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Compact of Free Association

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

The Compacts of Free Association (COFA) are international agreements establishing and governing the relationships of free association between the United States and the three Pacific Island sovereign states of the Federated States of Micronesia (FSM), the Republic of the Marshall Islands (RMI), and the Republic of Palau. As a result, these countries are sometimes known as the Freely Associated States (FASs). All three agreements next expire in 2043.

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

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

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

States in Compacts of Free Association

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Associated State [note 1] Associated since Level of association International status
 Marshall Islands[5] 21 October 1986 United States provides defense, funding grants, and access to U.S. social services for citizens of these areas under the Compact of Free Association. UN member state
 Federated States of Micronesia[6] 3 November 1986
 Palau[7] 1 October 1994

Economic provisions

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Each of the associated states actively participates in all Office of Insular Affairs technical assistance activities. The US gives only these countries access to many US domestic programs,[8] including disaster response and recovery and hazard mitigation programs under the Federal Emergency Management Agency, some US Department of Education programs including the Pell Grant, and services provided by the National Weather Service, the United States Postal Service, the Federal Aviation Administration, the Federal Communications Commission, the Federal Deposit Insurance Corporation, and US representation to the International Frequency Registration Board of the International Telecommunication Union.[9] The Compact area, while outside the customs area of the United States, is mainly duty-free for imports.[10]

Most citizens of the associated states may live and work in the United States, and most US citizens and their spouses may live and work in the associated states.[11][12] In 1996, the US Personal Responsibility and Work Opportunity Act removed Medicaid benefits for resident foreigners from the states, even after the five-year waiting period that most other resident aliens have.[13] However, in December 2020, Congress restored Medicaid for Compact of Free Association communities.[14]

Military provisions

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The USCGC Oliver Berry and the RMIS Lomor on a joint patrol[15]

The COFA allows the United States to operate armed forces in Compact areas and to demand land for operating bases, subject to negotiation, and excludes the militaries of other countries without US permission. The US in turn becomes responsible for protecting its affiliate countries and responsible for administering all international defense treaties and affairs, though it may not declare war on their behalf. It is not allowed to use nuclear, chemical, or biological weapons in Palauan territory.[16] In the territories of the Marshall Islands and the Federated States of Micronesia it is not allowed to store such weapons except in times of national emergency, state of war, or when necessary to defend against an actual or impending attack on the US, the Marshall Islands, or the Federated States of Micronesia.[17]

Citizens of the associated states may serve in America's armed forces, and there is a high level of military enlistment by Compact citizens. For example, in 2008, the Federated States of Micronesia had a higher per-capita enlistment rate than any US state, and had more than five times the national per-capita average of casualties in Iraq and Afghanistan: nine soldiers out of a population of 107,000.[18]

21st-century renewal and updates

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In 2003, the compacts with the RMI and FSM were renewed for 20 years. These new compacts provided US$3.5 billion in funding for both countries. US$30 million will also be disbursed annually among American Samoa, Guam, Hawaii, and the Northern Mariana Islands in "Compact Impact" funding. This funding helps the governments of these localities cope with the expense of providing services to immigrants from the RMI, FSM, and Palau. The US use of Kwajalein Atoll for missile testing was renewed for the same period.[19] The new compacts also changed certain immigration rules. RMI and FSM citizens traveling to the US are now required to have passports. The US Postal Service was given the option to apply international postage rates for mail between the US and RMI/FSM, phased in over five years. The USPS began implementing the change in January 2006, but decided to resume domestic services and rates in November 2007.[20]

The renewed compact, commonly called "Compact II", took effect for FSM on June 25, 2004,[21] and for RMI on June 30, 2004.

