Climate-Induced Migration and the Compact of Free Association (COFA):

economic factors influencing the island’s fiscal dependencies and reconfiguring its citizens’ internal and international mobilities. The first segment of the Marshall Islands Climate and Migration Project (“MICMP”/“Project”), for instance, sought to better understand Marshallese perceptions of the linkages between such climatic stressors and their migration within the RMI and to destinations in the United States (“US”).

While environmental dynamics are crucial to understanding Marshallese migrants’ decision-making, these factors also interact with a historical and contemporary legal landscape. This “lawscape” provides necessary context for achieving a more comprehensive understanding of the potential future(s) of climate-induced migrants, as well as enacting appropriate policies to meet the material and other needs along their full trajectory of possible migration decisions, including staying in place. The contamination and obliteration of Marshallese atolls, the long-term environmental dispossession and displacement of islanders, and the impact of the US military presence and foreign aid in the region—together with the legal frameworks that have facilitated these events and processes—are key to understanding the current state of migration and the future well-being of the Marshallese under conditions of climatic change. Of particular importance is the Compact of Free Association (“COFA”/“Compact”), the major bilateral agreement governing the relationship between the RMI and the US.

This policy brief explores the relationship between COFA and the Marshallese experience under the conditions of a changing climate and a documented increase in migration. It begins by providing a legal overview of the History of the Strategic Trust Territories of the Pacific and Nuclear Tests, as well as the COFA Compact Negotiations and the Nuclear Legacy. Following this, it focuses on key Migration Status information found within COFA, coupled with more general comments on Recent Migration Trends. The brief then reviews COFA and MICMP Research Findings, presenting the challenges and opportunities the Marshallese currently face within the RMI and in destination states (Hawai‘i, Washington, and Oregon) with respect to three indicators of well-being (Economic Conditions, Health and Health Care, and Education). This review is situated within the broader legal, policy, and academic literature. The brief concludes with comments on evolving legal provisions for the Marshallese and suggestions for further research.

History of the Strategic Trust Territories of the Pacific and Nuclear Tests

The legal relationship between the RMI and the United States, underwritten by the Compact of Free Association, speaks to decades of social, environmental, and political history. Following World War II, when the Charter of the United Nations established the International Trusteeship System to aid economic development and governance, promote peace, and prevent international conflict in Africa and the Pacific, the United States began to administer the Marshall Islands as a Strategic Trust Territoryi. The islands under the Strategic Trust included the modern-day nations of Palau, the Federated States of Micronesia, the Republic of the Marshall Islands, and the Northern Mariana Islandsii, which together constitute an area of land and sea roughly the size of the continental US.

While under the trusteeship, first administered by the US Navy and then by the US Department of the Interior, the United States erected a military base on Kwajalein. This base served as a command center for 67 atmospheric, ground, and underwater nuclear tests conducted between 1946 and 1958. The radiation from these tests had both ecological and human costs, the latter on account of the timing and distance associated with relocation efforts for Marshallese residents. The largest of the tests (Castle Bravo, in 1954) unleashed 15 megatons of power, or about 1,000 times that of the atomic bomb dropped on Hiroshima, obliterating three islands of the Bikini Atoll and dispersing fallout well beyond. During Castle Bravo, the US Navy left in place the Rongelapese and previously evacuated Bikinians (asked to temporarily relocate about a month before their evacuation), exposing them to radiation for over two days before evacuating them with nearby ships.

Migration Status

The Compact allows the Marshallese to establish nonimmigrant residence status and obtain work under Article IV.xii The Marshallese are not subject to certain limitations of the Immigration and Nationality Act (“INA”),xiii such as the need to meet “labor certification” requirementsxiv or to possess “a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document.”xv The Compact does not, however, confer “the right to establish the residence necessary for naturalization” under the INA, or “to petition for benefits for alien relatives under that Act.”xvi Thus, the Marshallese do not automatically qualify for the benefits of legal permanent residency, as would a green card holder, but must apply for naturalization like other nonimmigrants to the US.

