Thinking locally before acting globally
American lawyers acting for the Marshall Islands filed lawsuits against nine nuclear powers in the International Court of Justice and against the United States government in U.S. federal court at the end of April surprising the world with the unprecedented legal effort to enforce the Nuclear Non-Proliferation Treaty (NPT). In the Marshall Islands, people were just as amazed as virtually no one knew the lawsuits were coming.
As the ground zero for 67 U.S. nuclear tests, the Marshall Islands has the moral mandate like few other countries to bring these lawsuits aimed at enforcing the disarmament terms of the NPT. Also, like few places in the world, it continues to experience the impact of a nuclear legacy of forced resettlements and life in exile, health problems from contamination by weapons test fallout, and nuclear test damage to islands requiring extensive clean up.
It is this nuclear legacy that continues to haunt relations between the U.S. government and the government and people of the Marshall Islands. The meaning behind the lack of a U.S. Congressional response to the Marshall Islands’ request that it take steps to pay the Nuclear Claims Tribunal’s awards for land damage, clean ups, and personal injuries, and the U.S. executive branch’s ‘we already provided full and final compensation’ position was aptly summed up by New York Congressman Gary Ackerman in 2010, when he observed: ‘We’re going to just wait for these people to die, right?’
The lawsuits against the nine nuclear nations—United States, United Kingdom, Israel, France, Russia, China, India, North Korea, and Pakistan—have produced major media coverage and an outpouring of support from anti-nuclear groups around the world. ‘Our people have suffered the catastrophic and irreparable damage of these weapons, and we vow to fight so that no one else on Earth will ever again experience these atrocities,’ Marshall Islands Foreign Minister Tony deBrum said in a statement announcing the lawsuits filed April 24.
In comments last week at the United Nations in New York shortly after the lawsuits were filed, Minister deBrum described the Marshall Islands struggle to become an independent nation and member of the United Nations. ‘We are now a free country, but we are saddled with a period of nuclear testing by the United States from 1946 to 1958,’ he said. ‘As small as we are, we have a story to tell, we have an experience to share, and we have the motivation to pursue it to its just and peaceful end.’
Outsiders might think it’s a paradox that a nation that has suffered in the extreme from nuclear weapons testing does not have anti-nuclear groups and, in fact, has never had anti-nuclear organizations of the type established in developed countries. In fact, Marshall Islanders are anti-nuclear by experience; they just don’t express it in the western conventional way. With the exception of a group known as ‘ERUB’—an acronym of the four most affected atolls (Enewetak, Rongelap, Utrik and Bikini) that is also a Marshallese word that means ‘broken’ or ‘damaged’—generally in the Marshall Islands people take on nuclear issues representing their home atoll.
Another factor limiting nuclear victim advocacy is the government-to-government settlement that was approved in the first Compact of Free Association with the U.S. and implemented in 1986. That settlement was seriously flawed, as declassified U.S. government documents have shown many more islands than the four included in the settlement were affected by nuclear test fallout. Nevertheless, it produced trust funds for these four atolls that continue providing a modest level of funding for quarterly compensation payments, employment of people by the local governments, and various development projects. As a consequence, in recent years, government leaders, senators, mayors, and local government officials have shifted their attention from addressing strategies for gaining additional nuclear compensation, health care and clean up funding from the U.S. to a focus on managing trust funds and other U.S.-provided support such as funding for agriculture projects or supplemental food programs.
Not surprisingly, the absence of a coherent strategy for engaging the U.S. to address the unresolved problems its nuclear testing caused has made it easy for American government officials to ignore the matter.
Minister deBrum underlined an important point when he observed that, ‘The people of the Marshall Islands suffer quietly from many of the effects of the testing.’ The lawsuits in the International Court of Justice and in U.S. federal court are putting the spotlight on the Marshall Islands and its nuclear history. But it is an open question whether the lawsuits—which specifically state they are not seeking compensation—will help do what nuclear test-affected Marshall Islanders want, which is for the U.S. government to pay the over US$2 billion awarded but not paid for lack of money by the Nuclear Claims Tribunal, a body established by the Compact of Free Association to adjudicate all nuclear claims in the Marshall Islands. A United Nations Special Rapporteur in 2012 urged the United States to pay the Tribunal’s awards as one step to resolving its unfinished legacy. His report stated: ‘The nuclear testing resulted in both immediate and continuing effects on the human rights of the Marshallese…The effects of radiation have been exacerbated by near-irreversible environmental contamination, leading to the loss of livelihoods and lands. Moreover, many people continue to experience indefinite displacement.’
At the United Nations last week, Minister deBrum commented: ‘We are still in constant negotiations, arguments, discussions with the United States about some of the effects of that testing.’
In actuality, there has been little engagement with the U.S. government on the matter dating back a number of years with the exception of requests for release of still-secret nuclear test era reports on the Marshall Islands. There has also been little consultation with nuclear-affected islands about the new NPT lawsuits, and in the wake of the court filings, the country’s Attorney General said he had not seen the lawsuit and the government’s Cabinet said there was no Cabinet paper or ‘minute’ (decision) issued that would confirm ministerial discussion and approval of the filing of the lawsuits—the standard procedure for executive branch decision making in the Marshall Islands.
The apparent lack of consultation domestically about the NPT lawsuit strategy reflects a larger challenge of national development for the Marshall Islands. While its economy remains heavily dependent on outside donor aid—about 70 percent of the country’s revenue comes from U.S., Taiwan and other donor grants—the Marshall Islands has chafed under what the current administration sees as heavy-handed, colonial-era control by the U.S. government over decisions about use of U.S. funding for the Marshall Islands. This has strained relations between the Marshalls and its largest donor partner, reducing overall dialogue and engagement between leaders from the two countries. For example, President Loeak, now in office for nearly two-and-a-half-years, has yet to make an official visit to Washington, D.C. Meanwhile, his administration has faced—and defeated—two votes of no confidence in the past six months. Hospital services hit their nadir earlier this year, coupled with an unfolding bribery scandal involving hospital contracts. This is now the subject of criminal prosecutions in the High Court, continuing where earlier prosecutions of grant funding theft left off in 2011 and 2012. Earlier this year, the President complained on the floor of parliament about poor performance of government workers. In a nutshell, the Marshall Islands has myriad and challenging domestic and donor-related issues in need of successful engagement, action and leadership.
Can these lawsuits help Marshall Islands nuclear test victims gain the nuclear clean up, health care, and compensation they seek and deserve? The suits are generating global media coverage, and will continue to so. They offer a platform for leaders to bring visibility to the long-ignored U.S. nuclear test legacy in the Marshall Islands. Whether the NPT lawsuits will help revive domestic dialogue and strategy development among nuclear-affected islands, and lead to engagement with the U.S. government is the big question waiting for an answer. Engagement at home on nuclear (and other) issues is a needed first step if the Marshall Islands is to benefit from these unprecedented NPT lawsuits.
