Contamination and a Compact: Remediless Environmental Harm in the Marshall Islands

Abstract

Since its arrival in the Marshall Islands in 1944, the United States military has caused widespread, deadly, and lasting environmental harm. The Compact of Free Association binding the United States and the Republic of the Marshall Islands creates legal gaps allowing for ongoing harm without an avenue for adequate remedy. Current Compact renegotiations between the Marshall Islands and the United States offer an opportunity to provide an adequate remedy for past abuses and accountability for ongoing and future contamination. Further, legislative avenues remain an alternate means of addressing the legal and funding gaps currently depriving the Marshall Islands of a remedy.

Acknowledgments

I am immensely grateful to my former students who opened my eyes to the gross injustices that Micronesian nations face at the hands of ongoing colonial oppression and who exemplify the humility, power, and resilience with which Micronesians meet these challenges. Kommol tata to my Marshallese students in particular for sharing their experiences and inspiring me to learn more about their beautiful country. I would also like to thank Professor Michael Gerrard for his guidance throughout the writing process. Please note that some of this article’s content and text appeared in a previously published article in Columbia Human Rights Law Review Online. See Shannon Marcoux, Trust Issues: Militarization, Destruction, and the Search for a Remedy in the Marshall Islands, 5 HRLR Online 99 (2021), http://hrlr.law.columbia.edu/hrlr-online/trust-issues-militarization-destruction-and-the-search-for-a-remedy-in-the-marshall-islands/.

Notes

1 The Republic of the Marshall Islands (“RMI” or “Marshalls”), a former colony and Trust Territory of the United States, is located in the Micronesian region of the central and western Pacific, just north of the Equator. The Micronesian region is composed of Guam and the Commonwealth of the Northern Mariana Islands—both U.S. insular possessions—Nauru and Kiribati—both independent nations—and the Republic of Palau, the Federated States of Micronesia, and the Republic of the Marshall Islands—independent nations who have signed Compacts of Free Association with the United States. Micronesian Culture: Cultural Region, Pacific Ocean, Encyc. Britannica, https://www.britannica.com/place/Micronesia-cultural-region-Pacific-Ocean.

2 Kwajalein Atoll, the Marshallese atoll on which this paper will focus, is located 3,936 kilometers from Honolulu, 4,124 kilometers from Tokyo, and 5,121 kilometers from Manila in the Pacific Ocean. Greg Dvorak, Coral and Concrete: Remembering Kwajalein Atoll Between Japan, America, and the Marshall Islands 3 (2018). Kwajalein Atoll comprises 97 islands and islets, the largest of which is Kwajalein Island—home to the United States Army Garrison-Kwajalein Atoll (“USAG-KA” or “USAKA”). Id. at 56. The United States currently controls 10 other islands (which encircle the lagoon and have the most usable land in the atoll) and has placed 13 others off-limits to the Marshallese. Id. For the purposes of this article, “Kwajalein” will refer to Kwajalein Island (the location of the Army base), unless “Kwajalein Atoll” (the whole set of islands, which includes Ebeye) is specified.

3 Four different world powers have colonized the Marshall Islands: Spain, Germany, Japan, and the United States. Spain, which had claimed the Mariana Islands as Spanish territory in 1565, extended its colonial administration to include what would later become the islands of Micronesia in the late nineteenth century. Spain sold its possessions in the Pacific to Germany in 1899, but the Germans did not maintain control over the islands for very long. At the outset of World War I in 1914, Japan captured Germany’s island possessions, with the European Allied Powers recognizing the legitimacy of the occupation. After the war, the Treaty of Versailles placed the islands under Japanese mandate. Igarashi Masahiro, Associated Statehood in International Law 169 (2002).

4 Micr. Support Comm., Marshall Islands: A Chronology: 1944–1981, 5 (1992).

5 Ruth Douglas Currie, Kwajalein Atoll, the Marshall Islands and American Policy in the Pacific 79 (2016).

6 Micr. Support Comm., supra note 4, at 5.

7 Jon Mitchell, Poisoning the Pacific: The US Military’s Secret Dumping of Plutonium, Chemical Weapons, and Agent Orange 42 (2020).

8 The TTPI was the only trust territory under the oversight of the U.N. Security Council, and because the United States held a permanent seat on the Security Council where its concurring vote would be needed for any action, the United States essentially had complete control over the TTPI without international oversight. Currie, supra note 5, at 79. In 1949, the Security Council eventually delegated oversight over the TTPI to the Trusteeship Council, but reserved security matters—including nuclear testing—for its oversight. Id.

9 Kashmira Gander, Marshall Islands, Where U.S. Ran 67 Nuclear Weapon Tests, More Contaminated than Fukushima and Chernobyl, Newsweek (July 16, 2019), https://www.newsweek.com/marshall-islands-u-s-nuclear-weapons-tests-contaminated-fukushima-chernobyl-1449463.

10 Micr. Support Comm., supra note 4, at 4. The Trust Territory consisted of the territories that would eventually become Guam, the Commonwealth of the Northern Mariana Islands, the Federated States of Micronesia, the Republic of Palau, and the Republic of the Marshall Islands. Id.

11 The basic objectives of the Trusteeship System were (1) “to further international peace and security,” (2) “to promote the political, economic, social, and educational advancement of the inhabitants of the trust territories, and their progressive development towards self-government or independence,” (3) “to encourage respect for human rights and for fundamental freedoms for all without distinction as to race,” and (4) “to ensure equal treatment in social, economic, and commercial matters.” U.N. Charter art. 76.

12 The classification of the TTPI as a strategic trust allowed the United States to establish areas of the TTPI that could be closed-off to the Marshallese people for security reasons. Masahiro, supra note 3, at 178. This would be the legal basis for the United States’ forced removal and long-term exclusion of Marshallese people from Kwajalein and other atolls. Id.

13 Martha Smith-Norris, Domination and Resistance 21 (2016).

14 This, combined with the ongoing occupation of the islands, put the Marshallese in a difficult bargaining position as the United States sought to enter into a Compact of Free Association with the Marshallese. Julian Aguon, What We Bury at Night 33 (2008).

15 U.S. Relations with the Marshall Islands: Bilateral Relations Fact Sheet, U.S. Dep’t of State (July 15, 2018), https://www.state.gov/u-s-relations-with-marshall-islands/; Compact of Free Association, Marsh. Is.-U.S., Jun. 25, 1983, T.I.A.S. No. 04-501 [hereinafter Compact of Free Association].

16 With the Compact up for renegotiation in 2023, some of the 30,000 Marshallese currently living in the United States are afraid they will lose their right to live and work in the United States without a visa if RMI chooses not to renew the Compact. Mike Taibbi & Melanie Saltzman, Marshall Islands: A Third of the Nation Has Left for the U.S., PBS (Dec. 16, 2018), https://www.pbs.org/newshour/show/marshall-islands-a-third-of-the-nation-has-left-for-the-us (explaining that approximately one third of the Marshallese population currently resides in the United States); Susanne Rust, They Came Here After the U.S. Irradiated Their Islands. Now They Face an Uncertain Future, L.A. Times (Dec. 31, 2019), https://www.latimes.com/world-nation/story/2019-12-31/marshall-islands-uncertain-future-us-marshallese-spokane (describing the uncertainty that Marshallese living in the United States feel with respect to their lawful residency status as negotiations between the United States and Marshall Islands progress).

17 Compact residents serve in the U.S. military at a per capita rate twice as high as residents of any U.S. state. They have also died at a higher per capita rate than have residents of any U.S. state in the wars in Iraq and Afghanistan. See Hawai’i Appleseed Ctr. for Law and Econ. Just., Broken Promises, Shattered Lives: The Case for Justice for Micronesians in Hawai’i 3, 7–8 (2011); see also U.S. Relations with the Marshall Islands: Bilateral Relations Fact Sheet, supra note 15 (noting that Marshallese “serve in the U.S. military, volunteering at per capita rates higher than many U.S. states”); Justin Novel, A Micronesian Paradise—for U.S. Military Recruiters, Time (Dec. 31, 2009), http://content.time.com/time/world/article/0,8599,1950621,00.html (explaining that Compact residents died at a higher rate, per capita, in Iraq and Afghanistan than Americans died).

18 Sasha Davis, The US Military Base Network and Contemporary Colonialism: Power Projection, Resistance and the Quest for Operational Unilateralism, 30 Pol. Geography 215, 221 (2011). This Compact also affords the U.S. “strategic denial,” meaning that no other military can gain access to the entire Micronesian region, even where the United States does not have a base. Id. The Marshallese maintain control over commercial fishing licenses.

19 Chad Blair, Interior Official Pushing To Renew COFA Treaties This Year Despite Obstacles, Honolulu Civil Beat (Mar. 28, 2020), https://www.civilbeat.org/2020/03/interior-official-pushing-to-renew-cofa-treaties-this-year-despite-obstacles/ (quoting a U.S. Department of the Interior official as saying “at least for the RMI and FSM, we would very much like to try to get that done this year if at all possible”); United States Holds Second Round of Compact Consultations with the Federated States of Micronesia and the Republic of Palau, Haw. Free Press (July 14, 2020), http://www.hawaiifreepress.com/ArticlesMain/tabid/56/ID/25976/COFA-United-States-Holds-Second-Round-of-Compact-Consultations.aspx (announcing that, by mid-July 2020, U.S. negotiators had already finished a second round of consultations with Micronesians leaders). As of March 28, 2021, no renewal agreement had been reached.

20 World Health Organization [WHO], Marshall Islands—WHO Country Cooperation Strategy 2018–2022, WPRO/2017/DPM/012 (2017). Based on 2011 census data, the U.N. World Population Prospects projected 2019 life expectancy in the Marshall Islands to be 74.1 years, while RMI’s four former colonizers boasted significantly higher life expectancies in 2019: Spain, 83.6 years; Germany, 81.3 years; Japan, 84.6 years; and the United States, 78.9 years. Life Expectancy at Birth (years), U.N. Dev. Programme, http://hdr.undp.org/en/indicators/69206#.

21 In a highly staged 1946 meeting with the people of Bikini Atoll, which the journalists, Hollywood film crews, and photographers whom the military invited would subsequently use as propaganda throughout the United States, U.S. Navy Commodore Ben H. Wyatt described the rationale displacement of the Bikinians and the purpose of the U.S. nuclear testing program as being “for the good of mankind and to end all wars.” Holly Barker, Bravo for the Marshallese: Regaining Control in a Post-Nuclear, Post-Colonial World 19 (2004).

22 Mitchell, supra note 7, at 48.

23 Id.

24 Id.

25 Id. at 52.

26 Daniel Immerwahr, How to Hide an Empire 349 (2019).

27 Mitchell, supra note 7, at 42.

28 Id.

29 Smith-Norris, supra note 13, at 45–46.

30 Barker, supra note 21, at 20.

31 Smith-Norris, supra note 13, at 45.

32 Id. at 47.

33 Id.

34 Id. at 49.

35 Smith-Norris, supra note 13, at 49. The continuous shuffling from island to island was due in part to the expansion of the nuclear testing program and also due to the Americans’ inadequate understanding of island ecosystems and attributes of a habitable island. Id. at 42.

