I. Introduction
5. Blue Ocean Law and the Center for Constitutional Rights make this submission on behalf of the indigenous people of Palau (or Belau in the indigenous language), and specifically, on behalf of (1) the Ebiil Society, a community-based organization in Palau dedicated to preserving indigenous knowledge and protecting Palau’s environment, including its rich natural and cultural resources, and (2) a group of seven Palauan high school students, aged 14 to 18, who have dedicated the last year to documenting the impacts of militarization on their homeland.
6. Blue Ocean Law is an international law firm based in Guam, specializing in human and indigenous rights, self-determination, and environmental justice in the Pacific. Emerging from within Oceania, Blue Ocean Law works to protect the rights and well-being of Pacific peoples, especially the most marginalized. The Center for Constitutional Rights works with communities under threat to fight for justice and liberation through litigation, advocacy, and strategic communications. Since 1966, the Center for Constitutional Rights has taken on oppressive systems of power, including structural racism, gender oppression, economic inequity, and governmental overreach. The Center for Constitutional Rights has special consultative status with the United Nations Economic and Social Council.
7. The Ebiil Society is an organization of community members who came together to advocate for the conservation of the Ebiil channel, which is a crucial habitat for several fish species. Over time, the organization’s objectives have expanded to provide environmental education rooted in indigenous knowledge, as well as indigenous stewardship of Palau’s natural resources. Currently, the Ebiil Society conducts work throughout the country, including terrestrial and marine resource management; ecosystem restoration and reforestation; monitoring and conservation of endangered species, including endemic birds, endangered sea turtles, and the critically endangered mesekiu (Palauan dugong); marine debris monitoring and clean-up; and educational programs designed to transmit indigenous knowledge about Palau’s environment and culture to future generations.
8. The Ebiil Society offers a year-long decolonizing environmental social science research course for Palauan high school students. The class employs social science and indigenous research methods to produce knowledge on a range of topics significant to Palauan culture and ways of life. Each year, the students publish a book documenting their findings. In the
past, the students have conducted research on topics including the mesekiu and mesei (taro) cultivation. Most recently, the class has focused on the effects of U.S. militarization on Palauan communities and the environments on which they depend. The seven young people making this submission are the students that participated in the class researching U.S. militarization in Palau.
9. This most recent class research topic was selected in response to the ongoing and intense U.S. militarization in Palau. To be sure, the U.S. military is actively constructing radar facilities across virtually the entire country: in Kayangel Atoll in the North, in Ngaraard State on the main island of Babeldoab, on Peleliu Island, on Angaur Island, and in the Southwest Islands of Hatohobei. Over the past year, the decolonizing environmental social science research class has travelled throughout Palau, visiting each of these military sites, conducting interviews with impacted communities, and documenting the damage that has already occurred. Summaries of the research methodologies and results, as well as photographs from each site are included as Annex A.
10. As recently underscored by the Special Rapporteur on the human right to a clean, healthy and sustainable environment, it is well-understood that militarization, illegal development, and growing threats of war undermine the rights of indigenous peoples, including their right to a clean, healthy and sustainable environment.3 The results of the students’ research indicate that the U.S. military’s activities have already caused such rights violations throughout Palau.
11. In speaking with communities on each of the militarized islands, the students learned that military activities have destroyed entire ecosystems and critical habitats, as well as undermined peoples’ livelihoods, food security, ability to engage in cultural practices, and fundamental sense of safety and security. Among other things, the military has already cleared large swathes of forests, home to sacred sites, rare and endangered species, and other resources essential to community subsistence and cultural practices, all without conducting adequate environmental studies or obtaining necessary permits.
12. Further, the military is moving ahead with these major development projects without providing accessible or accurate information to impacted indigenous Palauan communities, let alone undertaking consultations or obtaining their consent. Communities at each site report that they have been given little to no information about the military’s activities the
scope, extent, or duration of the projects or how they will impact the lives of Palauan people. Many living in proximity to the military sites feel that what is happening is wrong but also feel powerless to take a stand against an institution as formidable as the U.S. military.
13. As tensions rise in the region, many also feel that this ongoing militarization is making Palau which is the closest U.S.-affiliated island chain to China a target of war. This increasingly likely outcome is seen as history repeating itself. During its colonial period, Palau was the site of some of the bloodiest battles of World War II. Now, although Palau is an independent nation, many especially elders who lived through that war feel that Palauans are once again being deprived of their autonomy and that their nation is once again being used as a pawn in the United States’ war.
14. The seven Palauan high school students who conducted this research, Ru-shell Keiula Kuroda, age 17; Idelbong Mamis, age 18; Mibuk R. Masang, age 16; Imaim Ngiraboi, age 16; Ebiklou Mau’hina Ngiraswei, age 15; Kelau Singeo, age 15; and Dilboi Suzuki, age 17, make this submission in an effort to protect their homeland and their people from further harms caused by U.S. militarization. For more than a year, these young people have witnessed the U.S. military devastate their homeland in flagrant disregard of Palau’s laws and its sovereignty. They have seen communities disempowered as the military seizes their lands and destroys their resources without giving notice, let alone asking for permission. They have seen this wrongful conduct occur again and again with absolutely no consequences. They feel compelled to take action to protect their islands because, in their own words: “Belau is our home. Belau is our mother. Belau is who we are.”4 They are now respectfully calling upon the Special Rapporteurs to investigate this situation, to validate the experiences of peoples whose rights have been violated, and to hold the United States accountable for its internationally wrongful conduct.
15. This submission proceeds as follows. We begin with a brief history of Palau’s colonization and ongoing relationship with the United States, including relevant developments during and since the island’s emergence as an independent nation in free association with the United States (Part II). We next proceed with an in-depth examination of current U.S. military activities (Part III), followed by a brief discussion of some of the ways in which these activities violate the United States’ international legal obligations in relation to the rights of indigenous Palauans (Part IV). We conclude with recommendations for
interventions that the Special Rapporteurs may take to encourage the United States to bring its activities in Palau into compliance with international law (Part V).
II. Palau’s Relationship with the United States
16. The Republic of Palau is a small island developing state in the western Pacific consisting of some 340 islands, islets, and atolls, eight of which are inhabited.5 Palau is located about 600 miles east of the Philippines and 4,450 miles southwest of Hawaiʻi. With a land area of about 189 square miles (489 square kilometers) and an exclusive economic zone extending over 237,850 square miles (616,000 square kilometers),6 Palau has a total population of approximately 21,800.7 Palau’s economy is driven mainly by eco-tourism, subsistence agriculture and fishing, and foreign aid reliance.8
17. Palau is part of the Pacific subregion of Micronesia, which also consists of the Republic of the Marshall Islands (RMI), the Federated States of Micronesia (FSM), the Commonwealth of the Northern Mariana Islands (CNMI), and Guam. The entire subregion is within the U.S. sphere of influence. Like Palau, both RMI and FSM are former U.S. colonies now in free association with the United States Guam and CNMI are U.S. territories. Guam, CNMI, and RMI have long been subject to U.S. militarization, while the U.S. military has only recently begun to expand its footprint in Palau and FSM. In comparison to the other islands of Micronesia, Palau has a relatively self-reliant economy, due in large part to its robust tourism sector, which is driven by Palau’s world-renowned pristine marine environment.9
18. Palauans are the country’s indigenous people and account for approximately 70% of the total population.10 Palauan cosmology provides that the islands and their people were born from a giant clam, which the highest God placed upon a shallow reef. This marine area, which is located off the northeast shore of Angaur island, is the site of creation not just of the Palauan islands, but of the world and of all life.11 Palauan is the official language of the nation, though many Palauans also speak English.
19. Palau was first settled by indigenous Palauans some 5,000 years ago. For thousands of years, Palauans maintained sophisticated biocultural law and governance systems.12 Palau’s modern government is a democratic republic with a constitution modeled after the U.S. constitution. That said, Palau’s modern system of governance maintains many
customary features, including a constitutionally protected role for traditional chiefs. Likewise, the deep connection between Palauan people, lands, waters, species, and resources at the core of Palauan culture is reflected in Palau’s environmental laws. Cultural practices thus inform the Palauan legal and political frameworks13 and the customary roles of traditional leaders are prominently enshrined in law.14
A. Palau’s Colonization
20. Palau was first colonized in 1885 by Spain, which made claims to the entirety of Micronesia for its strategic location.15 After its defeat in the Spanish-American War, Spain sold Micronesia to Germany, which occupied the region until the islands were captured by Japan during World War I.16 Japan continued to administer the islands after the war under the League of Nations’ South Pacific Mandate.17 During World War II, Palau was a major battle ground.18 Palauans suffered immensely as their islands were made into a war zone. Many Palauan lives were lost and ancestral homelands were razed to the ground. For example, the battle of Peleliu a notoriously unnecessary U.S. campaign to route Japanese forces on the island was one of the bloodiest battles of the War, with some 20,000 military casualties.19 It is because of this horrific experience that the state constitution of Peleliu bans militarization on the island.20
21. Over the course of World War II, Palau, like all islands under Japanese control, were seized by the United States. The United States instituted military rule over Palau at the close of the war.21 Like its colonial predecessors, the United States understood that control over the western Pacific namely, Micronesia was vital to its military interests.22 Indeed, the atomic bomb it dropped on Hiroshima was deployed from the nearby Northern Mariana Islands.23 Ultimately, Palau’s strategic location, coupled with its potential for infrastructure expansion, made it an essential part of U.S. military strategy.24
22. At the end of World War II, the newly-created United Nations (UN) established an international trusteeship system for the administration of non-self-governing territories previously held under League of Nations mandates by powers defeated in World War II.25 These were designated “trust territories” and were formally placed under the administration of certain responsible States.26
23. Thus in 1947, Palau became part of the Trust Territory of the Pacific Islands (TTPI),27 which comprised Palau and other Caroline Islands (modern-day FSM), the Marshall Islands (modern-day RMI), and the Northern Mariana Islands (modern-day CNMI).28 The TTPI was administered by the United States, which negotiated with the UN to have the TTPI uniquely designated as a “strategic trust territory.”29 Under this novel designation, the United States enjoyed exclusive military rights in the TTPI.30 Further, U.S. administration of the territory was subject to oversight only by the UN Security Council, and not by the UN General Assembly as was the case for all other trust territories.31 The United States also enjoyed the right to close off certain portions of the territory from any international oversight for strategic reasons a privilege it exercised in order to test 67 nuclear weapons in the Marshall Islands.32 As the TTPI administrator, the United States accepted as a “sacred trust,” obligations to protect the health and well-being of the peoples of the trust territory, as well as effectuate their self-determination, encompassing political development, economic self-sufficiency, and social and educational advancement.33
24. In 1981, while still under trusteeship, Palau’s constitution came into effect.34 In 1986, the United States implemented treaties of international political association, known as Compacts of Free Association, with two subgroups of the TTPI, establishing the newly independent Republic of the Marshall Islands and Federated States of Micronesia.35 These treaties terminated U.S. administration and established RMI and FSM as sovereign States. Negotiations for a similar treaty with Palau stalled, however, because the United States refused to accept an essential aspect of Palau’s constitution.36
25. Having seen the environmental and human devastation experienced in the Marshall Islands as a result of the U.S. nuclear testing program there, the Palauan people decided, as an exercise of their self-determination, to constitutionally ban nuclear material from their territory.37 The United States vehemently opposed this because it had plans to use Palau’s territory for military purposes, including the storage of nuclear weapons.38 The United States refused to grant Palau its independence unless this provision was omitted from the constitution, forcing plebiscite after plebiscite on the issue39 and violently suppressing proponents of the nuclear-free provision.40 For example, Palau’s first president and an influential proponent of the nuclear-free constitution, Haruo Remeliik, was assassinated during this period.41
26. In response to the United States’ unrelenting coercive tactics, a Palauan women’s group, Otil a Beluad (“Anchor of our Land”), brought the issue to the UN, arguing that the United States was denying Palau its right to self-determination by attempting to control the emerging nation’s constitution.42 Ultimately, thanks to the work of activists including Otil a Beluad, the Palauan people were successful in maintaining the nuclear-free provision in the constitution the first of its kind globally.43 The Compact of Free Association between the United States and Palau came into effect in 1994, terminating the United States’ trusteeship and establishing the Republic of Palau as an independent nation in free association with the United States.