Map of the Trust Territory of the Pacific Islands (1962)

The economic provisions of the Compact for Palau which provided $18 million in annual subsidies and grants, expired on September 30, 2009, and the renewal talk was concluded in late 2010.[22] US financial support for Palau is based on a continuing resolution passed by the US Congress.[23] The Compact Trust Fund set up to replace US financial aid underperformed because of the Great Recession.[24] The military and civil defense provisions remained until 2015.[25]

An amended Compact, enacted December 17, 2003, as Public Law 108-188, provided financial assistance to the Marshall Islands and Micronesia through 2023. The Compact of Free Association agreement with the Republic of Palau, enshrined in US Public Law 99-658, was followed by a Compact Review Agreement signed between the US and Palau in 2018, extending certain financial provisions through September 30, 2024.[26]

In March 2022, President Joe Biden named Ambassador Joseph Yun as US Special Presidential Envoy for Compact Negotiations to take over negotiation for amendment and continuation of COFA.[27] As of Monday, October 16, 2023, agreements to renew all three compacts for a period of 20 years have been formally signed by representatives of each Freely Associated State (FAS) and the U.S. State Department. Total funding for all three agreements is $7.1B paid over 20 years ($889M - Palau, $3.3B - FSM, $2.3B - RMI and a $634M U.S. Postal Service offset to continue domestic rate mail service).[28][29]

Palau Finance Minister Kaleb Udui Jr. and U.S. Ambassador Yun signed Palau's COFA extension on May 22, 2023, with the island government previously requesting to advance their date more in line with the other two countries.[30] On May 23, 2023, FSM negotiator Leo Falcam and a State Department representative signed Micronesia's extension at the U.S. embassy in Pohnpei.[31] Marshall Islands' Minister of Foreign Affairs and Trade, Jack Ading alongside Ambassador Yun signed RMI's agreement on October 16, 2023.[32] Approval by each legislature, to include a funding mechanism in Congress, is the final step to bring each agreement into force. Legislation implementing the new agreements was enacted by the U.S. Congress in March 2024.

Other potential CFA states

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Overview of Pacific people's regions

The former government of the United States unincorporated territory of Guam, led by Governor Eddie Calvo, campaigned for a plebiscite on Guam's future political status, with free association following the model of the Marshall Islands, Micronesia, and Palau as one of the possible options.[33][34]

In Puerto Rico, the soberanista movement advocates for the territory to be granted a freely associated status. The 2017 status referendum presented "Independence/Free Association" as an option; if the majority of voters had chosen it, a second round of voting would have been held to choose between free association and full independence. In 2022, the US Congress introduced the Puerto Rico Status Act, which would hold a federally-sponsored referendum on the territory's status, with a free association status expected to be presented as an option.[35]

Kiribati is another state that may consider a CFA, as it would be a way to gain immigration access to escape rising sea levels, as it has been a stalwart U.S. ally in the Pacific. Kiribati is home to Tarawa atoll, which is the site of the costly Battle of Tarawa during World War II. The CFA would be a way to give additional options for island difficulties and get extra development aid with limited natural resources, and unify it with other Micronesian people living in the Pacific (this includes FSM, Marshall, Guam, etc.).[36] For example, Marshall Islands and Kiribati already work together on regional security such as 2018 the Marshall ship Lomor and RKS Teanoai performed a joint patrol of their waters.[37]

Other possible CFA states include Nauru.[36] The number of CFA states so far has been limited, because it is reserved for only the closest allies of the US.[36] Although the COFA are very expensive, support for the alliances has been popular in the US, and considered mutually beneficial, with the small island nations warning the US of dangers in the Pacific regions, such as global warming and influence of foreign powers.[38]

US fulfillment of commitments

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The United States' administration of the former trust territories now covered under the Compacts of Free Association has been subject to ongoing criticism over the past several decades. A 1961 United Nations mission report initially noted deficiencies in "American administration in almost every area: poor transportation, failure to settle war damage claims; failure to adequately compensate for land taken for military purposes; poor living conditions[;] inadequate economic development; inadequate education programs; and almost nonexistent medical care."[39] In 1971, congresswoman Patsy Mink further noted that "[A]fter winning the right to control Micronesia, [the US] proceeded to allow the islands to stagnate and decay through indifference and lack of assistance. . . . [T]he people are still largely impoverished and lacking in all of the basic amenities which we consider essential – adequate education, housing, good health standards, modern sanitation facilities."[40]

