US Congress Must ADDRESS the CHANGED CIRCUMSTANCE PETITION in the name of International Humanitarian Law as agreed in US Public Law that is the Compact

CHANGED CIRCUMSTANCE PROVISION: PROPERTY RIGHTS, HUMAN RIGHTS, & HARDSHIPS

Background

Between 1946 to 1958, the United States of America conducted several nuclear testings and have yet to fully address the outstanding human rights claims particularly in regards to human suffering and property loss. In 1947 , the United States of America willingly signed the United Nations Charter (Trusteeship Agreement) which required the US to abide by certain principles to guarantee careful handling of the strategic trust particularly its inhabitants and their God given Inheritance (property). Immediate claims came through the Compact of Free Association (1986) which came with the 177 Agreement and the infamous espousal clause. When negotiating the agreement, former Compact negotiatior Charles Domnick blatanly mentions that the CHANGED CIRCUMSTANCE CLAUSE was purposely added to the 177 agreement to address future claims that might arise when new facts were found that cound not have been reasonably made rendering the 177 agreement manifestly inadequate. Former Negotiator Charles Domnick also mentioned that throughout the negotiation process, all documents requested weren’t fully disclosed and as of the present, it has still yet to materialize as is blatanly mentioned in former Republic of the Marshall Islands (RMI) Foreign Minister Phillip Muller’s statements (“There can be no closure without full disclosure”) . In 2001, Republic of the Marshall Islands (RMI) President Kessai Note submitted the Changed Circumstance Provision but US Congress referred to it as baseless stating that it had no legal basis stating once again the espousal clause despite changed circumstances rendering the provision manifestly inadequate. Despite presenting scientific evidence and complying with US and UN procedures and standards particularly international humanitarian law, the CCP (Changed Circumstance Petition) was rendered baseless by the Bush Administration lacking legal basis yet there is nowhere in the language of the compact that requires legal basis.

International Law in Relation to the Changed Circumstance Petition

PROPERTY: In 1947, the United States willingly signed the United Nations Charter which stipulated that is was obligated to “protect the inhabitants against the loss of their land and resources. ” According to a district anthropologist report by Jack Tobin who was the official district anthropologist for Marshall Islands under the Trusteeship agreement, Tobin blatantly states that “the land rights of Iroijlaplap Jeimata and the Bikinians were taken by an external agent which was USA.” Whatever the dispute is, the same report cited by Tobin states that the German, Japanese, US Naval recognizes the Ralik Iroijs as the suzerains of Bikini as does Marshallese public opinion.” However, USA interference blurred that claim as was evident in the rejection of Jeimata by Bikinians themselves during the rest of the Trust Territory admin despite a legal claim being presented by Jeimata and his heirs leading up to a final decision in 1994, ten years after the Compact of Free Association (COFA). The decisions rendered one third land rights to Jeimata through the Iroijlaplap share and two thirds to the alap and rijerbals who were the Bikinians under customary law with all existing compact benefits under the stipulated 177 agreement directly under Bikinians’ control for further and continuing enjoyment.



American Law in Relation to the Changed Circumstance Petition

PROPERTY: As is with RMI, the Government of the United States of America abides by its Constitution which also includes a Bill of rights which are the first ten amendments to the United States Constitution. The fifth Amendment of the American Constitution restricts the National government’s use of eminent domain with these words: “nor shall private property be taken for public use without Just compensation.” The intent of the Bill of rights was originally intended as restrictions on the new National Government of America and that remains the fact of the matter today. A supreme court ruling in Barron vs. Baltimore further solidified the restrictions of the National Government by setting the legal precedent in 1833 and the court has followed that holding (precedent) ever since. The provisions of the Bill of rights apply against the National Government (USA), not against the states, however states cannot deny the same rights and this is blatanly mentioned in the 14th Amendment Due Process Clause which states that “No state shall…deprive any person of life, liberty, or property, without due process of Law.”

RMI Law in Relation to the Changed Circumstance Petition

PROPERTY: The Marshall Islands Constitution recognizes personal private ownership of land (property) and recognizes four chiefs of the Ralik Chain (Jeimata included) . The RMI Court was created out of the constitution. In the infamous Kabua vs. Jeimata descendants’ case, the Bikinians through their attorney Jonathan M. Weisgall intervened after a long process of dispute of the Iroijlaplap (Paramount Chief) title of Bikini which had yet to be recognized officially by the RMI justice system. Bikinians through attorney Weisgall did in fact intervene under rule 24 (a) (2) of the Marshall Islands Rules of Civil Procedure which stipulated that

“upon timely application anyone shall be permitted to intervene in an action…2 when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.”

