Post Trusteeship Environmental Accountability: Case of PCB Contamination on the Marshall Islands
Lee, Hyun S., Denver Journal of International Law and Policy
At the conclusion of World War II, the newly formed United Nations sought to aid in the autonomous development of the newly liberated peoples in Africa and Micronesia. This entailed the establishment of a system of trusteeship states to be administered by members of the United Nations until the beneficiaries of these trusts were ready to take the reins of governance into their own hands. Along with the development of autonomous systems of government, the trustees also sought to aid in the trust territories' economic development. In doing so, the trustees were basically given free reign in administering the trust territories.
Tragically, this lack of accountability for their actions in the trust territories led to a number of haphazard environmental practices among the trustees. Subsequently, the former trust territories were left with a number of ecological disasters to deal with. Economically unable to deal with these issues by themselves, the governments of the former trust territories requested that those who created these situations be accountable. However, they were often faced with a great deal of resistance by the former trustees.
A number of these ecological issues were raised by the former trustee states with the trustees. None of these suits have actually been resolved through an adjudication which would have established some sort of legal precedent on the matter. Rather, the parties have all negotiated settlements wherein the former trust territories contract away rights to further claims against the trustees. In light of the non-resolution of some of these issues, the question still exists as to whether a fiduciary relationship exists between the trustees and the former trust territories such that they are liable for ecological harm.
In 1986, the United States terminated its trustee relationship with its former trust territories by entering into the Compact of Free Association. Presently, the former portion Trust Territory of the Pacific Islands consisting of the Marshall Islands are an independent country, the Republic of the Marshall Islands. While it still retains close ties with the United States, the Republic of the Marshall Islands is an autonomous state. However, the environmental consequences of the trusteeship era still linger. The United States has agreed to compensate the RMI for the harm caused to the various atolls by atomic testing during the Cold War. Another ecological threat still remains, the more subtle threat of PCB contamination. PCB's represent a more subtle, but also harmful threat, to the people of the Republic of the Marshall Islands. It is uncertain whether the RMI can afford to pay for this clean up on their own. To its credit, the United States has cleaned up one of these PCB sites, it has not accepted legal accountability. Thus, the issue still remains whether former trustees owe a duty to their former trusts to clean up for past contamination.
II. HISTORICAL BACKGROUND
The Republic of the Marshall Islands is located in the South Pacific Ocean in the region known as Micronesia. The Marshall Islands consist of approximately "thirty-four coral islands and atolls with a total land area of approximately 180 square kilometers and a population of about 43,000."(1) It has been speculated that the Micronesian region of the Pacific Ocean was settled by human inhabitants some time between 3,000 and 5,000 B.C.(2) Spain claimed Micronesia in 1565.(3) This year marked a pivotal point in Micronesia history. The Europeans who first colonized Micronesia entered the venture with the mentality that they were civilizing ignorant savages.(4) This mind-set prevailed in Spanish colonialism until the end of the Spanish Empire. It can be argued to have survived even through the days of the League of Nation Mandate System and the United Nations Trusteeship System. From the date that Europeans arrived there, the Micronesian islands and its peoples would be traded back and forth from one empire to another. …