After the compacts, criticism was also received by the United States House Foreign Affairs Subcommittee on Asia and the Pacific regarding the unfulfilled commitments of the United States to address the impacts of US nuclear testing in the Marshall Islands, which were included as part of the Pacific Proving Grounds. Speakers noted that while section 177 of the Compact of Free Association recognized the United States' responsibility "to address past, present and future consequences of the nuclear testing claims," less than $4 million was awarded out of a $2.2 billion judgment rendered by a Nuclear Claims Tribunal created under the RMI Compact, and the United States Court of Claims had dismissed two lawsuits to enforce the judgment.[41] With respect to these unaddressed claims, medical practitioners also noted the potential widespread impacts of nuclear testing within the Pacific Proving Grounds, indicated by the prevalence of both radiogenic diseases, as well as heart disease, diabetes, and obesity associated with "[a] forced change in dietary patterns and lifestyle" resulting from US administration after the testing.[42][43] In 2011, lawmakers further noted that the US Congress had continuously failed to cover the costs of promised medical care and services to displaced compact citizens who migrate to the United States for health care, education, and employment opportunities, particularly since the passage of the Personal Responsibility and Work Opportunity Act.[44]

Questions regarding US responsibility have also been raised regarding the issue of numerous derelict war ships and oil tankers abandoned or destroyed by the US military in atolls and islands throughout the compact area.[45]

Health care issues

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In 2009, the state of Hawaii, under the administration of then-Governor Linda Lingle, attempted to restrict health care access for Compact citizens by eliminating all Compact residents of Hawaii from Med-QUEST, the state's comprehensive Medicaid coverage plan.[46] COFA residents were instead subject to Basic Health Hawaii, a limited health care plan under which "transportation services are excluded and patients can receive no more than ten days of medically necessary inpatient hospital care per year, twelve outpatient visits per year, and a maximum of four medication prescriptions per calendar month. . . . BHH covers dialysis treatments as an emergency medical service only, and the approximate ten to twelve prescription medications dialysis patients take per month are not fully covered. BHH . . . caus[es] cancer patients to exhaust their allotted doctors' visits within two to three months".[47]

Noting that such a policy likely constituted unlawful discrimination in violation of the Equal Protection Clause, federal District Court Judge John Michael Seabright issued a preliminary injunction against the implementation of Basic Health Hawaii.[48] In finding a high likelihood of irreparable harm, Judge Seabright took note of the "compelling evidence that BHH's limited coverage . . . is causing COFA Residents to forego much needed treatment because they cannot otherwise afford it".[49][50] Lingle's successor, Governor Neil Abercrombie continued the state's appeal of the injunction to the United States Court of Appeals for the Ninth Circuit,[51] which ruled in favor of the state. When the United States Supreme Court refused to hear the case, the Abercrombie administration removed most COFA residents from Med-QUEST and transferred them onto Affordable Care Act plans.[52] In other states, notably Arkansas, which has a significant population of Marshallese, COFA residents have not been eligible for Medicaid.[53] In 2020, the United States Congress restored Medicaid eligibility for COFA residents with the Consolidated Appropriations Act.[54]

In 2024, access to COFA members to many federal programs was restored, such as Supplemental Nutrition Assistance Program, Temporary Assistance for Needy Families, and Supplemental Security Income after it had been dropped in the 1990s after a welfare reform bill. Medicaid had already been restored in 2020.[38]

See also

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Footnotes

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  1. ^ Arranged by date of free association.

