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Treaty Negotiations with Pacific Island Nations Must Address Accountability Gaps

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Pacific island nations have taken center stage in recent years as key players in the United States’ strategy to counter China’s growing influence, shining light on the renewal negotiations for a relatively unknown set of treaties – the Compacts of Free Association – which currently provide the United States with unfettered access and strategic denial rights to 2.5 million square miles of the central Pacific Ocean, among many other strategic military benefits.

To counteract China’s growing influence in the Pacific, the United States must prove itself a true ally to its Pacific neighbors. Doing so requires the United States to provide meaningful redress for its past human rights abuses in the region and commit to legally binding accountability measures to prevent future harm. The Compact renewal negotiations offer a crucial opportunity for the Biden administration to do just that.

Earlier this month, the years-long negotiations between the United States and three Pacific island nations – the Federated States of Micronesia (FSM), the Marshall Islands, and Palau, sometimes referred to collectively in U.S. treaty parlance as the Freely Associated States (FAS) – reached a significant milestone, as the United States and the latter two nations each signed bilateral memorandums of understanding setting forth a framework for finalizing the renewal of their Compacts of Free Association, the funding provisions of which currently expire in September 2023 for FSM and the Marshall Islands and September 2024 for Palau.

The Marshall Islands and the FSM entered into Compacts of Free Association with the United States in the 1980s, shortly after gaining independence from the United States. Palau followed in 1994. The Compacts give the United States unfettered access and strategic denial rights to FAS airspace and territorial waters and the ability to claim land, sea, and airspace for military bases and operations, such as the Ronald Reagan Missile Defense Site on Kwajalein Atoll in the Marshall Islands.

In exchange, the United States provides financial assistance, military protection, and services such as the U.S. Postal Service to the FAS. Citizens of the FAS are able – and often aggressively recruited – to enlist in the U.S. military, where some reports indicate that they have both served and died at higher rates than citizens of the 50 states in the post-9/11 wars.

The Compact Leaves FAS Citizens in a Legal No-Man’s Land

When the initial Compacts were negotiated, the United States promised citizens of the FAS the ability to live and work in the United States and its territories, as well as eligibility for social safety nets like Medicaid. However, in 1996, Congress unilaterally stripped the FAS citizens living in the United States of their eligibility for federal welfare programs under the Personal Responsibility and Work Opportunity Act, leading to a spike in death rates among FAS citizens residing in the United States who previously relied on Medicaid. Because the text of the Compact did not impose an enforceable obligation on the United States to follow through on its Medicaid promise, advocates for the rights of FAS citizens living in the United States needed to fight for nearly 25 years to get Congress to reinstate FAS residents’ Medicaid eligibility.

The Medicaid issue exemplifies the legal “no man’s land” in which FAS citizens living in the United States often find themselves: exercising their treaty right to live and work in the United States, yet subject to the whims of Congress in large part due to ambiguous, underinclusive, or unenforceable Compact provisions.

While the parties can amend any provision of the Compacts by mutual agreement at any time, this is uncommon, and the funding renewal negotiations thus present the only practical opportunity for FAS negotiators to push for the amendment of other Compact provisions. As the Compact renewal negotiations enter their final phases, accountability for past human rights abuses and protections to prevent future harm must be on the agenda.

Irradiated Islands, Billions in Unpaid Legal Claims, and No Remedy in Sight

The United States took control of the Micronesian region of the central Pacific – including what would become the FSM, Palau, and the Marshall Islands – from Japan during World War II. In 1947, after the U.S. military had already begun displacing thousands of people in the Marshall Islands to facilitate nuclear weapons testing and the construction of bases, the United Nations legitimized the United States’ colonization of the region by appointing the United States the administrator of the Trust Territory of the Pacific Islands.

