A recent submission to the Office of the United Nations High Commissioner for Human Rights examines the legal responsibilities of the United States regarding its nuclear testing in the Marshall Islands between 1946 and 1958. The document, authored by Gemmo Bautista Fernandez, analyzes whether the US committed any wrongful acts during this period and assesses ongoing obligations for reparations.
The issue is significant due to the long-term health and environmental impacts experienced by residents of the Marshall Islands as a result of nuclear tests conducted at Bikini and Enewetak Atolls. The submission discusses challenges in applying current international law to historical events, particularly because many relevant human rights and environmental norms were not established at the time of the tests.
According to Fernandez, “the US government itself… conducted the nuclear tests at the Bikini and the Enewetak Atolls between January 1946 and July 1958. Thus, the conduct being that of a state organ, it is imputable to the US.” He further states that none of the recognized circumstances precluding wrongfulness appear applicable in this case. The analysis highlights that under Article 76 of the UN Charter, which became relevant when the Marshall Islands entered into trusteeship under US administration in April 1947, there was a duty “to promote the political, economic, [and] social advancement of the inhabitants,” as well as to encourage respect for human rights.
The submission argues that certain actions—such as forcible displacement and continued testing despite local opposition—may have breached these duties. However, it also notes limitations: “many of the norms that govern the impact of nuclear testing had not crystallised into law when the US tested nuclear weapons in the Marshall Islands.” As such, establishing wrongful conduct based on contemporary standards may be problematic.
Fernandez concludes that while two agreements exist between the US and Marshall Islands addressing losses from nuclear testing, questions remain about whether these fulfill all reparations obligations. He outlines several options for seeking redress but acknowledges difficulties with judicial dispute resolution or countermeasures due to power disparities between states. Advisory opinions from international courts are presented as another possible avenue.
The full submission can be accessed through the Office of the United Nations High Commissioner for Human Rights.