The legal position taken by the Bikinians under their attorney named Weisgall solidifies the position that land and property rights in Bikini were in fact still disputed and officially unknown at the effective date of the compact in 1986 thus its position was similar to that of Enewetak/Ujelang who had their own Iroij. However, upon the conclusion of the Kabua vs. Jeimata Descendants case, Jeimata descendants won the summary judgment of that case in which the Bikinians intervened and in 1994 the Nitijela (Parliament) passed a public customary law declaring him an Iroijlaplap of Bikini with certain restrictions



COFA in Relation to the Changed Circumstance Petition

Article IX of the 177 Agreement includes a changed circumstance clause allowing the RMI to request additional funding from Congress for loss or damage arising from the nuclear weapons testing program if:

1. the loss or damage is “discovered after the effective date of this Agreement,”
2. the injury “could not reasonably have been identified as of the effective date of this 
Agreement,” and
3. failure to provide for these injuries would render the agreement “manifestly 
inadequate.”

As mentioned earlier, the RMI did indeed present such a petition but what was not presented was the property claims of Jeimata’s descendants that were just officially decided in court in 1994. These couldn’t have been reasonably made because of disputed claims as is evident in Weisgal testimony before the High Court allowing Bikinians to intervene.

The Changed Circumstance provision of the Compact

The House Joint Resolution 187 adopted in the Subcommittee granted immediate approval of the Compact subject to further negotiations. In this submitted resolution, the espousal provision was limited as stated that “if, not withstanding the enactment into law of this act (espousal), a United States court of competent jurisdiction determines that the provisions of Article X of the Agreement between the Government of the United States and the Government of the Marshall Islands for the Implementation of Section 177 of the Compact are invalid as a matter of INTERNATIONAL LAW or for any other reason, the provisions of Article XII of the Section 177 Agreement shall not, of themselves, prevent any court of the United States otherwise having jurisdiction over claims described in Articles X and XI of the Section 177 Agreement from entertaining such claims; and the time between the effective date of the Compact and any subsequent final judicial determination of invalidity of Article X of Section 177 Agreement shall not be included in any calculations regarding applicable statutes of limitation or other similar limitations pertaining to the presentation of any such claims to any such court.” When evaluating the language of this provision in the House Joint Resolution, it is clear that international law was taken into consideration. In the final version of the compact, the changed circumstance provision adds value to international law by giving RMI the right to petition if the 177 agreement was manifestly inadequate. It is clear from the language of the House Joint Resolution 187 which was later approved with further amendments that when enacting the 177 agreement, USA did in fact take international law into consideration by adding the Changed Circumstance Clause provision. To completely omit that clause would render USA as a violator of International Law and Human Rights. The U.S. Congressional record is clear in showcasing America’s commitment towards international law particularly in upholding human rights as they crafted the Compact agreement.

This is made clear in the US Congressional record when Senator Alan Cranston elaborated doubts on the agreement stating that the provisions established in the $150 million trust fund denied 5,000 Marshallese, who had already filed claims, a day in court to which Senator James McClure, then Ranking Minority Member of the Committee on Energy and Natural Resources responded directly to these concerns stating vividly that:

"Article IX of the subsidiary contains a changed circumstance clause which would allow the Marshallese to ask Congress for relief if circumstances develop which could not have been foreseen, such as newly identified claimants. As you indicated, there is a continuing moral and humanitarian obligation on the part of the United States to compensate any victims – past, present, or future of the nuclear testing program. For this reason, I fully expect that if new claims develop, Congress should and will provide any assistance required, absent compelling contradictory evidence…There is an enormous burden on Congress to state affirmatively that if future valid claims develop we will do everything possible to compensate adequately all newly-identified victims."

HUMAN RIGHTS VIOLATIONS

The Declaration of Human rights (1948) by the United Nations which USA and RMI are a member of, specifically states in Article 17 that:

(1) Everyone has the right to own property alone as well as in association with others.
(2) No one shall be arbitrarily deprived of his/her property

The fact that USA has failed to comply with International Law in regards to property rights which its own constitution also blatanly upholds as does the Constitution of RMI constitutes substantial ground to a clear violation of human rights in regards to property. The fact that it was only in 1994 that such property rights could have been known because of a disputed claim to Bikini also constitute substantial ground for Changed Circumstances in regards to new legal findings on property ownership. This is but another angle in addressing the Changed Circumstance Petition in regards to changing legal circumstances that could not have been reasonably identified at the effective date of the compact. The compact is a bilateral agreement and aside from the changed circumstance provision, the USA also agrees to the NONALIENATION OF LAND PORTION which states that:

“CONGRESS (USA) ENDORSES and encourages the maintenance of the policies of the Government of the Federated States of Micronesia and the Government of the Republic of the Marshall Islands to regulate, in accordance with their Constitutions and laws, the alienation of permanent interests in real property so as to restrict the acquisition of such interests to persons of Federated States of Micronesia citizenship and the Republic of the Marshall Islands citizenship, respectively.