36 Id. at 52.

37 Id. at 52.

38 Id. at 17.

39 Id.

40 Smith-Norris, supra note 13, at 17. In order to secure unrestricted future use of Enewetak as a testing site without the threat of further petitions to the United Nations, the United States did ultimately give the Enewetakese living on Ujelang $25,000 in cash and the promise of a $150,000 trust fund in exchange for unencumbered future use of Enewetak Atoll. Id. at 22. Though some Enewetakese dissented, the majority ultimately agreed to the deal in November 1956—nearly a decade after the initial displacement. Id.

41 Smith-Norris, supra note 13, at 17.

42 Id. at 17–18.

43 Id. at 20. Tobin recommended that the United States increase the frequency of its trips to Ujelang and provide additional seedlings, livestock, and agricultural equipment, because the distance of Ujelang from the main islands of Kwajalein and Majuro inhibited the Enewetakese from obtaining such supplies on their own. Id. at 20–21.

44 Id. at 24.

45 Id.

46 Id. For more detailed discussion of the missile testing program and its associated land displacement, see infra I.B.

47 Smith-Norris, supra note 13, at 77.

48 Mitchell, supra note 7, at 42–43.

49 Id.

50 Id. at 43. Thousands of men were sent to take measurements and decontaminate the ships purposefully placed in the detonation area without protective equipment. Id. at 43–44. The Navy then towed the highly contaminated ships to Kwajalein (sending others to Guam, Hawai’i and the U.S. mainland), where further feeble decontamination efforts took place—exposing thousands more to the deadly levels of radiation. Id. at 44.

51 Smith-Norris, supra note 13, at 47.

52 Id.

53 Id.

54 Id.

55 Id.

56 Smith-Norris, supra note 13, at 18.

57 Id. at 19.

58 Id. at 50.

59 Mitchell, supra note 7, at 44–45.

60 Id.

61 Id.

62 Id.

63 Id.

64 Immerwahr, supra note 26, at 350.

65 Mitchell, supra note 7, at 44–45.

66 Id. The Rongelapese were exposed to approximately 175 rads of radiation. The recommended annual radiation exposure level is 0.5 rads. Id.

67 Id. at 49. Between 1969 and 1973, the number was still one in five. Id.

68 Smith-Norris, supra note 13, at 77.

69 Jane Dibblin, Day of Two Suns: US Nuclear Testing and the Pacific Islanders 26 (1988) (“Not far from Rongelap, U.S. Navy ships were monitoring the intensity of the radiation. They were not instructed to rescue the Rongelap people; indeed the task force command ordered them to sail away from the area It was two days before the Navy arrived to pick up the Rongelap islanders . . . two days in which they breathed, slept, and ate the fallout.”

70 Smith-Norris, supra note 13, at 77. In contrast to the apparent unpreparedness to evacuate impacted islanders after the Bravo blast, within just one week of the test, the United States government airlifted a pre-assembled team of scientists, medical researchers, and doctors to Kwajalein to conduct tests the Rongelapese and Utirikese. Id. at 78.

71 Keith M Parsons & Robert A. Zaballa, Bombing the Marshall Islands: A Cold War Tragedy 64 (2017) (“[I]t would be blither to assume that a multimegation blast could not project dangerous fallout at least as far as the much smaller thirty two kiloton device did in the Sr. George, Utah case. . . . [The appropriate precautions should be based not on the most probably projections but on worst-case scenarios. This would have been apt since what actually happened was close to the worst case.”).

72 Smith-Norris, supra note 13, at 77.

73 Id. at 24.

74 Mitchell, supra note 7, at 49.

75 Id. at 45–46.

76 Id.

77 Immerwahr, supra note 26, at 350–51.

78 Mitchell, supra note 7, at 46. On one ship, the Lucky Dragon, which was outside the blast zone, all twenty-three of its crew members suffered radiation poisoning and one died. Immerwahr, supra note 26, at 350.

79 Mitchell, supra note 7, at 46 (internal quotations omitted).

80 Smith-Norris, supra note 13, at 50. Again in 1956, when the United States announced Operation Redwing, the Marshallese pleaded for the UN Trusteeship Council to intervene. Id. at 52. Again, the United States ignored the request and conducted Operation Redwing, which included six large nuclear explosions on Bikini Atoll, between May and July 1956. Id. One of these bombs, Tewa, had the highest know fission yield of any bomb every dropped—making it “the dirtiest bomb in the world.” Id. Tewa killed millions of fish and tens of thousands of birds—the carcasses of which floated for hundreds of miles until they washed ashore on neighboring islands. Id.

81 Smith-Norris, supra note 13, at 22, 24.

82 Id.

83 Id. at 22, 24.

84 In 1968, the U.S. military also tested the casualty area associated with a biological weapon meant to sabotage enemy food supplies (staphylococcus aureus) a dozen times in an area encompassing Enewetak Atoll and 40–50km of ocean. See U.S. Dept. of Defense, Special Assistant to the Under Secretary of Defense (Personnel and Readiness) for Gulf War Illnesses, Medical Readiness and Military Deployments, Fact Sheet: Project Shipboard Hazard and Defense (SHAD) (2002). Information regarding this testing was not released until decades after the testing and was likely only released because U.S. military personnel were also affected.

85 Calin Georgescu (Special Rapporteur on the implications for human rights of the environmentally sound management and disposal of hazardous substances and wastes), Mission to the Marshall Islands (27–30 March 2012) and the United States of America (24–27 April 2012), A/HRC/21/48/Add.1, 7. The report found that 530 “excess cancers” were likely to be found and attributable to the nuclear testing, and it estimated that half of these malignancies had yet to be detected. Id.

86 Id. at 8.

87 Id.

88 Id. at 5.

89 Id. at 14.

90 Georgescu, supra note 85, at 8.

91 Id.

92 In August 1958, in a paper presented at an academic conference, Dr. Conard indicated clear understanding that the re-inhabitation of Rongelap would impact the health of the Rongelapese: The habitation of these people on the island [Rongelap] . . . affords a most valuable ecological radiation study on human beings. Since only small amounts of isotopes are necessary for tracer studies, the various radioisotopes present can be traced from the soil, through the food chain, and into the human being, where the tissue and organ distribution, biological half-lives, and excretion rates can be studied. Smith-Norris, supra note 13, at 88.

93 Mitchell, supra note 7, at 48.

94 Smith-Norris, supra note 13, at 88.

95 Id.

96 Mitchell, supra note 7, at 48.

97 Id.

98 Id. Greenpeace’s boat, the Rainbow Warrior, was en route just two months later to monitor French nuclear testing in the South Pacific when the French government bombed and sank the ship in Auckland Harbor. One crew member was killed. Id.

99 Because Mejato was a small island with few natural resources and difficult fishing, the U.S. Department of Agriculture began delivering canned food, which was higher in fat and carbohydrates and lower in nutritional value. Parsons, supra note 71, at 158 (2017). Consequently, the Rongelapese developed diabetes and hypertension at high rates. Id. For more on the non-communicable disease epidemics, see infra I.B. Eventually many of the Rongelapese relocated to overcrowded Ebeye, id., the conditions of which will be discussed further infra I.B.

100 Mitchell, supra note 7, at 48.

101 Smith-Norris, supra note 13, at 54.

102 Id. Conard knew that radionuclides were present in drastically higher levels in the Rongelapese than in the control group and that the Rongelapese were experiencing numerous serious health conditions because of this, including thyroid cancer, birth defects, and stunted or slowed growth. Id. at 56.

103 Id. at 55.

104 Smith-Norris, supra note 13, at 56.

105 Id. at 57.

106 Id. at 61.

107 Id. at 62.

108 Id.

109 Id.

110 Mitchell, supra note 7, at 48.

111 Smith-Norris, supra note 13, at 63.

112 Id.

113 Mitchell, supra note 7, at 48.

114 Columbia University researchers have continued to monitor background gamma radiation and soil activity measurements in the Marshall Islands. One 2019 study measured levels of external gamma radiation, as well as the levels of americium-241, cesium-137, plutonium-238, and plutonium-239,240 in the soil in eleven islands in four atolls impacted by nuclear testing. Maveric K. I. L. Abella et al., Background Gamma Radiation and Soil Activity Measurements in the Northern Marshall Islands, 16 Proceedings of the Nat’l Academy of Sciences no. 31, 15431–33 (2019), https://www.pnas.org/content/pnas/116/31/15425.full.pdf. The study found dangerously high contaminant concentrations in samples from Runit and Enjebi islands in Enewetak Atoll, Bikini Island in Bikini Atoll, and Naen Island in Rongelap Atoll—including some contaminant concentrations that are higher than Chernobyl. Id.

115 Smith-Norris, supra note 13, at 67.

116 Mitchell, supra note 7, at 49.

117 Id.

118 Susanne Rust, How the U.S. betrayed the Marshall Islands, kindling the next nuclear disaster, LA Times, Nov. 10, 2019, https://www.latimes.com/projects/marshall-islands-nuclear-testing-sea-level-rise/.

119 Id.

120 Id.

121 Mitchell, supra note 7, at 50.

122 Id. at 50–51 (2020). Though this article focuses on the harms the United States government and military committed against the Marshallese people, it is worth emphasizing that these 4,000 soldiers did not receive the same automatic VA coverage that soldiers exposed during the actual testing received, because the U.S. military still denies that their work during the cleanup exposed them to radiation. Id. at 51. One unofficial survey of troops who worked on the cleanup found a 20 percent cancer rate among respondents. Id.

123 Id. at 51.

124 Id.

125 Curt D. Storlazzi, et al., The Impact of Sea-Level Rise and Climate Change on Department of Defense Installations on Atolls in the Pacific Ocean (RC-2334): U.S. Geological Survey Administrative Report for the U.S. Department of Defense Strategic Environmental Research and Development Program 107 (2017) (“Although recent surveys have shown the concrete Runit Dome is stable, island overwash events will occur with increasing frequency in the coming decades, negatively impacting the concrete cap and its ability to contain long-lasting radionuclides from being released into the environment.”).

126 National Defense Authorization Act for FY 2020 §364, Pub. Law. No. 116–92, 133 Stat. 1327–28.

127 U.S. Dept. of Energy, Report on the Status of the Runit Dome in the Marshall Islands 4–5 (June 2020), https://www.energy.gov/sites/prod/files/2020/06/f76/DOE-Runit-Dome-Report-to-Congress.pdf. The report also indicated that DOE will conduct the groundwater radiochemical analysis program that the Insular Areas Act of 2011 required, COVID-19 international travel restrictions inhibited them from doing so in 2020. Id. at 5.

128 Maveric, supra note 114, at 15431, https://www.pnas.org/content/pnas/116/31/15425.full.pdf. This 2019 study also found similar levels of plutonium, americium, and cesium on Naen in Rongelap Atoll as on Runit in Enewetak Atoll. The study indicated that this could be because Naen was directly downwind of the nuclear explosions, but it could also be an indication that the U.S. military transported some of the waste from the Rongelap cleanup to Naen without telling the Marshallese and without creating a tomb-like structure like the dome on Runit. Id. at 15433.

