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Compact of Free Association

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Representatives of the Compact states meeting in Kolonia, Micronesia in 2019. Left to right: American Secretary of State Mike Pompeo, Micronesian President David Panuelo, Marshallese President Hilda Heine, and Palauan Vice President Raynold Oilouch

The Compact of Free Association (COFA) is an international agreement establishing and governing the relationships of free association between the United States and the three Pacific Island sovereign states of the Federated States of Micronesia (FSM), the Republic of the Marshall Islands (RMI), and the Republic of Palau. As a result, these nations are sometimes known as the Freely Associated States.

These nations, together with the Commonwealth of the Northern Mariana Islands, formerly composed the Trust Territory of the Pacific Islands, a United Nations trusteeship administered by the United States Navy from 1947 to 1951 and by the US Department of the Interior from 1951 to 1986 (to 1994 for Palau).

The compact came into being as an extension of the US–UN territorial trusteeship agreement, which obliged the federal government of the United States "to promote the development of the people of the Trust Territory toward self-government or independence as appropriate to the particular circumstances of the Trust Territory and its peoples and the freely expressed wishes of the peoples concerned".[1] Under the compact, the US federal government provides guaranteed financial assistance over a 15-year period administered through its Office of Insular Affairs in exchange for full international defense authority and responsibilities.

The Compact of Free Association was initialed by negotiators in 1980 and signed by the parties in the years 1982 and 1983.[2] It was approved by the citizens of the Pacific states in plebiscites held in 1983.[3] Legislation on the Compact was adopted by the U.S. Congress in 1986 and signed into law on November 13, 1986.[4]

Economic provisions

Each of the associated states actively participate in all Office of Insular Affairs technical assistance activities. The US gives only these countries access to many US domestic programs,[5] including disaster response and recovery and hazard mitigation programs under the Federal Emergency Management Agency, some US Department of Education programs including the Pell Grant, and services provided by the National Weather Service, the United States Postal Service, the Federal Aviation Administration, the Federal Communications Commission, and US representation to the International Frequency Registration Board of the International Telecommunication Union.[6] The Compact area, while outside the customs area of the United States, is mainly duty-free for imports.[7]

Most citizens of the associated states may live and work in the United States, and most U.S. citizens and their spouses may live and work in the associated states.[8][9] In 1996, the US Personal Responsibility and Work Opportunity Act removed Medicaid benefits for resident foreigners from the states, even after the five-year waiting period that most other resident aliens have.[10]

Military provisions

The COFA allows the United States to operate armed forces in Compact areas and to demand land for operating bases (subject to negotiation), and excludes the militaries of other countries without US permission. The US in turn becomes responsible for protecting its affiliate countries and responsible for administering all international defense treaties and affairs, though it may not declare war on their behalf. It is not allowed to use nuclear, chemical, or biological weapons in Palauan territory.[11] In the territories of the Marshall Islands and the Federated States of Micronesia it is not allowed to store such weapons except in times of national emergency, state of war, or when necessary to defend against an actual or impending attack on the US, the Marshall Islands, or the Federated States of Micronesia.[12]

Citizens of the associated states may serve in America's armed forces, and there is a high level of military enlistment by Compact citizens. For example, in 2008, the Federated States of Micronesia had a higher per-capita enlistment rate than any US state, and had more than five times the national per-capita average of casualties in Iraq and Afghanistan (9 soldiers out of a population of 107,000).[13]

21st century renewal and updates

In 2003, the compacts with the RMI and FSM were renewed for 20 years. These new compacts provided US$3.5 billion in funding for both countries. US$30 million will also be disbursed annually among American Samoa, Guam, Hawaii, and the Northern Mariana Islands in "Compact Impact" funding. This funding helps the governments of these localities cope with the expense of providing services to immigrants from the RMI, FSM, and Palau. The US usage of Kwajalein Atoll for missile testing was renewed for the same period.[14] The new compacts also changed certain immigration rules. RMI and FSM citizens traveling to the US are now required to have passports. The US Postal Service was given the option to apply international postage rates for mail between the US and RMI/FSM (phased in over five years). The USPS began implementing the change in January 2006, but decided to resume domestic services and rates in November 2007.[15]

The renewed compact (commonly called "Compact II") for FSM took effect on June 25, 2004,[16] and for RMI on June 30, 2004.

