The plea of Kwajalein landowners Introduction There appears to be a misunderstanding among the Marshallese public about the role of Kwajalein landowners. This is most probably due to the lack of knowledge and understanding about the long standing suffering that Kwajalein landowners have experienced but which to date has not been addressed in a fair and just manner. The objective of this article is to enlighten the general public in the Marshall Islands as well as in the United States and the rest of the world about the injustice that the landowners have suffered over the past fifty years or more. Briefly, this injustice arises from the fact that Kwajalein landowners’ fundamental rights have been denied but no adequate compensation has been paid for such denial. The situation is similar to that of the four atolls, specifically of the Bikini Community. The Bikini Community was evacuated from their atoll for atomic testing. One of the major forms of suffering of the Bikini Atoll has been that they have been denied the use of their land and deprived of their traditional form of livelihood. While the suffering of the Four Atolls has been addressed at least to some extent and is still being addressed, that of the Kwajalein landowners has not been even brought to the attention of the United States. It is apparent, therefore, that what the landowners are asking for at this second time round is not something new but a continuation of half-century struggle for what they believe to be their just due. Irregular and ad hoc compensations over the pre-Compact periods and a Compact agreement that failed to remedy their grievances and address compensation issues have once again impelled them to renew the call and raise their voices for a fair and adequate arrangement. As there does not seem to be any other alternative open to them, their voices will continue to ring throughout the corridors of the RMI and U.S. as long as the injustices remain unremedied. This article is presented in the following order. Section 1 explains the major problems faced by the Kwajalein land owners and the Marshallese community in Kwajalein Atoll and the manner in which these problems have been created. Section 2 explains what a fair land rent is and the fact that such a fair land rent is not being paid at present. The subject is discussed on the basis of the fundamental rights guaranteed in the constitutions of the United States and of RMI and on the basis of the standards adopted both internationally and by the U.S. Federal Agencies. Section 3 explains the proposal made by the Kwajalein landowners to the United States as a way of addressing the problems in a fair and just manner. Section 4 concludes the article with an appeal by the landowners. 1. The problems and their genesis 1 Following is the crux of the landowner grievance. In the years following the Second World War, the Kwajalein landowners were forcibly evicted from their lands and forced to live in the tiny island of Ebeye. The purpose was for the United States to build up its missile base in Kwajlein Atoll. During the fifties Kwajalein military camp was used as a logistical base to support the atomic testing program which the U.S. carried out in Bikini and Enewetak. Kwajalein land was also used to provide a temporary home for the Bikini community who were evacuated from their atoll. In 1964, when the missile testing program was taking shape, the Marshallese communities living in the Mid-Corridor islands were also evacuated forcibly and settled in Ebeye. The forced uprooting of the Kwajalein Atoll landowners community in totality and using their land for military purposes had two major types of adverse impact on the landowners for which they are seeking fair and just compensation. The first type of adverse impact arose as a result of their being uprooted from their lands and houses. The first and immediate consequence under this category was the loss of lands and lagoon as the sources of landowner livelihood. The second major consequence was that the landowners had to learn to live under a completely alien form of livelihood in a cash economy. The third consequence was the physical hardship in Ebeye which was a tiny island into which thousands of people got crammed in. These hardships were due to lack of good housing, inadequate water and sanitation inadequate electricity inadequate health facilities, inadequate schools and loss of freedom. The second type of adverse impact was due to the fact their lands and lagoon were being used for a new purpose. The missile program in addition to attracting people from the rest of RMI to the already crowded Ebeye also results in environmental damage and risks to the health and lives of Marshallese people. 2. a. A fair land rent: What is it? First let us look at the suffering imposed on the landowners because they were forced out of their lands. The most damaging consequence of this evacuation was that the landowners lost their means of livelihood. For thousands of years the landowners made their livelihood from their land and the lagoon. After their evacuation this was no longer possible. They were not given an adequate compensation for their loss. They are seeking this now because half a century of struggle has failed to bring justice to their legitimate cause. After 1964 the landowners have been paid some compensation from time to time after much pain and suffering which have included sail-ins and other forms of campaign which also resulted in various painful consequences. The 1986 Compact provided a form of payment which has been grossly inadequate in view of the increase in the cost of living in Ebeye and in view of the increase in the landowner population. The price level today in Ebeye is four times higher than what it was in 1986 and the landowner population is four times higher than what it was in 1986. The payment under the 1986 Compact is so unsatisfactory that in real terms the per capita land rent payment in 2001 was only 38 percent of what it was in 1986. In the year 2016 which is the end of the option, it will only be 17 percent of what it was 1986. While on a per capita basis the real value of the land rent is declining rapidly every year, the value of Kwajalein land to the U.S. either remains the same or continues to rise. 2 The current land rent paid to the landowners has not been determined on any rational ground. The Kwajalein landowners through a study funded by their voluntary financial contributions have established such a rational basis. This basis is founded upon the principles enshrined in the Constitutions of the United States and the RMI. The basis follows the practices adopted by the U.S. Federal Government Agencies and by the international community. 