129 Susanne Rust, U.S. says leaking nuclear waste dome is safe; Marshall Islands Leaders Don’t Believe It, LA Times (July 1, 2020), https://www.latimes.com/environment/story/2020-07-01/us-says-nuclear-waste-safe-marshall-islands-runit-dome (quoting Rhea Christian-Moss, the chairperson of the Marshall Islands’ National Nuclear Commission as saying ““The absence of data to show any risk does not mean that there is no risk… So my main takeaway from the report is that many risks are still ‘unknown.’”).

130 The U.S. government denied visas to Japanese scientists whom the Marshallese had invited to conduct an independent radiological survey of Rongelap and Utirik after U.S. testing. Ataji Balos, “Legislative Advancement of Human Rights: The Rongelap and Utirik Incident,” Conference on Legislatures and Human Rights, Sept. 14, 1976, Dublin, 7–8.

131 Autumn Bordner et al., Colonial dynamics limit climate adaptation in Oceania: Perspectives from the Marshall Islands, 61 Global Envtl Change 1, 3 (2020).

132 Dan Zak, A Ground Zero Forgotten, Wash. Post (Nov. 27, 2015), https://www.washingtonpost.com/sf/national/2015/11/27/a-ground-zero-forgotten (explaining the historical description of Ebeye as “the slum of the Pacific”). While this article does not condone the use of the word “slum” or “ghetto” to describe Ebeye, the fact that many reporters and academics have chosen this term to describe Ebeye indicates just how shocking the living conditions are, especially in comparison to Kwajalein. See, e.g., Ray Kania, South Pacific’s Paradise Lost: Ebeye Has Become Slum in the Marshall Islands, Orlando Sentinel (Apr. 23, 1989), https://www.orlandosentinel.com/news/os-xpm-1989-04-23-8904235448-story.html (describing Ebeye as the slum of the Pacific); Pacific Slum District A ‘Health Risk’, Sydney Morning Herald (July 23, 2010), https://www.smh.com.au/world/pacific-slum-district-a-health-risk-20100723-10o4t.html (referring to Ebeye as a “Pacific slum district” as recently as 2010); Mitchell, supra note 7, at 52 (referring to Ebeye as “one of the most cramped slums in the world”).

133 Howard W. French, Dark Side of Security Quest: Squalor on an Atoll, N.Y. Times (June 11, 2001), https://www.nytimes.com/2001/06/11/world/dark-side-of-security-quest-squalor-on-an-atoll.html.

134 The most recent Marshall Islands census data places the population of Ebeye island at 9,614 people, making the population density 80,177 people per square mile. Econ. Pol’y, Plan., and Stat. Off., Off. of the President, The RMI 2011 Census of Population and Housing Summary and Highlights Only 7 (2012), doi.gov/sites/doi.gov/files/migrated/oia/reports/upload/RMI-2011-Census-Summary-Report-on-Population-and-Housing.pdf [hereinafter RMI Census]. The population estimate for Ebeye is often significantly higher than the figure used here. See French, supra note 133 (estimating the population at 15,000 in 2001); Catherine Layton, U.S. Army Kwajalein Atoll Shopping Policy to Change, Kwajalein Hourglass, June 4, 2011, at 5 (quoting Col. Joseph Gaines, U.S. Army Kwajalein Atoll Commander, estimating the population at 15,000); Ctr. for Nation Reconstruction & Capacity Dev., Ebeye 2023: Comprehensive Capacity Development Master Plan 3 (2012) (estimating the population at 11,000 in 2012); Giff Johnson, Power Service Stabilizes in Marshalls’ Ebeye Island, Radio N.Z. (Dec. 2, 2019), https://www.rnz.co.nz/international/pacific-news/404605/power-service-stabilises-in-marshalls-ebeye-island (estimating the population at 12,000 in 2019). The aforementioned population estimates would place Ebeye’s population density somewhere in between 91,666 and 125,000 people per square mile.

135 Manhattan’s population density is approximately 71,434 people per square mile. U.S. Census Bureau, QuickFacts: New York County (Manhattan Borough), New York, https://www.census.gov/quickfacts/fact/table/newyorkcountymanhattanboroughnewyork/PST045218#PST045218 (relaying census data as of September 9, 2020).

136 Hong Kong has a population density of approximately 17,311 per square mile. H.K. Special Admin. Region Gov’t Info. Serv. Dep’t, Hong Kong: The Facts (2015).

137 Lauren Hirshberg, Home Land (In)security: The Labor of U.S. Cold War Military Empire in the Marshall Islands, in Making the Empire Work: Labor and United States Imperialism 335, 345 (Daniel E. Bender & Jana Lipman eds., 2015).

138 RMI Census, supra note 134, at 7.

139 This makes the population density of Kwajalein 1,069 per square mile. Chris Mooney & Brady Dennis, The Military Paid For a Study on Sea Level Rise. The Results Were Scary, Wash. Post (Apr. 25, 2018), https://www.washingtonpost.com/news/energy-environment/wp/2018/04/25/climate-change-could-make-thousands-of-tropical-islands-uninhabitable-in-coming-decades-new-study-says/.

140 Dvorak, supra note 2, at 56.

141 Micr. Support Comm., supra note 4, at 11.

142 Lauren Hirshberg, Nuclear Families: (Re)producing 1950s Suburban America in the Marshall Islands, 26 OAH Mag. Hist., no. 4, 2012, at 39, 40.

143 Id. There was no compensation for these landowners at the time and no concrete plan for how they would be made whole in the future. Currie, supra note 5, at 87–88. The negotiation of post-displacement land agreements proved to be a significant source of tension between Marshallese landowners and the U.S. government. In 1962, over a decade after the forced relocation of the Kwajalein landowners to Ebeye, the Trust Territory Attorney General and Marshallese officials reached a settlement for the U.S. military’s land use of Kwajalein. They arrived at a formula of $500 per acre, which would mean $375,000 for 18 years of past use, plus 7 years future use, for 750 acres in Kwajalein Atoll and Dalap Island in Majuro Atoll. Id. at 95. Landowners did not feel adequately compensated by these agreements, and a series of protests, sail-ins, and re-occupations of Kwajalein by the landowners ensued in the 1960s and 1970s. The Kwajalein landowners have continued to advocate for higher compensation. Smith-Norris, supra note 13, at 118. By 1982, the protest movement called “Operation Homecoming” had grown to over a thousand Marshallese, hundreds of whom were arrested for “trespassing” on the off-limits missile impact areas of the atoll. Glenn H. Alcalay, Nuclear Hegemony: America in Micronesia, in Third World Affairs 1987, 236, 247 (Raana Gauhar ed., 1987).

144 Dvorak, supra note 2, at 171–72. These buildings—“haphazardly constructed of scrap metal, lumber, and canvas”—were not built to withstand the tough elements of a tropical island climate and soon fell into disrepair. See Jack A. Tobin, Ebeye Village: An Atypical Marshallese Community 7 (1954). Jack Tobin, an anthropologist, compared Ebeye to a sharecropper’s camp in the rural United States, commenting on the extent of the overcrowding as the most jarring issue. Id. at 16. This overcrowding made Ebeye a fire hazard and a “fertile breeding ground for disease.” Smith-Norris, supra note 13, at 105. When Tobin observed these overcrowded conditions in 1954, there were only 981 people living on Ebeye. Tobin, supra note 144, at 16. This population would grow sharply in the decade to come and would continue to grow significantly into the twenty-first century. Dvorak, supra note 2, at 172.

145 Dvorak, supra note 2, at 56. The United States also displaced the landowners on these other islands, as well as all of the landowners on 13 additional islets in the Mid-Atoll Corridor, which ongoing U.S. missile testing renders off-limits for the displaced inhabitants and their descendants. Fifty Marshallese people were forcibly removed from Roi-Namur—an island north of Kwajalein that would become the site for a missile launch facility—and a group of Marshallese were forcibly removed from Lib—an island south of Kwajalein that was designated an impact zone for U.S. inter-continental ballistic missile (ICBM) testing—and relocated to Ebeye. Smith-Norris, supra note 13, at 108. These people were not compensated upon their dislocation. Id. In 1964, when the U.S. military cleared the Mid-Atoll Corridor of the atoll for missile testing, they forcibly relocated 1,470 Marshallese people to Ebeye. Id. at 109. These displaced people were relocated to Ebeye with promises that the United States would provide housing and services for them, but these promises were not fulfilled. After years of negotiations and protests, residents of the Mid-Atoll Corridor were finally allowed limited gardening and burial privileges on their home islands in 2017. Jason Cutshaw, US, RMI, Sign Agreement Granting Access to Mid-Atoll Islands, Kwajalein Hourglass (Aug. 5, 2017), https://api.army.mil/e2/c/downloads/495192.pdf. They can access their islands at least 126 days per year, but they cannot return there to live. Id. Throughout the 1960s and 1970s, deteriorating conditions on Ebeye became a “textbook study of ‘development’ gone awry and all that was wrong with American strategic politics toward the postwar Pacific.” Dvorak, supra note 2, at 171–72. By 1977, there were 8,000 people living in 588 homes on Ebeye, with 14 people sleeping in one room on average. Id. at 172.

146 Welcome to USAG-KA!, U.S. Army (July 8, 2015), https://www.army.mil/a/149373/sr.

147 Smith-Norris, supra note 13, at 117. As the 1960s saw more scientists and contractors move to Kwajalein, in addition to durable aluminum housing built to withstand the elements, the military and its contractors began installing shops, a kindergarten-through-high school education system, swimming pools, a golf course, sports fields, and a movie theater. Dvorak, supra note 2, at 173. These improvements on Kwajalein, in combination with the aforementioned overcrowding on Ebeye, created a harsh juxtaposition between the two neighboring islands:

[O]n Ebeye, the separation of the two cultures is cruelly and harshly visible, just inches apart—and with the shame of it made all the more damning because the islands—the entire atoll, the neighboring islands, the entire republic—make up the country that is the birthright of the very people who are now being denied access to it.

Simon Winchester, Pacific: Silicon Chips and Surfboards, Coral Reefs and Atom Bombs, Brutal Dictators, Fading Empires, and the Coming Collision of the World’s Superpowers 26 (2015). As one long-time Kwajalein resident explained, life on Kwajalein is “a very nice life, largely unavailable to most Americans living in the States.” Dvorak, supra note 2, at 188–89. Self-described “Kwaj kids” reminisce about growing up on an island with a “1950s smalltown feel, a tropical ‘Leave it to Beaver’ setting where everyone knew one another.” Hirshberg, supra note 142, at 41. The slogan plastered across most Kwajalein memorabilia, “Almost Heaven, Kwajalein,” encapsulates Kwajalein’s idyllic, utopian feel. Hirshberg, supra note 137, at 345. The opening paragraph of USAG-KA’s welcome guide gives a good indication of the quality of life for the Americans who live on Kwajalein:

Ever want to go sailing to uninhabited tropical islands to do some camping and stare at night skies not washed out in light pollution? . . . How about the idea of clocking out of work at 4:30 p.m. and descending to 60 feet of water during a scuba dive only a half hour later? . . . Love the concept of no vehicle traffic and no long commutes to work? Do you love to ride bikes, watch vibrant sunsets over the Pacific Ocean and live in a warm, windy climate? Great. Welcome to U.S. Army Garrison-Kwajalein Atoll. You’re going to love it here.