Map of the Trust Territory of the Pacific Islands (1961)

The economic provisions of the Compact for Palau which provided $18 million in annual subsidies and grants, expired on September 30, 2009, and the renewal talk was concluded in late 2010.[17] US financial support for Palau is based on a continuing resolution passed by the U.S. Congress.[18] The Compact Trust Fund set up to replace US financial aid underperformed because of the Great Recession.[19] The military and civil defense provisions remained until 2015.[20]

Senate Bill S.343, which would enact the results of the 15-year review, died in the 2011–12 Congress.[21] Another bill, S.1268 in the 2013–14 Congress, also was not passed.[22]

Other potential CFA states

The former government of the United States unincorporated territory of Guam, led by Governor Eddie Calvo, campaigned for a plebiscite on Guam's future political status, with free association following the model of the Marshall Islands, Micronesia, and Palau as one of the possible options.[23][24]

US fulfillment of commitments

The United States' administration of the former trust territories now covered under the Compacts of Free Association has been subject to ongoing criticism over the past several decades. A 1961 United Nations mission report initially noted deficiencies in "American administration in almost every area: poor transportation, failure to settle war damage claims; failure to adequately compensate for land taken for military purposes; poor living conditions[;] inadequate economic development; inadequate education programs; and almost nonexistent medical care."[25] In 1971, congresswoman Patsy Mink further noted that "[A]fter winning the right to control Micronesia, [the US] proceeded to allow the islands to stagnate and decay through indifference and lack of assistance. . . . [T]he people are still largely impoverished and lacking in all of the basic amenities which we consider essential – adequate education, housing, good health standards, modern sanitation facilities."[26]

After the compacts, criticism was also received by the United States House Foreign Affairs Subcommittee on Asia and the Pacific regarding the unfulfilled commitments of the United States to address the impacts of US nuclear testing in the Marshall Islands, which were included as part of the Pacific Proving Grounds. Speakers noted that while section 177 of the Compact of Free Association recognized the United States' responsibility "to address past, present and future consequences of the nuclear testing claims," less than $4 million was awarded out of a $2.2 billion judgement rendered by a Nuclear Claims Tribunal created under the RMI Compact, and the United States Court of Claims had dismissed two lawsuits to enforce the judgement.[27] With respect to these unaddressed claims, medical practitioners also noted the potential widespread impacts of nuclear testing within the Pacific Proving Grounds, indicated by the prevalence of both radiogenic diseases, as well as heart disease, diabetes, and obesity associated with "[a] forced changed in dietary patterns and lifestyle" resulting from US administration after the testing.[28][29] In 2011, lawmakers further noted that the US Congress had continuously failed to cover the costs of promised medical care and services to displaced compact citizens who migrate to the United States for health care, education, and employment opportunities, particularly since the passage of the Personal Responsibility and Work Opportunity Act.[30]

Questions regarding US responsibility have also been raised regarding the issue of numerous derelict war ships and oil tankers abandoned or destroyed by the US military in atolls and islands throughout the compact area.[31]

Health care issues

In 2009, the State of Hawaii, under the administration of then-Governor Linda Lingle, attempted to restrict health care access for Compact citizens by eliminating all Compact residents of Hawaii from Med-QUEST, the state’s comprehensive Medicaid coverage plan.[32] COFA residents were instead subject to Basic Health Hawaii, a limited health care plan under which "transportation services are excluded and patients can receive no more than ten days of medically necessary inpatient hospital care per year, twelve outpatient visits per year, and a maximum of four medication prescriptions per calendar month. . . . BHH covers dialysis treatments as an emergency medical service only, and the approximate ten to twelve prescription medications dialysis patients take per month are not fully covered. BHH . . . caus[es] cancer patients to exhaust their allotted doctors' visits within two to three months".[33]

Noting that such a policy likely constituted unlawful discrimination in violation of the Equal Protection Clause, federal District Court Judge John Michael Seabright issued a preliminary injunction against the implementation of Basic Health Hawaii.[34] In finding a high likelihood of irreparable harm, Judge Seabright took note of the "compelling evidence that BHH's limited coverage . . . is causing COFA Residents to forego much needed treatment because they cannot otherwise afford it".[35][36] Lingle's successor, Governor Neil Abercrombie continued the state's appeal of the injunction to the United States Court of Appeals for the Ninth Circuit,[37] which ruled in favor of the state. When the United States Supreme Court refused to hear the case, the Abercrombie administration removed most COFA residents from Med-QUEST and transferred them onto Affordable Care Act plans.[38] In other states, notably Arkansas, which has a significant population of Marshallese, COFA residents have not been eligible for Medicaid.[39]