27. Each tied to the United States through their respective Compacts, RMI, FSM, and Palau became collectively known as the Freely Associated States (FAS). While these countries attained independence through the Compacts, each also ceded a significant degree of sovereignty to the United States.44 The Compacts also tether the FAS to the United States economically, and in ways that entrench much of the dependency that was cultivated during the colonial period 45
B. Compact of Free Association
28. Although Palau fought and won its battle for the nuclear-free constitutional provision, the constitution was soon amended to provide an exception for the United States under the Compact of Free Association.46 The United States thus largely achieved its objectives through the Compact which it should be noted was negotiated between a global superpower and a colony striving for its independence.
29. Most significantly, the Compact grants the United States “full authority and responsibility for security or defense matters in 0r relating to Palau.”47 The United States is empowered to “conduct within the lands, water and airspace of Palau the activities and operations necessary for the exercise of its authority and responsibility,” including opening and closing Palau’s territory to the military forces of other States.48 The Compact further limits Palau’s sovereignty by restricting Palau from undertaking activities that the United States deems to be incompatible with its security and defense prerogatives.49 Finally, the Compact affords the United States the right to designate and use defense sites in Palau.50 When the United States designates a site, Palau must make that site or an acceptable alternative available.51
This grant of authority to the United States is tethered to and arguably dependent upon its responsibility for Palau’s national security and defense.
30. While the Compact affords the United States the right to designate and operate defense sites in Palau, it also requires that these activities comply with applicable environmental laws. As a baseline, the applicable standards are to be “substantively similar” to those contained in U.S. environmental laws, the specifics of which are to be developed through a cooperative bilateral process prior to the United States undertaking any activity in Palau that may impact its environment.52 This default arrangement may be superseded with an alternative regulatory scheme by agreement of the two nations.53
31. In March 2024, the Compact was amended to include several provisions, the most significant being continuation of previous economic assistance, with Palau set to receive $889 million through 2043.54 Essentially, until terminated the Compact will continue to govern relations between Palau and the United States. Most aspects of the Compact may be terminated unilaterally, although Palau must go through a more onerous process to unilaterally terminate compared to the United States.55 However, key defense provisions require mutual agreement between both nations to terminate the arrangement.56 Given Palau’s growing importance to U.S. military strategy, it seems increasingly unlikely that the United States will ever agree to such a termination.
III. Current U.S. Militarization of Palau
32. The United States is militarizing Palau from North to South.57
33. As we have set out in previous filings, the United States is preparing for war with China, including by ramping up its military presence in Guam, where U.S. military activities have long been violating the rights of the indigenous Chamorro people.58 The U.S. military has now turned its attention to Palau. For the first time, the United States has invoked its right to designate defense sites within Palau’s territory. To date, it has established six such sites: on Kayangel Atoll, in Ngaraard State on the main island of Babeldaob, on Peleliu Island, on Angaur Island, and in Hatohobei State on Helen Reef and on Hatohobei Island.
34. Although the Compact grants the United States the right to designate and develop defense sites in Palau,59 it also requires that these defense activities comply with applicable
environmental laws. 60 The default legal scheme under the Compact would be one tailormade and in substantive accordance with U.S. environmental laws. However, pursuant to Section 163 of the Compact, the United States and Palau appear to have agreed to supersede that framework, such that the U.S. military must instead comply with Palau’s “national environmental protection statutes.”61 This change was proposed by the United States in a 2017 diplomatic note regarding the defense sites.62
35. Palau maintains strong environmental laws to protect its precious resources as well as indigenous Palauan culture, which is inextricable from the islands’ environment and natural resources. Internationally, Palau is renowned as a “pristine paradise” because of the health and integrity of its terrestrial and marine ecosystems.63 Palau’s economy is largely driven by eco-tourism that depends on the continued vitality of the archipelago’s environment.
36. As relevant here, Palau’s Environmental Quality Protection Act and its implementing regulations contain stringent legal requirements for all projects taking place in the country that may have an impact on the human environment. The Act also codifies the right to a clean, healthy and sustainable environment.64
37. Pursuant to the Environmental Quality Protection Act, the U.S. military was required, prior to taking any steps toward undertaking its defense projects, to prepare robust and detailed EISs informed by community consultations. Indeed, the statute provides in no uncertain terms that “prior to making any environmental impact statement,” the responsible party (here the U.S. military) “shall consult with and obtain the comments of the interested public.”65 Once an EIS has been appropriately prepared, it must be reviewed and approved by Palau’s Environmental Quality Protection Board (EQPB) the regulatory agency responsible for implementing the statute. If the EQPB does not approve the EIS, the project will not be authorized and cannot move forward.66 Assuming the EIS is approved and the project is authorized, the responsible party must then secure all relevant permits and pay an environmental impact fee equivalent to 0.15% of any project valued at over $1 million.67 All of these steps must be completed before a project can begin. In addition, projects must comply with any and all local government requirements.
38. In a show of deep disdain for Palau’s sovereignty, the U.S. military is not complying with any of these requirements. Without providing any community consultation, preparing proper EISs, or obtaining required permits, the U.S. military is already constructing radar
facilities across Palau.68 Beyond grossly disrespecting Palau’s sovereignty, by recklessly moving forward with projects without adequate analysis or understanding of the impacts, the U.S. military’s actions are imperiling the health and well-being of Palauan communities, species, and ecosystems. In this section we briefly detail the impacts that have already occurred at each of the military sites, based on research conducted by the students in the decolonizing environmental social science research class and the Ebiil Society.
A. Angaur
39. On Angaur Island, the U.S. military is actively constructing a receiver facility as part of a tactical multi-mission over horizon radar (TACMOR) system.69 The accompanying transmitter facility is being constructed in Ngaraard State on Babeldaob Island.70 As of August 2023, the U.S. military had already razed 271,807 square meters (2.9 million square feet) of pristine forest on Angaur,71 which served as the island’s largest nesting ground for the critically endangered Palau megapode and provided important habitat for the endangered Palauan ground dove.72 Photos of the cleared area are included in Annex A. It should be noted that the ground dove, which is an endemic species to Palau, is endangered because it was nearly eradicated due to environmental damage caused by military operations during World War II.73 Community members interviewed by the students also explained that the razed forest included mangroves that provided the island with essential protection from wave inundation, storm surge, and flooding74 impacts that will only be exacerbated as climate change continues to worsen. A contractor working on the site has already been killed, washed away by the sea.75
40. The cleared area was also important to local food systems and food security. The land contained mesei (taro) patches that the community relied upon for sustenance, and women’s fishing grounds that were habitat for several species of crab (kesuar, rereek, rekung, ketat, and kesako) important for both food security and indigenous ways of being in Angaur. The crabs have essentially disappeared since their habitat was cleared, leaving local people without this vital resource. One community member explains the impact of the activities on the crabs, as well as all of the non-human relatives on Angaur:
This is the first time in my life coming to Angaur and not going crab hunting. Before when I came to Angaur, that’s usually the first thing I would do. I grew up here and I always go crab hunting. That area that they cleared I know did not just affect crabs but also specifically coconut crabs and all the animals in Angaur which are being displaced. These animals are just like us humans. If you destroy
their home, they won’t know where to go. The only time I get to see how big of an area they cleared is when I come on the plane. And when I see the area they cleared, I think of the animals that lived there, from the biggest animal all the way to the smallest because that was their home. So yes, it did affect not only crabs but the rest of the animals and plants.76
41. The facility also abuts Palau’s most sacred site: the place of all creation not just of Palau, but of the world and of life itself.77 As construction intensifies it is nearly inevitable that this most sacred site will be contaminated. For example, virtually every military site constructed in nearby Guam has resulted in environmental contamination.78 The same pattern holds true in militarized islands across the Pacific.
42. The military began razing this huge swath of forest and began constructing its radar facilities without conducting an environmental impact assessment or obtaining any relevant permits as required by Palau’s Environmental Quality Protection Action.79 Though the Air Force subsequently obtained required permits, their validity remains in question, especially given that no EIS was ever prepared for this site. Moreover, significant land clearing was undertaken before these permits were issued, in clear violation of Palau’s laws. Construction is still ongoing, with the military aiming to erect 300 antennas at the site.80
43. Local people in Angaur lack information about the military’s purpose and activities there. Every community member that the students spoke with explained that they have no idea what the military is doing with their land. They explain that the military has never provided a public hearing or any other form of engagement for people to learn, ask questions, or give their permission.81 Moreover, even as construction continues, the military is already conducting operations on the island which are disruptive to daily life. The military routinely blocks the roads without asking permission and restricts community access to a large part of the island including essential fishing and farming areas, further disrupting local food systems.82 Likewise, the military is routinely illuminating the runway with bright lights at night, firing guns, and testing missiles by launching them into the ocean.83 All of these activities are being conducted without obtaining permission from or even providing notice to local people.
B. Ngaraard
44. In Ngaraard, on the main island of Babeldaob, the United States is developing the transmitter component of its TACMOR system. Although the Air Force nominally prepared
an EIS for the Ngaraard-based component of the TACMOR system in 2023, the document is grossly deficient.84 The EIS was not made available in Palauan, despite Palauan being the official language of the country, and the only language spoken by many local people. The entire “analysis” is 17 pages of conclusory statements.85 The EIS does not adequately describe the project itself, provide a baseline environmental assessment, or analyze environmental impacts. The EIS also fails to address alternatives, including a no-project alternative, or meaningfully consider cumulative impacts.86 All of these components are explicitly required by Palau’s Environmental Quality Protection Act and its implementing regulations.87
45. Notably, despite the clear regulatory requirement to consider cultural impacts,88 the EIS fails to do so beyond a cursory consideration of archeological sites. The military must comply with Palau’s laws and norms, meaning what is considered a cultural impact must be defined in Palauan terms, not American ones. The Palauan notion of culture is much more holistic and all-encompassing than historic relics. All of Palau’s lands and waters are sacred, holding stories and memories for generations, while all plants and animals are relatives to Palauans today, holding deep significance to Palauan cultural practice. Likewise, subsistence practices such as farming and fishing are of immense cultural significance. Despite this, the EIS does not consider the impacts on any of these cultural touchstones.
46. Beyond its substantive inadequacies, the process undertaken with respect to the preparation of the EIS was utterly insufficient. As referenced above, the Environmental Quality Protection Act requires that consultation with local communities be undertaken before the EIS is prepared. The Act’s implementing regulations further require that the EIS contain “a detailed description of consultation activities with the local community, land/resource owners, and interested stakeholders, along with a detailed list of comments and/or recommendations raised during said consultation and applicant’s responses to the comments and/or recommendations raised during said consultations.”89 Here, such a consultation was not undertaken. The EIS devotes one page to the matter of consultation, merely stating that consultations were conducted in 2017, but providing no details about what these consultations consisted of or who was consulted.