Welcome to Kwajalein Atoll, Kwajalein Hourglass (Fall 2017), https://api.army.mil/e2/c/downloads/495931.pdf.

148 Dvorak, supra note 2, at 173.

149 Giff Johnson, Marshalls Urban Centre Facing Power Shortages, Radio N.Z. (Aug. 26, 2019), https://www.rnz.co.nz/international/pacific-news/397490/marshalls-urban-centre-facing-ongoing-power-shortages.

150 Dvorak, supra note 2, at 173. As Marshall Island Foreign Affairs Minister Tony de Brum once suggested in testimony before U.S. Congress in 2008:

[T]he separation of the Marshallese population from our American friends is a vestigial remnant of the unenlightened policies of the forties and fifties. It does not fit in today’s world. Integrating power, water, and communications systems, the building of a land connection between Ebeye and Kwajalein… will result in immediate improvement.

Id. at 191. Such integration of systems never occurred, and this separation has had significant consequences for Marshallese health and human development.

151 For example, the missiles targeted at the test site on Kwajalein and allowed to plummet into the lagoon were historically ballasted with depleted uranium, which was both radioactive and toxic. Smith-Norris, supra note 13, at 109; see also Envtl. Standards and Proc. for U.S. Army Kwajalein Atoll (USAKA) Activities in the Republic of the Marshall Islands 17 (14th ed. 2016) [hereinafter Envtl. Standards] (finding hazardous and toxic wastes generated at USAG-KA “include solvents, acids, photographic processing wastes, ignitable wastes, lead acid batteries, and polychlorinated biphenyl (PCB) transformer oils”).

152 U.S. Army Inst. of Pub. Health, Draft Southern U.S. Army Garrison–Kwajalein Atoll Fish Study 6 (2014) [hereinafter Fish Study]. The most recent (2019) update to this line of fish studies found that long-term near daily consumption of reef/bottom fish from the areas studied increase the risk of cancer and other harmful health impacts, and that children and pregnant or nursing mothers should not eat fish from any of the areas evaluated in this study. U.S. Army Inst. of Pub. Health, Update to the Kwajalein Atoll Fish Consumption Assessment (2019) [hereinafter 2019 Update]. The contamination primarily resulted from waste from industrial vessel operations in the Army’s port and leaching from the landfill on Kwajalein. Giff Johnson, Fish at Kwaj Dangerous to Eat, Marsh. Is. J. (July 18, 2019), https://marshallislandsjournal.com/fish-at-kwaj-dangerous-to-eat/. As of 1977, PCBs were no longer permitted to be imported to or manufactured in the United States. Hyun S. Lee, Post Trusteeship Environmental Accountability: Case of PCB Contamination on the Marshall Islands, 26 Denv. J. Int’l L. & Pol’y 399, 409 (1998). The transformers thought to be the primary source of PCB leakage on Kwajalein were brought to the Marshall Islands at some point during the Trust Territory administration, though it is unclear precisely when. Id. at 408–09. Some of these transformers were then buried or abandoned on atolls in the Marshall Islands and in the 1990s were eventually found to be leaking PCBs into the soil and the water. Id.

153 Giff Johnson, Report of Toxic Fish in Kwajalein Lagoon Brings Calls to Action from RMI, Marianas Variety (June 9, 2016), http://www.pireport.org/articles/2016/06/09/report-toxic-fish-kwajalein-lagoon-brings-calls-action-rmi. These 2014 findings renewed a fishing ban that had largely been in place since 2004 due to findings of dangerous levels of toxins found by studies conducted in 2004, 2009, and 2014. Fish Study, supra note 158, at 6. Senator Paul also said, “Let me characterize it this way: It is like telling people to stop breathing, when you tell people to stop eating fish it’s like stop breathing, that’s how significant this thing is.” Jo O’Brien, Many Marshallese Advised to Give Up Fish, Radio N.Z. (June 17, 2016), https://www.rnz.co.nz/international/programmes/datelinepacific/audio/201804804/many-marshallese-advised-to-give-up-fish.

154 Giff Johnson, U.S. Army Report: Reef Fish at Marshalls Atoll Are Toxic, Radio N.Z. (July 23, 2019), https://www.rnz.co.nz/international/pacific-news/395041/us-army-report-reef-fish-at-marshalls-atoll-are-toxic. Aldrin, dieldrin, and PCBs were detected in fish tissue at high enough concentrations to warrant a risk assessment for human consumption. This risk assessment found that there would be health concerns if multiple species of fish common to the lagoon were consumed regularly, and thus the ban continued. Fish Study, supra note 152, at 5–6.

155 Johnson, supra note 152; see also Fish Study Team Shares Findings with Kwajalein Atoll Community, Kwajalein Hourglass (Sept. 28, 2019), https://www.smdc.army.mil/Portals/38/Documents/Publications/Hourglass/2019/09-28-19Hourglass.pdf [hereinafter Fish Study Team] (“The study confirmed that long-term consumption of reef fish caught near industrial or recreational sites poses increased risks of cancer and other negative health effects to adults, including pregnant and nursing mothers and children.”). Chlordane, another contaminant found in the lagoon around Kwajalein, has been linked to blood disorders and is also a neurotoxin that can cause issues with memory, learning, cognition, sleep, personality changes, depression, headaches, and numbness in the bodily extremities. Fish Study, supra note 152, at 40. Lead is also present in the fish in Kwajalein Harbor in levels several orders of magnitude higher than the levels considered acceptable by the World Health Organization. Id. at 45–46. This places Marshallese children at risk of ingesting harmful levels of lead, which can inhibit cognitive development, increase cardiovascular disease, and increase blood pressure. Id. at 46.

156 U.S. Dep’t of Health and Hum. Servs., Toxicological Profile for Polychlorinated Biphenyls (PCBs) 5 (2000).

157 Fish Study Team, supra note 152.

158 Henry M. Ichiho et al., An Assessment of Non-Communicable Diseases, Diabetes, and Related Risk Factors in the Republic of the Marshall Islands, Kwajelein Atoll, Ebeye Island: A Systems Perspective, Haw. J. Med. & Pub. Health, May 2013, at 77, 77–78.

159 Under the Trust Territory administration, hepatitis and amoebiasis were rampant and, due to the dumping of raw sewage into the lagoon, the lagoon had bacteria counts 25,000 times higher that the U.S. Public Health Service’s and U.N. World Health Organization’s minimum safety standards allowed. Smith-Norris, supra note 13, at 116–17. In 1963, a severe polio epidemic swept through Ebeye after an American brought the disease to Kwajalein, leaving more than 190 people severely paralyzed. This was eight years after the polio vaccine was available to all Americans. Giff Johnson, Collision Course at Kwajalein: Marshall Islanders in the Shadow of the Bomb 20 (1984). Two American children contracted the disease on Kwajalein, compared to 192 Marshallese, mostly children but ranging in age to adults, with 11 deaths. Currie, supra note 5, at 109. Tuberculosis, hepatitis B, and syphilis are endemic in RMI, and outbreaks of cholera and dengue are quite common. Sheldon Riklon et al., The “Compact Impact” in Hawai’i: Focus on Health Care, Haw. Med. J., June 2010, at 7, 7. A 2000 cholera epidemic infected more than four hundred people and killed six. Seiji Yamada et al., Ethical Responsibility for the Social Production of Tuberculosis, 13 J. Bioethical Inquiry 57, 58 (2016). The dengue outbreak in 2019 lasted over two months and has led to the closure of schools; it is likely that public health crises will continue to disrupt Ebeye’s already-fledgling education system in the future. Jenny Meyer, Marshall Islands State of Emergency to Tackle Dengue Outbreak, Radio N.Z. (Aug. 21, 2019), https://www.rnz.co.nz/international/programmes/datelinepacific/audio/2018709683/marshall-islands-state-of-emergency-to-tackle-dengue-outbreak. The most recent dengue outbreak, which began in Ebeye in July 2019, spread to other parts of the country, and had claimed three lives as of February 8, 2020. Giff Johnson, Dengue Fever Outbreak Claims Two More Lives in the Marshall Islands, Radio N.Z. (Feb. 8, 2020), https://www.rnz.co.nz/international/pacific-news/409073/dengue-fever-outbreak-claims-two-more-lives-in-the-marshall-islands. A senior advisor at the U.S. Centers for Disease Control expressed “appreciation from afar for the amazing work” of the local doctors and nurses, as a U.S.-based volunteer organization dispatched a doctor and several nurses to assist Marshallese medical professionals six months after the outbreak began. Giff Johnson, Marshalls Gets US Medical Team Support with Dengue Treatment, Radio N.Z. (Feb. 3, 2020), https://www.rnz.co.nz/international/pacific-news/408749/marshalls-gets-us-medical-team-support-with-dengue-treatment. Hansen’s disease, more commonly known as leprosy, is still diagnosed with regularity. Riklon et al., supra note 159, at 7. The rate of active tuberculosis in the Marshall Islands is one in every two hundred persons. Yamada et al., supra note 159, at 57.

160 Between 2007–2009, 82% of Marshallese deaths on Ebeye listed diabetes as a secondary or tertiary cause. Ichiho et al., supra note 158, at 78. Studies have found astronomical rates of diabetes among islanders who have migrated to the United States as well. One study of the Marshallese community in Arkansas found that 46.5% of Marshallese people living in Arkansas have diabetes, and 21.4% have pre-diabetes. A study in Hawai’i found that 44.2% of Marshallese adults in Hawai’i have type 2 diabetes. Pearl Anna McElfish, et al., Family Model of Diabetes Education with a Pacific Islander Community, Diabetes Educ., Dec. 2015, at 706, 707. As Dr. McElfish, co-director of the Center for Pacific Islander Health at the University of Arkansas for Medical Sciences Northwest Regional Campus, explained, “Do we know that nuclear testing affected diabetes? One-hundred percent . . . . It disrupted a healthy food system, and it created a subsidized and unhealthy food system. That unhealthy food system perpetuated diabetes and hypertension and other cardiovascular and metabolic diseases, no question.” Her team is currently exploring whether or not the nuclear fallout has had this impact at a genetic level. Gaby Galvin, From the Islands to the Ozarks, U.S. News & World Rep. (Mar. 6, 2019), https://www.usnews.com/news/healthiest-communities/articles/2019-03-06/marshall-islands-migrants-face-health-challenges-in-arkansas. One doctor who works with Marshallese people in Iowa estimated that nearly 80% of the clinic’s Marshallese patients have kidney disease. These diet-related diseases are in addition to the rashes, birth defects, and high cancer rates that also afflict the Marshallese at high rates. Dan Diamond, ‘They Did Not Realize We Are Human Beings,’ Politico (Jan. 26, 2020), https://www.politico.com/news/magazine/2020/01/26/marshall-islands-iowa-medicaid-103940.