References

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Citations

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  1. ^ "About the Compact of Free Association". uscompact.org. United States Department of the Interior; Honolulu Field Office. Archived from the original on 2017-05-01.
  2. ^ Arnold H. Leibowitz (1 January 1989). Defining Status: A Comprehensive Analysis of United States Territorial Relations. Martinus Nijhoff Publishers. pp. 651–. ISBN 0-7923-0069-6.
  3. ^ Compact of Free Association in the Micronesian States of Palau, the Federated States of Micronesia and the Marshall Islands: Environmental Impact Statement. 1984. pp. 62–.
  4. ^ "Compact of Free Association". www.fsmlaw.org. Archived from the original on 8 October 2017. Retrieved 6 May 2018.
  5. ^ CIA (15 July 2010). "Marshall Islands at the CIA's page". CIA. Retrieved 2010-07-15.
  6. ^ CIA (15 July 2010). "FSM at the CIA's page". CIA. Retrieved 2010-07-15.
  7. ^ CIA (15 July 2010). "Palau at the CIA's page". CIA. Retrieved 2010-07-15.
  8. ^ "Prime Award Spending Data by Location". USASpending.gov. Archived from the original on March 8, 2021.
  9. ^ Palau COFA 1986, Title 1
  10. ^ Palau COFA 1986, Sections 241–242
  11. ^ Palau COFA 1986, Section 141
  12. ^ Federated States of Micronesia COFA, Section 141.
  13. ^ "House Health Bill Would Help Pacific Island Migrants". NPR.org. 6 January 2010. Archived from the original on 3 March 2016. Retrieved 2 January 2016.
  14. ^ "COVID-19 Relief Bill Restores Medicaid Access for COFA Community". APIAHF. 2020-12-21. Retrieved 2023-12-19.
  15. ^ Amanda Levasseur, Sara Muir (2018-08-01). "USCGC Oliver Berry crew sets new horizons for cutter operations". Dvidshub. Archived from the original on 2018-08-09. Retrieved 2018-08-09. In July Oliver Berry's crew set a new milestone by deploying over the horizon to the Republic of the Marshall Islands. The 4,400 nautical mile trip marked marking the furthest deployment of an FRC to date for the Coast Guard and is the first deployment of its kind in the Pacific.
  16. ^ Patterson, Carolyn Bennett, et al. "At the Birth of Nations: In the Far Pacific." National Geographic Magazine, October 1986 page 498. National Geographic Virtual Library, Accessed 17 May 2018. "The problem? The Palauans had voted for a constitution that banned nuclear devices. Salii then initial a compact agreement with the US allowing American ships and planes of all types to operate in Palau. A court ruling held the compact illegal without a 75 percent referendum vote, a constitutional stipulation. Salii dissented, arguing for a more flexible interpretation of the constitution: "It does not say we cannot allow nuclear-powered ships if they are in transit." The Palau compact also allows the American military the option of using the nation's big island of Babelthuap for bases if the US should lose those in the Philippines."
  17. ^ "FSM COFA, Section 324" Archived 2009-10-10 at the Wayback Machine.
  18. ^ The Christian Science Monitor (5 May 2010). "Uncle Sam wants Micronesians for US military". The Christian Science Monitor. Archived from the original on 28 February 2016. Retrieved 2 January 2016.
  19. ^ BUSH SIGNS $3.5 BILLION PACIFIC COMPACT – December 18, 2003 Archived January 3, 2006, at the Wayback Machine at archives.pireport.org
  20. ^ USPS DOMESTIC MAIL SERVICE RETURNS TO THE FSM AND RMI Archived 2007-11-28 at the Wayback Machine at www.fm
  21. ^ "Compact of Free Association". Archived from the original on 26 January 2016. Retrieved 2 January 2016.
