Marshall Islands Nuclear Lawsuit Reopens Old Wounds

This U.S. Navy handout image shows Baker, the second of the two atomic bomb tests, in which a 63-kiloton warhead was exploded 90 feet under water as part of Operation Crossroads, conducted at Bikini Atoll in July 1946 to measure nuclear weapon effects on warships. U.S. Navy/Handout via Reuters

The Republic of the Marshall Islands, the tiny collection of Pacific Ocean atolls and a former nuclear testing ground for the United States, is taking on the U.S. and eight other nuclear-armed nations with a set of lawsuits, claiming that the countries have failed to move towards disarmament and a world without nuclear weapons.

But they aren’t seeking monetary compensation — millions of dollars, along with a series of medical programs and cleanup operations, have been provided by the U.S. since they detonated dozens of nuclear and atomic bombs over the islands. How helpful the money has been remains a controversial topic.

Instead, the David and Goliath lawsuit claims the U.S. and its nuclear counterparts has failed to comply with the 44-year-old Nuclear Non-Proliferation treaty, which seeks to eliminate the international cadre of nuclear weapons, and promote the peaceful use of nuclear power. Filed on April 24, 2014, it seeks peace and adopts the line: If not us, who? If not now, when?

The Marshall Islands lawsuit, which was filed in U.S. Federal Court in San Francisco and in the International Court of Justice, claims that the U.S. has failed its duties under Article VI of the Treaty as it continues to modernize its weapons with no prospect of disarmament and is failing to pursue good faith negotiations, as set out in the treaty.

“[The Republic of the Marshall Islands] is not seeking financial compensation at all in these lawsuits. Their legal teams are working pro bono,” Rick Wayman, director of programs at the Nuclear Age Peace Foundation, told Newsweek via email. “In these lawsuits, the RMI is seeking declaratory judgment of breach of nuclear disarmament obligations and an order that the nuclear-armed states initiate negotiations in good faith for an end to the nuclear arms race and to nuclear disarmament.”

On July 21, the U.S. filed a motion to dismiss the lawsuit, in which President Barack Obama is named, along with the Departments of Defence and Energy and their secretaries and the National Nuclear Security Administration. The U.S. argues that their reasons for breaching their obligations are “justifiable, and not subject to the court’s jurisdiction,” according to a statement from the Nuclear Age Peace Foundation. 

A spokesperson for the Justice Department told Newsweek that they couldn’t comment on ongoing litigation.

The Marshall Islands and Nuclear Testing: A Brief History

The U.S. detonated 67 bombs on the Marshall Islands between 1946 and 1962, when they were still a territory of the U.S., causing lasting cultural, environmental and biological damage to the Marshallese and their traditional way of life.

To justify nuclear testing, Christian parables were evoked. The military governor of the Marshall Islands, which today has a population of 70,000, said testing would, “with God’s blessing, result in kindness and and benefit of all mankind,” Charles Kerr wrote in Tok Blong Pasifik, a magazine of the Pacific People’s Partnership organization, excerpts of which were provided to Newsweek for review.

The largest test was the detonation of the 1954 Castle Bravo bomb, which, at 15 megatons, was 1,000 times more powerful that the bomb dropped on Hiroshima. It forced the evacuation of islanders from several atolls, including Rongelap and Utrik, Bill Graham, former public advocate under the Republic of the Marshall Islands Nuclear Claims Tribunal, told Newsweek.

“We’re talking a big firecracker,” Dr. Neal Palafox, professor at the John Burns School of Medicine at the University of Hawai’i at Mānoa, told Newsweek. Palafox worked in the Marshall Islands for a number of years, including his work for a Department of Energy special medical program for people on Rongelap and Utrik atolls, who were exposed to the enormous radiation levels of Castle Bravo.

“When you talk about the health issue, it’s very wide. And the usual discussion in most dialogues about it is, ‘Did it cause cancer? Did it cause genetic defects? Did it cause radiation burns and thyroid issues?’ Yes,” Palafox said. “I really believe that the bigger destruction is the cultural, environmental, emotional, that carry further and are bigger.”

If not now, then when?

While the lawsuit focuses on the failure of the nine nations — the U.S., U.K. Russia, China, France, Israel, India, Pakistan, and North Korea — to dismantle their arsenals and eliminate of nuclear weapons, the effects on the islands and Marshallese people are long-lasting and likely to continue for generations.

The reaction to the lawsuit from the countries targeted has been mixed, ranging from Israeli doubts over the legal standing of litigation to outright surprise from Russia. France, a nation that is party to the Nuclear Non-Proliferation treaty and has less than 300 warheads and no reserve arms, is making repeated assertions that it is actively working to reduce its arsenal.

It’s worth noting that Israel, Pakistan, India, and North Korea (although it used to be) are not covered by the Nuclear Non-Proliferation treaty but are bound by international law.

