The Compact of Free Association and the UN Treaty on the Prohibition of Nuclear Weapons (TPNW) are legally compatible, according to a Harvard Law School review issued this week.
Bikini Atoll test "BAKER" in 1946 Photo: supplied
Concern about possible conflicts between the UN treaty and obligations of the Marshall Islands under the Compact of Free Association with the United States has led Marshall Islands lawmakers to be wary of formally adopting the new treaty.
"A close analysis of the TPNW and the Compact reveals that, from a legal perspective, the two instruments can be understood as compatible," said the six-page legal review by the International Human Rights Clinic at Harvard Law School.
"If the US contended otherwise, it would be failing to live up to its commitment in the Compact to respect the Marshall Islands' sovereign right to act in the interests of its people."
The review said the treaty offers many benefits to the Marshall Islands.
"Joining the Treaty on the Prohibition of Nuclear Weapons (TPNW) offers significant benefits to the Marshall Islands, one of the countries most affected by nuclear weapons testing," said the paper.
"The treaty strives to prevent future harm by comprehensively banning activities related to nuclear weapons. It also seeks to address the ongoing harm caused by past use and testing by establishing a framework of shared responsibility for victim assistance and environmental remediation."
The United States conducted 67 nuclear weapons tests in the Marshall Islands from 1946 to 1958. Many islands remain off limits for habitation because of radiation levels, and over $US2 billion in compensation awards to test-affected individuals and atolls have gone unpaid for lack of US compensation funding.
Resolution 46 for the Marshall Islands to accede to the treaty was introduced to Nitijela (parliament), but has yet to be acted on.
Last year, the Marshall Islands was one of 122 nations that voted in favor of the treaty at the United Nations.
At the time, Marshall Islands Ambassador to the UN Amatlain Kabua indicated the Marshall Islands government might not be able to accede to the treaty because of its obligations under the Compact with the US.
Subsequent to the UN vote, the treaty became open for nations to officially endorse the document.
The Harvard Law report writers don't see a legal conflict between the Compact and the new treaty.
"The Compact recognizes Marshall Islands' power over its foreign affairs, which includes the capacity to sign and ratify treaties, such as the TPNW," said the legal review.
"While the Marshall Islands may not engage in actions incompatible with the US's security authority, becoming party to the TPNW does not inherently run counter to that US authority."
The Compact also requires the US to "accord due respect" to the Marshall Islands foreign affairs authority and responsibility for its people's well-being.
Finally, if the US withheld assistance from the Marshall Islands response to its joining the TPNW, the Marshall Islands could appeal to the dispute resolution process established by the Compact.
The Compact itself, therefore, does not present an insurmountable legal obstacle to the Marshall Islands joining the TPNW and taking advantage of the benefits the treaty offers to states parties affected by nuclear testing.
Because the TPNW is a humanitarian rather than a security treaty, it should not run afoul of the Compact provisions giving the US government authority over security and defense matters affecting the Marshall Islands, according to the report.
"The Compact gives the US authority over security and defense matters, but the TPNW is primarily a humanitarian rather than security treaty," said the Harvard review.
"The TPNW aims to end the human suffering caused by nuclear weapons and includes obligations designed to mitigate the ongoing impacts associated with past use and testing."
If the Marshall Islands decides to join the UN treaty, "it will be a reasonable exercise of its foreign affairs power to advance the well-being of its people," the report said.
"While the two instruments might initially seem at odds, the Compact should not be treated as a legal obstacle to the Marshall Islands becoming party to the TPNW."
The International Human Rights Clinic encouraged the Nitijela to adopt Resolution 46 so the Marshall Islands can complete the process of joining the treaty, and also urged the US to respect this foreign affairs decision of the Marshall Islands government for the benefit of its people.