The Marshall Islands nuclear claims tribunal: the claims of the Enewetak people.

• Author: Pevec, Davor
• Position: Updating International Nuclear Law

1. BACKGROUND OF UNITED STATES NUCLEAR TESTING IN THE MARSHALL ISLANDS

   The United States conducted sixty-seven nuclear tests in the Marshall Islands in a twelve year period between 1946 and 1958. Forty-three of those tests occurred on Enewetak Atoll; the remainder occurred on Bikini Atoll. The yield of the tests in the Marshall Islands totaled 108 megatons which is equivalent to 7,200 Hiroshima bombs. During the twelve-year nuclear testing program, the Marshall Islands was a United Nations Trust Territory administered by the United States, which had pledged to the United Nations to "protect the inhabitants against the loss of their lands and resources." (1)

   Radioactive fallout from one of those tests--the March 1, 1954 Bravo shot at Bikini--drifted in the wrong direction and irradiated the 236 inhabitants of Rongelap and Utrok Atolls as well as the crew of a Japanese fishing vessel. Bravo was the largest U.S. nuclear test in history with an explosive force equal to nearly 1,000 Hiroshima-type atomic bombs.

   In the 1980's, the peoples of Enewetak, Bikini, Rongelap and Utrok Atolls and other Marshall Islanders brought lawsuits against the United States in the United States' courts for property and other damages resulting from the nuclear tests, totaling more than $5 billion. During the litigation, the U.S. and Republic of the Marshall Islands governments signed a treaty known as the Compact of Free Association. (2) That Compact defines the relationship between the U.S. and the Marshall Islands and included a subsidiary Section 177 Agreement, which established a $150 million Nuclear Fund, income from which was earmarked for the peoples of the four atolls as "a means to address past, present and future consequences of the Nuclear Testing Program...." (3) Income was also earmarked to fund a Nuclear Claims Tribunal, which was to be established with "jurisdiction to render final determination upon all claims past, present and future, of the Government, citizens and nationals of the Marshall Islands which are based on, arise out of, or are in any way related to the Nuclear Testing Program...." (4)

   The Section 177 Agreement also provides that it constitutes the full settlement of all claims, "past, present and future," of Marshall Islanders and their government against the United States arising out of the testing program, and another section provides that all such claims pending in U.S. courts are to be dismissed. (5)

   The lawsuits against the U.S. filed in the 1980's are property rights protected by the takings clause of the Fifth Amendment to the U.S. Constitution. (6) Can the U.S. simply terminate the claims brought against it? The answer is yes. Under well established U.S. Supreme Court decisions going back to 1890, Congress has every right to close the doors of U.S. courts to lawsuits and take away those property rights as long as it provided for an alternative method of compensation and provided that at the time of the taking there is "reasonable, certain and adequate provision for obtaining compensation." (7)

   Faced with these provisions, the U.S. courts dismissed the nuclear cases after the Compact went into effect. This dismissal was approved by the U.S. courts because the 177 Agreement provided some compensation and provided for the establishment of an alternative tribunal to determine damages and provide compensation. The U.S. courts said that whether the $150 million settlement amounted to just compensation for the Marshall Islanders whose cases were dismissed, was an issue to be determined by the alternative tribunal--the Nuclear Claims Tribunal. (8) The Marshall Islands Nuclear Claims Tribunal was constituted in 1988. (9)

   Left with no practical alternative, the Enewetak people filed their claim before the Nuclear Claims Tribunal so that it could render final determination of all their claims for property damage, past, present and future, relating to the nuclear testing program.

   The legal theories of the Enewetak property damage claim was based on established constitutional principles and tort law. Those theories provided damages for the cost to restore land, for loss of use of land, and for consequential damages.

   The following material presents in narrative form the evidence and arguments presented to the Tribunal relating to the property damages suffered by the Enewetak people as a result of the U.S. nuclear testing program.

