The Marshall Islands Nuclear Claims Tribunal was established in 1988 with jurisdiction to "render final determination upon all claims past, present and future, of the Government, citizens and nationals of the Marshall Islands which are based on, arise out of, or are in any way related to the Nuclear Testing Program."
Development of a Personal Injury Compensation Program
The Tribunal is authorized by statute to issue regulations "establishing a list of medical conditions which are irrebuttably presumed to be the result of the Nuclear Testing Program." During its early years, the Tribunal sought information and expert advice about the testing program and its effects on human health from a wide variety of sources. However, numerous officials and experts with whom the Tribunal consulted advised against making any such presumption. Instead, they recommended that the Tribunal follow the precedent established by various courts in radiation-damage lawsuits by requiring proof of causation or, at a minimum, a demonstrated probability that a compensable medical condition was the result of an individual's exposure to radiation from the testing program.
But when the Tribunal attempted to obtain information from the U.S. about the levels of radiation to which people residing on the various atolls and islands had been exposed, virtually the only information forthcoming was for those whom the U.S. had admitted exposure - the people who had been on Rongelap or Utrik on March 1, 1954, during the Bravo test.
Without reliable information about the exposure level of individuals who had been living on other atolls, there could be no proof or showing of a probability that radiation had caused the medical conditions suffered by those individuals. And without such proof, the thousands of personal injury claims pending before the Tribunal would all have to be dismissed.
In late 1990, however, the Tribunal became aware of the U.S. "Radiation Exposure Compensation Act" which had been passed into law by the Congress earlier that year. In this legislation, known as the "Downwinders' Act", the 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."
Based on that finding, the Congress established a program which provides compensation for specified diseases to U.S. civilians who were physically present in any "affected area" during the periods of atmospheric testing in Nevada (between January 1951 and October 1958 or during July 1962).
Such a presumptive approach was precisely what the Tribunal had been authorized to employ by its enabling legislation. And it clearly reflected both the need for an efficient, simple and cost-effective program and the recognition of the difficulties of individual proof of causation associated with injuries due to exposures to ionizing radiation.
The affected area defined in the U.S. Downwinders legislation includes at least 15 counties covering more than 83,000 square miles in the states of Nevada, Utah and Arizona. Places almost 500 miles away from the Nevada Test Site are included in the affected area. According to a report by the U.S. Defense Nuclear Agency, 87 atmospheric nuclear tests were conducted at the Nevada Test Site during the periods specified under the Downwinders Act. The largest of those tests was 100 kilotons (.1 megaton) and the total yield of all 87 tests was approximately 1.1 megatons.
Given the fact that the total yield of the tests conducted in the Marshall Islands was approximately 99 times the total of the Nevada atmospheric tests, there was more than adequate justification for the Tribunal to presume that the affected area for its program should encompass all of the nation's atolls and islands.
The Tribunal began to implement its personal injury compensation program in August 1991. Like the U.S. Downwinders' program, the Tribunal's program involved two presumptions. First, residency in the Marshall Islands was used as the basis for assuming exposure to levels of ionizing radiation sufficient to induce one or more of the listed medical conditions. Second, the manifestation of a radiogenic medical condition is presumed to result from (i.e. was caused by) the assumed exposure to radiation due to the testing program.
In adopting this approach, the Tribunal concluded that the failure of the U.S. to maintain contemporaneous exposure data during and after the testing period, the lack of advanced medical diagnostic services, and the absence of baseline non-radiation risk factors for people of the Marshall Islands all combined to make the "presumed list" method of assessing claims both reasonable and fair.
Compensable Medical Conditions and Awards
The original list of compensable medical conditions established by Tribunal regulation in 1991 included 25 specific diseases. That list was based on the diseases identified in the Downwinders' program and on an assessment by the Tribunal of additional medical conditions for which there was credible evidence showing a significant statistical relationship between exposure to radiation and the subsequent development of the disease.
In making this latter determination, the Tribunal looked principally to the research findings of the ongoing Life Span Study of atomic bomb survivors conducted by the Radiation Effects Research Foundation (RERF) in Japan and to the conclusions contained in the 1990 report of the Committee on Biological Effects of Ionizing Radiation (BEIR V) of the U.S. National Research Council, National Academy of Sciences. The Tribunal was greatly assisted in reviewing and understanding those findings and conclusions by Dr. Robert Miller, then Chief of Clinical Epidemiology at the U.S. National Cancer Institute, National Institutes of Health, had also been an investigator with the Atomic Bomb Casualty Commission in Hiroshima in the late 1950's.
In late 1993, following a visit to RERF by a delegation from the Tribunal and a review of the most recent studies of Japanese atomic bomb survivors, two more conditions were added to the Tribunal's list.