See also

Notes

  1. ^ "About the Compact of Free Association". uscompact.org. United States Department of the Interior; Honolulu Field Office. Archived from the original on 2017-05-01.
  2. ^ Arnold H. Leibowitz (1 January 1989). Defining Status: A Comprehensive Analysis of United States Territorial Relations. Martinus Nijhoff Publishers. pp. 651–. ISBN 0-7923-0069-6.
  3. ^ Compact of Free Association in the Micronesian States of Palau, the Federated States of Micronesia and the Marshall Islands: Environmental Impact Statement. 1984. pp. 62–.
  4. ^ "Compact of Free Association". www.fsmlaw.org. Archived from the original on 8 October 2017. Retrieved 6 May 2018.
  5. ^ "Prime Award Spending Data by Location". USASpending.gov.[permanent dead link]
  6. ^ Palau COFA 1986, Title 1
  7. ^ Palau COFA 1986, Sections 241–242
  8. ^ Palau COFA 1986, Section 141
  9. ^ Federated States of Micronesia COFA, Section 141.
  10. ^ "House Health Bill Would Help Pacific Island Migrants". NPR.org. 6 January 2010. Archived from the original on 3 March 2016. Retrieved 2 January 2016.
  11. ^ Patterson, Carolyn Bennett, et al. "At the Birth of Nations: In the Far Pacific." National Geographic Magazine, October 1986 page 498. National Geographic Virtual Library, Accessed 17 May 2018. "The problem? The Palauans had voted for a constitution that banned nuclear devices. Salii then initial a compact agreement with the U.S. allowing American ships and planes of all types to operate in Palau. A court ruling held the compact illegal without a 75 percent referendum vote, a constitutional stipulation. Salii dissented, arguing for a more flexible interpretation of the constitution: "It does not say we cannot allow nuclear-powered ships if they are in transit." The Palau compact also allows the American military the option of using the nation's big island of Babelthuap for bases if the US should lose those in the Philippines."
  12. ^ "FSM COFA, Section 324" Archived 2009-10-10 at the Wayback Machine.
  13. ^ The Christian Science Monitor (5 May 2010). "Uncle Sam wants Micronesians for US military". The Christian Science Monitor. Archived from the original on 28 February 2016. Retrieved 2 January 2016.
  14. ^ BUSH SIGNS $3.5 BILLION PACIFIC COMPACT – December 18, 2003 Archived January 3, 2006, at the Wayback Machine at archives.pireport.org
  15. ^ USPS Postal News: USPS Delivers in the Pacific Archived 2007-11-28 at the Wayback Machine at www.usps.com
  16. ^ "Compact of Free Association". Archived from the original on 26 January 2016. Retrieved 2 January 2016.
  17. ^ "Compact of Free Association with the Republic of Palau: Assessing the 15-year Review". U.S. Department of State. Archived from the original on 10 February 2017. Retrieved 2 January 2016.
  18. ^ "The Continued Free Association with the Republic of Palau Act of 2012". U.S. Department of State. Archived from the original on 10 February 2017. Retrieved 2 January 2016.
  19. ^ "Compact Trust Fund underperforms". Archived from the original on December 13, 2011.
  20. ^ "Compact of Free Association with the Republic of Palau". Archived from the original on 4 March 2016. Retrieved 2 January 2016.
  21. ^ "S.343 – 112th Congress (2011–2012): A bill to amend Title I of PL 99-658 regarding the Compact of Free Association between the Government of the United States of America and the Government of Palau, to approve the results of the 15-year review of the Compact, including the Agreement Between the Government of the United States of America and the Government of the Republic of Palau Following the Compact of Free Association Section 432 Review, and to appropriate funds for the purposes of the amended PL 99-658 for fiscal years ending on or before September 30, 2024, to carry out the agreements resulting from that review". Archived from the original on 8 December 2015. Retrieved 2 January 2016.
  22. ^ "S.1268 – 113th Congress (2013–2014): A bill to approve an agreement between the United States and the Republic of Palau". Archived from the original on 8 December 2015. Retrieved 2 January 2016.
  23. ^ Post, Kevin Kerrigan and Gaynor D. Daleno | The Guam Daily. "GovGuam hopes for favorable decision on plebiscite". The Guam Daily Post. Archived from the original on 2019-10-07. Retrieved 2019-10-09.{{cite web}}: CS1 maint: multiple names: authors list (link) CS1 maint: numeric names: authors list (link)
