MARSHALLS CAN’T GIVE WHAT IT DOESN’T HAVE

August 25, 2003

Letter to Editor

MARSHALLS CAN’T GIVE WHAT IT DOESN’T HAVE

The media has recently been inundated with news about the new Compact between the United States and the Marshall Islands (PIR: "Marshall Islands, Micronesia Compacts Are "Good Bargain"). While there has been open and healthy discussion on various aspects, good and bad, of this new deal, few have focused on the clever but incorrect representation that Compact II guarantees U.S. military rights in the Marshall Islands beyond 2016.

While the RM1 has in fact signed on to a "new" Military Use and Operating Rights Agreement (MOURA) under which such military access can be legitimized, a constitutional requirement for landowners' consent for the use of Kwajalein beyond the terms of the current agreement has not been satisfied. The overblown characterization of the agreement as a "guarantee" of military access is clever, I think, because it gives the Compact II agreement the strategic attraction many of its supporters feel would be needed to ensure Congressional acceptance. After all, they argue, defense rights and access are the centerpiece of the relationship.

The problem is that Compact II offers no such guarantee at this time and, to present it to Congress as if it does may indeed be a clever way of garnering support for it, but it borders on being duplicitous. The current Land Use Agreement (LUA) which the landowners have pledged in honor expires in 2016 unless a new land use agreement replaces it.

The RMI governments has no legal access to private land unless a lease is secured. Constitutionally, that means approved and granted by private landowners. The RMI has no public land. Eminent domain is virtually impossible to apply because the founding fathers of the Marshallese Republic designed it that way. Without landowner approval, the "guarantees" of military access to Kwajalein re meaningless. The RMI cannot give what it does not have.

The RMI and the U.S. government seem to have ignored this reality; the former promising the latter "delivery of Kwajalein" sometime soon after the coming RMI national elections, according to documents recently submitted to Congress. Even if the Parliament was returned with 100% support for the present government, that still would not give the RMI the right to grant access to Kwajalein without a lease approved and signed by the landowners. This fact is enshrined in the current Land Use Agreement.

The U.S. government may argue that this is an internal matter for the Marshall Islands, but in fact, the land Use Agreement and the Military Use and Operating Rights Agreement are so intricately intertwined, the parties to one cannot simply pretend the parties to the other do not matter. They do. For without one, there cannot be the other.

In agreeing to a new MOURA, which attempts to supplant the current LUA, the RMI and U.S. government may very well have committed a breach of the agreement under which the RMI obtained and consequently granted the U.S. government rights to Kwajalein. The current LUA, validated by the Courts of the Marshall Islands, says no amendment is possible without mutual consent. It limits the land agreement to no more than thirty years, meaning that expiration will occur in 2016; yet, the new MOURA contemplates rights through 2023 with options to keep it alive until 2066 and beyond. It contemplates all this in the absence of landowner approval, as required not only by the Land Use Agreement, but also by the laws and the Constitution of the Republic of the Marshall Islands.

The Kwajalein landowners do not wish to see the United States military leave. They believe a solution acceptable to all parties is possible. But neither do they wish to see Compact II presented and reviewed by Congress under fundamentally false assumptions about what it does and does not do. It is not in the interest of either the United States or the Marshall Islands.

Christopher J. Loeak Chairman Kwajalein Negotiation Commission

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