Tony deBrum statements on Kwajalein land use agreement assume U.S. shares RMI interest in preventing reversion of escrowed base rights payments: How does agreement to prevent reversion serve U.S. national interest if it does not secure binding base rights as mandated by Congress in 2003?

Kabua-deBrum view of reality from the Kwajalein Kava Club

For more than 25 years Tony deBrum and Imata Kabua have demanded that the U.S. negotiate directly with feudal lords of Kwajalein to secure U.S. Army land use rights at Kwajalein, rather than on a government-to-government basis with the RMI national government. Now deBrum is telling Kabua that it will finally happen, because the RMI government is controlled by the feudal landed ruling class of Kwajalein and the U.S. will be forced to deal with Kabua and his political allies in the RMI ruling party.

For more than 25 years Tony deBrum and Imata Kabua have demanded that U.S. base rights payments be managed by the Kwajalein land barons. Now they think that will happen because the local organization known as KADA has been re-established to manage U.S. base payments, and with Kwajalein land barons in control the RMI government will facilitate KADA role in administration of Kwajalein funding.

For 5 years Tony deBrum and Imata Kabua have insisted that the date of December 17, 2008, is a vague target, a goal, a flexible schedule for RMI steps to secure agreement by the land barons for U.S. government on use of Kwajalein by the U.S. military after 2016. Now they believe that – unless the RMI and U.S. accept terms Kabua demands before then – December 17 of this year will be just another day in on-going negotiations for a new land use agreement.

Kabua and deBrum believe they can ignore the December 17 deadline set by Congress because the RMI government is controlled by the Kwajalein land barons, and the RMI government is prepared to facilitate but not exercise sovereign control or responsibility for the land use negotiations.

Indeed, as we reported back on August 9, 2008:

“In Tony’s own words about the landowner leaders and their role in controlling RMI policy, deBrum said:  ‘If they see movement both on the U.S. and RMI side, they will give us instructions to go talk to the U.S. government.’ This confirms that…instead of rule of law under the constitutional process the high chiefs under the feudal landownership system are giving the orders to Tomeing and deBrum, and that deBrum looks to High Chief Imata Kabua for his ‘instructions’ instead of the President and Cabinet.   Has the Cabinet agreed to take its orders from ‘King Kabua’ too?”

Thus, in essence deBrum is demanding that the U.S. deal directly with Imata Kabua as a sort of RMI domestic tribal leader in the ruling oligarchy that controls land use in the RMI, while the elected leadership of the constitutional government who owe their official positions to Kabua act as glorified errand boys and office clerks for Kabua.

The current edition of the Marshall Islands Journal quotes deBrum extensively on the negotiation process he envisions. As Tony sees it, the provision of U.S. law making December 17 the end of the period allowed for securing a land use agreement (LUA) represents an “exploding deadline concept…first and foremost in the minds of any who want to use that language to coerce an LUA.”

Instead of meeting a deadline to fulfill obligations of a treaty ratified by both governments through their respective constitutional processes, deBrum calls for “postponement of the drop dead date,” and an “alternate use…as the landowners might suggest” for land payment increases held in escrow until the LUA is in effect.

In the alternative, deBrum argues it would be “better yet” for the U.S. to waive the deadline altogether and pay the funds in the escrow account “while the LUA is being negotiated,” even after December 17 has come and gone. Yet, the U.S. law provides for the escrow funds to revert to the U.S. “unless otherwise mutually agreed,” but without an LUA reversion may be more attractive to the U.S. than agreement to some other use without securing the base rights agreed to in 2003.

The option of mutual agreement to provide for use of the escrow funds exists only to enable the governments to prevent reversion on terms that include securing the LUA. But deBrum appears to believe the U.S. can or will enter into mutual agreement to prevent reversion even if the RMI is in breach of its obligations and fails to secure an LUA or any binding and enforceable agreement with the rulers of Kwajalein the terms of which ensure with certainty an LUA.

Tony deBrum sees breach and abrogation of RMI treaty obligations as somehow allowed under the law and justified so long as there are “bona fide” and “good faith” negotiations going on. Of course, that is absurd. A party that fails to meet it obligations can not claim to be acting in good faith once a breach is on-going, and the RMI is a matter of just weeks away from being in breach of the bilateral base rights treaty for U.S. use of Kwajalein.

The U.S. federal statute increasing payments, but putting the increase in escrow pending a new LUA, states that the U.S. and RMI can “mutually agree” to another use of the funds, but it would have to be consistent with the purposes for which the funds were appropriated. Specifically, the U.S. can not mutually agree to a reprogramming, reallocation or alternate use of funds unless it is linked to a land use agreement securing U.S. base rights at Kwajalein.