Another review of the list was conducted by the Tribunal during 1995-96. Dr. Edward Radford, a respected scientist and medical consultant to the Office of the Public Advocate at the Tribunal, testified extensively about the latest RERF findings, as contained in the Radiation Research Society's 1994 report entitled Cancer Incidence in Atomic Bomb Survivors. That report presented, for the first time, comprehensive data on the incidence of solid cancer and risk estimates for A-bomb survivors in the extended Life Span Study cohort. The data is based on solid cancer diagnoses made between 1958 and 1987.
Based largely on those findings, the Tribunal's list was extended in 1996 to add seven new conditions and extended again in 1998 and 2003, adding one new condition each time.
Thus the Tribunal's personal injury compensation program now encompasses 36 medical conditions, each one of which has been adopted based on accepted scientific and medical research findings about the effects of radiation on humans or on established precedent in a U.S. program entitling American citizens to compensation for conditions presumed to result from radiation exposure.
By the end of 2003, net awards of compensation totaling $83 million had been made by the Tribunal to or on behalf of 1,865 individuals who suffered from one or more of those conditions. Thyroid disorders have been the basis for most of the awards made by the Tribunal; approximately two-thirds of the total number of awardees have been diagnosed as having a compensable thyroid condition.
Claims for Damage to Property
Also pending before the Tribunal are many claims for damage to property. At both Bikini and Enewetak, several islands were vaporized by nuclear tests. Many other islands in those two atolls and in Rongelap, Rongerik, Ailingnae and Utrik were severely contaminated by radiation during the testing program. Claims for land damage in these atolls are being pursued through four separate class actions.
Because the above-mentioned atolls suffered the most damage and because the claims for that damage have been filed on behalf of all of the people of those atolls, they have been given priority over individual land damage claims by the Tribunal. In total, the class action property damage claims seek hundreds of millions of dollars in compensation. Awards have been made in the Enewetak and Bikini Claims. Rongelap and Utrik claims near completion, while a claim has recently been filed on behalf of the people of Ailuk.
"Changed Circumstances" and the Inadequacy of the Compensation Fund
At the end of 2003, the amount owed on compensation awards made by the Tribunal exceeded $1 billion. At that time, the value of the Nuclear Claims Fund had eroded from its original $150 million to less than $6 million.
The best hope of the Marshallese victims of the nuclear testing program to receive full payment of their compensation awards will be for a renegotiation of the financial settlement outlined in the 177 Agreement. Article IX of the Agreement is entitled "Changed Circumstances." It provides that:
"If loss or damage to property and person of the citizens of the Marshall Islands, resulting from the Nuclear Testing Program, arises or is discovered after the effective date of this Agreement, and such injuries were not and could not reasonably have been identified as of the effective date of this Agreement, and if such injuries render the provisions of this Agreement manifestly inadequate, the Government of the Marshall Islands may request that the Government of the United States provide for such injuries by submitting such a request to the Congress of the United States for its consideration. It is understood that this Article does not commit the Congress of the United States to authorize and appropriate funds."
The Government of the Marshall Islands presented a formal petition to the Congress in September of 2000. Two particular areas of changed circumstances which the Tribunal has discussed with the Government are presented here:
Increased Medical and Scientific Understanding of the Biological Effects of Radiation
In the fall of 1976, the Office of Radiation Programs, Environmental Protection Agency, asked the National Academy of Sciences (NAS) for current information relevant to an evaluation of effects of human exposure to low levels of ionizing radiation. In 1980, the NAS appointed Committee on the Biological Effects of Ionizing Radiation (BEIR III Committee) issued its report in response to that request. The report encompassed a review and evaluation of scientific knowledge developed since the first BEIR report, published in 1972, concerning radiation exposure of human populations.
On the first page of the Summary and Conclusions section of the BEIR III report, the Committee cautioned that the risk estimates presented "should in no way be interpreted as precise numerical expectations. They are based on incomplete data and involve a large degree of uncertainty, especially in the low-dose region. These estimates may well change as new information becomes available." Nevertheless, those estimates of increased risk of radiation-induced solid tumors (such as breast, thyroid, and lung cancers) and of leukemia stood as the mainstream view for ten years.
In April 1986, the Office of Science and Technology Policy's Committee on Interagency Radiation Research and Policy Coordination asked the National Research Council to form a new BEIR committee to report on the effect of ionizing radiation on the basis of the new information that was becoming available. That committee (BEIR V) issued its report in 1990. In the Preface of the report, the committee noted that "The need for replacement of the BEIR III report became obvious when it was determined that the long standing estimates of the radiation exposures received by the A-bomb survivors, that had been utilized by the BEIR III Committee, required extensive revision."
The Executive Summary of the BEIR V report states: "Since the completion of the 1980 BEIR III report, there have been significant developments in our knowledge of the extent of radiation exposures from natural sources and medical uses as well as new data on the late health effects of radiation on humans, primarily the induction of cancer and developmental abnormalities."