Recent Migration Trends

The number of Marshallese residing in the US has risen sharply in the last two decades. The US Census Bureau (2010) reported that the population has tripled over the previous ten years, from 6,700 to 22,434, the majority of whom have moved to Hawai‘i.xvii As this population grows steadily,xviii destination states will continue to see an equivalent increase in expenditures,xix a cost sometimes referred to as the “Compact Impact.”

In 2011, the US Government Accountability Office (GAO) published Improvements Needed to Assess and Address Growing Migration in order to offer guidance on “address[ing] compact migrants’ impact and needs” in so-called “affected jurisdictions” like Hawai‘i, Guam, and the Northern Mariana Islands.xx The report detailed impacts on educational, health, and social services that contribute to costs associated with increased migration. While the environment is referenced in regard to sector grants that partially mitigate the “Compact Impact,” climatic change impacts are not addressed.

The importance of the MICMP is notable here because it provides information on the first-hand experience of climatic change and the migration decisions of the Marshallese in the wider context of historical, legal, and environmental regulation under COFA. In the following section, MICMP research findings are addressed, supplemented with contextual background provided by expert interviews and broader literature on economic conditions, health and health care, and education pertaining to COFA migrants.

COFA and MICMP Research Findings

The MICMP studied how climate change affects the ecosystems, livelihoods, and well-being of Marshallese migrants and communities in the RMI and in destinations in the US. The research team conducted fieldwork using mixed methods, including a household questionnaire, Q-Studyxxi interviews (both undertaken in the RMI and destination states), and participatory research approaches (within the RMI). While the MICMP did not pose questions about COFA directly to interviewees, all respondents are subject to its provisions. Their expertise regarding conditions in the RMI and in destination states thus provides initial indicators of needed policy interventions on both local and broader levels of governance in light of climate change.

The Marshallese have shared their concerns regarding long-standing difficulties, such as infrastructural and environmental problems, disaster preparedness, and national relief strategies, all of which interact with climate change and the provision of ecosystem services. They have also identified the inadequacy of health care, employment, education, and social services in the RMI as central motivations of their migration. These findings also provide context that makes it clear that, despite COFA’s provisions for migration pathways, the Marshallese who have moved to the US face discrimination and an array of issues accessing services, and a high percentage report receiving government welfare.xxii

Economic Conditions and COFA Migrants

weaknesses in achieving Marshallese self-reliance.xxix COFA required both the COFA nations and the US to conduct annual reports on expenditures, but those issuing from the COFA nations were often insufficient for establishing whether Compact funding was being put toward economic development.xxx In addition, US consultation with Compact nations did not occur until eight years after adoption, due to disagreement as to which agency was generally responsible for oversight of the relationship.xxxi The Office of Insular Affairs (“OIA”) blamed the problem on staffing shortages, budget constraints, and a lack of authority to enforce Compact requirements.xxxii As such, development aid is still crucial to the economic survival of the Marshallese in the RMI.

With the economic provisions of the Compact due to expire in 2023, and the Marshall Islands’ near complete dependence on foreign aid, the Asian Development Bank projected that the likelihood of the RMI trust funds maintaining their values through the planned goal of 2050 was less than half.xxxiii These funds have decreased each year since their establishment, and the GAO’s most recent report on the Compact in 2016 found that “neither country had made significant progress in implementing reforms needed to improve tax income or increase private sector investment opportunities” in preparation for the change to trust fund payouts in 2023.xxxiv

These reports on the inadequacies of future COFA economic assistance, coupled with the threat of compounding climate impacts, may prove to be the tipping point for further migration to US destinations. Additionally, while the current US administration continues to downplay the effects of climate change, the federal government, particularly the US military, is fully aware of the risks.xxxv Kwajalein has already been fortified to withstand rising tides and so have many other bases around the US.xxxvi However, this same threat exists for nearby atolls the Marshallese currently inhabit. As such, legal questions about the safeguarding of these outer island communities are raised—for instance, in relation to honoring Compact Section 311, which notes the obligation to protect the RMI “and its people from attack or threats thereof as the United States and its citizens are defended.”xxxvii