  22. ^ "Compact of Free Association with the Republic of Palau: Assessing the 15-year Review". US Department of State. Archived from the original on 5 April 2017. Retrieved 2 January 2016.
  23. ^ "The Continued Free Association with the Republic of Palau Act of 2012". US Department of State. Archived from the original on 15 February 2020. Retrieved 2 January 2016.
  24. ^ "Compact Trust Fund underperforms". Archived from the original on December 13, 2011.
  25. ^ "Compact of Free Association with the Republic of Palau". Archived from the original on 4 March 2016. Retrieved 2 January 2016.
  26. ^ "Compacts of Free Association". US Department of the Interior Office of Insular Affairs. April 2, 2022.
  27. ^ Blinken, Anthony (March 22, 2022). "Announcing the Special Presidential Envoy for Compact Negotiations" (Press release). US Department of State.
  28. ^ Legislative Proposal and Memorandums of Understanding (2023-10-25). "Cost breakdown of proposed Compact of Free Association Amendment Act of 2023" (PDF). U.S. House of Representatives. Retrieved 2023-10-25.
  29. ^ "Memorandum: House Committee on Natural Resources Indo-Pacific Oversight Hearing" (PDF). U.S. House of Representatives. 2023-07-18. pp. 4–5. Retrieved 2023-10-25.
  30. ^ Admin (2023-05-22). "US-Palau Compact awaits congressional approval". pactimes. Retrieved 2023-10-25.
  31. ^ "U.S. signs agreement to continue Micronesia assistance under strategic pact". Reuters. 2023-05-23. Retrieved 2023-10-25.
  32. ^ Blair, Chad (2023-10-18). "US, Marshall Islands Renew COFA Treaty For Another 20 Years". Honolulu Civil Beat. Retrieved 2023-10-25.
  33. ^ Post, Kevin Kerrigan and Gaynor D. Daleno | The Guam Daily. "GovGuam hopes for favorable decision on plebiscite". The Guam Daily Post. Archived from the original on 2019-10-07. Retrieved 2019-10-09.{{cite web}}: CS1 maint: multiple names: authors list (link) CS1 maint: numeric names: authors list (link)
  34. ^ Sinco Kelleher, Jennifer (October 12, 2018). "Guam pushes for native-only vote on US relationship". Navy Times.
  35. ^ Acevedo, Nicole (May 19, 2022). "Lawmakers reach consensus on Puerto Rico status bill, call for plebiscite". NBC News.
  36. ^ a b c Pruett, Richard K. (Mar 5, 2020). "A United States-Kiribati Compact of Free Association would Yield Mutual Dividends".
  37. ^ Hilary Hosia (16 February 2018). "Kiribati, RMI joint sea patrol". The Marshall Islands Journal. Archived from the original on 9 August 2018. Patrol vessels Teanoai from the Republic of Kiribati and Lomor from Marshall Islands conducted joint operations and open ocean exercises last week following Teanoai's arrival in Majuro Thursday.
  38. ^ a b Blair, Chad (2024-03-10). "Congress Restores Federal Benefits To COFA Migrants As Part Of $7.1 Billion Aid Deal". Honolulu Civil Beat. Retrieved 2024-07-02.
  39. ^ McHenry, Donald F. (1975). Micronesia: Trust Betrayed -- Altruism vs. Self Interest in American Foreign Policy. Carnegie Endowment for International Peace. ISBN 0-87003-000-0.
  40. ^ Mink, Patsy T. (1970–71). "Micronesia: Our Bungled Trust". Texas Int'l Law Forum. 6: 181–208. Archived from the original on March 4, 2016. Retrieved December 12, 2011.
  41. ^ Oversight on the Compact of Free Association with the Republic of the Marshall Islands (RMI): Medical Treatment of the Marshallese People, U.S. Nuclear Tests, Nuclear Claims Tribunal, Forced Resettlement, Use of Kwajalein Atoll for Missile Programs and Land Use Development Archived 2012-04-26 at the Wayback Machine