2. THE ENEWETAK PROPERTY DAMAGE CLAIM

   The homeland of the Enewetak people was the site of forty-three of the sixty-six nuclear tests conducted by the United States in the Marshall Islands. One of the tests at Enewetak was especially significant as it was the first test of a thermonuclear device, a precursor to the hydrogen bomb. This test occurred on October 31, 1952 and was known as the "Mike" test. The test had a yield of 10.4 megatons (750 times greater than the Hiroshima bomb). The destructive power of the Mike test was exceeded only by the Bravo test (15 megatons) in all the nuclear tests conducted by the United States anywhere. The Mike test vaporized an island, leaving a crater a mile in diameter and 200 feet deep. The Mike test detonation and the detonation of the other forty two nuclear devices devastated the land of the Enewetak people. The devastation is so severe that to this day, forty-seven years after the last nuclear explosion, over half the land and all of the lagoon remain contaminated by radiation. The damage is so pervasive that the Enewetak people cannot live on their land without importation of food.

   In our presentation before the Tribunal, it was important to stress that the damages inflicted on the land of the Enewetak people be considered in the context of the strong attachment that the people have for their land. The story of nuclear testing on the land of the Enewetak people has many important aspects; however, the most compelling aspect is the profound effect such testing had on the people. Thus, in the presentation of the claim we emphasized the effect of the testing program on the Enewetak people who, for century after century, developed a unique relationship with their land. They worked the soil and nurtured the plants on their land. They buried their dead on their land. They became a part of the land and it became a part of them. Laurence Carucci, an American professor of anthropology who testified before the Tribunal described the Enewetak people's relationship with the land as follows:

   For Marshall Islanders in general, and Enewetak people in particular, land is a part of one's person and one's entire identity. It is an integral part of a person's sense of who they are in the world and how their life makes sense as part of a certain culture. One's sense of self, both personal and cultural, is deeply embedded in a particular parcel of land on a particular atoll .... Not only is land hyper-valued because it is scarce, land is extremely highly valued because it represents the collective labor of generations of people who have worked the land, transforming it from bush into habitable space. Both one's labor and one's physical person, at death, are embedded in land in a manner that irrevocably erases any distinction European's [sic] or Americans might make that would separate one's person and the clan or family land that one inhabits. While Europeans live and die, Enewetak people are but the most visible snippet of a very active group, a clan of relatives who share a totem-like identity, a clan or jowi. Not only does that group represent the continuity of life from ancient times until the current day (jowi), it is manifest in a second visible form, the family land that is the realization of generation upon generation of continuous human occupation that has made untended earth into soil through toil and the physical substance of persons embedded in the molecular structure of that soil. When Enewetak people were moved to Ujelang in 1947, this sense of communal origin, of land as the visible representation of centuries of human labor, was lost.... Enewetak people were distraught, heartbroken, and in a general state of mental and emotional trauma when they were forced to leave their homeland. Their very embeddedness in a place in the world, the very processes through which the community had scratched their being into the physical contours of the earth, and the historied place that gave them a sense of meaningful connection with their communal past, were gone. (10) III. REMOVAL OF THE PEOPLE FROM ENEWETAK ATOLL AND U.S. PROMISES

   This relationship of the Enewetak people with their land was severed when the United States removed the people from their atoll so that the United States could explode nuclear devices on their land. In effecting the removal, the United States recognized that the people of Enewetak had constitutional rights with respect to the use of their land by the United States. In addition, the United States recognized that it had responsibilities and obligations to the people of Enewetak. These rights, responsibilities and obligations ere described in the memorandum attached to the Directive of President Harry Truman providing for the removal of the Enewetak people from their land. President Truman's Directive to the Secretary of Defense, dated November 25, 1947, reads as follows:

   Dear Mr. Secretary: You are hereby directed to effect the evacuation of the natives of Eniwetok Atoll preliminary to the carrying out of tests of atomic weapons early in 1948, and in accordance with the enclosed memorandum addressed to me by the Chairman of the Atomic Energy Commission. Sincerely yours, HARRY S. TRUMAN (11) The memorandum attached to President Truman's Directive described the rights of the Enewetak people and the responsibilities and obligations to the Enewetak people assumed by the United States. The memorandum reads in relevant part as follows:

   1. They will be accorded all rights which are the normal constitutional rights of the citizens...