The respondents of the MICMP contribute to such conversations via their testimony on the economic perils and possibilities of migration to the US under COFA, both broadly and on a more granular level. An instance of the former is interviewees’ comments that the pattern of sustained growth in the RMI following the amendment of the Compact was due to significant increases in grant assistance from the United States and the Republic of China. More granularly, roughly half of the migrant respondents currently living in each of the destination states cited “quite a positive” influence that migration had on the economic situation and well-being of family members in the RMI.xxxviii Marshallese responses illustrate the economic tethering of the Marshallese who have migrated to those who remain in the RMI, with 70 percent of respondents sending remittances home from Hawai‘i and roughly 85 percent from the Pacific Northwest. Despite this, the types of employment COFA migrants in destination states obtain are predominantly low-salary private employment in elder care and care for the disabled, or work in canning factories and supermarkets. Further, the high cost of living in Hawai‘i has led to an estimated 1,150 homeless COFA migrants, information which has filtered into negative articles about Hawai‘i’s homeless populations.xxxix

However, COFA migrants have not always been protected from broader US policy changes, such as previous exclusions from welfare programs, and they may also be subject to different services depending on their destination state. In 1996, for instance, the US passed the Personal Responsibility and Work Opportunity Reconciliation Act (“PRWORA”), which redesignated COFA nationals as “non-qualified aliens” and officially revoked their access to nearly all federal public assistance, including Medicaid.xliv The renegotiated Compact of 2003 did not address this issue. In Hawai‘i, despite a five-year legal battle to ensure the state provided health care to COFA citizens, the state decided upon the removal of a high percentage of Marshallese from its Med-Quest roster.”xlv Further, COFA citizens that are receiving health care in Hawai‘i are often not “formally referred by their government health services,” but obtain their own public health insurance, such as Medicaid.xlvi Such issues illustrate that access to affordable health care programs for the Marshallese is highly dependent upon the state to which they choose to migrate, and subject to the shifting provisions within them.

Respondents of the MICMP reiterate some of these health-care related issues through their lived experience, reflecting upon both long-running and multiple-issue concerns, as noted in the quotation that opens this section of the brief. These findings are coupled with the perception by COFA migrants that, in all destination states, there has been a large improvement in health care (respondents in Hawai‘i ranked it as the most improved indicator of well-being, and those in the Pacific Northwest ranked it second, after employment).

Education and COFA Migrants

Language skills among the Marshallese who arrive in the US are also a factor in educational support, and are a challenge for migrants and local governments. When considering the inadequacy of the education systems in the RMI, it is no surprise that many of the migrants arrive with limited job skills and low levels of proficiency in English.liii In Hawai‘i and the Pacific Northwest, respectively, 75 percent and 62 percent of interviewees in the MICMP self-identified as English speakers. This need for specialized language services has caused states such as Hawai‘i to spend, for instance, more than $87 million in 2014 to educate 8,165 COFA students.liv Additionally, cultural and linguistic discrimination is in play, with COFA parents claiming that many of their children do not succeed in Honolulu’s schools on this account.iv

Conclusion: COFA and the Future

COFA, and the experience of living under its evolving legal provisions and interpretations, is critical to understanding the past, present, and future migration from the Marshall Islands. The long relationship between the RMI and the United States, governed by the Compact of Free Association, has resulted in the complicated matrix of dependence and responsibility detailed in this brief. This relationship sets the scene for a future in which the climate-induced migration of COFA migrants may occur at an increasing rate, and may also be subject to limitations in support structures that can be explained, in part, through examining the various legislative acts that write the history of free association.

In response to these concerns, delegates from Hawai‘i, Guam, and the Northern Mariana Islandslvi reintroduced the Compact Impact Relief Act in January of 2018,lvii which is meant to decrease burdens on Hawai‘i by providing the state with federal funding to support health care, education, social services, public safety, and additional services.lviii The bill similarly proposes the reestablishment of COFA migrant eligibility for federally funded programs and requires that this funding serve COFA migrants without removing benefits from US citizens.lix Hawai‘i senators and representativeslx have also introduced the Covering Our FAS Allies Act with the goal of allowing COFA migrants to obtain access to Medicaid coverage from the federal government.lxi This is of significance because it would also cover the Marshallese in other destination states,lxii such as Arkansas and Oklahoma, neither of which currently cover COFA migrants within their Medicare programs.lxiii

references (ENDNOTES)

i See Timothy H. Bellas, The Northern Mariana Islands Judiciary: A Historical Overview, Chapter 5, “The Trust Territory of the Pacific Islands,” NORTHERN MARIANAS JUDICIARY HISTORICAL SOCIETY (2011), at 35.