The United States exposed the Marshallese people to the equivalent of 1.6 Hiroshima-sized explosions per day over the course of a 12-year period – detonating 67 nuclear bombs in the Marshall Islands between 1946 and 1958. Marshallese living throughout the country between 1948 and 1970 demonstrated higher cancer rates attributable to radiation exposure from the nuclear testing, with cancer rates doubling in the most exposed areas. The Marshallese people that the U.S. military displaced to facilitate its testing program still cannot return to their home islands, as the radiation levels remain higher than Chernobyl and Fukushima.

In the 1960s and 1970s, the United States faced increased scrutiny for its nuclear testing program and its increasingly apparent mismanagement of the Trust Territory. Though the Trusteeship Agreement required the United States to promote the political and economic advancement of the Trust Territory toward self-government and independence, the U.S. officials responded to growing calls for independence and international pressure to decolonize by engaging in a concerted effort to undermine self-determination efforts and make the islands economically dependent on the United States. It was against this coercive historical backdrop that the three newly independent nations entered into their Compacts of Free Association with the United States.

To add insult to injury, in 1977, U.S. soldiers collected contaminated soil and debris from Enewetak Atoll and placed it under a concrete dome, called Runit Dome, which scientists and Marshallese officials are concerned is in danger of leaking due to rising sea levels. Also contained in the dome are debris from biological weapons tests and 130 tons of irradiated soil shipped from Nevada to the Marshall Islands – neither of which the United States disclosed until after they signed the 1986 Compact releasing the United States from legal liability for all claims related to the nuclear testing program and its lasting impacts.

The Compact established a Nuclear Claims Tribunal (NCT), provided that the U.S. government would place $150 million in a trust fund to pay for the NCT awards, and asserted that this constituted the full and final settlement of all claims arising from the nuclear testing. The NCT ultimately concluded that the United States should pay $2.3 billion in claims, yet the U.S. government had only paid out less than $4 million as of 2014. The Compact’s “full and final settlement” provision has prevented courts from exercising jurisdiction over the Marshallese people’s numerous attempts to compel the United States to pay the billions of dollars it owes to settle the claims.

The MOU recently signed between the U.S. and Marshallese negotiators includes a U.S. commitment to place $700 million into the Marshall Islands Compact Trust Fund, some of which the Marshallese government can use for nuclear compensation. While this constitutes a significant increase in funding for nuclear testing victims from prior funding commitments, it falls woefully short of the amount needed to satisfy outstanding NCT compensation awards.

Unenforceable Standards Allow History to Repeat Itself

The U.S. military forcibly displaced residents from over two dozen islands in the Marshall Islands to facilitate the construction and operation of its Ronald Reagan Missile Defense Site on Kwajalein Atoll. Many of these people were relocated to Ebeye, an overcrowded island located just three miles from the idyllic U.S. base on Kwajalein. On Ebeye, upwards of 10,000 people reside on 0.10 square miles of land, and many residents lack access to clean water, proper sanitation, and a stable electricity supply. In addition to the harm arising from displacement, the base on Kwajalein has leaked dangerous levels of the hazardous and slow-to-degrade chemicals polychlorinated biphenyls (PCBs) into the lagoon – rendering the fish on which Ebeye residents previously relied for sustenance unsafe to eat. The U.S. military’s seizure of farmable land and contamination of marine resources from the 1940s onward has heavily restricted the availability of affordable nutritious food, which has led to astronomical rates of diabetes and other non-communicable diseases in the Marshall Islands.

Though the FSM and Palau have not previously served as sites for bases or large-scale military facilities, the United States has announced plans to build two new military installations in the FAS: an over-the-horizon radar facility in Palau and a base in the FSM. These developments are likely just the beginning of a significant expansion of the U.S. military footprint in the region. The U.S. military’s unchecked environmental degradation and human rights violations in the Marshall Islands should serve as a warning for the FSM and Palau. The United States has exploited legal gray areas in order to evade liability for its conduct in the Marshall Islands, and without changes to the specificity and enforceability of certain Compact provisions, history is likely to repeat itself.

