Post trusteeship environmental accountability: case of PCB contamination on the Marshall Islands.

• Author: Lee, Hyun S.

1. INTRODUCTION

   At the conclusion of World War II, the newly formed United Nations sought to aid in the autonomous development of the newly liberated peoples in Africa and Micronesia. This entailed the establishment of a system of trusteeship states to be administered by members of the United Nations until the beneficiaries of these trusts were ready to take the reins of governance into their own hands. Along with the development of autonomous systems of government, the trustees also sought to aid in the trust territories' economic development. In doing so, the trustees were basically given free reign in administering the trust territories.

   Tragically, this lack of accountability for their actions in the trust territories led to a number of haphazard environmental practices among the trustees. Subsequently, the former trust territories were left with a number of ecological disasters to deal with. Economically unable to deal with these issues by themselves, the governments of the former trust territories requested that those who created these situations be accountable. However, they were often faced with a great deal of resistance by the former trustees.

   A number of these ecological issues were raised by the former trustee states with the trustees. None of these suits have actually been resolved through an adjudication which would have established some sort of legal precedent on the matter. Rather, the parties have all negotiated settlements wherein the former trust territories contract away rights to further claims against the trustees. In light of the non-resolution of some of these issues, the question still exists as to whether a fiduciary relationship exists between the trustees and the former trust territories such that they are liable for ecological harm.

   In 1986, the United States terminated its trustee relationship with its former trust territories by entering into the Compact of Free Association. Presently, the former portion Trust Territory of the Pacific Islands consisting of the Marshall Islands are an independent country, the Republic of the Marshall Islands. While it still retains close ties with the United States, the Republic of the Marshall Islands is an autonomous state. However, the environmental consequences of the trusteeship era still linger. The United States has agreed to compensate the RMI for the harm caused to the various atolls by atomic testing during the Cold War. Another ecological threat still remains, the more subtle threat of PCB contamination. PCB's represent a more subtle, but also harmful threat, to the people of the Republic of the Marshall Islands. It is uncertain whether the RMI can afford to pay for this clean up on their own. To its credit, the United States has cleaned up one of these PCB sites, it has not accepted legal accountability. Thus, the issue still remains whether former trustees owe a duty to their former trusts to clean up for past contamination.

2. HISTORICAL BACKGROUND

   The Republic of the Marshall Islands is located in the South Pacific Ocean in the region known as Micronesia. The Marshall Islands consist of approximately "thirty-four coral islands and atolls with a total land area of approximately 180 square kilometers and a population of about 43,000."(1) It has been speculated that the Micronesian region of the Pacific Ocean was settled by human inhabitants some time between 3,000 and 5,000 B.C.(2) Spain claimed Micronesia in 1565.(3) This year marked a pivotal point in Micronesia history. The Europeans who first colonized Micronesia entered the venture with the mentality that they were civilizing ignorant savages.(4) This mind-set prevailed in Spanish colonialism until the end of the Spanish Empire. It can be argued to have survived even through the days of the League of Nation Mandate System and the United Nations Trusteeship System. From the date that Europeans arrived there, the Micronesian islands and its peoples would be traded back and forth from one empire to another.

   By the nineteenth century, Micronesia would be visited by maritime traders from around the world.(5) It was during the era of steam ship travel that Micronesia really became the focus of imperialist attention. This was the era where Alfred Thayer Mahan's theories of maritime empires based on re-fueling stations spread throughout the world came to life. Micronesia represented a crucial link between Europe, the Americas and Asia. This was also the time when the German Empire and the British Empire began to dispute Spain's claims to Micronesia.(6) The lands and peoples of Micronesia were never perceived by Europeans thought of as independent nations with living and breathing human inhabitants with unique cultural assets worth preserving, but merely as strategic assets on a global chess board. Even in the nineteenth century, there was still the Eurocentric racist notion that had engrained itself into international law that only "only European states were fully sovereign[; and] Non European states [] existed outside the realm of the law and thus could not legally oppose the sovereign will of the European states."(7) Given this mind set, it is not surprising the attitude of the European conquerors who conquered Micronesia, and then traded the land and the people as though they were chattel.

   After Spain lost the "Spanish American War" to the United States, it sold its possessions in Micronesia to the German Empire for $4.5 million in 1886.(8) German occupation of Micronesian Islands only lasted until World War I.(9) Once World War I began, Japan declared war on Germany and annexed German possessions in Micronesia, including the Marshall Islands.(10) At the end of World War I, the League of Nations created a system of mandates out of the former territories of the German and Ottoman Empires.

   The League of Nations established a number of basic principles to guide its members in the administration of the Mandate Territories. One of the most fundamental of the guiding principles of the League of Nations was that the administrators of a Mandate were in the position of maintaining a trust. In Article XXII of the Covenant of the League of Nations it proclaimed,

   [t]o those colonies and territories which as a consequence of the late war have ceased to be under the sovereignty of the States which formerly governed them and which are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world, there should be applied the principle that the well-being and development of such peoples form a sacred trust of civilization and that securities for the performance of this trust should be embodied in this Covenant.(11) Thus those members of the League of Nations that accepted a Mandate made a covenant with each other and the inhabitants of the Mandate that the interests of the inhabitants of the Mandate were to be considered a sacred trust. The League of Nations Mandate System, where states entrusted with a Mandatory were to act on behalf of the League of Nations, was the first time that international accountability was implemented.(12)

   The League of Nations divided the former German and Ottoman territories into three classes of Mandates: Class A Mandates,(13) Class B Mandates(14) and Class C Mandates.(15) In 1920, Japan was granted the Class C Mandate of the "former German Pacific Islands," including the Marshall Islands.(16) Under the Japanese mandate, the Marshall Islands were subjected to intense economic development as a result of large-scale Japanese immigration.(17) By 1935, Japan had begun constructing military bases on its Class C Mandates.(18) Subsequently, by the beginning of World War II when Japan left the League of Nations, the majority of the population in the Marshall Islands Class C Mandate was Japanese.(19)

   Believing the December 7, 1941 surprise attack on Pearl Harbor had been launched from the Marshall Islands, the United States entered World War II "determined that Micronesia would never again pose a security threat to the United States."(20) After a long and bloody engagement in the Pacific, the United States ended World War II with the detonation two nuclear bombs over Hiroshima and Nagasaki. At the end of the hostilities, the United States replaced the Japanese Empire's military presence in Micronesia as the regional power. On a global scale, the United States had a tremendous amount of influence in shaping the post war global reality. Subsequently, the United States made it a priority to neutralize Micronesia as a strategic threat to the United States.

   At the end of World War II, the United Nations replaced the League of Nations. It replaced the League of Nations Mandate System with the International Trusteeship System. As in the League of Nations Covenant, the nation states that accepted a UN Trusteeship accepted a sacred trust to promote the well being of the inhabitants of the Trust. It recognized the need to respect the cultures of the peoples of the Trusts. The U.N. Charter recognizes that the interests of the inhabitants of the newly created Trust territories are "paramount." It also requires the members of the United Nations who accept the Trusteeship responsibility to acknowledge the acceptance of a "sacred trust obligation" whose beneficiaries are the Trust Territory's inhabitants. This system should have been the means to achieve the noble aspiration of self determination originally articulated in the League of Nations. The United Nations Trusteeship System should have served to give life to the noble spirit of the United Nations Charter and to create an avenue to achieve those noble aspirations articulated decades before in the League of Nations.

   In light of the newly emerging Cold War and the heavy price paid in World War II, national security and strategic interests prevailed instead. Within the United Nations Charter, there was a provision that permitted the creation of "Strategic Trusts."(21) "The...