161 Ichiho et al., supra note 158, at 78.

162 Yamada et al., supra note 159, at 59.

163 Ichiho et al., supra note 158, at 78.

164 Dvorak, supra note 2, at 177–78. This involuntary shift in diet has since taken root in Marshallese culture, with dire consequences for the health of Marshallese people, including those who have immigrated to the United States. Kenneth Brower, The Atolls of Arkansas: Doomed by Climate Change, Marshall Islanders Find a New Home in Springdale, Sierra Club (Dec. 27, 2018), https://www.sierraclub.org/sierra/2019-1-january-february/feature/atolls-arkansas-marshall-islands-marshallese (“[T]he canned stuff becomes seen as traditional food. Rice and Spam are now seen as cultural Marshallese foods.”).

165 Given the space constraints on Ebeye and the toxic pollution of the lagoon, it is unsurprising that only 10% of Ebeye households rely on local sources of protein and 9% rely on locally grown fruits and vegetables, while the rest rely on food imported from abroad. Ichiho et al., supra note 158, at 78.

166 Id. While it might seem logical that Ebeye’s close proximity and access to U.S.-occupied Kwajalein would be the main driver in continuing to fuel the health issues that accompany a western diet, it is actually the lack of access to Kwajalein that exacerbates these nutrition issues for people living on Ebeye. Americans living on Kwajalein have access to fresh fruits and vegetables that are flown in regularly from California and Hawai’i. Welcome to Kwajalein Atoll, supra note 147. However, the Marshallese who work on Kwajalein are not allowed to shop at the island’s grocery store and are limited to certain dining establishments on the island. Hirshberg, supra note 137, at 345. Because these goods are subsidized for the American families living on base, Marshallese workers are not allowed to remove any food items from the island, and anyone caught with ‘contraband,’ such as a bag of apples, is subject to investigation, impoundment of the goods, and suspension or permanent expulsion from the island. Either of the latter would effectively terminate a Marshallese person’s employability on the island. Id. Kwajalein has a security checkpoint that all workers must pass through as they enter and leave the island, which is primarily meant to deter any workers from bringing purchased goods off the island. Id. For the same reason, Marshallese workers are frequently subject to searches by military personnel and security contractors looking to catch ‘contraband.’ Id. These searches were the subject of a 1981 lawsuit, which Kwajalein landowners filed against the Secretary of the Army. The Court held that the Army had the power to carry out such a search and seizure policy, citing security concerns, even though these searches were conducted solely to inhibit Marshallese from bringing goods that they purchased or received as gifts home to Ebeye.” Johnson, supra note 159, at 23. The stores on Ebeye are financially unable to offer the same tax-free, subsidized food to their customers that the stores on Kwajalein do; furthermore, their customers cannot afford to buy imported produce at Ebeye’s high, unsubsidized prices. Protection of fair competition for businesses on Ebeye is often cited as the reason for these shopping restrictions. See Layton, supra note 134, at 5. The median household income on Ebeye is only $17,321, which is significantly lower than the average income of Americans on Kwajalein. Id. Consequently, the people of Ebeye rely on cheaper alternatives, including white rice, canned meat, and canned fish, resulting in the aforementioned “alarming increase in the prevalence of diabetes.” Ichiho et al., supra note 158, at 78. In this way, though the pollution of the lagoon affects both the Marshallese living on Ebeye and the Americans living on Kwajalein, the health impact on the Marshallese community is astronomically higher due to overcrowding and poor sanitary conditions on Ebeye, as well as to disparate access to affordable healthy alternatives to toxic fish.

167 Yamada et al., supra note 159, at 62. The authors of the study also point to evolutionary geneticist Richard Lewontin’s assertion that “[a]lthough one may say that the tubercle bacillus causes tuberculosis, we are much closer to the truth when we say that it was the conditions of unregulated nineteenth-century competitive capitalism, unmodulated by the demands of labor unions and the state, that was the cause of tuberculosis” as shedding light on the social, non-biological causes of the tuberculosis crisis in the Marshall Islands. Id. (citing Richard Lewontin, Biology as Ideology: The Doctrine of DNA (1992)). Though exposure to the bacillus is certainly required for transmission, Lewontin and the authors of the study citing him suggest that the epidemic results from different forces. In the case of tuberculosis on Ebeye, the authors suggest that it is well within the capacity of the U.S. Department of Defense and its contractors to coordinate the logistics of bringing in mobile units and healthcare teams to Ebeye to address the tuberculosis epidemic: they simply choose not to do so. Id. at 63. The authors also highlight practical considerations that should drive the United States to act against this particular epidemic, including a desire to protect the Americans living on Kwajalein and a necessity to prevent Marshallese people—who do not need to pass a TB screening test in order to enter the United States—from causing TB crises in the United States. Id.

168 Beyond the disparity in health impact, there is also gross inequality in access to healthcare with respect to Ebeye and Kwajalein. The healthcare system on Ebeye is often too overwhelmed by the sheer number of patients requiring care to be able to function properly. Ctr. for Nation Reconstruction and Capacity Dev., supra note 134, at 18. The hospitals in the Marshall Islands—both on Ebeye and on Majuro, RMI’s capital—struggle to meet the healthcare demands in emergencies, which recent emergency weather and health crises exemplify. Susanne Rust, Huge Waves and Disease Turn Marshall Islands into ‘a War Zone,’ Health Official Says, L.A. Times (Dec. 5, 2019), https://www.latimes.com/environment/story/2019-12-05/marshall-islands-waves-flooding-disease-war-zone. In early December 2019, as massive waves flooded the islands, the country was dealing with over 1,000 cases of dengue fever—the nation’s largest recorded outbreak—and a “severely virulent form of influenza-A.” Jack Niedenthal, the nation’s secretary of health, described the country as “a war zone,” as the hospitals were completely overrun. Id. Even though the hospital on Ebeye is in severe disrepair, Marshallese people cannot access the hospital on Kwajalein, except for in acute emergencies, when they are still not guaranteed access. Justina R. Langidrik et al., Republic of the Marshall Islands Assessment for a Continuing Health Care Professional Development Program, 14 Developing Hum. Res. For Health Pac. 81, 82 (2007). Ebeye patients who require further care for their conditions are generally referred to hospitals in Honolulu or the Philippines for care, which carries hefty costs, especially considering that Micronesians were ineligible for Medicaid until December 2020. Ichiho et al., supra note 158, at 79; see also Anita Hofschneider, How Decades of Advocacy Helped Restore Medicaid Access To Micronesian Migrants, Honolulu Civil Beat (Dec. 23, 2020), https://www.civilbeat.org/2020/12/how-decades-of-advocacy-helped-restore-medicaid-access-to-micronesian-migrants/ (explaining the 2020 restoration of Medicaid to Compact migrants). In this way, the United States is not only the cause of many of the health crises the people of Ebeye face, but the U.S. Army also refuses to provide access to a potential remedy in the form of medical care available on Kwajalein.

169 U.N. Charter art. 76, ¶ a.

170 Though this is not a primary focus of this article, it is worth noting that throughout the Marshall Islands, but especially on Ebeye, the educational opportunities during the Trust Territory era were far from adequate. The Solomon Report, a secret U.S. government report that was uncovered and published by the Friends of Micronesia, the Micronesian Independent, and Tia Belau in 1971, showed that the United States viewed the Marshallese as undeserving of the basic right to education and saw education as a potentially destabilizing force in the region: “Modern education, particularly secondary education, will create a demoralizing unemployment problem as graduates refuse to return to their primitive outlying lands to the extent that they are not aided to continue on the [sic] college.” Friends of Micr. et al., The Solomon Report: America’s Ruthless Blueprint for the Assimilation of Micronesia 17 (1971) [hereinafter Solomon Report]. Elementary schools on Ebeye only had capacity to serve one-third of the eligible Marshallese students. Smith-Norris, supra note 13, at 117. This changed slightly in the 1970s and early 1980s, when the United States saw the primary education system as an opportunity to propagate the message of U.S. benevolence in advance of the Marshallese people deciding whether or not to maintain an ongoing relationship with the U.S. Solomon Report supra note 170, at 15. While American students on Kwajalein had access to education from kindergarten through twelfth grade, there was only one secondary school in the entire Marshall Islands throughout the Trust Territory administration. It was located in Majuro, which was a flight away from Ebeye. Smith-Norris, supra note 13, at 117. The United States’ failure to promote education created lasting effects still felt today—the high school on Ebeye still struggles to provide adequate education to a large number of students, while the high school on Kwajalein boasts small class sizes and regular admissions to elite U.S. universities.

171 U.N. Charter art. 76, ¶ b.

172 U.N. Charter art. 76, ¶ c. Even if the nuclear and missile testing itself did not violate the United States’ Trust obligation to pursue international peace, see infra II.B, its forcible displacement of thousands of Marshallese people in order to accommodate its these programs certainly violated its obligation to “encourage respect for human rights and for fundamental freedoms for all.”

173 Trusteeship Agreement for the Former Japanese Mandate Islands, art. 6, adopted Apr. 2, 1947, T.I.A.S. No. 1665, 8 U.N.T.S. 190, 192 (entered into force July 18, 1947) [hereinafter Trusteeship Agreement].

174 While it may be argued that these objectives are not intended to be binding because they do not carry the same framing of ‘obligations’ as articulated in Chapter XI of the U.N. Charter, it should be understood that these objectives do in fact imply binding obligations in relation to the administering authorities of the Trust Territories. Hans Kelsen, The Law of the United Nations: A Critical Analysis of Its Fundamental Problems 636 (2000). In fact, because the U.N. Trusteeship Council and Security Council were not to approve any trusteeship agreements that did not conform with the objectives outline in Article 76, and because the United States included these obligations in its Trusteeship Agreement for the Former Japanese Mandate Islands (the agreement governing the Trust Territory of the Pacific Islands), these “objectives” should certainly be understood as binding obligations with respect to the United States’ administration of the Trust Territory. Id.; see also W. Michael Reisman, Reflections on State Responsibility for Violations of Explicit Protectorate, Mandate, and Trusteeship Obligations, 10 Mich. J. Int’l. L. 231, 237 (1989) (citing the U.N. Trusteeship System as one of few instances in international law where certain states are recognized as subordinate to other states and describing the objectives set out in Article 76 of the U.N. Charter as “special obligations” imposed upon the states who exercise authority over the subordinate territories).

175 Trusteeship Agreement, supra note 173, at 192 (“The Administering Authority . . . shall act in accordance with the Charter of the United Nations, and the provisions of this agreement, and shall, as specified . . . apply the objectives of the International Trusteeship System . . . .”).

176 The United States was obligated to “promote the political, economic, social, and educational advancement of the inhabitants of the trust territories” with the goal of their “progressive development towards self-government or independence.” U.N. Charter art. 76, ¶ b.

177 Trusteeship Agreement, supra note 173, at 192. Though it is not a central argument of this article, the United States also failed to fulfill its obligation to improve transportation and the means of transportation (required by art. 6(1) of the Trusteeship Agreement). Under Japanese rule Ebeye and Kwajalein were linked to power stations and Marshallese living on the islets near Ebeye and Kwajalein also benefitted from electricity and telecommunications lines connecting them to the central stations; these connections fell apart under U.S. control and the United States made no effort to ensure that Ebeye was connected to its power grid or telephone lines. Dvorak, supra note 2, at 173. This lack of telecommunications infrastructure is one of the many long-lasting impacts of the United States’ miscarriage of its Trust Territory obligations. As of 2018, only 10% of the Marshall Islands’ population had internet connectivity, and that 10% largely lives in Majuro—the capital. Bureau of Democracy, Hum. Rts. and Lab., U.S. Dep’t of State, Marshall Islands 2018 Human Rights Report 5 (2018).