47. The lack of consultations is evident throughout the document itself. For example, all local people know that the bay abutting the site is an important feeding ground for the critically
endangered mesekiu (Palau dugong). The dugong is a sacred creature of utmost importance in Palauan culture. The first dugong was a Palauan woman, and so dugong are close kin. The military evidently did not consult with any local people about the presence of the dugong at the site, nor do any additional investigation. Rather, the military states in the draft EIS that “the occurrence of the Dugong in the vicinity of the Tx site is unknown” and, alarmingly, concludes that the project will, therefore, have no impact on these creatures.90 To be sure, the military repeats this deficiency throughout the EIS, simply concluding without any analysis, evidence, or explanation, that any potential harm will be minimal.91
48. A 30-day opportunity for public comment was provided in November 2023, during which 42 public comments were submitted.92 Of these, most were deemed irrelevant. For example, comments that were written in Palauan language were considered irrelevant because they were not written in English this despite the fact that Palauan is the official language of the nation.93
49. The final version of the EIS was issued in February 2024 (Annex D.1). The final EIS was essentially unchanged from the draft version, except that several studies in total nearly 1,000 pages that were not included with the draft EIS were appended to the final version.94 Essentially, this means that the public was not given an opportunity to review or make comments on these studies, but only to comment on the cursory overview provided in the draft EIS. In September 2024, the Palau Environmental Quality Review Board approved the EIS and permitted the project 95
50. Local legislation of Ngaraard State provides that final permitting authority rests with the Ngaraard local government, and the local government intends to conduct an independent review of the project before determining whether to issue necessary local permits.96 However, given that the U.S. military has moved ahead with its projects throughout Palau without following required processes or obtaining necessary permits, it seems unlikely that the military will respect the local government’s authority in this instance Indeed, in 2022, before the draft EIS was complete or made available to the public, the military awarded a California-based firm a $118 million contract to carry out construction at the Ngaraard site, suggesting that the military intends to move forward with the project regardless of whether the local government approves.97 Moreover, locals report that earth moving activities are already taking place at the site. These activities are premature, illegal, and further evidence of the military’s willful disregard for Palauan sovereignty.
C. Hatohobei and Kayangel
51. In Hatohobei State, which comprises several islands in the southwest of the country, the U.S. military has already constructed two radar facilities.98 In both cases, based on community reporting and publicly available information, it appears that the military did this without conducting any community consultations, preparing required environmental assessments, or obtaining required permits.99 The first radar facility is on Helen Reef, which is in a conservation zone100 and designated as an Important Bird Area home to 1.8% of the entire global population of black noddy (approximately 20,000-24,000 birds).101 Helen Island is also an important nesting ground for sooty terns, great crested terns, brown boobies, and red-footed boobies, as well as important habitat for frigatebirds, white-tailed tropic birds, and red-tailed tropic birds.102 Helen Reef is the most significant nesting ground for endangered melob (green sea turtles) in Palau.103 The radar facility, which is situated just offshore, is almost the same size as the tiny island.104
52. On Hatohobei Island, home to just nine households, the U.S. military has constructed a radar facility next to the community cemetery, on a part of the island that was also an important habitat for many bird species.105 With the trees that made up their habitat now destroyed, the birds have no choice but to roost on the radar itself.106
53. The military is also constructing a radar in the far north, on Kayangel Atoll.107 Kayangel is likewise an Important Bird Area108 because it provides critical habitat to endangered Palauan megapodes accounting for one-third of the entire population of megapodes in Palau. Once again based on community reporting and publicly available information it seems that this site, too, was constructed without compliance with applicable environmental laws or standards.109
54. The unique and fragile ecosystems at each of these sites are sacred, and the species that inhabit them are relatives to the Palauan people. Harm to them is thus an assault on Palauan culture. Moreover, each of these species plays an important part in maintaining the health and vitality of the integrated island ecosystem, and harm to them also undermines the environmental health of the entire archipelago.
D. Peleliu
55. On Peleliu Island, the U.S. military has already cleared large tracks of land to develop an international airport for use by military aircraft.110 Here too, based on publicly available information and community reporting, the U.S. military has done no environmental assessment prior to beginning the project, nor has it obtained any required permits.111 As in Angaur, local people in Peleliu lack information about the military’s purpose and activities. They report that the military has provided no opportunities for people to learn about the project, ask questions, or give consent.
56. Although the United States claims that the project will benefit local people by enhancing their airport, Peleliu is only 5 square miles in size and has no need for an airport of this scale. Moreover, negative impacts have already been caused by the project. The military has seized private land for the project and landowners have not been compensated.112 The construction has also destroyed mesei (taro) patches in agroforestry areas that were important to meeting the community’s subsistence needs.113 In addition, Peleliu’s economy largely depends on nature-based tourism. Local people worry that the degradation of the environment already occurring because of these military activities will render tourism unviable, depriving them of their primary source of income. One community member explains the economic impact:
The military came and took away the beauty that the tourists came to see. If I had a say in the arrival of the military, I would’ve said no. A belaud a kmal uangerang [We had no opportunity to talk about our home and what is important to us].114
57. Military aircraft are regularly flying low across the island, causing disruption to the daily lives of people on Peleliu.115 This conduct is also disturbing sacred sites and affecting animal behavior. Peleliu, too, is an Important Bird Area.116 It is a key waystation for migratory birds, located within two major flyways, the East Asian-Australian Flyway and the West Pacific Flyway. It is also the nesting ground for the endangered Palau Megapode and an important rest location for at least 30 species of endangered migratory shorebirds, including three critically endangered species the far eastern curlew, the bartailed godwit, and the great knot.117 In fact, no other site in the Micronesian region has larger numbers or more varieties of shorebirds. The impacts of the military activities on these endangered species is unknown, given that no environmental impact assessment has been conducted. However,
local people report that the military work is negatively affecting both plants and animals in Peleliu through deforestation and noise pollution.118 Several community members look at the harm that has already occurred, and fear things will only get worse based on the environmental devastation the U.S. military has caused in other places:
We need to look at Okinawa and learn from it, so we don’t experience the same thing from the U.S. military. I believe it can affect the minds of the local children and adults. [Already,] you can barely see animals and plants thriving in the environment. The sound pollution such as from airplanes is making the local people sick.119
When you say an effect, let’s not look at that because we don’t know what those effects are. Let’s look at Guam, let’s look at Okinawa; that is what we need to learn. You don’t need a degree to know black and white. So, I think Palau needs to learn from other damage in Micronesia. We have a lot of potential to learn from that damage and protect ourselves. But if we continue as we are, it will seem that we haven’t learned anything.120
58. Many in Peleliu also fear that the militarization of their island will put them at risk of war. The elders of Peleliu have a particular reason for this fear. Peleliu was the site of one of the bloodiest battles of World War II,121 an assault by the United States that razed the entire island, displaced local people, and resulted in over 20,000 causalities,122 costing local people their homes, cultures, and well-being. By all accounts, the battle was unnecessary. Peleliu was not a site of strategic importance, and seizing the island did not affect U.S. strategic goals in the Pacific theater.123 The battle was so traumatic that Peleliu’s local constitution prohibits militarization on the island124 yet another expression of sovereignty that the United States has ignored as it moves forward with its project on the island.
59. Concerningly, there is a proposition to repeal this constitutional provision scheduled to be placed on the ballot for Peleliu’s next local election in December 2024, as well as a proposition to remove Peleliu chiefs that have expressed concerns over the military activities from Peleliu’s legislative body.125 There has been no public education about the content or purpose of these propositions. It is unclear who put forward the propositions, which were drafted outside of the public eye and came as a shock to the elders and traditional leaders of Peleliu.
60. Like the people of Peleliu, communities across the militarized Palauan islands have expressed fear that the growing U.S. military presence, far from providing security, is making Palau a target of war. For example, community members explain:
I kind of don’t feel safe. If there were to be a war, Palau would be one of America’s defenses, which would put our life on the line. When I see the airplanes pass, I know they are building up the airport, but I know there’s another reason why they are doing it. I don't know why, but according to the news, we notice the conflict between the U.S. and China.126
Well, the radar is here, so we’re the target now. You know once something goes up, you hit Ngaraard and Angaur. In terms of war, it makes sense you hit the communication [facilities]. That’s where [the violence] is going to be.127
No, we’re not gonna be safer. We know that when there’s gonna be conflict, the first thing they’re going to do is send the missiles to Angaur. So, we are the first targets. What do you think- it’s simple mathematics.128
61. Further, given the lack of consultation, information sharing, or opportunity to provide consent, many feel powerless. They feel that their islands are being designated as a war zone and that there is nothing they can do to stop it. One community member from Angaur explains this sense of hopelessness:
We are like targets now. Even if missiles and bombs go to Angaur, it’s just going to happen. We can’t change it because the Angaur people already accepted the soldiers coming to Angaur, so there's nothing I can do. I don’t feel safe at all.129
62. Others recognize that the United States’ conduct is wrong and remain committed to taking action to oppose what the U.S. military is doing to their homeland:
Honestly, we can’t stop it but that doesn’t mean we completely become complacent. We should do something. We still have a say. No matter what, Palau is still ours. We should put Palau’s interest first, whether it seems fair or not, too bad. If you [the United States] want our country, you go with our request or what’s expected . . . It doesn't matter if Palau is small and Texas is this big, we’re just as important. We should be respected and given all the information.130
63. The insecurity that the U.S. military’s activities have created is directly contrary to the United States’ obligations under the Compact to ensure Palau’s national security. Indeed, there is nothing that could undermine Palau’s national security more than U.S. military facilities within its territory. As local people living in the shadow of each of these sites have
expressed, the U.S. military presence in Palau does little more than make the country a target of war. Palau is the U.S.-affiliated island chain that is closest to China, and it appears that the U.S. is militarizing the archipelago not to protect Palauan national security, but rather to prepare for what increasingly seems like an inevitable war.131 The elders of Peleliu who lived through World War II see what is happening on the island today as history repeating itself. Based on their past experience, they know that the United States is readying once again for combat:
They are testing, if anything, how long it takes to fly from Guam to Palau or Taiwan. The older folks (those who were alive during the war) know that they are not just testing the soldiers, they are readying themselves and testing their response time.132
64. And so, like Guam,133 like the CNMI,134 like Hawaiʻi,135 like Okinawa,136 like the Marshall Islands,137 it would seem that Palau is becoming yet another sacrifice zone in the United States’ endless wars.
IV. U.S. Militarization in Palau Violates International Law
65. We submit that, through its ongoing military activities in Palau, the United States is in violation of several of its legal obligations under international law. These include the United States’ erga omnes obligation to protect, respect, and fulfill Palauan people’s right to selfdetermination; its obligation to obtain free, prior and informed consent for all projects affecting indigenous Palauans’ lands and resources; its obligations in respect of Palauan cultural rights; and its obligations in respect of Palauans’ rights to a clean, healthy and sustainable environment. We submit that, as recognized by human rights treaty bodies, tribunals, and UN organs, each of these obligations apply extraterritorially.138 Moreover, given the full and exclusive military authority that the United States enjoys over Palau’s sovereign territory, impacted communities are unambiguously under U.S. jurisdiction for purposes of these activities.139 As such, the U.S. holds obligations to Palauans in relation to human rights harms arising from the same.140
A. Self-determination
66. The right to self-determination is a jus cogens norm of international law, encompassing the right of peoples to freely determine both their political status and their development paths, to be self-governing, and to enjoy permanent sovereignty over natural resources (PSNR).141
Each and every State holds erga omnes obligations to protect, respect, and uphold this right wherever it is being violated.142 In the Compact, the United States specifically acknowledges the Palauan people’s right to self-determination and affirms its commitment to upholding their enjoyment of the same.143
67. Despite this commitment, the United States is actively obstructing Palauan selfdetermination by failing to recognize Palau’s sovereign authority and acting extralegally within Palau’s territory. While the U.S. military has the right to designate defense sites in the country, it does not have the right to do so in a way that is contrary to law. As set out above, the U.S. military has already moved forward with major projects impacting Palau’s people and environment without complying with any Palauan environmental laws this despite its own concession that these laws apply to the projects.144
68. As the former colonial administrator of Palau, the United States is obligated to respect the political status chosen by the free and genuine will of the Palauan people. Indeed, in the process of decolonization, there is “no alternative to the principle of self-determination.”145
The U.S. military’s disregard for Palau’s laws undermines Palau’s sovereignty and its status as an independent nation. The United States is effectively behaving as though Palau remains a non-self-governing territory, with no power to exert legal authority over the United States’ activities within its own territory. This type of colonial behavior constitutes a clear violation of the right to self-determination and has been consistently and decisively condemned by international law.146
69. The United States is further violating the Palauan people’s right to self-determination by impairing their ability to enjoy PSNR. Both a subcomponent of the right to selfdetermination and a stand-alone peremptory norm of international law,147 PSNR guarantees all peoples the right to “freely dispose of their natural wealth and resources” and provides that “[i]n no case may a people be deprived of its own means of subsistence.”148 Here, the U.S. military has unilaterally seized and destroyed precious natural resources across Palau, all without complying with environmental processes or permitting requirements. The unlawful taking of these resources has deprived the Palauan people of the ability to manage their own natural resources, thereby depriving them of PSNR. Moreover, as discussed above, military projects across the archipelago have compromised important food systems, impeding the ability of impacted communities to provide for their own subsistence.