“The claim against Israel is different from the claim against the U.S. The claim against Israel is based on customary international law with regard to nuclear disarmament,” Laurie Ashton, lead counsel for the Marshall Islands, said.

The people of the Marshall Islands have been living with the consequences of nuclear testing for decades, including forced resettlement and uninhabitable land, so why file the lawsuit now? It’s a question that many, including the U.S., have asked.

Ashton says it’s a question of “if not now, when?” Even though Obama “gave some hopeful words” in a speech in Prague in 2009, in which he lamented America’s commitment to a world without nuclear weapons, Ashton points out that the U.S. have started new nuclear modernization plans. In 2014, there has been an 11.6 percent increase in funding for the U.S. nuclear stockpile over 2013, according to the Arms Control Association.

The U.S. continues to provide compensation to the islands, although questions swirl around the value of the money and the conditions of compensation. As part of the Compact of Free Association, an agreement between the Marshall Islands and the United States that went into effect in 1986, a $150 million compensation trust fund was agreed upon as the “‘full and final settlement’ of legal claims against the U.S. government.” A provision prohibited Marshall Islanders from “seeking future redress in U.S. courts” and required the dismissing of all current court cases, according to the U.S. embassy of the Marshall Islands.

The $150 million figure “was completely pulled out of the air. There was no actual basis for it,” Graham told Newsweek from the capital atoll of Majuro. By the time he retired in 2009, Graham said the settlement fund had been virtually exhausted and that while compensation could still be granted, paper awards instead of actual money was all there was left to give.

The U.S. government estimates that the total cost of compensation and assistance to the Marshall Islands is $531 million, including clean-up costs, according to a 2005 report by the Federation of American Scientists, while the U.S. government puts the amount awarded under the Marshall Islands Nuclear Claims Tribunal at $2 billion.

But what constitutes “real compensation” is a lingering question, Graham says. Only partial clean-up of certain atolls like Enewetak, where 43 atomic and nuclear bombs were detonated, mean that some islands remain off-limits. And the exhaustion of the $150 million Nuclear Claims Fund means that some people who have contracted cancers brought on or were directly caused by radiation will not be awarded any personal injury compensation, he says.

Again, the lawsuit doesn’t seek monetary compensation. But it shows the damage done by radioactive waste on a nation. Graham spoke of the feeling on the islands: some Islanders are “apathetic” because no additional compensation is available, while others are wary about what the lawsuit will do to the nation’s relationship with the U.S. The lawsuit shows that some are still angry at America.

“They maintain that this is damaging to the relationship the Marshall Islands has with the U.S. government, and possibly with other governments, including Israel, which has provided assistance to the Marshall Islands from time to time,” Graham said.

“We didn’t do this to annoy the United States and we certainly don’t want to jeopardize the relationship or damage the relationship in any way. This is more in the nature of a friend or a younger brother saying, ‘Hey, come on, do what’s right here’,” Graham said.

Cultural catastrophe

What the lawsuit can do, its advocates hope, is give voice and attention to a cultural catastrophe that nuclear testing wrought over the islands. In 2012, Calin Georgescu, then-United Nations special rapporteur on human rights and toxic waste, visited the islands. He reported that a solution to the nuclear legacy of the Marshall Islands still hadn’t been found and that dislocation of people from their islands meant that “many communities ‘feel like ‘nomads’ in their own country’.”

And while the immediate effects of radiation like skin burns, vomiting, and hair loss later morphed into a biological legacy of reproductive issues and cancers laying dormant for decades, Palafox says that the absence of wellness and well-being, lingering post-traumatic stress disorders and the cultural damage and contamination of the environment are equally important.

“One of the things about the indigenous culture of the Marshall Island is they are very land-tied. All your powers… are tied to how much land you have, your relationship to the people,” Palafox said. “What the nuclear testing did on several of the atolls is when you contaminate the land, and you move the people to ‘safer islands,’ the whole cultural structure changes.”

“It had a very big effect on how the traditions passed to the next generation,” Palafox said. Women Palafox worked with constantly expressed worry that genetic disorders would be passed down to their children. Many atolls, each with their unique purpose, whether it be a burial ground for chiefs or a habit for birds, remain uninhabitable. Cultural behaviors were altered tremendously, Palafox said.

The Marshall Islands have until August 21 to file a response to the U.S Motion to Dismiss and the U.S. is due to respond to that by September 8. A hearing is scheduled for Sept. 12.

“Moreover, the NPT itself is not a lightswitch to be turned on and off at convenience -- States must be held to full accountability for violations of the Treaty or in abusing withdrawal provisions -- a matter of concern for every nation, and the wider global community that defines us all,” Tony de Brum, foreign minister of the Marshall Islands, said at the United Nations in April.

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