RMI Changed Circumstances Petition 9/11/00

As provided by Congress in Article IX of the nuclear test claims settlement enacted in law under Title II, Section 177(c) of the Compact of Free Association Act of 1985 [P.L. 99-239], the Republic of the Marshall Islands respectfully submits this Changed Circumstances Petition to the Congress of the United States. The Government of the Republic of the Marshall Islands hereby notifies the Congress of its determination that the criteria have been satisfied under applicable U.S. federal law for further measures to provide adequately for injuries to persons and property in the Marshall Islands that have arisen, been discovered, or adjudicated since the Compact took effect on October 21, 1986.

Section 177 of the Compact of Free Association provides that "The Government of the United States accepts the responsibility for compensation owing to citizens of the Marshall Islandsfor loss or damage to property and personresulting from the nuclear testing program which the Government of the United States conducted in the Northern Marshall Islands between June 30, 1946, and August 18, 1958."

As detailed herein, injuries and damages resulting from the United States Nuclear Testing Program have arisen, been discovered, or have been adjudicated in the Marshall Islands since the Compact took effect. These injuries and damages could not reasonably have been discovered, or could not have been determined, prior to the effective date of the Compact. Such injuries, damages and adjudication render the terms of the Section 177 Agreement manifestly inadequate to provide just and adequate compensation for injuries to Marshallese people and for damage to or loss of land resulting from the U.S. Nuclear Testing Program.

The terms of Section 177 represent a politically determined settlement (Attachment I, Hills testimony) rather than either a good faith assessment of personal injury or property claims, a legally adjudicated determination of actual damages, or monetary award for such damages. As a political settlement, Section 177 of the Compact requires that the U.S. provide $150 million to the RMI to create a Fund that, over a 15-year period of the Compact, was intended to generate $270 million in proceeds for disbursement "as a means to address past, present and future consequences of the U.S. Nuclear Testing Program, including the resolution of resultant claims" [Preamble of the 177 Agreement].

In lieu of an assessment of damages by the Federal courts, the government of the Marshall Islands accepted the U.S. proposal that it espouse and settle the claims of the Marshallese people arising from the nuclear testing program conducted by the U.S. in conjunction with the establishment of a Claims Tribunal. The U.S. expressly recognized that its technical assessment of radiological damage to persons and property in the RMI was limited to a "best effort" at the time of the Compact (Attachment II, Scientific Analysis), and was based on limited disclosure of available information and incomplete scientific knowledge. As a result, further adjudication of claims by an internal RMI Nuclear Claims Tribunal was agreed to by the United States.

In addition to creating the Tribunal, the U.S. agreed, in exchange for the RMI espousing and settling its citizens claims, to adopt a "Changed Circumstances" procedure, through which Congress accepted the authority and responsibility at a later date to determine the adequacy of the measures adopted under the 177 Agreement to compensate for the injuries and damages caused by the U.S. Nuclear Testing Program. Accordingly, in approving the Section 177 Agreement, Congress accepted the responsibility to determine if further measures are required to provide just and adequate compensation in light of the awards that have been made by the Tribunal, as well as the injuries and damages that have become known or been discovered since the settlement was ratified.

For the RMI to seek and ask for the Congress to provide additional funding is consistent with the commitment of the United States to provide just and adequate compensation for the nuclear claims. Indeed, such funding is contemplated by the Agreement and is the political process intended by Congress as a means to seek just and adequate compensation - if possible without further litigation. Under relevant federal court decisions, it is possible that claims could be recommenced in U.S. courts based on failure of the agreement to provide just and adequate compensation (Attachment III, Legal Analysis).

The settlement specifically authorizes direct access to the Congress of the United States by the RMI if "Changed Circumstances" were discovered or developed after the Agreement took effect, and render the provisions of the Agreement manifestly inadequate. As more knowledge and information emerges about the damages and injuries wrought by the testing program, the manifest inadequacy of Section 177 has become clear. As confirmed in Attachments IV, V, and VI, the most immediate needs resulting from inadequacies of the Agreement are funding to award personal injury claims through the Tribunal, funding to satisfy the Tribunal awards for property damage claims, and funding to address the gross inability of the 177 medical program to effectively address the health consequences of the U.S. Nuclear Testing Program.

Payment of personal injury awards made by the Claims Tribunal
As of August 15, 2000, the Nuclear Claims Tribunal established pursuant to the 177 Agreement had awarded $72,634,750 for personal injuries, an amount $26.9 million more than the $45.75 million total available under Article II, Section 6(c) for payment of all awards, including property damage, over the Compact period. To date, at least 712 of these awardees (42%) have died without receiving their full award (Attachment IV, Decisions of the Nuclear Claims Tribunal).