70. Finally, U.S. military activities threaten to compromise Palau’s economic self-reliance, which is largely driven by nature-based tourism. Palau’s eco-tourism industry sets it apart from the other nations in Micronesia, which are largely reliant on the United States for economic support. As many local people have expressed, degradation of the environment by the military poses a serious risk to the continued viability of this sector, thereby undermining the Palauan people’s ability to freely pursue their own economic development in further violation of their right to self-determination.
71. In short, while the United States is authorized to designate defense sites in Palau, it is not empowered to do so in a way that violates’ Palau’s laws or otherwise deprives the Palauan people of their self-determination. These violations are especially egregious given both the denial of self-determination that the Palauan people suffered during colonial rule and the hard-won battle they undertook to achieve independence from the United States.
B. Indigenous Rights – Free, Prior and Informed Consent
72. Palau has endorsed the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which requires adherence to the norm of Free, Prior and Informed Consent (FPIC) for all development projects affecting indigenous Palauan lands and resources.149 Grounded in the right to self-determination, FPIC guarantees indigenous Palauans the right to provide or withhold consent for any project affecting their lands, territories, or resources, including the present military build-up.150 The opportunity to provide consent must occur before any steps toward implementation of the project begin and must be based on open, transparent, and complete information about the project and its potential impacts.151 Consent must be given freely, absent any manipulation, intimidation, or coercion. If the impacted indigenous people do not give their consent, the project cannot go forward.152 The FPIC principle is in place to avoid repetition of the long history of outside forces seizing control of and damaging indigenous land and resources. Palau and the United States are part of this history, including through the tremendous loss of land, resources, and both human and non-human life during the course of World War II.
73. Through its military activities, the United States has severely violated the FPIC rights of indigenous Palauans. Each of the military sites lies on the ancestral land of indigenous Palauans. As such, the U.S. military was required to obtain informed consent from affected communities prior to commencing these activities. In no case has the U.S. military done
this. Most egregiously, in Angaur, Peleliu, Kayangel, and Hatohobei, the military has already undertaken major construction activities without providing meaningful information to impacted communities or providing them with an opportunity to voice their concerns let alone making so much as a gesture toward obtaining consent. In Peleliu, land was seized without permission and without providing any compensation to landowners. In Ngaraard, although some information about the project was provided through the Air Force’s EIS, this was inadequate to inform local communities about what impacts the project would have on their lands, territories, and resources. What little information was made available was not provided in Palauan, preventing many in the community from engaging in the public consultation process at all. Moreover, community consent was apparently irrelevant to the military, as evidenced by the USD $118 million that was committed to the project a full year before the EIS was completed or made available.
74. Moreover, the lands, waters, species, and resources of Palau form a single integrated ecosystem. Impacts in one location have significant effects throughout the totality of the environment. For example, any impacts to species that travel throughout Palau such as the mesekiu (dugong), melob (green sea turtle), birds, and bats, and any long-term impacts to the climate resulting from greenhouse gas emissions will affect the island ecosystem as a whole. Thus, it is not only the consent of neighboring communities that must be obtained, but all indigenous Palauans whose land, sacred sites, and resources are being impacted.
C. Indigenous Rights - Cultural Rights
75. The U.S. military’s activities in Palau also have violated indigenous Palauans’ cultural rights. Cultural rights are enshrined in various international legal instruments, including the Universal Declaration of Human Rights,153 the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The people’s right to pursue cultural development is also integral to enjoyment of the right to self-determination.154 The ICESCR protects the right to “take part in cultural life,” including through “access to essential aspects of their culture, including not only language, traditions, and customs,” as well as “nature’s gifts, such as seas, lakes, rivers, mountains, forests and nature reserves, including the flora and fauna found there.” 155 The ICCPR protects the rights of minorities and indigenous peoples to “enjoy their own culture, to profess and practise their own religion, [and] to use their own language.”156 Indigenous peoples are guaranteed heightened protections for cultural rights, in recognition of both the
histories of cultural genocides inflicted by colonial powers, and the intertwined nature of indigenous cultures and their specific environments. The cultural rights of indigenous peoples thus include “the inalienable right” to “enjoy the territories and natural resources that they have traditionally used for their subsistence and cultural identity.”157
76. These rights have been categorically violated by the U.S. military’s activities in Palau. The flora and fauna of the islands are core to Palauan culture. At each site, military activities have destroyed habitat and displaced numerous species many of them endangered and endemic tearing apart the very fabric of Palauan culture. In Angaur, Peleliu, Kayangel, and Hatohobei, many of “nature’s gifts” have been taken away entirely as the military has razed large swathes of land and displaced important species. On Angaur, the military facility abuts perhaps the most sacred site to Palauan people the site of all creation. Though no information has been provided about impacts of the facility on the site, a long and consistent history of contamination in the proximity of similar military facilities throughout the Pacific virtually guarantees the site’s desecration. On Hatohobei, the military erected a radar essentially on top of the community’s cemetery a sacred site important to maintaining connections with the ancestors. In Ngaraard, the project threatens to contaminate an important feeding ground for the critically endangered Palauan dugong, which is recognized in national law as an “intrinsic part of Palauan culture” that has “played an important role in our heritage for many generations.”158 The U.S. military’s refusal to make any documents related to their various projects available in the Palauan language further impacts the right of Palauans to use their own language in respect of this major impact to their lands, resources, and lives.
77. The above represent just a few examples of the myriad cultural rights violations already caused by U.S. militarization in Palau. It must be emphasized that because the military has refused to provide adequate information about the projects and their impacts, the full extent of their impacts on cultural resources remains unknown. However, given the predictable pattern of contamination and degradation that follows U.S. military activity around the world, it is almost certain that theses resource will only be further degraded.
D. Right to a Clean, Healthy and Sustainable Environment
78. The UN Human Rights Council and UN General Assembly have recognized the right to a clean, healthy and sustainable environment as a universal human right.159 The right is also
recognized in numerous multilateral and regional instruments, as well as by regional human rights tribunals.160 Further, the right is codified in the national laws of more than 150 States, including Palau.161 Pursuant to the Compact, the United States is therefore obligated to respect, protect, and fulfill the right as enshrined in Palau’s domestic law regardless of the United States’ position on the existence of the right in international law.
79. Substantively, the right to a clean, healthy and sustainable environment encompasses the right to clean air, a safe climate, safe and sufficient water, healthy and sustainably produced food, non-toxic environments in which to live, work and play, and healthy ecosystems and biodiversity.162 The right also entails a procedural component, encompassing the right to access environmental information, public participation in environmental decision-making, and access environmental justice.163 As discussed above in the context of FPIC, the procedural component of this right has undeniably been violated by the United States in connection with its current military activities in Palau. The U.S. military has provided virtually no access to environmental information, no possibilities for Palauan people to participate in decision making, and has only created environmental injustice with no mechanism for recourse.
80. The substantive component of the right has also plainly been violated. As the Special Rapporteur on the human right to a clean, healthy and sustainable environment has explained, “[w]ar, conflict and illegal activities contribute to increases in deforestation, ecosystem and biodiversity loss, pollution and climate emissions, and violations of the right to a healthy environment and other human rights, including life, health and food.”164 The United States’ present illegal preparation for war in Palau is causing such harms. As discussed, local communities have already observed significant environmental degradation as a consequence of U.S. military activities, including displacement of essential species and destruction of critical habitat. In the absence of any meaningful information from the military, many in the community are also concerned about the human and non-human health impacts of the radar facilities.165 Published studies link exposure to such facilities to cancers, infertility in men, and disorientation and short-term memory loss, with the elderly, ill, and children especially vulnerable to such impacts.166 Communities are also concerned about disposal of toxic waste produced by the sites, plans for which have not been adequately disclosed.167
81. While it is difficult to comprehend the full extent of environmental harm posed by these activities in the absence of adequate EISs, the consistent and devastating experiences of other islands militarized by the United States provide a reliable forecast of what Palauans can expect to endure. U.S. militarization has consistently produced habitat degradation, species loss, soil erosion, and sedimentation, as well as contamination of the environment with chemicals that are harmful to environmental and human health. These impacts and more have been repeatedly experienced in every island burdened with U.S. military installations in the region, including in Guam,168 CNMI,169 RMI,170 Okinawa,171 and Hawai‘i.172 These same impacts can be expected in Palau all the more so because the United States has not undertaken any real assessment of how the projects could impact the environment and human health, nor considered any meaningful method of mitigating these impacts.
82. Moreover, the U.S. military build-up in Palau has turned Palau into a target of war. This has created a substantial risk of future conflict in Palau, which would only further undermine the right to a clean, healthy and sustainable environment.173 It should be noted that all of the aforementioned impacts not only violate the right to a clean, healthy and sustainable environment, but also compromise other fundamental human rights, including those to food, safe drinking water, health, and life.
V. Recommendations
83. Palau has long endured the impacts of colonialism and geopolitical pressures that threaten the preservation of its traditions, environment, and its means to self-govern. As the United States flexes its military might in the region, Palau has been caught in the crosshairs of global conflict with little say in the matter. Despite its responsibility to do so, the United States has displayed no interest in safeguarding Palau’s security and well-being. Rather, by militarizing the island nation, the United States is only making Palau and its people a target of war. In so doing, the United States has actively undermined Palau’s sovereignty and selfdetermination by failing to comply with the country’s own environmental laws. Though local people and governments have raised issue with the United States’ conduct, the United States has consistently disregarded their concerns.
84. The impacts of U.S. militarization are especially devastating for young people, including the seven high-school students making this submission. The students explain:
Militarization is slowly starting to take a toll on our island as a whole. It saddens us to see our environment being destroyed just for the use of a foreign power. As youth, we are the ones who will feel the consequences of the choices made today. That is why we feel that our voices should be heard in making these decisions.
85. Taken in isolation or together, the U.S. military’s conduct in Palau amount to clear breaches of international law. Through these activities, the United States is continuously violating the rights of indigenous Palauan people, including their rights to self-determination, permanent sovereignty over natural resources, free, prior, and informed consent, a clean, healthy and sustainable environment, as well as their cultural rights. As U.S. militarization intensifies the resulting harms are growing increasingly irreparable. Because these harms are not redressable under the current political relationship between Palau and the United States, we seek outside intervention.
86. Given the urgency of the situation, we request the intervention of the Special Rapporteur on the human right to a clean, healthy and sustainable environment and the Special Rapporteur on the rights of indigenous peoples. Such intervention could serve to delay further rights violations from military activities. We request that the following actions, or any combination of them, be taken:
• A site visit by the Special Rapporteurs to assess current U.S. military activities in Palau and resulting harms to Palauans and to their natural environment;
• A report investigating the harms alleged herein and as a result of said site visit;
• A public statement about the unlawfulness of ongoing U.S. military activities in Palau and the situation of the Palauan people under international human rights law;
• Communications to appropriate international bodies that focus on or include coverage of the human rights violations suffered by the indigenous people of Palau;
• A communication to the U.S. government concerning the human rights violations suffered by Palauans; and
• Any other action that the Special Rapporteurs consider appropriate.
87. The authors of this submission remain at the Special Rapporteurs’ disposal to provide further information about the facts contained in this submission and/or to provide a longer analysis of relevant rules of international law, though we are well aware of the expertise of the Special Rapporteurs. We hope this submission will result in greater international
awareness of Palau’s longstanding history of defending its way of life and its pristine homeland, as well as the internationally wrongful assault on the same by the U.S. military. Such gross violations of international law constitute an affront not only to indigenous Palauans, but to the whole of the international community.
