereignty of a coastal state extends to the air space over the territorial sea. UNCLOS repeats the same rule and adds the 12 nautical mile territorial sea rule. President Reagan’s 1988 proclamation states that the United States sovereignty extends to the airspace over its territorial sea out to 12 nautical miles.

It is also a rule of international law that a nation has sovereignty of its own airspace, though this was not discussed in Procopio. Additionally, The Agent Orange Act specifically mentions duty during active air service, which strongly points to the conclusion that Congress wanted the presumption to apply to service members who flew over the Republic of Vietnam as part of their military service.

On the other hand, the Agent Orange Act only specifically addresses some diseases. It gives the VA the authority to grant the presumption for other diseases, when the scientific evidence shows that exposure to herbicide agents causes those diseases. Although Procopio does decide what “in the Republic of Vietnam” means, the VA may claim it does not have to grant the presumption to a veteran unless scientific evidence shows that flying above the country would expose service members to the herbicides. The counter argument to this would likely be that the Act does not state how the veteran has to be exposed – only that exposure causes the disease. These arguments are for another case in the future, when that Air Force, Navy, Marine, or Army veteran who flew over Vietnam as part of his military service claims that he is entitled to presumptive service connection for his agent orange related disability.

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