United States Long-form Explanation of Position on Human Rights Council resolution 51/35
Technical assistance and capacity-building to address the human rights implications of the nuclear legacy in the Marshall Islands
The United States thanks the Republic of the Marshall Islands for its decades of friendship and for the constructive spirit the core group has brought to the negotiations of their text on technical assistance and capacity building. The United States is grateful to the people of the Marshall Islands for their enduring friendship. The American people remember well the history of nuclear testing in the Marshall Islands, and I want to specifically acknowledge the hardships the people of the Marshall Islands experienced.
I hope you understand that we nevertheless respectfully wish to state our position on the following points.
We believe the critical issues are comprehensively addressed in other relevant conventions, bodies, and positions within the United Nations.
Fundamentally, we note that the technical expertise regarding many of the issues raised rests with entities such as the UN Scientific Committee on the Effects of Atomic Radiation (UNSCEAR). As such, we do not believe the HRC or OHCHR are the appropriate bodies to opine or provide technical assistance on these matters, but they are free to seek expert advice and opinions from other bodies.
Consequently, we question this resolution’s substantial budgetary implications. This resolution imposes significant costs that we believe merit careful review and scrutiny given the large demands already placed on OHCHR, and the limited ability of member states to provide increasing amounts of resources to enable OHCHR to perform the substantial amount of work that we have given it. For this reason, we request OHCHR and the relevant offices to conduct a review of the costs associated with this mandate at the earliest opportunity.
We further note that aspects of this resolution concern matters that have been settled bilaterally through binding international agreements.
The United States acknowledges the negative effects of the nuclear testing program which the Government of the United States conducted in the Northern Marshall Islands between 1946 and 1958, and has accepted, and acted on, our responsibility to the people of the Marshall Islands.
The governments of the Republic of the Marshall Islands and the United States of America signed a Compact of Free Association, together with its related agreements, on June 25, 1983. The Compact was approved by a plebiscite in the Marshall Islands in 1983 and, subsequently, by the U.S. Congress in 1985 (P.L. 99-239) and entered into force in 1986. Section 177 of the Compact of Free Association concerns “loss or damage to property and person of the citizens of the Marshall Islands, . . . 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.” Section 177 of the Compact of Free Association provided that the Government of the United States and the Government of the Marshall Islands “shall set forth in a separate agreement provisions for the just and adequate settlement of all such claims which have arisen in regard to the Marshall Islands and its citizens and which have not as yet been compensated or which in the future may arise.” 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 of Free Association (Section 177 Agreement) entered into force simultaneous with the Compact of Free Association.
Article X(1) of the Section 177 Agreement, entitled “Full Settlement of All Claims,” provides: “This Agreement constitutes the full settlement of all claims, past, present and future, of the Government, citizens and nationals of the Marshall Islands which are based upon, arise out of, or are in any way related to the Nuclear Testing Program, and which are against the United States, its agents, employees, contractors and citizens and nationals, and of all claims for equitable or any other relief in connection with such claims including any of those claims which may be pending or which may be filed in any court or other judicial or administrative forum, including the courts of the Marshall Islands and the courts of the United States and its political subdivisions.”
The Section 177 Agreement recognizes that, within the northern atolls, some islands would be more habitable than others. In the Agreement, the Government of the Marshall Islands has taken responsibility for controlling the use of areas in the Marshall Islands affected by the nuclear program.
Even prior to the Compact and its related agreements, the United States provided significant assistance to address the nuclear legacy during the Trusteeship period, starting immediately after the tests when the unanticipated consequences occurred. This included direct cleanup, rehabilitation, resettlement, and compensation. The United States provided about $250 million for the effects of nuclear weapons testing prior to the entry into force of the Compact of Free Association and the 177 Agreement, and in addition to the compensation agreed to in those agreements. In addition, since then and pursuant to the Section 177 Agreement, the U.S. government has provided more than $600 million to the affected communities. Adjusting for inflation, this is more than $1 billion in current dollars. This includes direct financial settlement of nuclear claims, resettlement funds, rehabilitation of affected atolls, and radiation related health care costs.
We understand that with respect to any rights of the people of the Marshall Islands referenced in this resolution, the obligation to protect those rights rests with the RMI. After RMI’s independence as a sovereign country, it became the RMI’s responsibility to implement its own human rights obligations. The Compact recognized the “common desire” of the RMI and U.S. government “to terminate the Trusteeship and establish [a] new government-to-government” relationship “in accordance with a new political status” and affirmed “ that their governments and their relationships as Governments are founded upon respect for human rights and fundamental freedoms for all….” The Preamble to the Section 177 Settlement Agreement states that the Government of the United States and the Government of the Marshall Islands agree to the terms of the Agreement, inter alia, “[i]n fulfillment of the provisions of Section 177 of the Compact relating to the nuclear testing program” and “[i]n recognition of the authority and responsibility of the Government of the Marshall Islands to provide medical and health care to all of the people of the Marshall Islands.” The RMI also expressly agreed in Article VII of the Section 177 Agreement that the RMI “shall have and exercise responsibility for controlling the utilization of areas in the Marshall Islands affected by the Nuclear Testing Program.” Thus, the RMI expressly assumed responsibility for the use, control, and access of its lands. The United States disassociates from consensus on OPs 9 and 11, accordingly, and registers our concerns with respect to OPs 1 and 2.
With respect to OP 11, the United States believes that the use of the terms “nuclear justice” and “transitional justice” are inappropriate. They appear to suggest that justice has been lacking. This completely disregards the Section 177 Agreement, which constitutes a full and final settlement of all claims relating to the nuclear testing program. As a result, not only was justice not lacking, but the United States of America provided compensation in an amount that was agreed to by the Republic of the Marshall Islands.
The resolution makes a number of factual, causal, and legal assertions that are inaccurate or unsubstantiated, including with regard to asserted relationships between non-communicable diseases and nuclear radiation and contamination and the impact of nuclear testing on the enjoyment of human rights. For this reason, we disassociate from consensus on PPs 13 and 14 [1]; disassociate on this additional basis from OP 9; register our concerns with respect to OPs 1 and 2; and reiterate our disagreement with the assertions and conclusions from previous Special Rapporteurs as described in PPs 11 and 12. [2]
Separately, the United States has long opposed references to the ICCPR Art. 6 right to life in the context of environmental or social or public health conditions that affect quality of human life or that may be viewed as contributing to or causing death. The United States understands Article 6 to refer to the arbitrary deprivation of life (such as extrajudicial killings or summary executions) by state actors, and not the loss of life as a consequence of natural or social phenomena. Thus, the references to “right to life” in PPs 13 and 18 [3]are inappropriate, and the United States disassociates from consensus on these two paragraphs.
Finally, the United States notes that nothing in this resolution purports to create justiciable rights or provide any basis for judicial, arbitral, or other dispute resolution jurisdiction.
The United States continues to support the Marshall Islands by providing radiation-related health care services and continued monitoring and environmental assessments on the affected atolls.
Once again, I thank our colleagues from the Republic of the Marshall Islands for their collaboration and cooperation. It has truly been a pleasure working with you on many shared priorities here at the Human Rights Council over the course of this year. Your presence in this room will be missed.
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[1] In its oral explanation of vote, the United States referred to PPs 12 and 13. These PPs became PPs 13 and 14 in the final version.
[2] In its oral explanation of vote, the United States referred to PPs 10 and 11. These PPs became PPs 11 and 12 in the final version.
[3] In its oral explanation of vote, the United States referred to PPs 12 and 17. This PPs became PPs 13 and 18 in the final version.