VI. List of Annexes
Annex Description Pages
Annex A Results of student research at each militarized site A-1 to A-51
Annex A.1 Class information and research methodology A-1 to A-7
Annex A.2 Presentations and summaries of results A-8 to A-34
Annex A.3 Photographs A-35 to A-51
Annex B
Annex B.1
Annex B.2
Annex B.3
Compact of Free Association between the United States and Palau and related agreements B-1 to B-56
Compact of Free Association between the Republic of Palau and the United States of America (2008) B-1 to B-33
Agreement between the United States of America and Republic of Palau resulting from the Compact of Free Association Section 432 Review (2023) B-34 to B54
Diplomatic Note from the United States of America to the Republic of Palau regarding U.S. Defense Sites in the Republic of Palau pursuant to the Compact of Free Association (2017)
to B-57
Annex C Republic of Palau Environmental Laws, Statutes, and Regulations C-1 to C135
Annex C.1 Republic of Palau Environmental Quality Protection Act C-1 to C-87
Annex C.2 Republic of Palau Environmental Assessment and Environmental Impact Statement Regulations C-88 to C107
Annex C.3 Republic of Palau EA and EIS Regulations Implementation Guidance Manual C-108 to C129
Annex C.4 Ngaraard State Permitting Requirements
Annex D
Annex D.1
Annex D.2
Environmental Impact Statements for the Tactical Multi-Mission Over the Horizon Radar Facility in Ngaraard and related documents
Red-lined Final Environmental Impact Statement for the Tactical Multi-Mission Over-the-Horizon Transmitter Facility, Babeldaob Island, Republic of Palau (Feb. 2024)
Appendix H: Summary and analysis of public comments, Final Environmental Impact Statement for the Tactical Multi-Mission Over-the-Horizon Transmitter Facility, Babeldaob Island, Republic of Palau (Feb. 2024)
to C135
to D159
to D-115
to D134
Annex D.3
Annex D.4
Representative Public Comments regarding the Revised Draft Environmental Impact Statement for Tactical Multi-Mission Over-the-Horizon Radar Transmitter Facility D-135 to D158
Letter to Mr. Sharp Sakuma, Governor of Ngaraard State from the Palau Environmental Quality Review Board, re: Response Letter to Ngaraard State regarding Tx project, EQPB Doc. 241353 (20 Sept. 2024)
Annex E Environmental Assessment for Angaur Facility E-1 to E-81
1 Annex B.1, Compact of Free Association, U.S.-Palau, title 3, art. I, § 312, p. B-22 [hereinafter “COFA”].
2 Annex B.1, COFA, title 3, art. I, § 312, p. B-22; see also id. § 311, p. B-22.
3 See Astrid Puentes Riaño (Special Rapporteur on the human right to a clean, healthy and sustainable environment), Overview of the implementation of the human right to a clean, healthy and sustainable environment, U.N. Doc. A/79/270 (2 Aug. 2024), paras 84-85, 104.
4 Annex A.1, Ru-shell Keiula Kuroda et al, Telbilir a Rengelkel Belau, Presentation at the American Association of Geographers Annual Meeting, Honolulu, Hawaii, USA (April 2024), p. A-9.
5 See Ketib Oldiais, Anderson-Burdick Democracy, and Tradition in the Republic of Palau, WISCONSIN L. REV. 1581 (2021), p. 1584
6 Chimène I. Keitner, Free Association: The United States Experience, 39 TEX. INT'L L.J. 1 (2003), p. 45.
7 U.S. Central Intelligence Agency, “The World Factbook: Palau” (last accessed 25 Oct. 2024), available at: https://www.cia.gov/the-world-factbook/countries/palau/#introduction.
8 U.S. Central Intelligence Agency, “The World Factbook: Palau” (last accessed 25 Oct. 2024), available at: https://www.cia.gov/the-world-factbook/countries/palau/#introduction
9 See Wafa F. Abdelati, Palau, in Pacific Island Economies (International Monetary Fund, 2006); International Monetary Fund: Asia and Pacific Department, Republic of Palau: 2023 Article IV Consultation-Press Release; Staff Report; and Statement by the Executive Director for Republic of Palau (International Monetary Fund, 2023), available at: https://www.imf.org/en/Publications/CR/Issues/2023/12/21/Republic-of-Palau-2023-Article-IVConsultation-Press-Release-Staff-Report-and-Statement-by-542638.
10 U.S. Central Intelligence Agency, “The World Factbook: Palau” (last accessed 25 Oct. 2024), available at: https://www.cia.gov/the-world-factbook/countries/palau/#introduction.
11 See, e.g., Joyce Kloulechad Beouch, “Legends, Stories and Lessons from Palau”, ISLAND CONSERVATION (29 Nov. 2017), available at: https://www.islandconservation.org/legends-stories-lessons-palau/.
12 Palau Airai, “The Ancients”, Pacific Worlds (2003), available at: https://www.pacificworlds.com/palau/arrival/ancients.cfm.
13 Ketib Oldiais, Anderson-Burdick Democracy, and Tradition in the Republic of Palau, WIS. L. REV. 1581 (2021), pp. 1587-88.
14 Ketib Oldiais, Anderson-Burdick Democracy, and Tradition in the Republic of Palau, WIS. L. REV. 1581 (2021), p. 1585.
15 Charles Hirsch Peskin, They Are Here Because We Were There: COFA Migrants in the United States, 37 GEORGETOWN IMMIGR. L.J. 345 (2023), p. 348; see generally FRANCIS X. HEZEL, STRANGERS IN THEIR OWN LAND: A CENTURY OF COLONIAL RULE IN THE CAROLINE AND MARSHALL ISLANDS (Univ. Haw. Press 1995).
16 Charles Hirsch Peskin, They Are Here Because We Were There: COFA Migrants in the United States, 37 GEORGETOWN IMMIGR L.J. 345 (2023), p. 349; see generally FRANCIS X. HEZEL, STRANGERS IN THEIR OWN LAND: A CENTURY OF COLONIAL RULE IN THE CAROLINE AND MARSHALL ISLANDS (Univ. Haw. Press 1995).
17 Colin P.A. Jones, Law and Investment in Palau: A Brief Overview for Prospective Foreign Investors, 17 INDIANA INT'L & COMP L. REV 49 (2007), p. 50; see generally FRANCIS X. HEZEL, STRANGERS IN THEIR OWN LAND: A CENTURY OF COLONIAL RULE IN THE CAROLINE AND MARSHALL ISLANDS (Univ. Haw. Press 1995).
18 Colin P.A. Jones, Law and Investment in Palau: A Brief Overview for Prospective Foreign Investors, 17 IND. INT'L & COMP. L. REV. 49 (2007), p. 51; see generally FRANCIS X. HEZEL, STRANGERS IN THEIR OWN LAND: A CENTURY OF COLONIAL RULE IN THE CAROLINE AND MARSHALL ISLANDS (Univ. Haw. Press 1995).
19 Brigadier General Gordon D. Gayle, USMC (Ret), “Bloody Beaches: The Marines at Peleliu”, UNITED STATES NATIONAL PARK SERVICE: MARINES IN WORLD WAR II COMMEMORATIVE SERIES (last accessed 21 Oct. 2024), available at: https://www.nps.gov/parkhistory/online_books/wapa/extcontent/usmc/pcn-190-00313700/sec11.htm#:~:text=Total%20U.S.%20troop%20casualties%20was,but%20a%20tiny%20fraction%20killed.
20 Uchetemel a llach er a Beluu er a beliliou (Constitution of the State of Peleliu), art. XI, § 6 [hereinafter “Palau Const.”]
21 Colin P.A. Jones, Law and Investment in Palau: A Brief Overview for Prospective Foreign Investors, 17 IND INT'L & COMP L. REV 49 (2007), pp. 51-52.
22 Colin P.A. Jones, Law and Investment in Palau: A Brief Overview for Prospective Foreign Investors, 17 IND. INT'L & COMP. L. REV. 49 (2007), p. 52.
23 Chimène I. Keitner, Free Association: The United States Experience, 39 TEX INT'L L.J. 1 (2003), p. 34.
24 Jon Hinck, The Republic of Palau and the United States: Self-Determination Becomes the Price of Free Association, 78 CALIFORNIA L. REV. 915 (1990), pp. 919-920.
25 U.N. Charter art. 73–88 (1945) (establishing trusteeship system).
26 U.N. Charter, art. 77.
27 S.C. Res. 21, s/318, art. 1 (2 Apr. 1947)
28 Antonio L. Cortés, Land in Trust: The Invasion of Palau's Land-Tenure Customs by American Law, 14 ASIAN-PAC. L. & POL'Y J. 167 (2013), p. 185; see also Mark E. Wojcik, The UN at 75: Success Stories from the Trusteeship System,
33 PACE INT'L L. REV. 309 (2021), pp. 312-13.
29 S.C. Res. 21, s/318, art. 2.
30 S.C. Res. 21, s/318, art. 5.
31 S.C. Res. 21, s/318, art. 8; see also Ariana Dema, Sea Level Rise and the Freely Associated States: Addressing Environmental Mitigation Under the Compacts of Free Association, 37 Colum. J. Envtl. L. 177 (2012), p. 181.
32 .S.C. Res. 21, s/318, art. 13.
33 U.N. Charter, art. 73; S.C. Res. 318, art. 4 (incorporating U.N. Charter art. 73-85); see also Michael J. Kelly, Quiescent Sovereignty of U.S. Territories, 105 MARQUETTE L. REV. 501 (2022), pp. 522-23.
34 Palau Const.; see also Chimène I. Keitner, Free Association: The United States Experience, 39 TEXAS INT'L L.J. 1 (2003), p. 49.
35 Compact of Free Association, U.S.-Marsh. Is., 25 Jun. 1983, as amended 3 Apr. 2003, T.I.A.S. No. 04,501 (entered into force Oct. 21, 1986); Compact of Free Association, U.S.-F.S.M., Oct. 1 1983, as amended 14 May 2003, T.I.A.S. No. 04,625 (entered into force 13 Nov. 1986); see also Arthur John Armstrong & Howard Loomis Hills, The Negotiations for the Future Political Status of Micronesia (1980-1984), 78 AMERICAN J. INT'L L. 484 (1984), p. 496.
36 See Kevin Bennardo, The Rights and Liberties of the Palau Constitution, 12 ASIAN-PAC L. & POL’Y J. 1 (2011), p. 5
37 Jon Hinck, The Republic of Palau and the United States: Self-Determination Becomes the Price of Free Association, 78 CAL. L. REV. 915 (1990), p. 916.
38 Jon Hinck, The Republic of Palau and the United States: Self-Determination Becomes the Price of Free Association, 78 CAL. L. REV. 915 (1990), p. 925-926.
39 Jon Hinck, The Republic of Palau and the United States: Self-Determination Becomes the Price of Free Association, 78 CAL L. REV. 915 (1990), p 926.
40 Jon Hinck, The Republic of Palau and the United States: Self-Determination Becomes the Price of Free Association, 78 CAL. L. REV. 915 (1990), p. 933.
41 Jon Hinck, The Republic of Palau and the United States: Self-Determination Becomes the Price of Free Association, 78 CAL L. REV. 915 (1990), p. 929.
42 Jon Hinck, The Republic of Palau and the United States: Self-Determination Becomes the Price of Free Association, 78 CAL. L. REV. 915 (1990), pp. 933-970.
43 Jon Hinck, The Republic of Palau and the United States: Self-Determination Becomes the Price of Free Association, 78 CAL. L. REV. 915 (1990), pp. 936-970.
44 See Annex B.1, COFA, title 3, pp. B-1-B-33; see also Compact of Free Association, U.S.-Marsh. Is., 25 Jun. 1983, as amended 3 Apr. 2003, T.I.A.S. No. 04,501 (entered into force Oct. 21, 1986), title 3; Compact of Free Association, U.S.-F.S.M., Oct. 1 1983, as amended 14 May 2003, T.I.A.S. No. 04,625 (entered into force 13 Nov. 1986), title 3.