2. b. Rights Enshrined in the RMI and U.S. Constitutions The Constitutions of the United States provides as follows: “nor shall private property be taken for public use without just compensation” (Fifth Amendment). The RMI constitution provides as follows: “Before any land right or any other form of private property is taken, there must be a determination by the High Court that such taking is lawful and an order by the High Court providing for prompt and just compensation”. The RMI constitution adds as follows: “Where any land rights are taken, just compensation shall include reasonably equivalent land rights for all interest holders or the means to obtain the subsistence and benefits that such lands provide” (Emphasis added). Having been deprived of their traditional means of livelihood, the landowners were forced to face a second form of suffering. This is the second consequence that comes under the first major type of adverse impact referred to earlier, i.e. the impact due to being evicted from their lands. The second consequence was that the landowners were forced to lead a form of life that was very much alien to them, namely to live in a cash economy. They were huddled into hurriedly constructed shacks on Ebeye where the only means of life support was cash. They were given a cash allowance that was hardly sufficient to meet their cost of living. For example 194 landowners among the Mid-Corridor community were paid a living allowance which amounted to $25 per person per month in 1964. It was so inadequate that they had to petition the Congress of Micronesia of their plight. Two years later that amount was increased to $40 per person per month. This amount worked out to an annual payment of $480.00. In this regard it is important to note the following provision in the RMI Constitution. “ Whenever the taking of land rights forces those who are dispossessed to live in circumstances reasonably requiring a higher level of support, that fact shall be considered in assessing whether the compensation provided is just” ( Title II, Section 5 (6)). Furthermore, “In constructing this section, a court shall have due regard to the unique place of land rights in the life and law of the Marshall Islands” (Title II, Section 5(5)). The importance of a right of a person to fair and just compensation for his/her private land was fully recognized in the Bill of Rights of the Trusteeship Agreement in the following words: “no person shall be deprived of… property without just compensation”. It was also given full recognition in the Trusteeship Agreement itself in the following words. ‘in discharging its obligations under article 76(b) of the Charter the administering authority shall: … protect the inhabitants against the loss of their lands and resources…” 3 2. c. U.S. Federal Standards and International Standards of fair rent The Study undertaken by the landowners established a rational basis for determining a fair and just compensation for the Kwajalein lands now being used for the U.S. missile base by following the standard adopted by the U.S. Federal Agencies in order to acquire or lease lands. That standard is as follows. Fair compensation for any land acquired or leased is a payment that adequately reflects the highest and best alternative use of the land so acquired or leased. This principle has also been well established in respect of land acquisition for public sector sponsored private sector projects. Closer to home in Papua new Guinea where land has been taken over by private companies through the sponsorship of the national government for mining and petroleum industries compensation has been paid on the principle on which “fairness to all parties prevails unconditionally”. All compensation for the landowners has been determined and paid on the following basis. “…the purpose of compensation is to put persons who have suffered a loss back in the original position they would have been in, if they had not suffered the loss” and “those who cause the loss to those who suffer it pay compensation and the amount of compensation is the replacement value of that loss”. In this case compensation was determined on the following principle. “…the amount of compensation should be determined purely by the value of the thing damaged, rather than the negotiating skills of the landowners, or the organization’s ability to pay” (emphasis added) It is the view of the landowners that these standards provide the floor level for determining fair compensation for Kwajalein land. For, as the RMI constitution provides and commonly accepted by the Marshallese people, the value of land of his/her land to a Marshallese person is much more than what is reflected in the Western concept of private property. 2. d. Value of land to the Marshallese Numerous statements by Marshallese traditional chiefs as well as common people as well as from U.S. anthropologists can be quoted here to illustrate this point. It would suffice to make just three quotations. In a petition submitted to the U.N. Trusteeship Council on April 20, 1954, the Bikini community stated as follows: “land means a great deal to Marshallese. It means more than just a place where you can plant your food crops and build your houses; or a place where you can bury your dead. It is the very life of the people. Take away their land and their very spirits go also…” One time District Anthropologist of the TTPI, the well known anthropologist Jack Tobin described the value of land in the Marshallese context as follows: “… the Marshallese system of land tenure provides for all eventualities and takes care of the needs of all members of the Marshallese society. It is, in effect its social security. Under normal conditions no one needs to go hungry for lack of land from which to draw