ii G.A. Res. 21, Apr. 2, 1947, UN Treaty Series Vol. 8, (originally published as S/318), at art. 2.

iii History of Failures, supra note 1, at 26–28.

iv See Anthony Solomon, The Solomon Report: America’s Ruthless Blueprint for the Assimilation of Micronesia, (1969), at 2. (The “Solomon Report” recognized the growing trend within the UN for fostering independence and promoting self-governance and noted that it would “become more than embarrassing” to be “the only nation left administering a trust territory.”)

v Cameron Jack Andrews, Micronesia in Modern Politics, UT AUSTIN PLAN II HONORS PROGRAM, December 14, 2017, at 47, [hereinafter Micronesia Politics].

vi Micronesia Politics, supra note 3, at 54.

vii History of Failures, supra note 1, at 4.

viii Compact of Free Association, U.S.–Micronesia & Marshall Islands, Pub. L. No. 99-239, 99 Stat. 1770 (1986). (COFA carried over the same major principle from the TTPI of “promoting the economic advancement and self-sufficiency of the peoples of the Trust Territory of the Pacific Islands.”)

ix Imagining the Marshalls, at 353.

x Arthur John Armstrong et al., “The Negotiations for the Future Political Status of Micronesia (1980–1984),” THE AMERICAN JOURNAL OF INTERNATIONAL LAW, Vol. 78, No. 2 (April, 1984) at 493, summarizing Section 177(a), Pub. L. No. 108–188, 117 Stat. 2772 (2003).

1. A claims fund of $150 million will be provided to the Marshall Islands Government and invested in interest-earning bonds, notes, or other redeemable instruments to create a potentially permanent endowment for payment of nuclear claims;

2. the proceeds of the fund will be utilized for payments to persons known to be affected by the nuclear testing program (specifically, the people of Bikini, Enewetak, Rongelap, and Utirik), and to fund a Marshallese claims tribunal to pay unknown or currently unknowable claims, and for medical care and other assistance to the Marshall Islands; and

3. in exchange for establishment of this settlement fund, the Marshall Islands Government espouses and settles all claims of its citizens arising from the nuclear testing program.

xi Agreement Between the Government of the United States of America and the Government of the Republic of the Marshall Islands Implementing Section 216 and Section 217 of the Compact, as Amended, Regarding a Trust Fund, US DEP’T OF STATE.

xii Pub. L. No. 108–188, 117 Stat. 2772 (2003), at Section 141(a).

xiii Id.

xiv 8 USC. 1182(a)(5).

xv 8 USC. 1182(7)(B)(i)(II).

xvi Pub. L. No. 108–188, 117 Stat. 2772 (2003), at Section 141(h).

xvii Pearl Anna McElfish et al., “Effect of US Health Policies on Health Care Access for Marshallese Migrants,” AM. J. PUBLIC HEALTH Vol. 105, No. 4, 637–643, (April 2015), at 638. (The exact number of migrants is difficult to ascertain considering their ability to freely come and go from the US without a visa.)

xviii Dina Shek et al., “Health Care for Micronesians and Constitutional Rights,” HAWAII MED J. (11 Suppl 2): 4–8 (Nov. 2011), at 4.

xix US Gov’t Accountability Office Testimony Before the Committee on Energy and Natural Resources and US Senate, COMPACTS OF FREE ASSOCIATION: ISSUES ASSOCIATED WITH IMPLEMENTATION IN PALAU, MICRONESIA, AND THE MARSHALL ISLANDS, GAO-16-550T (April 5, 2016), at 19. (The trust fund is capped at $150 million, yielding $270 million over the duration of the Compact.)