45 Colin P.A. Jones, Law and Investment in Palau: A Brief Overview for Prospective Foreign Investors, 17 IND. INT'L & COMP. L. REV. 49 (2007), p. 52; see also Susan K. Serrano, The Human Costs of "Free Association": Socio-Cultural
Narratives and the Legal Battle for Micronesian Health in Hawai'i, 47 J. MARSHALL L. REV. 1377 (2014), p. 1378-80 (describing lingering, adverse effects on Micronesian health due to American colonialism under the TTPI).
46 Palau Const., amendment I (enacted in public law at Republic of Palau Public Law No. 3-76 § 3).
47 Annex B.1, COFA, title 3, art. I, § 312, p. B-22
48 Annex B.1, COFA, title 3, art. I, § 312, p. B-22; see also id. § 311, p B-22.
49 Annex B.1, COFA, title 3, art. I, § 313, p. B-22.
50 Annex B.1, COFA, title 3, art. II, § 321, p. B-22.
51 Annex B.1, COFA, title 3, art. II, § 322, p. B-22-B-23
52 Annex B.1, COFA, title 1, art. VI, § 163(a), p. B-9.
53 Annex B.1, COFA, title 1, art. VI, § 163(c), p. B-9.
54 Annex B.2, Re-negotiated Compact of Free Association between the Republic of Palau and the United States of America (2023), pp. B-34-B-54; see also “Interior Department Applauds Renewed Economic Assistance for Compacts of Free Association”, U.S. DEPARTMENT OF INTERIOR: OFFICE OF INSULAR AFFAIRS (11 Mar. 2024), available at: https://www.doi.gov/oia/press/Interior-Department-Applauds-Renewed-Economic-Assistance-for-Compacts-ofFree-Association
55 Annex B.1, COFA, title IV, art. IV §§ 442-443, p. B-28
56 Annex B.1, COFA, title IV, art. V §§ 452-453, p. B-29.
57 See generally Annex A; see also “Wary of China, US military plans return to Peleliu in Western Pacific”, MARIANAS VARIETY (26 May 2024), available at: https://www.mvariety.com/news/regional_world/wary-of-china-us-militaryplans-return-to-peleliu-in-western-pacific/article_dddfdbca-1914-11ef-b143-bb586466923e.html; John Carter, “U.S. Joint Forces Strengthen Capabilities and Partnerships in Palau During Valiant Shield 24”, DEFENSE VISUAL INFORMATION DISTRIBUTION SERVICE (June 20, 2024), available at: https://www.dvidshub.net/news/474450/us-jointforces-strengthen-capabilities-and-partnerships-palau-during-valiant-shield-24; U.S. Department of State, Integrated Country Strategy: Palau (2022), pp. 1-13, available at: https://www.state.gov/wpcontent/uploads/2022/07/ICS_EAP_Palau_Public.pdf; Mar-Vic Cagurangan, “Pentagon urged: build defense posts in Palau, Yap, Tinian”, PACIFIC ISLAND TIMES (25 Apr. 2021), available at: https://www.pacificislandtimes.com/post/pentagon-urged-build-defense-posts-in-palau-yap-tinian
58 See Blue Ocean Law and the Unrepresented Nations and Peoples Organization, Submission to Mr. Francisco Calí Tzay, Special Rapporteur on the rights of indigenous peoples, regarding ongoing human rights violations of the indigenous Chamorro people of Guam under U.S. colonization and militarization (2020); Blue Ocean Law, Further Submission to Mr. Francisco Calí Tzay, Special Rapporteur on the rights of indigenous peoples, regarding ongoing human rights violations of the indigenous Chamorro people of Guam under U.S. colonization and militarization (2024).
59 Annex B.1, COFA, title 3, art. II, § 321, p. B-22; see also Oyaol Ngirairikl, “Ambassador Kyota: ‘U.S. military presence in Palau is a good sign’”, GUAM DAILY POST (5 Jun. 2022), available at: https://www.postguam.com/news/ambassador-kyota-u-s-military-presence-in-palau-is-a-goodsign/article_e11caa4a-e3ae-11ec-8e75-d719f869cb78.html
60 Annex B, COFA, title 1, art. VI, § 163(a), p. B-9; See generally United States Army Environmental Command, COMMANDER’S GUIDE TO ENVIRONMENTAL REQUIREMENTS (Sept. 2021), pp. 1-80, available at: https://aec.army.mil/aec/3816/6326/8225/Commanders_Guide_FINAL_online_version.pdf (describing U.S. Army environmental policy, procedure, and requirements including in foreign/host nations).
61 Annex B.3, Diplomatic Note from the United States of America to the Republic of Palau regarding U.S. Defense Sites in the Republic of Palau pursuant to the Compact of Free Association, Diplomatic Note No. 067/2017 (2017), p. B-55
62 Annex B.3, Diplomatic Note from the United States of America to the Republic of Palau regarding U.S. Defense Sites in the Republic of Palau pursuant to the Compact of Free Association, Diplomatic Note No. 067/2017 (2017), pp. B-55-B-57
63 See generally Marcia Moana Levitan-Haffar, Can Nature Tourists Police Themselves? Comparing Eco-Pledges in the United States and Palau, 93 UNIV COLORADO L. REV. 801, 802-11 (2022) (describing Palau’s renowned ecotourism industry and the government’s efforts to preserve and protect the environment through unique legislation).
64 Annex C.1, Palau Environmental Quality Act, § 102(c), p. C-1.
65 Annex C 1, Palau Environmental Quality Act, § 143(a), pp. C-10-C-12.
66 Annex C.2, Palau Environmental Assessment and Environmental Impact Statement Regulations, Palau Reg., Ch. 2401-61, § 24 (a)-(c), p. C-104; see also Annex C.3, Palau EA and EIS Regulations Implementation Guidance Manual, p. C-111.
67 Annex C 1, Palau Environmental Quality Act, § 143(c), p. C-11.
68 See “All systems go: Radar in Palau moves ahead”, ISLAND TIMES (18 June 2021), available at: https://islandtimes.org/all-systems-go-radar-in-palau-moves-ahead/ (“[I]n October 2019 the U.S.-funded a first-ofits-kind Coastal Surveillance System which was completed in Kayangel and Angaur states The system will be installed in three more sites in Hatohobei and Sonsorol states in the southwest islands. The U.S. will also install aerial domain awareness systems in Ngaraard and Angaur.”); see also “US military holds public hearing on TACMOR project in Ngaraard”, ISLAND TIMES (27 Oct. 2023), available at: https://islandtimes.org/us-military-holds-publichearing-on-tacmor-project-in-ngaraard/ (“[L]eaders met with the US military earlier and raised similar questions. One was why the US military and contractors were proceeding with project preparations when the Environmental Impact Statement had not been approved.”); See “US military hosts EIS public hearing on Palau radar system”, MARIANAS BUS. J. (30 Oct. 2023), available at: https://mbjguam.com/us-military-hosts-eis-public-hearing-palauradar-system (“There is currently a pending lawsuit on the radar project filed by Angaur state’s government [] against the Palau government, the U.S. government, contractors, and the Palau Environmental Quality Protection Board for alleged violations of Palau environmental laws and the Compact of Free Association.”).
69 Annex E, United States Air Force, Draft Environmental Assessment for Tactical Multi-Mission Over Horizon Radar Receiver Facility, Angaur Island, Republic of Palau (Mar. 2023), p. E-5.
70 Annex E, United States Air Force, Draft Environmental Assessment for Tactical Multi-Mission Over Horizon Radar Receiver Facility, Angaur Island, Republic of Palau (Mar. 2023), p. E-31; United States Air Force, Draft Environmental Impact Statement for Tactical Multi-Mission Over Horizon Radar Transmitter Facility, Babeldaob Island, Republic of Palau (July 2023), p. 6-7, available at: https://www.palaugov.pw/wp-content/uploads/TACMORTx_EIS_Ngaraard.pdf [hereinafter “TACMOR Draft EIS”].
71 See Annex A.3, photographs, pp. A-36-A-38; see also L. N. Reklai, “Lawsuit in Palau seeks to suspend work on US military radar site”, RADIO FREE ASIA (7 Aug. 2023), available at: https://www.rfa.org/english/news/pacific/palau-usradar-08072023000835.html.
72 See e.g., Alan R. Olsen & Milang Eberdong, Survey of Megapode Nesting Grounds in Palau, Micronesia, 47 J. WESTERN BIRDS (2016); “Palau Ground-dove Pampusana canifrons”, Bird Life International Data Zone (last accessed 24 Oct. 2024), available at: https://datazone.birdlife.org/species/factsheet/palau-ground-dove-pampusanacanifrons/text.
73 R.J. Noecker, Endangered Species List Revisions: A Summary of Delisting and Downlisting. Congressional Research Service, Report for Congress (1998), available at: https://digital.library.unt.edu/ark:/67531/metacrs531/.
74 Annex A.2, Presentation and summaries of results, p. 23 [hereinafter “Results”]; Annex A.3, photographs, p A-42; see also Mangrove Forests, UNEP (last visited 20 July 2024), https://www.unep.org/topics/ocean-seas-andcoasts/blue-ecosystems/mangrove-forests (“Mangrove[ forests] provide protection against storms, erosion and flooding . . . .”).
75 “Turkish contractor, owner – US may be sued for negligence, death of missing Filipino, TIA BELAU (29 Jan. 2024).
76 Annex A.2, Results, p. A-23.
77 Joyce Kloulechad Beouch, “Legends, Stories, and Lessons from Palau”, ISLAND CONSERVATION (29 Nov. 2017), available at: https://www.islandconservation.org/legends-stories-lessons-palau/.
78 Blue Ocean Law and the Unrepresented Nations and Peoples Organization, Submission to Mr. Francisco Calí Tzay, Special Rapporteur on the rights of indigenous peoples, regarding ongoing human rights violations of the indigenous Chamorro people of Guam under U.S. colonization and militarization (2020); Blue Ocean Law, Further Submission to Mr. Francisco Calí Tzay, Special Rapporteur on the rights of indigenous peoples, regarding ongoing human rights violations of the indigenous Chamorro people of Guam under U.S. colonization and militarization (2024).
79 Annex A, p. A-21; see also “US military hosts EIS public hearing on Palau radar system”, MARIANAS BUS J. (30 Oct. 2023), available at: https://mbjguam.com/us-military-hosts-eis-public-hearing-palau-radar-system The U.S. Air Force did prepare an Environmental Assessment for the project on Angaur a document that is essentially a precursor to an EIS. However, given the extent of environmental damage that has already occurred in the construction phase alone, it is clear that an EIS was required for this project. See Annex E, United States Air Force, Draft Environmental Assessment for Tactical Multi-Mission Over Horizon Radar Receiver Facility, Angaur Island, Republic of Palau (Mar. 2023). Additionally, after construction began, the Air Force did obtain necessary permits, however, given that no EIS was conducted, the validity of those permits remain in question, and have been the subject of domestic litigation. See L.N. Reklai, “Lawsuit in Palau seeks to suspend work on US military radar site”, BENAR NEWS (6 Aug. 2023), available at: https://www.benarnews.org/english/news/pacific/palau-lawsuit-seekssuspension-us-radar-site-08062023234700.html.
80 Annex E, United States Air Force, Draft Environmental Assessment for Tactical Multi-Mission Over Horizon Radar Receiver Facility, Angaur Island, Republic of Palau (Mar. 2023), p. E-5.
81 Annex A.2, Results, pp. A-12, A-21.
82 Annex A.2, Results, pp. A-15, A-21
83 Annex A, pp. A-22-A-23.
84 TACMOR Draft EIS.
85 TACMOR Draft EIS, pp. 8-1-10-1.
86 These deficiencies were set out in detail in several public comments submitted in response to the draft EIS. See, e.g., Annex D.3, Representative Public Comments regarding the Revised Draft Environmental Impact Statement for Tactical Multi-Mission Over-the-Horizon Radar Transmitter Facility, Babeldaob Island, Republic of Palau, pp. D-135D-158.
87 Annex C.1, Palau Environmental Quality Protection Act, § 143(b), p. C-11; see also Annex C.1, Palau Environmental Assessment and Environmental Impact Statement Regulations, Palau Reg., Ch. 2401-61, § 20, pp. C-100-C-102.