The Compact does not currently impose binding environmental protection standards on the U.S. military or contractors while operating in the FAS (with the exception of the obligation to prepare an environmental impact assessment, where applicable, according to the terms of the National Environmental Management Act). The Compact provides that the government of the United States must comply with “standards substantively similar” to those required by certain U.S. environmental laws, but the list does not include the Comprehensive Environmental Response, Compensation & Liability Act (CERCLA), which governs PCB clean-ups.

The United States has engaged in some (insufficient) PCB remediation efforts on Kwajalein, though the Environmental Protection Agency stated that this was done as a good faith measure as opposed to a legal obligation. Further, when the United States’ lease on Kwajalein Atoll runs up, it is under no treaty obligation to return the land or water to a safe and usable state.

Per the terms of the Compact, the U.S. government and host nation governments separately negotiate environmental standards and other legal safeguards for the military bases, such as  Kwajalein. In addition to the dubious legal enforceability of the “standards” set forth in these subsidiary agreements, the FAS have little leverage in negotiating them: the Compact terms currently authorize the United States to establish bases throughout the FAS but do not provide the FAS a corresponding enforceable right to demand particular environmental, human rights, or labor standards for the bases.

The recent agreements to construct new bases and facilities in the FSM and Palau underscore the necessity of negotiating clear, legally enforceable terms governing environmental safety, environmental remediation obligations, and rights of persons that the new installations displace or otherwise harm.

It Is Not Too Late for a Rights-Respecting Compact, and It Is More Necessary Now Than Ever

The unchecked environmental destruction that the U.S. military has wrought in the Marshall Islands provides the clearest example of the necessity for the Compacts themselves to state enforceable legal rights and remedies, but it is only the tip of the iceberg. The U.S. is planning significant expansion of its military presence in the FAS. In the coming decades, it will be more imperative than ever that the Compacts provide enforceable rights and corresponding remedies for the islanders who will be displaced by new military facilities, for those whose rights to food, water, and a healthy environment are threatened or impacted by military operations, and for the workers employed on the bases.

The FAS, and in particular the Marshall Islands, are among the most vulnerable nations in the world to the impact of climate change. Not only is the United States the largest greenhouse gas emitter in history, but the U.S. military alone has a carbon footprint larger than many nations. As the climate crisis worsens – threatening islanders’ rights to health, food, water, housing, land, education, self-determination, and so much more – the Compacts must protect the civil, political, economic, and social rights of those FAS citizens who choose to migrate to the United States. As part of the renegotiated funding package, the U.S. government must provide funding, adaptation infrastructure, and technical support to assist the FAS in their climate adaptation and resilience efforts.

Though two of the three FAS have signed MOUs with the United States setting funding figures for the fiscal year 2024 and agreeing on a framework governing the remaining negotiations, Marshallese officials have emphasized that the MOUs are not a final agreement and there are still numerous issues to work out. Though the Compact renewal negotiations are far from a fair fight, the U.S. government’s stated desire to use these Compacts as a way to counteract Chinese influence in the Pacific provides the FAS negotiators with more leverage than they have had in past Compact negotiations. The FAS negotiators must seize this opportunity not only to obtain more equitable funding provisions but also to push for meaningful amendments to ensure real legal accountability and legal safeguards as they open their islands to increased U.S. military presence.

As for the United States, these negotiations provide a unique opportunity to right past wrongs, prevent future harm, and restore trust with key partners. Close allyship with the FAS can assist the United States in fulfilling its strategic foreign policy and defense objectives, but in its decades-long relationship with the FAS the United States has refused to fulfill the most basic requirement of allyship: accountability. It’s not too late to change course.

IMAGE: USS Apogon (SS-308), a submarine sunk during the Operation Crossroads nuclear testing in the Marshall Islands. 

The post Treaty Negotiations with Pacific Island Nations Must Address Accountability Gaps appeared first on Just Security.


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