178 In addition to the various outbreaks of infectious disease and lack of adequate health infrastructure, U.S. administration of the Marshall Islands would lay the groundwork for what has continued to be a non-communicable disease epidemic in the Marshall Islands. As previously discussed, because much of the lagoon and many of the islands are still either off-limits or contaminated, imported goods such as canned meat and canned fish constitute the majority of most Marshallese people’s diets, and because water quality is poor and water supply unreliable, many turn to soda as a safer alternative. Sasha Davis, The Empires’ Edge: Militarization, Resistance, and Transcending Hegemony in the Pacific 40–41 (2014). Food prices on the island are disproportionately high relative to the subsidized prices on Kwajalein and all of the food is imported because the United States’ presence and oversight created overcrowding, land displacement, and toxic contamination, which destroyed local sources of food and led to the high prevalence obesity and non-communicable diseases. Smith-Norris, supra note 13, at 117.

179 Trusteeship Agreement, supra note 173, at 192. Electricity, sanitation, and water systems—all of which the United States was responsible for constructing pursuant to its Trust obligations—were increasingly inadequate to meet the needs of the population. Id. Though the United States was required to “protect the rights . . . of all elements of the population without discrimination,” Marshallese people lacked access to adequate healthcare. One of the U.N. visiting missions tasked with investigating U.S. administration of the Trust Territory found the hospital on Ebeye to be “manifestly inadequate,” Smith-Norris, supra note 13, at 111, while a Pacific Daily News article called Ebeye at “biological time bomb.” Id. at 117. In 1975, the chief of the Communicable Disease Control Division for the Trust Territory arrived on Ebeye to address an influenza outbreak that had affected 3,500 of Ebeye’s residents and found what he called “deplorable sanitary conditions.” Id. at 115. He reported overflowing dumpsters, out-of-control rat and fly populations, raw sewage being dumped directly into the lagoon, water from the [Ebeye] hospital’s roof leaking into surgical rooms, and drinking water that contained high levels of fecal coliform contamination.” Id. at 115–16. In spite of these shocking conditions at the hospital on Ebeye, the U.S. military did not allow the Marshallese to use the clean, well-staffed, and well-resourced hospital on Kwajalein. Justina R. Langidrik et al., supra note 168, at 82. The poor conditions at the hospital on Ebeye, rooted in the mismanagement of the Trust Territory government, have persisted and continue to stand in stark contrast to the conditions of the hospital on Kwajalein. Ctr. for Nation Reconstruction & Capacity Dev., supra note 134, at 21 (explaining how the hospital in Ebeye has an insect problem, limited staff, and a lack of resources that the hospital on Kwajalein has, including emergency supplies and oxygen tanks).

180 U.N. Charter art. 83 (“All functions of the United Nations relating to strategic areas, including the approval of the terms of the trusteeship agreements and of their alteration or amendment shall be exercised by the Security Council.”); Harry G. Prince, The United States, The United Nations, and Micronesia: Questions of Procedure, Substance, and Faith, 11 Mich. J. Int’l L. 11, 23 (1989) (“[D]espite the undeniable primacy accorded to its security concerns, the United States ultimately made a binding commitment to make the advancement of the Micronesian peoples the basic or paramount objective in the administration of the Trust Territory.”).

181 See Kimi Hara, Cold War Frontiers in the Asia-Pacific: Divided Territories in the San Francisco System 103 (2007).

182 Trusteeship Agreement, supra note 173, art. 5.

183 U.N. Charter art. 83, ¶ 2 (“The basic objectives set forth in Article 76 shall be applicable to the people of each strategic area.”).

184 An Overview of the Compact of Free Association Between the United States and the Republic of the Marshall Islands: Are Changes Needed?: Hearing Before the Subcomm. on Asia, the Pac., and the Glob. Env’t of the H. Comm. on Foreign Affs., 110^th Cong. 1 (2007) (statement of Rep. Faleomavaega, Chairman, Subcomm. on Asia, the Pac., and the Glob. Env’t).

185 Treaty on the Non-Proliferation of Nuclear Weapons, Preamble, opened for signature July 1, 1968, 21 U.S.T. 483, 729 U.N.T.S. 169, 169 (entered into force Mar. 5, 1970) (“[c]onsidering the devastation that would be visited upon all mankind by a nuclear war and the consequent need to make every effort to avert the danger of such a war and to take measures to safeguard the security of peoples”). This language suggests that the U.S. nuclear testing program should not be interpreted as deterring violence but instead as increasing the probability of war. Id. (“[b]elieving that the proliferation of nuclear weapons would seriously enhance the danger of nuclear war”).

186 See, e.g., id. art. III(1) (“with a view to preventing diversion of nuclear energy from peaceful uses to nuclear weapons or other nuclear explosive devices”).

187 Smith-Norris, supra note 13, at 105–06 (explaining that U.S. missile testing was a direct response to the USSR’s—and eventually China’s—technological developments in weaponry); Owen Wilkes, Megan Van Frank & Peter Hayes, Chasing Gravity’s Rainbow: Kwajalein and US Ballistic Missile Testing 53, 167–68 (1991) (explaining the use of Kwajalein for Cold War posturing and technological showmanship).

188 Smith-Norris, supra note 13, at 21.

189 Smith-Norris, supra note 13, at 21.

190 Id.

191 In a submission to the Congress of Micronesia, the Marshallese stated, “the value of testing missiles to the maintenance of peace and security is . . . a questionable matter. We believe in peace and love, not in the display of power to destroy mankind.” A Petition from the People of the Mid-Corridor Islands, Kwajalein Atoll, introduced in the House of Representatives of the Congress of Micronesia by Representative Atland Anien on Aug. 2, 1968 and by Senator Amata Kabua in the Senate of the Congress of Micronesia on Aug. 3 1968, 91st Cong. Sess. 1 (Aug. 4, 1969).

192 Trusteeship Agreement, supra note 173, art. 6(3). There was no set timeline for this obligation, but the United States—which actively undermined the process of realizing the right to self-determination in the Marshall Islands—was nonetheless in clear violation of this Trust obligation.

193 Timothy Gaffaney, Linking Colonization and Decolonization: The Case of Micronesia, Pac. Stud., June 1995, at 23, 49–50; Kimie Hara, Micronesia and the Postwar Remaking of the Asia Pacific: “An American Lake”, 5 Asia-Pac. J., No. 8, 2007, at 1, 20 (“The major factor inducing this change in US policy [to begin planning for the future political status of the TTPI] was the independence movement of various UN trust territories that was developing then.”). The 1961 Visiting Mission to Micronesia, the first such mission to devote detailed attention to Micronesia, was “sharply critical of American administration,” highlighting issues with “poor transportation; failure to settle war damage claims; failure to adequately compensated for land taken for military purposes; poor living conditions at the American missile range in the Marshalls; inadequate economic development; inadequate education programs; and almost nonexistent medical care.” Donald McHenry, Micronesia-Trust Betrayed 23 (1975). The U.S. Government and military also received criticism at home in The New Yorker and the Saturday Evening Post. Id. at 24.

194 Immerwahr, supra note 26, at 230.

195 Id.

196 Lizabeth A. McKibben, The Political Relationship Between the United States and Pacific Island Entities: The Path to Self-Government in the Northern Mariana Islands, Palau, and Guam, 31 Harv. Int’l. L.J. 257, 258 (1990); see also Solomon Report, supra note 170, at 2 (“We cannot give the area up, yet time is running out for the US in . . . that we will soon be the only nation left administering a trust territory. The time could come, and shortly, when the pressure in the UN . . . could become more than embarrassing.”).

197 The first period of U.S. administration of the region—from the late 1940s to the early 1960s—consisted of effectively no economic or social development efforts on the part of the military overseers, as has been explained at length throughout Part I and in the preceding paragraphs. E. Robert Statham, Jr., Colonial Constitutionalism: The Tyranny of the United States’ Offshore Territorial Policy and Relations 130 (2002); see also Solomon Report, supra note 170, at 1 (“In the almost twenty years of US control, physical facilities have further deteriorated in many areas, the economy has remained relatively dormant and in many ways retrogressed while progress toward social development has been slow.”). In fact, per capita Micronesian incomes were three times as high under Japanese control than they were when the Solomon Report was published. Id at 7. The United States argued that this lack of U.S. economic investment was intended to protect the Marshallese people from Western influence, but the reality was that the military administrators had no economic development plan and instead focused on their strategic interests in the islands. Carl Heine, Micronesia at the Crossroads: A Reappraisal of the Micronesian Political Dilemma 21 (1974).

198 Statham, supra note 197, at 131.

199 Id.

200 Id.

201 “We cannot give the area up, yet time is running out for the [United States] in the sense that we will soon be the only nation left administering a trust territory. The time could come, and shortly, when the pressures in the U.N. for a settlement of the status of Micronesia could become more than embarrassing.” Solomon Report, supra note 170, at 2.

202 Statham, supra note 197, at 131.

203 The Solomon Report illustrated this purposeful economic regression. Solomon Report, supra note 170, at 2. One of the memoranda highlighted in the report called for an “accelerated development of the area to bring its political, economic and social standards into line with an eventual permanent association [between the United States and the Trust Territories].” Id. at 2. That same memorandum recommended that the United States move forward with the “minimum capital investment and operating program needed to insure a favorable vote in the plebiscite” and give the Micronesians “a sense of progress to replace the deadly feeling of economic dormancy.” Id. at 7.

204 Solomon Report, supra note 170, at 4.

205 The Solomon Report also highlighted other elements of the Micronesian problem that would require agreement between Congress and the President in order to address. The first issue the report highlighted in this regard was that the United States, in moving counter to the anti-colonial movement with which the rest of the international community was engaged, would also be “breaching its own policy since World War I of not acquiring new territorial possession if it seeks to make Micronesia a US territory.” Solomon Report, supra note 170, at 4. The second consideration was that the Trust Territory of Micronesia would be the only one of the eleven trust territories that would not conclude with either independence or integration into a contiguous country; it would be the only trust territory that would be taken over by its administrator. Id. The third consideration was that the Security Council would be overseeing and approving the termination of the Trusteeship, which meant that “the US might have to decide to proceed with a series of actions that would make the Trusteeship Agreement a dead issue, at least from the Micronesian viewpoint.” Id.

206 The United States saw this influx in spending as necessary to ensure a favorable plebiscite result amid growing discontentment with U.S. administration of the territory. Solomon Report, supra note 170, at 7 (calling for the “minimum capital investment and operating program needed to insure a favorable vote in the plebiscite” (emphasis added)). However, the U.S. government’s investments were only intended to “replace the deadly feeling of economic dormancy,” not to promote actual or sustainable economic growth. Id. In fact, the U.S. government knew these capital investments would foster economic dependence on the United States that would last far beyond the plebiscite. As the Solomon Report indicates, U.S. officials knew the Micronesian islands “will remain now in the foreseeable future, a deficit area to be subsidized by the U.S.” Id. at 4. Even after the Marshall Islands attained political independence, international aid interventions have further entrenched this state of economic dependency, which renders the Marshallese economically unable to undertake important infrastructure improvement projects—such as climate adaptation measures—without heavy reliance on outside aid. Bordner et al., supra note 131, at 61.

