The Tribunal's approach to personal injury claims is closely patterned after similar U.S. statutory programs providing compensation for American civilian and military personnel deemed to have been harmed by their own country's nuclear testing program.
In Public Law 101-426, the Radiation Exposure Compensation Act of 1990 (often referred to as the "Downwinders' Act"), the U.S. Congress found that fallout emitted from the atmospheric nuclear tests conducted at the Nevada Test Site exposed American civilians "to radiation that is presumed to have generated an excess of cancers among those individuals." In view of that finding, the Congress established a presumptive program of compensation for specified diseases contracted by people who were physically present in the "affected area" during the periods of atmospheric testing in Nevada.
Understanding the program established for the Downwinders by the U.S. for its own citizens, the Tribunal determined that it could do no less for people of the Marshall Islands. Accordingly, in August 1991, the Tribunal adopted its initial compensable medical condition regulations providing for awards to people who had been physically present in the Marshall Islands during the testing period and who had been medically diagnosed as having one of 25 separate medical conditions. Based on extensive review of the latest scientific and medical research about the effects of radiation on human beings, the list of presumed medical conditions was expanded by two conditions in January 1994, by seven more conditions in October 1996, and one more condition in October of 1998.
The Tribunal's presumptive program meets the need for an efficient, simple, and cost-effective system of resolving personal injury claims where proof of causation would be impossible given the fact that exposure level information is not available. Indeed, as noted elsewhere in this report, despite the requests that have been made by the RMI government to the United States, fallout measurements from the last two series of tests in the Marshall Islands (Operation Redwing in 1956 and Operation Hardtack I in 1958, comprising 50 tests averaging nearly one megaton each) still remain classified.
The Tribunal's program extends the same basic presumption of exposure and causation as the U.S. program does. In addition, it may be noted that the "affected area" defined in the Downwinders' Act includes points as far as 500 miles from the Nevada test site; the same distance from Bikini would incorporate almost every atoll and island in the Marshalls except the most southeasterly. The total yield of the 67 tests conducted by the U.S. in the Marshall Islands is approximately 99 times greater than the total yield of the 87 atmospheric tests conducted in Nevada (approximately 108.5 megatons in the Marshall Islands compared to 1.1 megaton total in Nevada).
In addition, the tests in the Marshalls created much larger amounts of fallout than the tests in Nevada, as explained in a 1981 extracted version of a still secret report:
"The heat resulting from an atomic explosion vaporizes the products of the explosion and the bomb casing. Soil and water in the vicinity of ground zero are also vaporized and picked up by the updraft produced by the rise of the ball of incandescent gases. On cooling, the material in the fireball condenses into particles that include the radioisotopes resulting from the fission process. . . The radioactive fallout from megaton shots may contaminate thousands of square miles of surface.
"When a shot is exploded on land, a large amount of soil is picked up and much of it is vaporized by the intense heat. This material condenses in a wide range of particle sizes. Some of the radioactive products are condensed around large particles that were picked up in the updraft but not vaporized. These larger particles fall rapidly and reach the surface relatively close to ground zero.
"An air shot is one in which the fireball does not touch the surface, so that compared with surface shots relatively little foreign material is vaporized. Because there are no available particulates on which the fission products can condense, most of the active materials remains in the upper atmosphere and little fallout is likely to be detected in the vicinity of the shot site."
[from page 12 of Operation Redwing, Project 2.64, Fallout Location and Delineation by Aerial Surveys, May-July 1956, Pacific Proving Grounds, WT-1318 (EX), extracted version prepared for Director, Defense Nuclear Agency, January 1981]
Most of the tests in the Marshall Islands were surface or barge detonations and no less than 18 of those tests were megaton range devices. The tests in Nevada, though, were mostly airdrop, tower or balloon detonations and none even remotely approached the megaton level (the three biggest atmospheric tests in Nevada were 100, 74, and 61 kilotons respectively).
Given the vastly greater yields and radioactive fallout of the tests in the Marshalls compared with those in Nevada, the presumption of exposure extended by the Tribunal to everyone living in the Marshall Islands during the testing period is clearly justified.
Further evidence of the huge disparity between the testing done in the Marshall Islands and that done in Nevada was presented to officials of the Republic of the Marshall Islands and the Nuclear Claims Tribunal in July 1998 by staff from the U.S. Centers for Disease Control and Prevention (CDC). Based on a compilation of historical documents related to nuclear testing and using methods developed for the Nevada Test Site fallout study, CDC calculated the approximate level of Iodine-131 released to the atmosphere from selected nuclear events, including testing in the Marshall Islands and at the Nevada test site.
As indicated in the chart below, more than six billion curies of I-131 was released to the atmosphere as a result of the testing in the Marshall Islands. That amount is 42 times the approximately 150 million curies released as a result of testing at the Nevada test site. Readers familiar with the U.S. National Cancer Institute study released in 1997 will be aware that I-131 is a radionuclide which concentrates in and may cause damage, including cancer, to the thyroid.