Why would Congress reward the RMI by changing the rules of the road at this point? Indeed, Congress would need to act to authorize any use “the landowners might suggest,” unless it is one that secures the land use rights as required by the applicable treaty provisions and current law. It is too late for Congress to address this issue before it adjourns for the year, so the deadline stands, time has run out.

That means the RMI and the land barons need to sign an agreement that secures land use rights, or the deadline will come and go. The Congress said what it meant and meant what it said. As discussed further below, after December 17, a process will be set in motion for winding up operations at Kwajalein by 2016.

Once that process is triggered, the RMI and rulers of Kwajalein will have no legal right or political powers to reverse it, the options and choices will belong to the U.S. and not the RMI or the land barons of Kwajalein. Their options exist before the deadline, not after it.

The Washington/Majuro real-world view of reality

Since 2003 the U.S. and the RMI have been parties to the Compact of Free Association (CFA), and a Military Use and Operating Rights Agreement MUORA) creating mutual obligations regarding U.S. use of its base at Kwajalein after 2016, when the previous lease expires.

The U.S. views as an internal sovereign matter for the RMI those national legal and political steps required to secure under its domestic law the land use rights the RMI government agreed to provide to the U.S. Army at Kwajalein. Because the RMI and the Kwajalein land barons had not completed those internal steps at the time Congress approved the new Compact of Free Association in 2003, Congress allowed a 5 year period for those steps to be competed.

Before doing so, the U.S. Congress held hearings, listened to the testimony of the elected and traditional leaders of Kwajalein regarding land use issues, listened to RMI national government leaders, and U.S. negotiators. As an incentive to an agreement Congress increased payments between 2003 and 2016 over and above the amounts the U.S. was obligated to pay under the existing lease that does not expires until 2016. Congress then continued increases for payments throughout the period of any extension of the lease after 2016.

At the same time, Congress decided it should treat failure of the RMI and the land barons to reach an agreement before the five year deadline as an indication that the amounts the U.S. Congress was willing to pay for Kwajalein base rights was insufficient for the RMI to secure those rights. Congress did not authorize further increases in that event, but rather provided for termination of the Kwajalein lease after 2016.

So the remedy Congress provided for is the opposite of what deBrum espouses. Instead of negotiating how much more funding the U.S. should give to the RMI to secure Kwajalein, the solution Congress prescribed is for U.S. use of Kwajalein to cease in 2016.

Thus, in the absence of a land use agreement by the deadline of December 17, 2008, all escrowed amounts over and above the amounts already being paid under the existing lease for the 2003-20016 period would revert to the U.S. treasury, and the President would report to Congress on plans for termination of U.S. operations at Kwajalein.

Contrary to deBrum’s most recent statements to the press, this was not a “drop dead concept” that was something to be “used to coerce” a land use agreement. It is not what deBrum calls an “exploding deadline” to pressure the land barons into an agreement.

Rather, it was an act of patience to create a grace period. But the grace period had to have an ending. It could not go on indefinitely or remain open ended if an agreement was not reached within the allowed period.

That is not coercion, that was accommodation. That was patient forbearance with fair warning putting all parties on notice of the U.S. policy and intentions.

U.S. Congress and President accepted possible loss of Kwajalein in 2003

In the business world we use contracts that define the binding terms for commercial partnership. In government we use laws which are binding based on democratic consent of the governed. In international relations we use treaties that define the obligations of nations that exercise their sovereignty by ratifying treaty provisions.

In 2003 the process for negotiating and ratifying a new Compact of Free Association between the RMI and the USA was coming to an end. The first 15 year CFA had expired, been extended, and the extension was expiring.

The U.S. did not agree to further extension, and the U.S. was prepared for the consequences if a new CFA could not be agreed upon. Thus, the U.S. was prepared to negotiate instead a winding up of free association, including whatever transitional arrangements might be agreed up for U.S. use of Kwajalein.

The RMI was not prepared for the end of free association, but it had not completed its internal process for securing land use rights for the U.S. military pursuant to applicable base rights agreements. That is why the U.S. required a 5 year grace period for the RMI to secure an LUA for the period after 20016, giving the U.S. an eight year period to adapt to the impending loss of Kwajalein if the RMI failed to secure an LUA.