Payment of property damage awards made by the Claims Tribunal
The Claims Tribunal awarded the Enewetak people compensation for damages they suffered as a result of the U.S. nuclear testing at Enewetak. The compensation included awards for loss of use of their land, for restoration (nuclear cleanup, soil rehabilitation ad revegetation), and for hardship (for suffering the Enewetak people endured while being exiled to Ujelang Atoll for a 33 year period). The Tribunal fully deducted the compensation the Enewetak people received, or are to receive, under the Compact. The Tribunal determined that the net amount of $386 million is required to provide the Enewetak people with the just compensation to which they are entitled. The Tribunal does not have the funds to pay the $386 million award to the Enewetak people (Attachment V, Enewetak Land Claim).

Gross inability of the 177 medical program to effectively address health consequences
One of the measures adopted under the Section 177 Agreement to compensate the people and government of the Marshall Islands was a health care program for four of the atoll populations impacted by the testing program, including those who were downwind of one or more test, and the awardees of personal injury claims from the Tribunal. The medical surveillance and health care program established under the Section 177 Agreement has proven to be manifestly inadequate given the health care needs of the affected communities. The 177 Health Care Program was asked to deliver appropriate health care services within an RMI health infrastructure that was not prepared or equipped to deliver the necessary level of health care. Funding provided under Article II, Section 1(a) of the 177 Agreement has remained at a constant $2 million per year. As a result of this underfunding, the 177 Health Care Program has only $14 per person per month as compared to an average U.S. expenditure of $230 per person per month for similar services (Attachment VI, Medical Analysis).

It is imperative that a new medical program be implemented, with adequate funding that empowers the affected downwind and other exposed communities to provide primary, secondary, and tertiary healthcare for their citizens in a manner compatible and coordinated with RMI and U.S. health care programs and policies.

Based on the inadequacy of funds for personal injury claims, property damage claims, and health consequences from the U.S Nuclear Testing Program, the RMI Government respectfully requests Congress to:

1. Authorize and appropriate $26.9 million so the Claims Tribunal can complete full payment of the personal injury awards made as of August 15, 2000. Of this amount, approximately $21 million is needed to pay off the estates of the 712 individuals known to have died. An additional $5.9 million is needed to make full payments of awards to individuals who are still alive; approximately half of that amount is needed to pay 80 or more individuals who presently suffer from a compensable condition which is likely to result in their death and the remaining half is owed to other living awardees (Attachment IV, Decisions of the Nuclear Claims Tribunal).
2. Authorize and appropriate $386 million to satisfy the Claims Tribunal award to the Enewetak people (Attachment V, Enewetak Land Claim).
3. Authorize and appropriate $50 million in initial capitol costs to build and supply the infrastructure necessary to provide adequate primary and secondary medical care to the populations exposed to radiation from the U.S. Weapons Testing Program (Attachment VI, Medical Analysis).
4. Authorize and appropriate $45 million each year for 50 years for a 177 Health Care Program to provide a health care program for those individuals recognized by the U.S. Government as having been exposed to high levels of radiation during or after the testing program, including those who were downwind for one or more test, and the awardees of personal injury claims from the Tribunal (Attachment VI, Medical Analysis).
5. Extend the U.S. Department of Energy medical monitoring program for exposed populations to any groups that can demonstrate high levels of radiation exposure to the U.S. Congress (Attachment II, Scientific Analysis, issue #6).

Beyond the five immediate changed circumstances, the RMI Government will present information to the U.S. Congress in the future regarding several other areas of changed circumstances. Some of these areas include:

Payment of property damage awards made by the Claims Tribunal
In April 2000, the Claims Tribunal issued its first award for property damage to the people of Enewetak Atoll. The full award of $386 million addresses the claims of the Enewetak people for loss of use of their land, for costs of restoration, and for hardship suffered while in exile for a 33 year period. Additionally, the Claims Tribunal is expected to make an award for property damage to the people of Bikini. Two other property damage claims in the process of being developed include one by Rongelap, Alinginae, and Rongerik and, and one by Utrik, Taka, Tongai/Bokaak. These claims will be presented to the Tribunal in the near future. The pending cases will better define the level of compensation that will ultimately be required to fully repair damage to all islands, including those not currently being rehabilitated for resettlement, and to provide for adjudication of all other claims.