With particular regard to cancer induction, the Executive Summary states: "Knowledge of the carcinogenic effects of radiation has been significantly enhanced by further study of such effects in atomic bomb survivors. Reassessment of A-bomb dosimetry at Hiroshima and Nagasaki has disclosed the average dose equivalent in each city to be smaller than estimated heretofore . . . As a result, lifetime risk of cancer attributable to a given dose of gamma radiation now appears somewhat larger than formerly estimated." That increased risk is reported in the Executive Summary of BEIR V as follows: "The cancer risk estimates derived with the preferred models used in this report are about 3 times larger for solid cancers (relative risk projection) and about 4 times larger for leukemia than the risk estimates presented in the BEIR III report."
In other words, within the realm of scientific and medical knowledge of the effects of radiation, circumstances had changed dramatically between the time the 177 Agreement was implemented and the time the BEIR V report was published in 1990.
Subsequent to 1990, significant further increases in such knowledge have been reported by the Radiation Effects Research Foundation (RERF) in Japan. In 1994, Thompson et al reported for the first time comprehensive data on the incidence of solid cancer and risk estimates for A-bomb survivors [Cancer Incidence in Atomic Bomb Survivors, Radiation Research 137, 1994]. In 1996, Pierce et al updated earlier findings on cancer mortality to include the five-year period 1986-1990; that analysis also included an additional 10,500 survivors with recently estimated radiation doses [Studies of the Mortality of Atomic Bomb Survivors, Radiation Research 146, 1996].
The Evolution of Maximum Permissible Exposure Levels
In Article VIII of the Section 177 Agreement, the United States concluded that "the Northern Marshall Islands Radiological Survey and related environmental studies conducted by the Government of the United States represent the best effort of that Government accurately to evaluate and describe the radiological conditions in the Marshall Islands."
During 1995, a January 1955 report from the U.S. Atomic Energy Commission (AEC) entitled Radioactive Debris From Operation Castle, Islands of the Mid-Pacific was made available to the Republic of the Marshall Islands for the first time. That report, which had remained in a classified status for 40 years, includes tables listing radiation fallout doses as measured for 27 Marshall Islands atolls for each of the six tests conducted in that 1954 series.
The cumulative doses contained in that report were apparently not of great concern at the time, except for Rongelap, Ailinginae and Utirik. However, radiation protection standards established just three years later should have raised concern for most of the other atolls. In 1957, the U.S. National Bureau of Standards published an addendum to its report #59 for the National Council on Radiation Protection (NCRP) in which a new public limit of 0.5 rem (500 mrem) per year was established for maximum permissible exposure. Two years later, in 1959, the International Commission on Radiological Protection set a maximum general public limit of 0.17 rem (170 mrem) per year (ICRP Publication 2). [It should be noted that in 1990 the ICRP reduced the general public limit to 1 mSv (100 mrem) per year (ICRP Publication 60).]
The cumulative doses contained in the 1955 AEC report for the Castle series are external only and do not combine internal doses as current radiation protection standards now require. Also, for various reasons discussed in the report, the external values given are, in general, underestimations. It should also be noted that the monitoring was conducted over only a 12-week period, not an entire year. It is reasonable to assume that unmeasured radioactive debris continued to fallout, in decreasing amounts, during the weeks and months following the conclusion of the series.
Nevertheless, the exposure levels in that report show that 10 of the 22 populated atolls listed exceeded the NCRP 1957 maximum limit of 500 mrem over the period of an entire year for the general public and an additional 10 populated atolls exceeded the ICRP 1959 general public limit of 170 mrem for a whole year (atoll by atoll exposures are listed in Attachment 7, page 24).
Because such information was not available to those negotiating the settlement on behalf of the Marshall Islands, the U.S. assertion that the 1978 survey represented its "best effort" to describe conditions in the Marshall Islands must be disregarded. In fact, the U.S. has still not put forth its best effort to describe such conditions since fallout measurements from the last two series of tests in the Marshall Islands still remain classified nearly 40 years after the final test, despite numerous requests made by the RMI government. Those two series - - - Operation Redwing in 1956, comprising 17 tests totaling 20.8 megatons, and Operation Hardtack I in 1958, comprising 33 tests totaling 28 megatons - - - had a combined yield greater than the Operation Castle series in 1954.
The fact that the exposure levels sustained by people living on nearly every atoll in the Marshall Islands in 1954 exceeded U.S. and international maximum permissible levels established shortly thereafter clearly constitutes another area of Changed Circumstances. And it can be expected that those circumstances will change again when the U.S. finally makes available exposure level data from the 1956 and 1958 series.
Conclusion
A renegotiation of the nuclear claims settlement based on the Changed Circumstances provision contained in Article IX of the Section 177 Agreement is clearly warranted. Without an extensive and impartial review of the currently known damages caused by the nuclear testing program and a substantial increase in the funding for payment of awards, it cannot truly be said that the "Agreement constitutes the full settlement of all claims, past, present and future . . . related to the Nuclear Testing Program" (Article X of the Section 177 Agreement).