88 Annex C.2, Palau Environmental Assessment and Environmental Impact Statement Regulations, Palau Reg., Ch. 2401-61, §§ 20-21, pp. C-100-C-102.
89 Annex C 2, Palau Environmental Assessment and Environmental Impact Statement Regulations, Palau Reg., Ch. 2401-61, § 20 (A)(8), p. C-101.
90 TACMOR Draft EIS, p. 7-3.
91 TACMOR Draft EIS, pp. 8-1-8-13.
92 Annex D.2, Appendix H: Summary and analysis of public comments, Final Environmental Impact Statement for the Tactical Multi-Mission Over-the-Horizon Transmitter Facility, Babeldaob Island, Republic of Palau (Feb. 2024), p. D118 [hereinafter “TACMOR Final EIS, Appendix H”].
93 Annex D.2, TACMOR Final EIS, Appendix H, pp. D-118-D-134.
94 Annex D.1, U.S. Air Force, Red-lined Final Environmental Impact Statement for the Tactical Multi-Mission Overthe-Horizon Transmitter Facility, Babeldaob Island, Republic of Palau (Feb. 2024), appendixes B-G, pp. D-104-D-115. The authors did not include the content of these appendices in the annexes to this filing so as to not overwhelm the Special Rapporteurs with excessive pages. However, we will send these documents available if of interest.
95 Annex D.4, Letter to Mr. Sharp Sakuma, Governor of Ngaraard State from the Palau Environmental Quality Review Board, re: Response Letter to Ngaraard State regarding Tx project, EQPB Doc. 24-1353 (20 Sept. 2024), p. D-159.
96 Annex C.4, Ngaraard State Public Law No. 7-24 (enacted 2 Oct. 2008), pp. C-129-C-132; Ngaraard State Public Law No. 9-15 (enacted 3 Aug. 2015), pp. C-133-135
97 See “Contract Award: Gilbane Federal (Concord, California) – $118,368,220” DEFENSE DAILY (27 Dec. 2022), available at: https://www.defensedaily.com/contract-awards/contract-award-gilbane-federal-concord-california118368220/.
98 Annex A, photographs, pp. A-44-A-48 see also “All systems go: Radar in Palau moves ahead”, ISLAND TIMES (18 June 2021), available at: https://islandtimes.org/all-systems-go-radar-in-palau-moves-ahead/.
99 Annex A.2, Results, p. A-12.
100 Wayne Andrew & Michael Guilbeaux, Sustainable Management at Helen Reef, Palau, Report for the National Fish and Wildlife Foundation (2008), p. 2, available at: https://www.nfwf.org/sites/default/files/finalreports1/5610_2006-0090021_sustainable_management_at_helen_reef.pdf
101 “Helen Island, Hatohobei”, BIRD LIFE INTERNATIONAL: DATA ZONE (last accessed 25 Oct. 2024), available at: https://datazone.birdlife.org/site/factsheet/helen-island-hatohobei-iba-palau.
102 “Helen Island, Hatohobei”, BIRD LIFE INTERNATIONAL: DATA ZONE (last accessed 25 Oct. 2024), available at: https://datazone.birdlife.org/site/factsheet/helen-island-hatohobei-iba-palau
103 See “A 10 year partnership – conservation success at Helen Reef (Palau)”, ONE REEF (13 June 2020), https://onereef.org/a-10-year-partnership-conservation-success-at-helen-reef-palau/
104 Annex A.3, Photographs, p. A-45.
105 Annex A.3, Photographs, pp. A-46-A-47; see also John Enbring, Avifauna of the Southwest Islands of Palau, ATOLL RESEARCH BULLETIN NO 26 (Smithsonian Institute 1983).
106 Annex A.3, Photographs, pp. A-47-A-48.
107 “All systems go: Radar in Palau moves ahead”, ISLAND TIMES (18 June 2021), available at: https://islandtimes.org/all-systems-go-radar-in-palau-moves-ahead/.
108 See Ngedebuul Conservation and Resource Planning Team & Palau Conservation Society, Kayangel Protected Areas Network: Five Year Management Plan (2013-2018) (July 2012), available at: https://www.palaupanfund.org/pdf/managementplan/kayangel/KPAN_MP_Final090412.pdf; see also “Recovering the unique atoll forests of Kayangel”, ISLAND TIMES (12 July 2024), available at: https://islandtimes.org/recoveringthe-unique-atoll-forests-of-kayangel/
109 Annex A.2, Results, p. A-12.
110 See Annex A.3, Photographs pp. A-49-A-51; see also Brad Lendon, “US military rebuilds runway on site of ‘nightmare’ World War II battle”, CNN (30 June 2024), available at: https://edition.cnn.com/2024/06/30/asia/usmilitary-rebuilds-runway-peleliu-palau-intl-hnk-ml/index.html (“Marine engineers had been working . . . for months, clearing brush, removing trees . . .”).
111 Annex A.2, Results, p. A-29.
112 Annex A.2, Results, p. A-28.
113 Annex A.2, Results, p. A-31.
114 Annex A.2, Results, p. A-3o.
115 Annex A.2, Results, pp. A-29-A-30.
116 See Peleliu, BIRD LIFE INTERNATIONAL: DATA ZONE (last accessed 25 Oct. 2024), available at: https://datazone.birdlife.org/site/factsheet/peleliu-iba-palau
117 See Peleliu, BIRD LIFE INTERNATIONAL: DATA ZONE (last accessed 25 Oct. 2024), available at: https://datazone.birdlife.org/site/factsheet/peleliu-iba-palau.
118 Annex A.2, Results, pp. A-29-A-30.
119 Annex A.2, Results, p. A-30.
120 Annex A.2, Results, p. A-31.
121 See “Operation Stalemate II: The Battle of Peleliu 15 September – 27 November 1944”, NAVAL HISTORY AND HERITAGE COMMAND (last accessed 25 Oct. 2024), available at: https://www.history.navy.mil/browse-by-topic/warsconflicts-and-operations/world-war-ii/1944/peleliu.html (last visited July 21, 2024).
122 Brigadier General Gordon D. Gayle, USMC (Ret), “Bloody Beaches: The Marines at Peleliu”, UNITED STATES NATIONAL PARK SERVICE: MARINES IN WORLD WAR II Commemorative Series (last accessed 25 Oct. 2024), available at: https://www.nps.gov/parkhistory/online_books/wapa/extcontent/usmc/pcn-190-00313700/sec11.htm#:~:text=Total%20U.S.%20troop%20casualties%20was,but%20a%20tiny%20fraction%20killed.
123 Brigadier General Gordon D. Gayle, USMC (Ret), “Bloody Beaches: The Marines at Peleliu”, UNITED STATES NATIONAL PARK SERVICE: MARINES IN WORLD WAR II COMMEMORATIVE SERIES (last accessed 25 Oct. 2024), available at: https://www.nps.gov/parkhistory/online_books/wapa/extcontent/usmc/pcn-190-00313700/sec11.htm#:~:text=Total%20U.S.%20troop%20casualties%20was,but%20a%20tiny%20fraction%20killed.
124 Uchetemel a llach er a Beluu er a beliliou (Constitution of the State of Peleliu), art. XI, § 6 (“No permanent military bases or facilities shall be installed or erected.”).
125 Peleliu State Resolution 14-39-24, D1 aims to have Peleliu chiefs, who sit in the Legislature, be removed from the Legislature. Peleliu State Resolution 14-40-24, D1 aims to repeal the provision on permanent military bases or facilities.
126 Annex A.2, Results, p. A-29.
127 Annex A.2, Results, p. A-22.
128 Annex A.2, Results, p. A-22.
129 Annex A.2, Results, p. A-25.
130 Annex A.2, Results, p. A-25.
131 Emily Feng, “Why the island nation of Palau is a focus of the world’s 2 superpowers: U.S., China”, NATIONAL PUBLIC RADIO (27 Aug. 2024), available at: https://www.npr.org/2024/08/27/nx-s1-5071215/why-the-island-nation-ofpalau-is-a-focus-of-the-worlds-2-superpowers-u-s-china.
132 Annex A.2, Results, p. A-29
133 Blue Ocean Law and the Unrepresented Nations and Peoples Organization, Submission to Mr. Francisco Calí Tzay, Special Rapporteur on the rights of indigenous peoples, regarding ongoing human rights violations of the indigenous Chamorro people of Guam under U.S. colonization and militarization (2020); Blue Ocean Law, Further Submission to Mr. Francisco Calí Tzay, Special Rapporteur on the rights of indigenous peoples, regarding ongoing human rights violations of the indigenous Chamorro people of Guam under U.S. colonization and militarization (2024).
134 See, e.g., Teuila Fuatai-E-Tangata, “In the Sacrifice Zone”, MARIANAS VARIETY (23 Feb. 2024), available at: https://www.mvariety.com/lifestyle/feature-in-the-sacrifice-zone/article_5e22cad6-d144-11ee-b1433bec02cacc67.html.
135 See, e.g., Le‘a Kanehe, Kūʻē Mana Māhele: The Hawaiian Movement to Resist Biocolonialism, in A NATION RISING: HAWAIIAN MOVEMENTS FOR LIFE, LAND, AND SOVEREIGNTY (Duke Univ. Press 2014).
136 See, e.g., Jon Mitchell, “Poisoning the Pacific”, JAPAN POLICY RESEARCH INSTITUTE (Mar. 2021), available at: https://jpri.org/2021/03/25/poisoning-the-pacific/.
137 The term “sacrifice zone” was initially conceived to describe the decision of colonial powers to “sacrifice” the inhabited territories of indigenous and colonized peoples to test nuclear weapons during the Cold War, including the United States’ decision to use the Marshall Islands in this way. See E. Tendayi Achiume (Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance), Ecological crisis, climate justice and racial justice, U.N. Doc. A/77/549 (25 Oct. 2022), para. 18.
138 State obligations with respect to self-determination are erga omnes and are owed to all peoples. See, e.g., Legal consequences arising from the policies and practices of Israel in the occupied Palestinian territory, including East Jerusalem, Advisory Opinion of 19 July 2024, General List No. 186, para. 232 (quoting East Timor (Portugal v. Australia), Judgment, 1995 I.C.J. Rep., p. 90, para. 29)); Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, I.CJ. Rep. 2019, p. 95, para. 180. Customary human rights obligations are likewise held erga omnes and thus apply extraterritorially. See Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Judgment, 1970 I.C.J. Rep., p. 3, para 34 (deriving obligations erga omnes “from the principles and rules concerning the basic rights of the human person”); Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), 2012 Judgment, I.C.J. Rep., p 422, paras. 64-70. As the International Court of Justice has recently confirmed, human rights instruments that do not have a jurisdictional clause, such as the ICESCR and the International Convention on the Elimination of Racial Discrimination vest States with human rights obligations with respect to “conduct of a State party which has effects beyond its territory.” Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, Including East Jerusalem, Advisory Opinion, General List No. 186, para. 101. The ICCPR does contain a jurisdiction provision, which encompasses “persons “under the power or effective control of that State Party, even if not situated within the
territory of the State Party.” UN Human Rights Committee, General Comment No. 31: The nature of the general legal obligation imposed on States Parties to the Covenant, 26 May 2004, UN Doc. CCPR/C/21/Rev.1/Add. 13, para. 10.
139 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976), 999 U.N.T.S. 171, art. 2(1) (providing that State human rights obligations apply both with respect to persons within their territory and persons under their jurisdiction) [hereinafter “ICCPR”]. The UN Human Rights Committee has interpreted this jurisdictional provision as encompassing persons “under the power or effective control of that State Party, even if not situated within the territory of the State Party.” See UN Human Rights Committee, General Comment No. 31: The nature of the general legal obligation imposed on States Parties to the Covenant, UN Doc. CCPR/C/21/Rev.1/Add. 13 (26 May 2004), para. 10. The rationale is that a State should not be allowed “to perpetrate violations of the Covenant on the territory of another State, which violations it could not perpetrate on its own territory.” Human Rights Committee, Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication R12/52 (‘Sergio Euben Lopez Burgos v. Uruguay’), UN Doc. CCPR/C/OP/1 (29 July 1981), para. 12.3.