  24. ^ Press, Jennifer Sinco Kelleher, The Associated (October 12, 2018). "Guam pushes for native-only vote on US relationship". Navy Times.{{cite web}}: CS1 maint: multiple names: authors list (link)
  25. ^ McHenry, Donald F. (1975). Micronesia: Trust Betrayed -- Altruism vs. Self Interest in American Foreign Policy. Carnegie Endowment for International Peace. ISBN 0-87003-000-0.
  26. ^ Mink, Patsy T. (1970–71). "Micronesia: Our Bungled Trust". Texas Int'l Law Forum. 6: 181–208. Archived from the original on March 4, 2016. Retrieved December 12, 2011.
  27. ^ Oversight on the Compact of Free Association with the Republic of the Marshall Islands (RMI): Medical Treatment of the Marshallese People, U.S. Nuclear Tests, Nuclear Claims Tribunal, Forced Resettlement, Use of Kwajalein Atoll for Missile Programs and Land Use Development Archived 2012-04-26 at the Wayback Machine
  28. ^ Id. (testimony of Neal H. Palafox, MD); see also Yamada, Seiji (2004). "Cancer, Reproductive Adnormalities, and Diabetes in Micronesia: The Effect of Nuclear Testing" (PDF). Pacific Health Dialog. 11: 216–21. Archived from the original (PDF) on April 26, 2012. Retrieved December 12, 2011.
  29. ^ Yamada, Seiji; Akiyama, Matthew (2013-01-27). ""For the good of mankind": The legacy of nuclear testing in Micronesia". Social Medicine. 8 (2): 83–92. ISSN 1557-7112. Archived from the original on 2017-08-14.
  30. ^ The Hawaii Independent. "Hawaii lawmakers ask feds to front Medicaid costs of COFA citizens - Pasifika Media Association". Archived from the original on 6 March 2016. Retrieved 2 January 2016.
  31. ^ Trevor Gilbert; Sefania Nawadra; Andy Tafileichig; Leonard Young (April 2003). Response to an Oil Spill from a Sunken WWII Oil Tanker in Yap (PDF). 2003 International Oil Spill Conference. Vancouver. Archived from the original (PDF) on April 26, 2012. Retrieved December 12, 2011. The problem of more than 1000 WWII shipwrecks, amounting to over 3 million tons sunk across the pacific, has been with us for 60 years and will not fade away by continuing to ignore the issue; see also WWII wrecks ‘threaten Micronesia’ Archived 2011-11-15 at the Wayback Machine; Assessing potential oil spills from WWII Wrecks Archived 2012-04-26 at the Wayback Machine
  32. ^ Saunders, Aaron; Schiff, Teresa; Rieth, Katherine; Yamada, Seiji; Maskarinec, Gregory G.; Riklon, Sheldon (June 2010). "Health as a human right: who is eligible?". Hawaii Medical Journal. 69 (6 Suppl 3): 4–6. ISSN 0017-8594. PMC 3123152. PMID 20539993.
  33. ^ Korab v. Koller, 2010 WL 4688824 (D. Haw Dec 10, 2010).
  34. ^ Id. ("Defendants fail to show any particular State interest that is advanced by their decision to exclude COFA residents from the Old Programs. . . . [W]hile the court recognizes that BHH was created in response to the State's budget crisis, when applying strict scrutiny, the 'justification of limiting expenses is particularly inappropriate and unreasonable when the discriminated class consists of aliens'")
  35. ^ Id.; see also Judge Dismisses Hawaii’s Request for Dismissal of Suit against Basic Health Hawaii Archived 2012-02-04 at the Wayback Machine ("Micronesian community representatives reported that elimination of medical benefits has impacted many, including 27 who have died since Sept. 1, 2009")
  36. ^ Shek, Dina; Yamada, Seiji (November 2011). "Health care for Micronesians and constitutional rights". Hawaii Medical Journal. 70 (11 Suppl 2): 4–8. ISSN 0017-8594. PMC 3254229. PMID 22235150.
  37. ^ "Korab v. Koller, Civ. No. 10-c00483-JMS-KSC (Jan. 10, 2011)" (PDF). lejhawaii.org. Archived from the original (PDF) on 4 March 2016. Retrieved 6 May 2018.
  38. ^ Hagiwara, Megan Kiyomi Inada; Yamada, Seiji; Tanaka, Wayne; Ostrowski, Deja Marie (2015-05-11). "Litigation and Community Advocacy to Ensure Health Access for Micronesian Migrants in Hawai'i". Journal of Health Care for the Poor and Underserved. 26 (2): 137–145. doi:10.1353/hpu.2015.0065. ISSN 1548-6869. Archived from the original on 2017-08-30.
  39. ^ McElfish, Pearl Anna; Hallgren, Emily; Yamada, Seiji (2015-02-25). "Effect of US Health Policies on Health Care Access for Marshallese Migrants". American Journal of Public Health. 105 (4): 637–643. doi:10.2105/ajph.2014.302452. ISSN 0090-0036. PMC 4358182. PMID 25713965. Archived from the original on 2018-12-15. Retrieved 2017-07-15.

References

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