xx U.S. GOV’T ACCOUNTABILITY OFF., GAO-12-64, IMPROVEMENTS NEEDED TO ASSESS AND ADDRESS GROWING MIGRATION 41 (2011).

xxi The Q methodology is a research process by which shared views within a target population can be identified. The respondents in the MICMP were presented with 40 statements regarding topics such as, the state of ecosystem services, impacts of migration, and expectations of future habitability (including, for instance, ‘I will never leave my island’ and ‘High tides and storms [are] more frequent’). They were asked to sort (q-sort) these statements by their general level of agreement (agree, don’t agree, neutral), and then to arrange these statements into a pyramid, where there are more ‘neutral’ locations in the center of the pyramid, and fewer on the tapering ends, where respondents would place statements with which they had strong agreement or disagreement. Following this, the researcher asked the respondent questions about the statements they placed in the most extreme positions of the q pyramid. The MICMP identified three groups among respondents living in the RMI: migration critics, adaptation optimists, and island pessimists. Data for the destination states and further detail on this methodology can be found in the Case Study Report, accessible at https://rmi-migration.com/full-case-study-report.

xxii See Forthcoming Case Study Report, (52.5% in the Pacific Northwest, and 42.5% in Hawai‘i in this study).

xxiii See Endnote xxi

xxiv See US Gov’t Accountability Office Report to Congressional Requesters, US FUNDS TO TWO MICRONESIAN NATIONS HAD LITTLE IMPACT ON ECONOMIC DEVELOPMENT, GAO/NSIAD-00-216 (Sept. 2000), at 10. (According to a GAO report conducted before the renewal in 2003, the Compact funds “led to little improvement in economic development.”)

xxv Compact of Free Association Amendments Act of 2003, Pub. L. No. 108-188 (2003).

xxvi Agreement Between the Government of the United States of America and the Government of the Republic of the Marshall Islands Implementing Section 216 and Section 217 of the Compact, as Amended, Regarding a Trust Fund, U.S. DEP’T OF State, at art. 3. (States that the fund is “for assistance in education, health care, the environment, public sector capacity building, private sector development, and public infrastructure described in Section 211 of the Compact.”)

xxvii Id.

xxviii In contrast to the original Compact where annual lump sum payments were given to the RMI government, the amended Compact of 2003 provides economic assistance through “sector grants” that decrease annually from 2004 through 2023 and must be applied to the designated sector (i.e., education) directly.

xxix US Gov’t Accountability Office Testimony Before the Committee on Energy and Natural Resources and US Senate, COMPACTS OF FREE ASSOCIATION: ISSUES ASSOCIATED WITH IMPLEMENTATION IN PALAU, MICRONESIA, AND THE MARSHALL ISLANDS, GAO-16-550T (April 5, 2016), at 16.

xxx Id.

xxxi Id. at 12.

xxxii Id at 19.

xxxiii Id at 17.

xxxiv Id.

xxxv See generally General Ronald Keys, US Air Force et al., Sea Level Rise and the US Military’s Mission, THE CENTER FOR CLIMATE AND SECURITY (Sept. 2016), https://climateandsecurity.files.wordpress.com/2016/09/center-for-climate-and-security_military-expert-panel-report2.pdf. (“To use military parlance, the theater is, in essence, flooding. Adjusting to that rapidly changing theater will be absolutely critical for the US military to maintain its ability to fulfill its mission, and for the United States to adequately pursue its national security interests.”)

xxxvi See Id.

xxxvii Pub. L. No. 108–188, 117 Stat. 2772 (2003), at Section 311(b)(1).

xxxviii See forthcoming Case Study Report, (53.85% of interviewees in the Pacific Northwest, and 77.5% in Hawai‘i).

xxxix Report for the Governor, supra note 113, at 6.

xl Ann M. Pobutsky et al., “Micronesian Migrant Health Issues in Hawai‘i: Part 1: Background, Home Island Data and Clinical Evidence,” CAL. J. OF HEALTH PROMOTION, Vol. 7, 16–31 (2009), at 18.

xli Compact of Free Association Amendments Act of 2003, Pub. L. No. 108–188, 117 Stat. 2772 (2003), at Section 291(a).