140 Human rights bodies and tribunals have confirmed that overseas military actions and security operations on foreign soil confer extraterritorial jurisdiction in relation to human rights obligations. See, e.g., Ukraine v. Russia (re Crimea), App. Nos. 20958/14, 38334/18, ECtHR (16 Dec. 2020), paras. 315-335; Issa and Others v Turkey, App. no 31821/96, ECtHR (3 March 2005), para. 74. Here, the United States is not only conducting security operations on foreign soil, but enjoys “full authority and responsibility” for security and defense in Palau. For example, pursuant to the Compact if the United States requests land within Palau to build a defense site, the government of Palau must make that land available. Annex B.1, COFA, title 3, art. II, § 322, pp. B-22-B-23. During the trusteeship period U.S. Courts confirmed that, given the degree of control the United States exercised over the TTPI, the territory fell within the jurisdiction of the United States and therefore U.S. government actors had obligations with respect to citizens of the TTPI under domestic law. see People of Enewetak v. Laird, 353 F. Supp. 811, 815 (D. Haw. 1973); Juda v. United States, 6 Cl. Ct. 441, 457-458 (1984); Nitol v. United States, 7 Cl. Ct. 405, 413 (1985). While Palau is now an independent nation, that relationship remains unchanged with respect to security and defense operations. Indeed, the United States itself still considers Palau to be an “insular area.” 7 USC § 3103(12) (“The term “insular area” means (A) the Commonwealth of Puerto Rico; (B) Guam; (C) American Samoa; (D) the Commonwealth of the Northern Mariana Islands; (E) the Federated States of Micronesia; (F) the Republic of the Marshall Islands; (G) the Republic of Palau; and (H) the Virgin Islands of the United States.”). This degree of authority more than satisfies the test for “effective control” to vest the United States’ with human rights obligations in relation to its military activities in Palau.
141 Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory Including East Jerusalem, Advisory Opinion, I.C.J. Rep. 2024, General List No. 186, para. 233; see also, e.g., Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, Yearbook of the ILC (2001), Volume II. Part II, Report of the Commission to the General Assembly on the Work of its Fifty-Third Session, document A/CN.4/SER.A/2001/Add. l (Part 2), para. 5 of commentary to art. 26.
142 See, e.g., Legal consequences arising from the policies and practices of Israel in the occupied Palestinian territory, including East Jerusalem, Advisory Opinion of 19 July 2024, General List No. 186, para. 232 (quoting East Timor (Portugal v. Australia), Judgment, 1995 I.C.J. Rep., p. 90, para. 29)); Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, I.CJ. Rep. 2019, p. 95, para. 180
143 Annex B.1, COFA, prmbl, p. B-2.
144 Annex B.3, Diplomatic Note from the United States of America to the Republic of Palau regarding U.S. Defense Sites in the Republic of Palau pursuant to the Compact of Free Association, Diplomatic Note No. 067/2017 (2017), pp. B-55-B.57
145 Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory Including East Jerusalem, Advisory Opinion, I.C.J. Rep. 2024, General List No. 186, para. 233 (citing numerous UNGA resolutions).
146 Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory Including East Jerusalem, Advisory Opinion, General List No. 186, paras. 232-233 (collecting sources); Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, I.CJ. Rep. 2019, p. 95, paras. 144-161; UN General Assembly, Declaration on the Granting of Independence to the Colonial Countries and Peoples, UNGA Res. 1514 (XV), 14 December 1960, para. 2.
147 Legal consequences arising from the policies and practices of Israel in the occupied Palestinian territory, including East Jerusalem, Advisory Opinion of 19 July 2024, General List No. 186, para. 240 (confirming that PSNR
is both an “element” of self-determination and “a principle of customary international law”); see also Armed Activities on the Congo (Congo v. Uganda), Judgement, I.C.J. Rep. 2005, p. 168, para. 244.
148 ICCPR, art. 1(2); International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 UNTS 3, art. 1(2) [hereinafter “ICESCR”].
149 United Nations Declaration on the Rights of Indigenous Peoples, UN Doc. No. A/RES/61/295 (2 Oct. 2007), arts. 10, 11, 19, 28, 29.
150 Expert Mechanism on the Rights of Indigenous Peoples, Free, prior and informed consent: a human rights-based approach, U.N. Doc. No. A/HRC/39/62 (Aug. 2018), para. 25.
151 Expert Mechanism on the Rights of Indigenous Peoples, Free, prior and informed consent: a human rights-based approach, U.N. Doc. No. A/HRC/39/62 (Aug. 2018), paras. 22-23.
152 Expert Mechanism on the Rights of Indigenous Peoples, Free, prior and informed consent: a human rights-based approach, U.N. Doc. No. A/HRC/39/62 (Aug. 2018), para. 20.
153 G.A. Res. 217(III)A, Universal Declaration of Human Rights (10 Dec. 1948), art. 27.
154 ICCPR, art. 1(1); ICESCR, art. 1(1).
155 Committee on Economic, Social and Cultural Rights, General Comment No. 21: Right of everyone to take part in cultural life, E/C.12/GC/21, (21 Dec. 2009), para. 16(a).
156 ICCPR, art. 27.
157 Human Rights Committee, Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 3624/2019: Daniel Billy et al. v. Australia, CCPR/C/135/D/3624/2019 (22 Sept. 2022), para. 8.13; see also Committee on Economic, Social and Cultural Rights, General Comment No. 21: Right of everyone to take part in cultural life, E/C.12/GC/21, (21 Dec. 2009), para. 36 (“Indigenous peoples’ cultural values and rights associated with their ancestral lands and their relationship with nature should be regarded with respect and protected, in order to prevent the degradation of their particular way of life, including their means of subsistence, the loss of their natural resources and, ultimately, their cultural identity”); Human Rights Committee, Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 2552/2015 (‘Benito Oliveira Pereira et alv. Paraguay’), CCPR/C/132/D/2552/2015, (21 Sept. 2022), para. 8.6 (“The strong communal dimension of indigenous peoples’ cultural life is indispensable to their existence, well-being and full development, and includes the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.”).
158 Republic of Palau Public Law No. 6-28 § 1.
159 UN General Assembly Resolution 76/300, The human right to a clean, healthy and sustainable environment, A/RES/76/300 (28 July 2022); Human Rights Council Resolution 48/13, The human right to a clean, healthy and sustainable environment, A/HRC/RES/48/13 (8 Oct. 2021).
160 See Astrid Puentes Riaño (Special Rapporteur on the human right to a clean, healthy and sustainable environment), Overview of the implementation of the human right to a clean, healthy and sustainable environment, U.N. Doc. A/79/270 (2 Aug. 2024), paras. 18-32.
161 Annex C.2, Palau Environmental Quality Act, § 102(c), p. C-1; “Joint statement of United Nations entities on the right to healthy environment”, UNITED NATIONS ENVIRONMENT PROGRAMME (8 March 2021), available at: https://www.unep.org/news-and-stories/statements/joint-statement-united-nations-entities-right-healthyenvironment (“The right to a healthy environment is recognized by over 150 UN member states”); David Boyd, Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, Right to a healthy environment: good practices, UN Doc A/HRC/43/53 (30 Dec. 2019), paras. 10-11 (documenting State recognition of the right, including that 110 States have enshrined the right to a healthy environment in their constitutions and that the right is included in regional treaties ratified by 126 States, and concluding “more than 80 percent of UN Member States (156 out of 193) legally recognize the right to a safe, clean, healthy and sustainable environment”).
162 Astrid Puentes Riaño (Special Rapporteur on the human right to a clean, healthy and sustainable environment), Overview of the implementation of the human right to a clean, healthy and sustainable environment, U.N. Doc. A/79/270 (2 Aug. 2024), paras 50-70; see also David Boyd, Special Rapporteur on the issue of human rights
obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, Right to a healthy environment: good practices, UN Doc A/HRC/43/53 (30 Dec 2019), paras. 38-112.
163 Astrid Puentes Riaño (Special Rapporteur on the human right to a clean, healthy and sustainable environment), Overview of the implementation of the human right to a clean, healthy and sustainable environment, U.N. Doc. A/79/270 (2 Aug. 2024), paras. 40-49; see also David Boyd, Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, Right to a healthy environment: good practices, UN Doc A/HRC/43/53 (30 Dec. 2019), paras. 14-37; see also Advisory Opinion OC23/17 (‘The Environment and Human Rights’), Inter-American Court of Human Rights Series A No. 23, 15 November 2017, paras. 211-241.
164 Astrid Puentes Riaño (Special Rapporteur on the human right to a clean, healthy and sustainable environment), Overview of the implementation of the human right to a clean, healthy and sustainable environment, U.N. Doc. A/79/270 (2 Aug. 2024), para. 84.
165 See Annex D.2, TACMOR Final EIS, Appendix H, pp. D-119-D-120.
166 M. Peleg et al, On radar and radio exposure and cancer in the military setting, 216 ENVIRONMENTAL RESEARCH (2023), p.114610; E.D. Richter et al., What do findings on several clusters of cancer in radar workers tell us?, 15(4) EPIDEMIOLOGY (2004), pp. 113-S114; T.B. Weyandt et al., Semen analysis of military personnel associated with military duty assignments, 10(6) REPRODUCTIVE TOXICOLOGY (1996), pp.521-528; N.H. Hjollund et al., Semen analysis of personnel operating military radar equipment, 11(6) REPRODUCTIVE TOXICOLOGY (1997), pp.897-897; M. Geretto et al., Occupational exposures and environmental health hazards of military personnel, 18(10) INT’L J. ENVIRONMENTAL RESEARCH & PUBLIC HEALTH (2021), p.5395; A. Fragopoulou et al., Scientific panel on electromagnetic field health risks: consensus points, recommendations, and rationales, 25(4) REV. ENVIRONMENTAL HEALTH (2010), pp.307-317.
167 See Annex D.2, TACMOR Final EIS, Appendix H, pp. D-119-D-120.
168 Mandates of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment; the Special Rapporteur on the rights of indigenous peoples; and the Special Rapporteur on the implications for human rights of the environmentally sound management and disposal of hazardous substances and wastes, Joint Allegation Letter, AL USA 7/2021 (29 Jan. 2021).
169 See, e.g., JON MITCHELL, POISONING THE PACIFIC: THE US MILITARY'S SECRET DUMPING OF PLUTONIUM, CHEMICAL WEAPONS, AND AGENT ORANGE (Rowman & Littlefield Publishers, 2020); See, e.g., Teuila Fuatai-E-Tangata, “In the Sacrifice Zone”, MARIANAS VARIETY (23 Feb. 2024), available at: https://www.mvariety.com/lifestyle/feature-in-thesacrifice-zone/article_5e22cad6-d144-11ee-b143-3bec02cacc67.html.
170 Lucy Sheriff, “Endless fallout: the Pacific idyll still facing nuclear blight 77 years on”, THE GUARDIAN (25 Aug. 2023), available at: https://www.theguardian.com/environment/2023/aug/25/endless-fallout-marshall-islandspacific-idyll-still-facing-nuclear-blight-77-years-on.
171 JON MITCHELL, POISONING THE PACIFIC: THE US MILITARY'S SECRET DUMPING OF PLUTONIUM, CHEMICAL WEAPONS, AND AGENT ORANGE (Rowman & Littlefield Publishers, 2020).
172 See, e.g., N. Mahina Tueter, Militarization, slow violence, and the emerging threat of condemnation in Hawai‘i, 2 J. ENVIRONMENTAL MEDIA (2021), pp. 3.1-3.12; United States Environmental Protection Agency, “Red Hill Fuel Releases” (2024), available: https://www.epa.gov/red-hill/about-red-hill-fuel-releases
173 Astrid Puentes Riaño (Special Rapporteur on the human right to a clean, healthy and sustainable environment), Overview of the implementation of the human right to a clean, healthy and sustainable environment, U.N. Doc. A/79/270 (2 Aug. 2024), para. 85.