207 Concerning the Compact negotiations in the Marshall Islands, one Marshallese negotiator said the following:

The problem is not whether it was a good deal or not but that it was a sine quo non of the Compact. The US basically said: “if you don’t accept this deal, and expunge us [of past wrongs, including the nuclear testing program], then there will be no Compact, no termination of trusteeship, and you will be a trust territory forever.” At that time, RMI negotiators conceded because our elders at the time desired an end to the trusteeship.

Aguon, supra note 14, at 33. There were also reports that the United States was fixing the negotiations by paying some Micronesians for information, while the CIA recruited others to undermine the negotiation efforts of their fellow islanders. Bob Woodward, CIA Bugging Micronesia Negotiations, The Washington Post, Dec. 12, 1976; see also Associated Press, Micronesia Aide Bids Ford Halt C.I.A.’s Surveillance, The New York Times, Dec. 15, 1976, https://www.nytimes.com/1976/12/15/archives/micronesia-aide-bids-ford-halt-cias-surveillance.html; Dirk Anthony Ballendorf, The New Freely-Associated States of Micronesia: Their Natural and Social Environmental Challenges, 16 GeoJournal, Mar. 1988, 137, 140 (discussing the establishment of a CIA training base in Saipan—part of the Trust Territory of the Pacific Islands).

208 United Nations Trusteeship Council, Report of the United Nations visiting Mission to Observe the Referendum in the Marshall Islands Trust Territory of the Pacific Islands, March 1979, 4 (1979). This came after several years of calls from the Nitijela—the Marshallese parliament—to begin the process of Marshallese independence from the U.S.

209 Masahiro, supra note 3, at 170. When the U.S. brought this draft compact before the Security Council for approval, it was approved by three votes to one. Id. at 218. The U.S., the United Kingdom, and France supported the Resolution, finding that the Micronesians had exercised their right to self-determination as enshrined in GA Res. 2625 (XXV) (“The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people.”) and GA Res. 1541(XV) (“A Non-Self-Governing Territory can be said to have reached a full measure of self-government by: (b) Free association with an independent State.”). Id. Meanwhile, the USSR argued that the plebiscites were carried out under conditions of direct pressure exerted by the U.S. Administering Authority and should not be viewed as genuine self-determination or free expression of the Micronesian peoples’ choice in accordance with the UN Charter and GA Res. 1514(XV). Id. The USSR’s representative to the Security Council called the agreed new status of the islands “a fictitious governmental status in the form of so-called free association and cooperation, a status that is, in essence, nothing but a new form of colonialism.” Id. The USSR had expressed similar dissatisfaction with the Northern Mariana Islands’ adoption of commonwealth status—a criticism that was also articulated by some members of U.S. Congress: “In essence, the people the Marianas were being asked to choose between commonwealth status, with some of the benefits of US citizenship, and continued trusteeship, with none of the rights of free citizens.” Id. (citing 121 Cong. Rec. 10796 (daily ed. June 17, 1975)).

210 Id.

211 Compact of Free Association, supra note 15, Title II, § 177 (“The Government of the United States accepts the responsibility for compensation owing to citizens of the Marshall Islands for loss or damage to property and person resulting 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.”).

212 Agreements with and other provisions related to the Marshall Islands, 48 U.S.C. §1903(f).

213 48 U.S.C. §1903(g)(“the provisions of section 177 of the Compact of Free Association and 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 constitute a full and final settlement of all claims described in Articles X and XI of the Section 177 Agreement, and that any such claims be terminated and barred except insofar as provided for in the Section 177 Agreement.

214 See People of Enewetak, Rongelap, and Other Marshall Islands Atolls v. U.S., 864 F.2d 134 (Fed. Cir. 1988) (upholding dismissal of takings claim arising from nuclear testing on the grounds that the Compact withdrew the Claims Court’s jurisdiction); Juda v. U.S. 13 Cl.Ct. 667 (Fed. Cl. 1987) (holding that the Compact implicitly withdrew the U.S.’ consent to be sued in Claims Court on Bikinian plaintiffs’ takings and breach of contract claims arising from the U.S.’ nuclear testing program).

215 People of Bikini v. U.S., 77 Fed.Cl. 744 (Fed. Cl. 2007 (holding that the court’s lack of jurisdiction and the political question doctrine precluded the court’s review of plaintiffs’ claims arising from U.S. nuclear testing on Bikini Atoll), aff’d 554 F.3d 996 (Fed. Cir.2009); John v. U.S., 77 Fed. Cl. 788 (Fed. Cl. 2007)(dismissing claims of the people of Enewetak Atoll on the same grounds), aff’d People of Bikini v. U.S., 554 F.3d 996 (Fed. Cir. 2009).

216 Antolok v. U.S., 873 F2d 369, 374 (App. D.C. 1989) (finding that Section 177 of the Compact withdrew the jurisdiction of the federal courts over claims arising from the U.S. nuclear testing program in the Marshall Islands and that such claims could not be brought under the Federal Tort Claims Act).

217 Mitchell, supra note 7, at 52.

218 Id.

219 Beverly Ann Deepe Keever, News Zero: The New York Times and the Bomb 107 (2004).

220 Id.

221 Id.

222 Id.

223 Id. at 106.

224 Id. at 107.

225 Mitchell, supra note 7, at 52.

226 Id.

227 Amicus Curiae Brief Opposing Set-off of Lost-use Damages, NCT No. 23-06103; Claims for Compensation on Behalf of the People of Likiep Atoll, NCT No. 23-06980-B.

228 Maitê de Souza Schmitz, Decision of the International Court of Justice in the Nuclear Arms Race Case, Harvard Int’l L. J. (2016), https://harvardilj.org/2016/11/decision-of-the-international-court-of-justice-in-the-nuclear-arms-race-case/.

229 Republic of the Marshall Islands v. United States, 865 F.3d 1187 (9th Cir. 2017).

230 See Compact of Free Association, Military Use and Operating Rights, U.S.-Marsh. Is., art. IV, Apr. 30, 2003 T.I.A.S. 04-501 [hereinafter MUORA].

231 42 U.S.C. § 9620 (2018); see also ARC Ecology v. U.S. Dept. of Air Force, 411 F.3d 1092, 1098 (9th Cir. 2005) (holding that even if CERCLA could be interpreted as applying to geographic areas such as foreign military bases, such an interpretation would still not provide a cause of action under CERCLA for foreign nationals). In the past, the Marshall Islands has argued that the Energy Policy Act of 1992 mandates that the United States use Superfund money to clean up PCB contamination. See Energy Policy Act of 1992, 102 P.L. 486 §2704, 106 Stat. 2776, 3120 (1992) – PCB Cleanup in Marshall Islands and Federated States of Micronesia (“The programs and services of the Environmental Protection Agency regarding PCB's shall, to the extent applicable, as appropriate, and in accordance with applicable law, be construed to be made available to such islands.”). However, the United States generally treats the remediation of PCB sites in the Marshall Islands as acts of benevolence rather than acts pursuant to legal obligation. Lee, supra note 152, at 399, 409, 422. In the United States, PCBs are regulated by the EPA in accordance with the Toxic Substances Control Act (TSCA). 15 U.S.C. 2605 § 6(a). PCBs are also considered toxic pollutants under the Clean Water Act. 33 U.S.C. 1317(a). While the Compact calls for the United States to comply with standards “substantially similar” to those required by TSCA, TSCA itself does not apply extraterritorially. Compact of Free Association, supra note 15, Title One, Article VI, § 61(a)(3). On Kwajalein, the military and its contractors are bound to follow a Hazardous Materials Management Plan, which is incorporated into the Kwajalein Environmental Emergency Plan. Dep’t of the Army, Final Environmental Assessment/Overseas Environmental Assessment for Flight Experiment 1, 3–79 (2017), https://apps.dtic.mil/dtic/tr/fulltext/u2/1049542.pdf.

232 The USAKA Environmental Standards, sometimes called the UES, undergo a consultation and revision process every two years, the most recent of which was signed into effect in January 2021. Kwajalein Clean Deal Renewed, Marshall Islands Journal 15 (Jan. 22, 2021).

233 See Envtl. Standards, supra note 151, at 17; see also Lee, supra note 152, at 427 (1998) (suggesting that it is, at best, unclear whether CERCLA could apply to the former Trust Territories for PCB contamination that occurred when the United States exercised jurisdiction over the islands).

234 Envtl. Standards, supra note 151, at 3–4; see also Environmental Defense Fund, Inc. v. Massey, 986 F.2d 528, 532 (D.C. Cir. 1994) (“NEPA is designed to control the decisionmaking process of U.S. federal agencies, not the substance of agency decisions”). This means that NEPA’s application to activities on Kwajalein would dictate particular procedures—namely environmental assessments and environmental impact statements—and does not necessarily demand anything in the way of maintaining certain environmental standards, barring harmful action, or providing remedy for past damage.

235 These statutes include TSCA; RCRA; Marine Protection, Research, and Sanctuaries Act (MPRSA, Title I, which includes and is referred to as the “Ocean Dumping Act” (ODA)); CWA; Clean Air Act (CAA); and Endangered Species Act (ESA). Envtl. Standards, supra note 151, at 3–4. Though the United States is supposed to comply with comparable standards to those set forth by the aforementioned statutes, there is no enforcement mechanism or legal requirement that the United States actually comply with any particular set of standards. Id. Government agencies and contractors on Kwajalein must consider potential PCB contamination as part of every EIS; furthermore, all new uses of PCBs are prohibited, as is the introduction of new PCBs, PCB articles, or PCB items. Id. at 17. Hazardous wastes must be shipped off the island to an EPA-approved facility within 120 days after removal from service. Id. at 272.

236 In fact, the U.S. EPA has asserted that any past or future PCB remediation in the Marshall Islands is an act of goodwill from the United States and in no way constitutes a legal obligation. Lee, supra note 152, at 410, 422. Furthermore, the cleanup of PCB leakages has yet to have a meaningful impact on the presence of these toxic contaminants in the lagoon and fish population. Ongoing sources of PCBs and other toxic wastes on Kwajalein include power plants, vehicle maintenance areas, corrosion-prevention and painting operations (waste paint and solvents), dry cleaners, airfield operations, transformers, and pest management operations. Envtl. Standards, supra note 151, at 17. As the most recent study of existing PCB contamination found, in all reef areas studied, concentrations of common contaminants including PCBs in reef and bottom fish exceeded safe amounts set forth in the Environmental Standards. 2019 Update, supra note 152. Instead of ensuring adequate action to stop all PCB usage on the base, the primary measure the U.S. military has taken to safeguard Marshallese against harm from PCBs is to ban fishing in massive swaths of the lagoon around Ebeye and Kwajalein, as discussed in Part I.

237 MUORA, supra note 230, art. X(3) (“The Government of the United States shall have no obligation, so upon relinquishment, to restore defense sites to their former condition . . . .”).