It should be made clear that the United States of America willingly signed the United States Trusteeeship Agreement (1947) which amongst its list of obligations included that it was to “protect the inhabitants against the loss of their land and resources.” Article 17 of the Universal Declaration of Human rights which was adopted in 1948 also make similar claims to property rights as does both RMI and USA constitutions. The COFA (Compact of Free Association) between the USA and RMI provides a changed circumstance provision (177 Agreement) and also provides a non-alienation of land dealing exclusively with property rights. A major portion of this petition was to discuss human rights and international law whose language is also stipulated in the COFA which came into effect in 1986. As of late, the Universal Periodic Review addressing USA’s failed attempt at addressing the CCP was submitted and accepted by the human rights council however the changing circumstances in regards to land (property) rights were not addressed in its content and submission. Additionally, the issue of Climate Change was submitted by the Universal Periodic Review showcasing changed circumstances through Climate Change hardships which is a huge environmental concern particularly for the nuclear affected communities.

Although the strategic trust granted the U.S. several requirements in fostering the inhabitants of the Marshall Islands towards self-government and economic self-sufficiency, military strategies took precedent despite the United States willingly signing the United Nations Charter Trusteeship agreement in 1947. This was a far cry from American exceptionalism and bordered around American realism. In the words of former Secretary of State Henry Kissinger who served as National Security Adviser, “There are only 90,000 people out there. Who gives a damn?”

The total yield of the sixty-seven tests conducted in the Marshall Islands was 108 megatons. This equates to the explosive force of over one hundred million tons of TNT and more than seventy-five times the total yield of the U.S. nuclear tests in Nevada. According to the U.S. Centers for Disease Control and Prevention, approximately 6.3 billion curies of radioactive iodine-131 was released in the Marshall Islands. In a striking comparison, only 150 million curies of iodine-131 was released during the Nevada tests, 40 million curies during the Chernobyl accident, and 739,000 curies in Hanford during the Atomic Energy Commission Operations. The nuclear testing period in the Marshall Islands did not go unchallenged however. Marshall Islands had been petitioning U.S. administrators and military officials for years, but Micronesia’s unique postwar status as a strategic trusteeship omitted them from U.S. and international legal remedies. An original request to cease nuclear testing was presented by Marshallese Congress woman Dorothy Kabua as early as 1953 but it fell on deaf years. It was not until 1954 during the infamous Bravo incident that a formal request was presented to the United Nations by Marshallese petitioners Dwight Heine and Atlan Anien. The petition sought to cease the nuclear testing program after fallout victims were identified in the Marshallese atolls of Rongelap and Utrik. However, the resolution was defeated and testing ceased four years later in 1958. Sadly, as Ruff puts it “these largely secret operations were not subject to usual laws, accountability or standards of protection for people and the environment.” In fact, America practiced a policy of isolationism in Micronesia up to the 1960s where only nuclear scientists and anthropologists were allowed into the ethnographic zoo to keep strategic operations intact. In other words, a general lack of transparency on the part of the U.S. leaves a general witnessing of nuclear events untold revealing the justification of Marshall Islands’ nuclear activism through the lens of environmental law and international law.

Two UN resolutions in response to Marshall Islands' petitions in 1954 and 1956, Trusteeship resolutions 1082 and 1493, remain the only time in which any UN organ every explicitly authorized specific use of nuclear weapons. And Marshalelse people have carried a burden which no other people should ever have to bear.

In light of the recently passed Nuclear Ban Treaty at the United Nations which was endorsed by 122 UN member states, it is important to reference and to recall the 1995 NPT Conference outcome documentation, which states that the Conference "acknowledges the existence of a special responsibility towards those people of the former UN Trust Territories who have been affected as a result of the nuclear weapons tests conducted during the period of the Trusteeship." (1995 NPT/CONF.1995/MC.III/1).

It is in light of these recent happenings that I am confined and obliged to believe that the best solution is for US Congress to address the Changed Circumstance Petition to fully give fair reparations as it is ever so obligated in the Nuclear Ban Treaty, particularly Article 6 & 7. Long story short, the US through its Congress must provide victim assistance and environmental remediation in light of the changing circumstance as mentioned in Article 6 & 7 which pay reference to the contents of the Change Circumstance Petition which was to provide monetary relief in regards to victim assistance and environmental remediation.

US Congress must provide humane measures to ensure the equal dignity of their fellow man who sacrificed immensely for the American Military cause and for World Peace & Security at the height of the Cold War where Marshall Islands was selected as a Strategic Trust to ensure Peace & Security of the United States and the World as mentioned by the United Nations International Humanitarian Law System.

"Ekadru Mokaj in Ak Aetok Belok In, Won Enaj Jumae ilo an etal im rolok im tolok im rubrubwe ikijit nijito nijito nijito nijitomede in!" (Marshallese Proverb)


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