  42. ^ Id. (testimony of Neal H. Palafox, MD); see also Yamada, Seiji (2004). "Cancer, Reproductive Adnormalities, and Diabetes in Micronesia: The Effect of Nuclear Testing" (PDF). Pacific Health Dialog. 11 (2): 216–21. PMID 16281703. Archived from the original (PDF) on April 26, 2012. Retrieved December 12, 2011.
  43. ^ Yamada, Seiji; Akiyama, Matthew (2013-01-27). ""For the good of mankind": The legacy of nuclear testing in Micronesia". Social Medicine. 8 (2): 83–92. ISSN 1557-7112. Archived from the original on 2017-08-14.
  44. ^ The Hawaii Independent. "Hawaii lawmakers ask feds to front Medicaid costs of COFA citizens - Pasifika Media Association". Archived from the original on 6 March 2016. Retrieved 2 January 2016.
  45. ^ Trevor Gilbert; Sefania Nawadra; Andy Tafileichig; Leonard Young (April 2003). Response to an Oil Spill from a Sunken WWII Oil Tanker in Yap (PDF). 2003 International Oil Spill Conference. Vancouver. Archived from the original (PDF) on April 26, 2012. Retrieved December 12, 2011. The problem of more than 1000 WWII shipwrecks, amounting to over 3 million tons sunk across the pacific, has been with us for 60 years and will not fade away by continuing to ignore the issue; see also WWII wrecks ‘threaten Micronesia’ Archived 2011-11-15 at the Wayback Machine; Assessing potential oil spills from WWII Wrecks Archived 2012-04-26 at the Wayback Machine
  46. ^ Saunders, Aaron; Schiff, Teresa; Rieth, Katherine; Yamada, Seiji; Maskarinec, Gregory G.; Riklon, Sheldon (June 2010). "Health as a human right: who is eligible?". Hawaii Medical Journal. 69 (6 Suppl 3): 4–6. ISSN 0017-8594. PMC 3123152. PMID 20539993.
  47. ^ Korab v. Koller, 2010 WL 4688824 (D. Haw Dec 10, 2010).
  48. ^ Id. ("Defendants fail to show any particular State interest that is advanced by their decision to exclude COFA residents from the Old Programs. . . . [W]hile the court recognizes that BHH was created in response to the State's budget crisis, when applying strict scrutiny, the 'justification of limiting expenses is particularly inappropriate and unreasonable when the discriminated class consists of aliens'")
  49. ^ Id.; see also Judge Dismisses Hawaii’s Request for Dismissal of Suit against Basic Health Hawaii Archived 2012-02-04 at the Wayback Machine ("Micronesian community representatives reported that elimination of medical benefits has impacted many, including 27 who have died since Sept. 1, 2009")
  50. ^ Shek, Dina; Yamada, Seiji (November 2011). "Health care for Micronesians and constitutional rights". Hawaii Medical Journal. 70 (11 Suppl 2): 4–8. ISSN 0017-8594. PMC 3254229. PMID 22235150.
  51. ^ "Korab v. Koller, Civ. No. 10-c00483-JMS-KSC (Jan. 10, 2011)" (PDF). lejhawaii.org. Archived from the original (PDF) on 4 March 2016. Retrieved 6 May 2018.
  52. ^ Hagiwara, Megan Kiyomi Inada; Yamada, Seiji; Tanaka, Wayne; Ostrowski, Deja Marie (2015-05-11). "Litigation and Community Advocacy to Ensure Health Access for Micronesian Migrants in Hawai'i". Journal of Health Care for the Poor and Underserved. 26 (2): 137–145. doi:10.1353/hpu.2015.0065. ISSN 1548-6869. PMID 25981094. S2CID 35055370. Archived from the original on 2017-08-30.
  53. ^ McElfish, Pearl Anna; Hallgren, Emily; Yamada, Seiji (2015-02-25). "Effect of US Health Policies on Health Care Access for Marshallese Migrants". American Journal of Public Health. 105 (4): 637–643. doi:10.2105/ajph.2014.302452. ISSN 0090-0036. PMC 4358182. PMID 25713965.
  54. ^ "U.S restores Medicaid for Marshall Islands, exposing longtime injustice, experts say". NBC News.

Bibliography

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