238 MUORA, supra note 230, art. III.

239 Eric Baculinao et al., Why Is This Tiny Pacific Ocean Nation Getting VIP Treatment in Beijing?, NBC News (Dec. 16, 2019), https://www.nbcnews.com/news/world/why-tiny-pacific-ocean-nation-getting-vip-treatment-beijing-n1102546.

240 Id.; see also

241 Colin Packham & Jonathan Barrett, U.S. Seeks to renew Pacific Islands Security Pact to Foil China, Reuters (Aug. 5, 2019), https://www.reuters.com/article/us-micronesia-usa-pompeo/u-s-seeks-to-renew-pacific-islands-security-pact-to-foil-china-idUSKCN1UV0UV.

242 Colin Packham, Marshall Islands Head to Polls in Election Closely Watched by Washington, Reuters (Nov. 17, 2019), https://www.reuters.com/article/us-marshallislands-election/marshall-islands-heads-to-polls-in-election-closely-watched-by-washington-idUSKBN1XS0F9.

243 Christine Rovoi, Marshall Islands Condemns Chinese Coercion in the Pacific, Radio New Zealand (Oct. 23, 2020), https://www.rnz.co.nz/international/pacific-news/429016/marshall-islands-condemns-chinese-coercion-in-the-pacific (reporting that the Marshall Islands, one of only four Pacific nations with diplomatic ties to Taiwan, condemned China for an altercation that between Chinese officials and a Taiwanese diplomat at a Taiwan National Day celebration in Suva, Fiji).

244 Former U.S. Secretary of State Mike Pompeo was the first U.S. Secretary of State to visit Micronesia. Packham, supra note 241 (“I’m pleased to announce the United States has begun negotiations on extending our compacts…. they sustain democracy in the face of Chinese efforts to redraw the Pacific.”).

245 Barker, supra note 21, at 31.

246 Compact of Free Association, supra note 15, Title II, §§216–18.

247 Kabua Calls for Long Compact Extension, Marshall Islands Journal 2 (Jan. 8, 2021).

248 An Overview of the Compact of Free Association Between the United States and the Republic of the Marshall Islands: Are Changes Needed?, supra note 184, at 1.

249 Yamada et al., supra note 159, at 58.

250 Davis, supra note 178, at 42. The Kwajalein lease has remained a contentious issue throughout the different Compact iterations:

In May 2003, the U.S. and RMI governments initially agreed to a $12 million annual lease payment that would extend the lease until 2066 with an option for an additional twenty years after 2066. Dissatisfied landowners from Kwajalein stated that amount was too low and requested $18 million annually; they also asserted that the U.S. government needed to do more to improve the health economy, and education of Ebeye Island, where most Marshallese who work on the missile base reside. For eight years, the U.S. and Kwajalein leaders could not reach agreement, but in May 2011, the Kwajalein landowners capitulated and received $32 in back pay. A provision of the new agreement requires the U.S. government to give seven years’ notice if it plans to terminate the lease.

Barker, supra note 21, at 32–33.

251 Davis, supra note 178, at 42.

252 Mitchell, supra note 7, at 52.

253 It is important to note that the natural disasters and the climate crisis have already had a horrific impact on the Marshall Islands, and on Ebeye more specifically. Ninety-two percent of respondents in a recent survey of households in the Marshall Islands reported impacts of drought on their household, 47 percent of heatwaves, and 37 percent of king tides. See van der Geest, et al., Marshallese perspectives on migration in the context of climate change, International Organisation for Migration, 6 (July 2019), https://publications.iom.int/system/files/pdf/policy_brief_series_vol5_issue1.pdf. In 1991, tropical storm Zelda destroyed sixty percent of the houses on Ebeye leaving 6,000 Ebeye residents homeless. Id. at 33. In 2019, massive waves flood Majuro for weeks as a dengue epidemic that began on Ebeye simultaneously spread throughout the country. See Susanne Rust, Huge waves and disease turn Marshall Islands into ‘a war zone,’ health official says, Los Angeles Times, Dec. 5, 2019, https://www.latimes.com/environment/story/2019-12-05/marshall-islands-waves-flooding-disease-war-zone (“swells averaging more 15 feet spilled over the low-lying coral atoll, where the highest natural point is just 6 feet above sea level”).

254 In part due to climate change, some 30,000 Marshallese are already residing in the United States. Though the free migration provision has not been up for debate in the prior negotiation or the current negotiations of the Compact, some the Marshallese currently living in the United States are afraid they will lose their right to live and work in the United States through renegotiations or a Marshallese decision to walk away from the Compact altogether. Taibbi supra note 16 (explaining that approximately one third of the Marshallese population currently resides in the United States); Susanne Rust, They Came Here After the U.S. Irradiated Their Islands. Now They Face an Uncertain Future, L.A. Times (Dec. 31, 2019), https://www.latimes.com/world-nation/story/2019-12-31/marshall-islands-uncertain-future-us-marshallese-spokane (describing the uncertainty that Marshallese living in the United States feel with respect to their lawful residency status as negotiations between the United States and Marshall Islands progress).

255 For a more extensive list of recommendations regarding renegotiation of the Compact, see Erin Thomas & Shannon Marcoux, Compacts of Free Association (COFA) Balancing the Scales in Negotiations Between the United States and the Federated States of Micronesia (FSM) and the Republic of the Marshall Islands (RMI), ICAAD (October 2020).

256 National Defense Authorization Act for the Fiscal Year 2020, Pub. L. No. 116-92, §364 (2019).

257 See Autumn Bordner, Climate Migration & Self-Determination, 51 Colum. Hum. Rts. L. Rev. 183, 249–51 (2019).

258 28 U.S.C. §2509.

259 See Bordner, supra note 131, at 249–51.

260 See S. 342 (112th) Republic of the Marshall Islands Supplemental Nuclear Compensation Act of 2011, S. 342 (112th); Republic of the Marshall Islands Supplemental Nuclear Compensation Act of 2010, S. 2941 (111th); Republic of the Marshall Islands Supplemental Nuclear Compensation Act 2008. S. 1756 (110th).

261 Reporters, academics, and policymakers often point to Marshallese people’s out-migration to the United States as an opportunity to seek better healthcare and overall quality of life than is available anywhere in the Marshalls. See, e.g., Hawai’i Appleseed Ctr. for Law and Econ. Just., supra note 17, at 5 (“[F]amilies and individuals from these Pacific islands choose to come to the United States access health care, education and employment that are non-existent in their islands because of the legacy of U.S. militarization and weapons testing and decades of failed U.S. trusteeship and oversight.”); Shanna N McClain et al., Migration with Dignity: a Case Study on the Livelihood Transition of Marshallese to Springdale, Arkansas, 21 J. of Int’l Migration and Integration 847, 848 (“[M]any moved to the area with the expectation of higher paying jobs and improved access to education and health care.”); Susanne Rust, They Came Here After the U.S. Irradiated Their Islands. Now They Face an Uncertain Future, L.A. Times (Dec. 31, 2019), https://www.latimes.com/world-nation/story/2019-12-31/marshall-islands-uncertain-future-us-marshallese-spokane (on file with the Columbia Human Rights Law Review) (quoting a U.S.-based Marshallese minister describing the Marshallese living in Spokane as “justifiably worried” about the prospect of having the leave the U.S. if the migration provisions of the Compact are not renewed). However, Marshallese people living in the United States face their own set of issues when it comes to receiving affordable care. They pay taxes, but they are denied basic social services including Supplemental Nutrition Assistance Program (SNAP) benefits, Social Security, and other safety net programs designed to help refugees and immigrants. Id. Though these were once available to Compact residents, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) (President Clinton’s welfare reform law) now prohibits them from receiving these benefits. Id. Marshallese people living in the United States thus need to rely solely on the safety nets that their particular state can offer, with vastly different benefits available from state to state. Id. Marshallese people living in the United States were also ineligible for Medicaid until a Congress passed an amendment to PRWORA in December 2020. Hofschneider, supra note 168. In addition to inadequate access to social safety net programs, Marshallese migrants’ legal status makes them vulnerable to exploitation. See, e.g., Tracy Neal, Marshallese Make Adoption-plot Arrest, Ark. Democrat Gazette (Mar. 28, 2019), https://www.arkansasonline.com/news/2019/mar/28/marshallese-make-adoption-plot-arrest-2/ (describing an illegal adoption trafficking ring in Arkansas that targeted Marshallese expectant mothers in the United States and abroad); Mary Babic, Big Poultry Finds Workers in an Immigrant Community Known for its Culture of Forgiving, Oxfam (Nov. 18, 2015), https://www.oxfamamerica.org/explore/stories/big-poultry-finds-workers-in-an-immigrant-community-known-for-its-culture-of-forgiving/ (explaining that Marshallese working at Tyson Foods in Arkansas are exploited due to unfamiliarity with U.S. laws, workers’ rights, and cultural norms); Jack Healy, They Crossed an Ocean to Butcher Pigs. It Was No American Dream, N.Y. Times (Oct. 13, 2019), https://www.nytimes.com/2019/10/13/us/iowa-pork-micronesia-workers.html (describing how Compact residents had been trafficked to work at a pork processing plant in Iowa where they had their passports seized and could not afford flights home); Rebecca Stotzer, Univ. of Hawai’i at Mānoa Myron B. Thompson Sch. of Soc. Work, Research Brief: Bias Against Micronesians in Hawai’i (2019), http://www.hawaii.edu/sswork/wp-content/uploads/Research-Report-Stotzer-2019_3.pdf [https://perma.cc/URK3-3QVS] (finding that 1 in 4 Micronesian/Marshallese respondents had experienced discrimination at work because they are Micronesian, 1 in 10 reported experiencing discrimination in medical or social services settings, 1 in 13 experienced discrimination in public accommodation, and 1 in 20 had been the victim of a bias crime due to their Micronesian identity).

262 Marshallese people living in the United States were also ineligible for Medicaid until a Congress passed an amendment to PRWORA as provision in Congress’ 5,593-page spending package in December 2020. Hofschneider, supra note 168. Spearheaded by Democratic Senator Mazie Hirono of Hawai’i, the effort garnered bicameral, bipartisan support, including the following lawmakers: Sen. Brian Schatz (D-Haw.), Rep. Tony Cárdenas (D-Calif.), Rep. Adam Smith (D-Wash.), Rep. Eliot Engel (D-N.Y.), Rep. Steve Womack (R-Ark.), Rep. Cathy McMorris Rodgers (R-Wash.), Sen. Chuck Schumer (D-N.Y.), and Sen. Frank Pallone (D-N.J.), among others. Dan Diamond, How 100,000 Pacific Islanders Got Their Health Care Back, Politico (Jan. 1, 2021), https://www.politico.com/news/2021/01/01/marshall-islands-health-care-453215.

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Shannon Marcoux

Shannon Marcoux is a J.D. Candidate at Columbia Law School graduating in May 2021. She received a Bachelor of Arts in International Political Economy from Fordham University in 2016. Prior to law school, Shannon spent two years working at Xavier High School in the Federated States of Micronesia, where she taught students from across the Micronesian region, including from the Republic of the Marshall Islands.