Funding of environmental rehabilitation and resettlement
The U.S. Congress has recognized the need for environmental restoration to reduce radioactive contamination to acceptable levels at Bikini, Enewetak, and Rongelap atolls by establishing resettlement trust funds for those atolls. The Enewetak trust fund for the rehabilitation and resettlement of Enjebi Island is only $10 million while evidence presented before the Claims Tribunal demonstrated that over $148 million is required for environmental restoration of the atoll and resettlement of a portion of its population, the Enjebi people. Similarly, preliminary estimates for cleanup costs at Bikini and Rongelap atolls (approximately $205-505 million for Bikini Atoll and $100 million for just one island on Rongelap, Rongelap Island) exceed the funding levels currently provided. No rehabilitation and resettlement trust fund presently exists for Utrik.

Support for further medical surveillance and radiological monitoring activities, including tracer chemicals and toxic materials
Under Article II, Section 1 (a) of the 177 Agreement, $3 million was provided to the RMI for medical surveillance and radiological monitoring activities. Those funds were used to conduct a nationwide radiological survey, a medical examination program in the outer islands, and a thyroid study on Ebeye Island. While valuable information was obtained from these activities, such as identification and treatment of radiogenic illnesses, the surveys indicate that thyroid and other radiation related illnesses are evident in populations that are presently unmonitored, yet the funds for medical surveillance are exhausted.

The health consequences of the U.S. Nuclear Testing Program are greater than originally suspected. Additionally, radiation from the testing program reached every corner of the Marshall Islands. Medical surveillance should have been, and should be targeted at monitoring frequencies of all real and potential health consequences of the testing program in a longitudinal fashion. It is only in this manner that a complete understanding of health trends and associations of specific illness and radiation can be appreciated. An onsite national health surveillance system needs to be developed, implemented, and sustained to monitor all health consequences of the nuclear weapons testing program for the next fifty years.

Occupational safety program
Section 177 does not include an occupational safety program for Marshallese and other workers involved in environmental remediation or cleanup programs. As a result, Marshallese and other workers are exposed to occupational sources of radiation. Medical screening of past and present radiation workers is greatly needed to reduce the risk of further illness and claims.

Community education and development programs
Section 177 provides no means to educate Marshallese citizens in radiation related fields or to build local capacity to undertake research, archive relevant information, or educate the public about the consequences of the U.S. Nuclear Testing Program in the Marshall Islands.

Nuclear stewardship program
Section 177 does not provide programs for communities to develop strategies for safely containing radiation and living near radioactive waste storage areas.

The inadequacies presented in this petition "could not reasonably have been identified" in the 177 Agreement [Article IX] both because the full extent of the damages caused by the testing program had never been assessed and because scientific and medical developments since the settlement was consummated would have rendered any prior assessment not just manifestly inadequate, but null and void. What might have been acknowledged by the Government of the United States in 1983 as "damages resulting from the Nuclear Testing Program" is only a small portion of what such injuries and damages are now known to be.

The 67 atomic and thermonuclear weapons detonated in the Marshall Islands allowed the United States Government to achieve its aim of world peace through a deterrence policy. The Marshallese people subsidized this nuclear détente with their lands, health, lives, and future. "As an ally and strategic partner, the Republic of the Marshall Islands has paid a uniquely high price to define its national interest in a manner that also has been compatible with vital U.S. national interests" (H. Con. Res. 92 - Sponsored by the Honorable Benjamin Gilman and the Honorable Don Young). As a strategic partner and friend of the United States, the RMI remains hopeful that Congress will take action to address the inadequacies of the 177 Agreement. The Government of the Republic of the Marshall Islands looks forward to working closely with the Congress of the United States to respond to changed circumstances in the Marshall Islands.

Respectfully submitted,
Kessai H. Note
President
Republic of the Marshall Islands

Congressional Research Services report on the Republic of the Marshall Islands Changed Circumstances Petition to Congress [PDF] [order code RL32811], March 14, 2005: this is a middle of the road response from the CRS that takes into account the September 2000 RMI Changed Circumstances petition and the Bush Administration November 2004 response to the CCP.

Read the submitted testimony [in .pdf form] to Congress on July 10, 2003 by attorney Jonathan Weisgall on behalf of the people of Bikini, Enewetak, Rongelap and Uterik atolls regarding the Compact of Free Assocation between the United States and the Marshall Islands, and the U.S's refusal to consider the nuclear issue in these negotiations.

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The historical information within this site, while constantly updated, is drawn largely from the book, FOR THE GOOD OF MANKIND: A History of the People of Bikini and their Islands, Second Edition, published in September of 2001 by Jack Niedenthal. This book tells the story of the people of Bikini from their point of view via interviews, and the author's more than two decades of firsthand experiences with elder Bikinians.

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