The Nuclear Claims Tribunal

In the 80s, the inhabitants of the Marshall Islands began filing a series of lawsuits against the United States for damage caused as a result of the nuclear testing program. The lawsuits sought compensation for damages and involved the inhabitants of Enewetak and Bikini as well as other atolls and the northern islands affected by radioactive contamination. 

During this period there was an agreement that would be based on the bilateral relations between the United States and the Republic of the Marshall Islands, known as the Free Association Agreement which granted the new island state its sovereignty. The treaty was approved in a referendum in 1983 by 60% of the voters of the Marshall Islands and in 1986 by the US Congress. Under the framework of this treaty, it was agreed to include Section177 inwhich the United States recognised the contributions and sacrifices that the people of the Marshall Islands had made to the nuclear test program and accepted its responsibility to the citizens by compensating them for the loss and damage to property and the health of the people. 

Under Section 177, the United States undertook to provide the Marshall Islands with the sum of $150 million to create a trust fund that would guarantee payment of compensation and medical care. The agreement also established that this sum resolved all past, present and future claims that could be presented. This fund was distributed among the villages of Bikini, Enewetak, Rongelap and Utrik for medical treatment, radiological monitoring and payment of compensation. 

The agreement in Section 177 also set out the creation of a Nuclear Claims Tribunal with jurisdiction to "determine on past, present and future claims of the Government, citizens or inhabitants of the Marshall Islands relating in any way to the nuclear testing program"[1]. The Tribunal had to be independent of the legislative and executive powers of the Government of the Marshall Islands and was to be given the powers to enact orders, procedures and regulations, provide the necessary funds for the functioning of the tribunal and establish and authorise compensation payments charged to the Claims Fund. The Nuclear Claims Tribunal of the Marshall Islands began operating in 1988. 

From the moment it came into being, one of the objectives of the tribunal was to develop an adequate system to determine compensation for personal injuries. In this regard, a causal relationship had to be established between the nuclear testing program and the medical conditions of the claimants. The Tribunal conducted scientific radiological studies and sought expert medical advice. It also examined compensation models from other countries and, in particular, the United States. One of the models that it took into account was the so-called "Downwinders Law" that was approved by the United States Congress in 1990 to compensate US civilians affected by the nuclear tests carried out in the state of Nevada between 1951 and 1962. Although there were differences between the two cases, it seemed a reasonable starting point. 

In August 1991, the Tribunal began to implement its personal injury compensation program. 

With regard to compensation for damage to property, the Tribunal ruled that the most appropriate way to deal with these demands was through a series of "Class Actions", a legal procedure quite common in the US, a litigation process in which one of the parties is a group of people who are represented collectively by a member of this group. The question of compensation for damage to property was organised through four "Class Actions" or collective demands for the atolls of Enewetak, Bikini, Rongelap and Utrik. 

Claims for property damage were divided into different categories: the loss of private property; the cost of restoration, which included cleaning up of the radiation contamination; soil rehabilitation and resettlement costs; and indirect damage related to both the suffering caused by exile and the difficulties of the return. 

During the 90s, the Nuclear Claims Tribunal established a series of financial compensations for the various categories which amounted to hundreds of millions of dollars. On 13th April, 2000, for example, the Tribunal stipulated compensation of $ 324,949,311 for Enewetak's claimants and one year later, on 5th March, 2001, the Tribunal stipulated a compensation total of $ 561,315,500 for the plaintiffs of Bikini.

Despite these millions in compensation, the tribunal had no other funds than the 150 million trust fund which was clearly insufficient to meet with the compensation. Thus, in September 2000, the government of the Republic of the Marshall Islands sent a request for a "change of circumstances" to the United States Congress. The petition requested additional compensation of $ 3,000 million for personal injury, property damage and restoration costs, and monitoring.

The petition for a "change of circumstances" was covered by Article IX of Section 177 of the Compact of Free Association, which provided for a possible additional compensation in case of damage to property or persons occurring or discovered at a date after the agreement came into force. The petition argued that there was new and additional information subsequent to the enactment of the Treaty, such as new data that pointed to the greater extent of radioactive rain and that the latest radiation protection standards set out new safety scales. This new information appeared, therefore, to constitute a "change of circumstances".

One of the documents on which this petition was based was a 1973 report, declassified in the 90s during the Clinton administration, which indicated that the aftermath of the Bravo trial could possibly have affected 13 atolls, including Ailinginae, Kwajalein, Wotho and Wotje and that subsequent explosions could have affected some of the same areas.

In November 2004, a report was published by an inter-departmental group of the United States government formed by the Departments of State, Energy and Defense, which evaluated the legal and scientific basis of the petition. The report concluded that the request of the Marshall Islands could not be supported within the meaning of Article IX of the Treaty and that consequently there was no legal basis to consider additional payments. The report also stated that, according to the government estimates, the United States had spent, up to 2004, $ 531 million in compensation for nuclear testing and assistance to the Marshall Islands and that there were agreements to continue contributing hundreds of millions of dollars through various programs over the next 20 years.