food. There are no poor houses or old people’s homes in the Marshall Islands. The system provides for all members of the Marshallese society, each of whom is born into land rights”. In a recent study commissioned by the Public Advocate of the Nuclear Claims Tribunal, authors Barbara Rose Johnston, Ph.D. and Holly M. Barker Ph.D. have explained the value of land to the Marshallese as follows: “In the Marshall Islands land is not a commodity that 4 can be bought or sold but an integral component in the ‘natural capital’ that sustains a way of life. In Western property law, loss of land means loss of income. But for the Marshallese, loss of land represents the loss of the means to sustain social institutions, to reinforce kinship systems and to survive and thrive as a self-sufficient entity. And, while Marshallese generally refer to inherited rights as ‘land rights’--- land includes the lagoon, reefs, clam beds and broader atoll ecosystems as well as the marine arboreal and terrestrial life within…”. 2. e. Minimum Fair land rent based on Western Concept Based on the Western concepts given above (which as stated earlier is only a floor level), the landowners adopted a number of approaches to arrive at a fair and just compensation for their lands leased to the U.S. These approaches included the following. 1. 2. 3. 4. 5. The monthly per capita living allowance paid by the United States to the MidCorridor land owners in the sixties; Past land rent payments; Recent market trends in Majuro Compact payments fully adjusted for inflation on Ebeye and land owner population growth; and Rent for both the land and the lagoon In these approaches the landowners took into consideration the method adopted by the land value appraisal study submitted to the Nuclear Claims Tribunal by the Bikini Atoll Community. Based on this analysis the landowner study shows that the minimum fair land rent that the Kwajalein landowners should have received in the year 2001 was in the range of $ 14.7 million to $28.4 million. The actual payment in 2001 including the $1.9 million KADA payment was about $12.7 million. However, when the payment to KADA is subtracted, the land rent that was received by the landowners as a means of livelihood was only about $8.6 million. This amount is 59 percent of the lower end of the estimated range of fair rent and 30.3 percent of the higher end of the estimated fair rent range. It is important to note the following in regard to the land rent paid under the 1986 Compact. A substantial proportion or 40 percent of the gross land rent paid from Section 211 payments is not received by the landowners as disposable income but is siphoned away to the KADA. It should be understood that the problems in Ebeye were the other major type adverse consequences resulting from the forced evacuation of the landowners and the use of their land for military purposes. Hence they were not problems created by the landowners. They were the spillover adverse effects of the U.S. activities in Kwajalein Atoll. The solution of those problems is the responsibility of the United States and the financial burden of such solution must fall squarely on the shoulders of the United States and not on the landowners who have already paid a price twice over by losing their land and by going through the suffering in Ebeye. When this position is accepted it is quite clear that 40% land rent siphoned away to KADA is virtually a tax imposed by the U.S and the RMI governments on the landowners to deal with a situation which in the first place was NOT created by the landowners. The landowners are penalized not once, not twice but three times over. 5 A simple way to point out that the effective land rent received by Kwajalein landowners under the 1986 Compact is not a fair and just rent, is the following. It could be argued that as a very basic minimum, a fair rent for Kwajalein land can be established on the basis of the following line of argument. A fair rent for the land is the value of the highest and best use of such land. If the Kwajalein land was not used for U.S. military purposes such land would have been used by the land owners to create an income to make a living. What would be the value of that income? The estimate of that income would be a good indicator of the minimum fair rent for land. One way to measure the value of such income is the following. In 1966 a living allowance of $480 per person per year was paid out by the U.S. authorities to the Mid-Corridor landowners. The assumption here is that according to U.S. authorities this amount was sufficient the cover the cost of living of one person per year in 1966. In other words, it was considered as cash economy equivalent of the value of subsistence income that the landowners would have generated from their own land. In order to estimate the minimum fair land rent today, the above amount has to be converted to current dollars. Using the U.S. and RMI official figures of inflation, the value of that amount in 2001 dollars was $2352. This is an estimate of the value of the subsistence income that one landowner would have created in the year 2001. In order to estimate the value of the total income created by the landowner community as a whole, this amount has to be multiplied by the number of landowners in 2001. The estimated number of landowners in 2001 was 12063. Multiplying this number by $2352 we derive an estimated total value of subsistence production of $28.4 million. This is an estimate of the minimum fair rent that the landowners should have received in their hands as disposable income. As earlier mentioned, the actual land rent received by the landowners in 2001 was about $8.6 million which was only about 30.3 percent of the estimated minimum fair rent. 3. a. The Kwajalein Landowners’ Proposal to the United States The landowners in their proposal for a 50 year lease of Kwajalein land to the United States has asked for an upfront payment as fair rent for their land for that period. That amount was derived in the following manner. The estimates derived by the five methods described above were averaged for the year 2001. Then that average was used to derive a stream of land rent payments for the next fifty years on a current year basis by providing