xlii Id at 291(c). See also Section 314, which speaks to security and defense relations, explicitly states that the US will not, unless otherwise agreed, “test, dispose of, or discharge any other radioactive, toxic chemical or biological materials in any amount or manner that would be hazardous to public health of safety.”

xliii Id.

xliv Personal Responsibility and Work Opportunity Reconciliation Act of 1996. Pub. L. No. 104–193, 110 Stat. 2105 (1996).

xlv Id.

xlvi Id.

xlvii US Gov’t Accountability Office Report to Congressional Requesters, FOREIGN ASSISTANCE: EFFECTIVENESS AND ACCOUNTABILITY PROBLEMS COMMON IN US PROGRAMS TO ASSIST TWO MICRONESIAN NATIONS, GAO-02-70 (Jan. 2002), at 30.

xlviii College of the Marshall Islands and College of Micronesia.

xlix See National Center for Education Statistics, College of Micronesia—FSM, accessed July 9, 2018, https://nces.ed.gov/collegenavigator/?q=College+of+Micronesia&s=all&id=243638#retgrad.

l US Gov’t Accountability Office Report to Congressional Requesters, FOREIGN ASSISTANCE: EFFECTIVENESS AND ACCOUNTABILITY PROBLEMS COMMON IN US PROGRAMS TO ASSIST TWO MICRONESIAN NATIONS, GAO-02-70 (Jan. 2002), at 29.

li Id.

lii See Forthcoming Case Study Report.

liii Ann M. Pobutsky et al., “Micronesian Migrant Health Issues in Hawai‘i: Part 1: Background, Home Island Data and Clinical Evidence,” CAL. J. OF HEALTH PROMOTION, Vol. 7, 16–31 (2009), at 18.

liv David Ige, FY2011–FY2014 Hawaii Compact Impact Report, HAWAII GOVERNOR OF THE STATE OF HAWAII (Aug. 27, 2015), at 2.

lv Sheila M. W. Matsuda, “Drop-Out or Push-Out? Micronesian Students in Honolulu,” PASS-USA (May 12, 2016), http://www.pass-usa.net/micronesian-students-honolulu.

lvi Congresswoman Madeleine Z. Bordallo of Guam, Congresswomen Colleen Hanabusa and Tulsi Gabbard of Hawai‘i, and Congressman Gregorio Kilili Camacho Sablan of the Northern Mariana Islands.

lvii Compact Impact Relief Act, H.R. 4761–115th Congress. (Written to cover the additional costs borne by the state outside of just medical coverage.)

lviii Marianas Variety News and Views, “Bordallo, Hanabusa, Gabbard, Sablan Reintroduce Compact Impact Relief Act,” accessed June 20, 2019, http://www.mvariety.com/images/photos/2018/01-Jan/12/MV%2001-12-18/JAN12/page21.pdf.

lix Id.

lx Sens. Mazie K. Hirono and Brian Schatz, and Reps. Colleen Hanabusa and Tulsi Gabbard.

lxi Covering our FAS Allies Act, H.R. 2982–115th Congress.

lxii Id.

lxiii Pearl Anna McElfish et al., “Effect of US Health Policies on Health Care Access for Marshallese Migrants,” AM. J. PUBLIC HEALTH Vol. 105, No. 4, 637–643 (April 2015), at 640; also See Zoe Carpenter, “The Fallout,” NARRATIVELY (JULY 7, 2017), http://narrative.ly/how-years-of-ruthless-nuclear-testing-in-the-south-pacific-forged-americas-most-impoverished-ethnic-group/. (Story of the COFA communities in Oklahoma and their struggles in a state that chooses not to provide Medicare to them.)

lxiv Jacob Appel et al., Hawaii’s COFA Islanders: Improving Health Access and Outcomes—A report for the Governor of Hawaii, David Ige, Princeton Univ. Woodrow Wilson School of Public and International Affairs, January 2017, at 14.

lxv U.S. GOV’T ACCOUNTABILITY OFF., GAO-18-415, Compact of Free Association, Actions Needed to Prepare for the Transition of Micronesia and the Marshall Islands to Trust Fund Income 9 n.13 (2018).