Now as the end of the grace period approaches the Marshall Islands Journal is reporting that Tony deBrum has escalated his bizarre ideology of confrontation, by suggesting that the five years Congress granted for the RMI and Kwajalein chiefs to secure land rights was not long enough. But the people know the 5 year deadline was plenty of time to work something out.

The five year grace period Congress adopted was more than adequate. The 9 months deBrum has been in power has been more than enough. Why would the U.S. agree to postpone the deadline? Why would the U.S. reward bad faith by agreeing to an alternative use of the escrow funding?

The negotiation of U.S. payments ended in 2003, there is no U.S. number and an RMI number based on demands of the land barons that can now be compromised, no payment proposals on the table to be compromised by some splitting of the difference. The difference between the U.S. and RMI agreed amount and what the Kwajalein propertied oligarchy demanded was already split when increased payments were secured from 2003 to 2016, and fro the period after 2016.

Rather than “postponement” or mutual agreement to some “alternate use” that does not secure the base rights for which the escrow funding was provided, the only question now is whether the RMI can propose some other use for the escrow funds that would be more agreeable to the U.S. than reversion. But agreement to such other use would be of no value to the U.S. if it does not also secure the LUA.

Why would some other use be more attractive to the U.S. than recovery of the escrowed amount if it does not secure base rights? If deBrum assumes the U.S. officials with the authority to “otherwise mutually agree” to another use of the escrow funds share an over-riding interest in preventing reversion, he may be mistaken and surprised to find out that is not the case.

Simply stated, if the land barons and the RMI are able to secure an LUA after the deadline, based on U.S. agreement to a use of the escrow funds to prevent reversion, then logically the RMI and Kwajalein rulers could also secure the LUA before the deadline and prevent reversion. If deBrum has some political or ideological compulsion to force the resolution of this matter into the period after the deadline to prove some sort of point, the question is whether the U.S. can or will accommodate that compulsion in light of the current U.S. law ending the process of negotiation.

The answer to that question will come based not on the U.S. reaction to deBrum’s personal negotiating style, but based on whether the U.S. determines that mutual agreement to another use of the escrow funds will secure the LUA on terms agreed to by the two governments in the 2003 base rights treaty. Again, if that can be done after the deadline it can be done before it, and if it is not done before the deadline then the U.S. national interest may be served best by reversion rather than agreement to another use.

If the U.S. agrees to another use to prevent reversion without securing the LUA, and then enters into the kind of negotiations deBrum envisions, there will have been no purpose in the five year grace period and the deadline, which is certainly how deBrum views the entire matter.

If the U.S. views the five year grace period as a meaningful statement of U.S. purpose and intentions, then reversion of the escrowed funds may well be more consistent with U.S. national interests than mutual agreement to an alternate use that does not secure the base rights that are the purpose for which the escrowed funds were appropriated from the treasury, and hence the people, of the United States.

To allow those funds to be released form escrow for some other purpose without securing U.S. rights would be a breach not only of the RMI base rights agreement with U.S. government, but a breach of the U.S. government’s duty to American taxpayers. By December 17 the current Congress will be adjourned forever, a new President-elect will be preparing to take office after a new Congress has convened in 2009, when the issue of a government that failed to meet its obligations to secure base rights fro the U.S. Army will have to compete with thousands of more important issues for special consideration.

If the LUA deadline “explodes,” as deBrum put it, by early 2009 it will be clear to all in Majuro and Washington that it was not because the fuse on the process was too short, or because Congress sought to “coerce” an LUA, as deBrum claims. It will be because deBrum tried to stage a dramatic end-game that has long been a fantasy in his mind, a fantasy in which it is the U.S. that is coerced into paying more for Kwajalein than Congress had provided based on agreements ratified by both governments pursuant to their respective constitutional processes.

That kind of brinkmanship by deBrum reflects something that not even his political bosses may fully understand. Given the tendency of the U.S. not to stay where it is not wanted, given the reluctance of the U.S. to set the precedent of being blackmailed by a supposed ally, Tony’s actions seem crazy only if you assume he actually wants the U.S. to stay at Kwajalein. If you assume he wants the U.S. to leave, his actions make perfect sense.

Thus, the ultimate question is whether his actions faithfully represent the people of the RMI and the members of the national parliament. The terms of the 5 year grace period provided by Congress were not a game or a trick by Congress, but rather a necessary and transparent test of whether the RMI-U.S. alliance is sound and based on true mutuality of interest between our nations.

If the differences between the U.S. view of the alliance and that of the current RMI government is greater than what we have in common after decades of shared history, that will be very apparent on December 17.

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