for an annual inflation rate of 4.0 percent and an annual population growth rate of 3.5 percent. The current year basis stream of payments thus derived was next discounted at 5.3 percent (prevailing 30-U.S. Bond rate) to derive the present value of that stream. Considering the principles involved, the long time period for which the land will be used, this amount is quite reasonable. Moreover, the money will go a long way in improving the living conditions of the landowners whose per capita income at present is around $1577. Those who are familiar with the landowners’ proposal will recognize that a very substantial amount of the compensation is to be distributed for the benefit of the non-titled landowners, elevating thereby their per capita income. That new level which will be a 6 significant improvement on the landowners’ present pitifully low income will still be marginally below the U.S. basic minimum wage. 3. b. Adverse Environmental Impact and Risks Another major landowner concern relates not merely to the landowners but for every Marshallese citizen living in Kwajalein Atoll and in the neighboring Atolls. There has been a continuing concern about the adverse environmental impact of the Kwajalein missile testing program among Marshallese leadership. But assurances have been given all along by the U.S. authorities that there is no serious adverse environmental impact resulting from the missile testing program. Every year the U.S. army produces and submits to the RMI government. EIA reports that seem to show no serious adverse consequences. However these EIA reports are not verified by competent third party scientists. To have such evaluations done is too costly and beyond the financial capability of both the RMI Government and the landowners. In a report initiated by the U.S. Air Force, Space and Missile Systems center and Aerospace Corporation in 2001 shows that DoD launch sites can be impacted by perchlorate releases from missile launch operations. The U.S. EPA has declared perchlorate ion (C104) as a contaminant and that it can exist for decades under typical groundwater or surface water conditions. Perchlorate contamination can lead to thyroid and can harm the health of children and pregnant women. The landowner proposal is requesting $6 million annually from the U.S. to fund third party evaluation of the EIA reports prepared by the Army to be undertaken by competent scientists. Such funds will also be earmarked for any repair of damages caused by adverse environment impact and to meet the cost of any clean-up operations that might be needed. The landowner Proposal also requests that the U.S provides adequate funding to pay for annual insurance of life and property in Kwajalein Atoll as a means of insuring the lives and property of the Marshallese community against possible accidents that might result from the missile testing program. These programs will benefit the entire Marshallese community in Kwajalein atoll and not just the landowners. 3. c. Consequential Damages and Problems of Ebeye Two major problems faced by the landowners are the following. As a result of being dispossessed of their lands, the landowners have suffered in two ways. Firstly they were deprived of their traditional, communal way of life freedom and culture. These losses and deprivations are tantamount to a loss of such magnitude that the evaluation of the loss in monetary terms is virtually impossible. Secondly, the landowners had to undergo immense suffering not only because they had to get used to an entirely new way of life dependent on a cash economy but also because many physical hardships were created because of the lack of good housing, infrastructure services, health and sanitation services. These problems came 7 to be compounded and shared by the influx of outsiders to Ebeye in search of jobs in Kwajalein missile range. The problems created in Ebeye were never resolved by the U.S. despite the many promises. Hence the landowners have requested in their Proposal for funding by the United States to solve these socio-economic problems once and for all. The purpose of the landowners’ proposal to the U.S. is to seek a permanent solution to the problems of the entire Marshallese community in the Kwajalein Atoll and not just those of the landowners. The landowners are asking that the consequential damages that are due to the landowners be dedicated totally for providing the needed infrastructures, housing, education, health services and for economic development aimed at increasing income and job opportunities. These programs will benefit over 20 percent of the population of RMI. 4. Where do we go from here? The landowners make the following appeal. 1. They appeal to the people of the RMI to understand the plight of the landowners in its proper perspective. There has been a historical injustice suffered by the Kwajalein landowners similar to those suffered by the four atolls, especially Bikini Atoll but which has not been addressed thus far. The landowners believe that the correction of this injustice is tantamount to doing justice by the entire population of RMI. It will be a landmark in our progress towards sovereignty and self-reliance. It will bring substantive real benefits not just to the landowners but also to a large proportion of RMI population in Kwajalein Atoll, the surrounding Atolls. It will also assist substantially the rest of RMI population by relieving the financial burden of the national government of having to spend its scarce capital resources on Ebeye. The resources thus released can be diverted to the development of the remaining atolls in RMI. 2. The landowners appeal to the RMI Government to submit their proposal to the U.S Government officially with its own recommendation. 3. The landowners appeal to the U.S Government, the U.S. Congress and the U.S. citizens for an understanding of the injustice suffered by the landowners and to take adequate measures to rectify this injustice. 4. The landowners have full faith in the good judgment and the sense of fairness in the U.S. legislature, Executive, the Judiciary and the general public. This amply proven by the numerous cases in which fair compensations has been awarded by the U.S. Courts to the injured parties. 8