New Zealand Yearbook of International Law
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Last Updated: 9 February 2019
SOUTH PACIFIC JOURNEYS IN 2008
Brenda Heather Latu[∗]
I. INTRODUCTION
The undertaking made by the leader of the Fijian interim government
during the 38th meeting of the leaders of the 16 Pacific Forum
countries in Nuku’alofa, Tonga, (in mid October 2007), that a
parliamentary
election would be held in the first quarter of 2009, was widely
seen as a positive portend for a better year for Fiji as well as
for the Pacific
region as a whole, after the region had been buffeted by social and political
conflict in the preceding 18 month
period.
Issues such as climate change,
international trade and the protection and preservation of natural resources
were welcome replacements
to a regional dance card which in 2006/07 had
featured: a military coup in Fiji, riots in Tonga, and a fresh outbreak of civil
unrest
in the Solomon Islands.
The year began with an attempt by the Pacific
Forum to restore the working agenda of a region increasingly divided by the
demands
of each country’s domestic internal agenda, the very real threat
to regional solidarity caused by an intractable European Union
(EU) and its
approach to multilateral trade negotiations, and the increasing activism of
non-traditional[1] foreign powers
seeking to distribute largesse in the form of development aid and assistance in
the region.
A year that began with quiet optimism ended with the onset of the
global financial crisis and an unexpected change in regional leadership
arising
from the untimely passing of the Secretary General of the Pacific Forum, Greg
Urwin. Urwin was a seasoned and highly respected
former Australian diplomat,
greatly esteemed as a Pacific specialist and primarily responsible for the roll
out of the ‘Pacific
Plan’ – an aspirational strategy intended
to be the Pacific region’s framework for future development which was
first launched in 2005 by the Forum leaders. The subsequent appointment of
Justice Tuiloma Neroni Slade to fill the resulting vacancy
was the subject of
broad acclamation. Slade was the first Pacific Islander elected as a Judge of
the International Criminal Court
after an exceptionally distinguished career
both as a diplomat to the United States (US), Canada and the United Nations and
as a
senior member of the Commonwealth Secretariat.
II. ECONOMIC PARTNERSHIP AGREEMENT WITH THE EUROPEAN UNION
An Economic Partnership Agreement (EPA) between the African, Caribbean
and Pacific (ACP) Group and the European Commission has been
under negotiation
since 2002. It is part of the Cotonou
Agreement,[2] a partnership between
the EU and African, Caribbean and Pacific countries, and the successor to the
Lome Convention.
In mid 2008, the Pacific Trade Ministers described the
EU’s approach to the EPA negotiations as ‘divisive, harsh and
unnecessarily
domineering’, with the signing of interim EPA’s by
Papua New Guinea (PNG) and Fiji reflecting the EU’s apparent
strategy of
‘divide and rule’.
[3]
Further pressure was applied to the
stalled negotiations with news that the Caribbean countries had concluded an EPA
with the EU on
15 October 2008.
The Pacific seemed far from concluding a
successful EPA with outstanding issues including:
Negotiations continue
...
III. PICTA AND PACER – REGIONAL TRADE AGREEMENTS
The Pacific Island Countries Trade Agreement
(PICTA)[4] established a free trade
area in goods among Forum island countries and came into force on 13 April 2003.
The Pacific Agreement on
Closer Economic Relations
(PACER)[5] is an economic aid trade
cooperation agreement between Forum island countries and Australia/ New Zealand
and entered into force in
October 2002.
Progress in these negotiations
continues to be slow with the parallel EPA negotiations also on foot. The
position of Chief Trade Adviser
(CTA) for Pacific Island countries and the
establishment of an office to support the CTA is in the process of being
considered. It
is being sought by the Forum Island countries in order to assist
them in their negotiations, and provide a critical catalyst for
the progress of
this regional trade agreement.
IV. REGIONAL INTEGRATION FRAMEWORK ‘RIF’
As part of the Pacific Plan, the Regional Integration Framework (RIF) was
developed to assess the use of regional resources and the
role of regional
organizations in meeting the objectives of its members.
After having decided
to rationalize the functions of the Pacific Islands Applied Geoscience
Commission (SOPAC) into the Pacific Regional
Environmental Programme (SPREP) and
the Secretariat of the Pacific Community (SPC) in 2007, the Forum leaders have
sought progress
this decision in 2008, with all the necessary implementation
plans due to be presented to the leaders in 2009 with a view to commencing
the
new institutional arrangements by 1 January 2010.
The critical review of the
roles and responsibilities of the various regional organizations has been an
important outcome of the RIF
process and has resulted in an ongoing assessment
of the optimal use of regional resources.
V. COOK ISLANDS
The stability and longevity of the Cook Islands government during the
year provided a much needed boost to the progress of development
goals and the
strengthening of public administration in the country.
The increasing role of
China in providing aid in the form of infrastructure and soft loans to the
country has been used to illustrate
the increasing influence of the super-power
in the country as well as the region. Commentators have been quick to question
China’s
motives in providing significant levels of financial aid and
support to the country, and have pointed in particular to the customary
lack of
transparency in the negotiations and uncertainty as to the actual terms of such
assistance. [6]
The passage of the
Official Information Act 2008 distinguishes the country as the
first Forum island country to pass freedom of information legislation.
VI. FIJI
The prominence of the political situation in Fiji was evident in the
content of the Forum Communiqué issued after the 39th Pacific
Forum meeting in Niue in August 2008, when the leaders of the Forum member
countries made a number of detailed decisions
seeking to move the country to
conduct democratic elections by March
2009.[7]
The deteriorating
relationship between Fiji and particular members of the Forum (namely New
Zealand, Australia and also Samoa), and
the withdrawal of Fiji from the Fiji
– Forum Joint Working Group, led to an escalation of hostility leading to
the disengagement
by Fiji in the joint process of restoring a democratically
elected government. In the meantime, proceedings were progressed before
the Fiji
Supreme Court by the deposed administration, questioning the legality of the
President’s decision to dismiss the Qarase-led
government, dissolve
Parliament and appoint an interim government pending the conduct of elections
after the amendment of electoral
laws. An unsuccessful decision against Qarase
at first instance is the subject of an appeal.
[8]
In summary, notwithstanding
concerted regional pressure and the application of travel restrictions by New
Zealand, Fiji has remained
firmly in control of its own political destiny and
represents the most significant challenge to the maintenance of regional
solidarity
and good governance aspired to by the various Forum member
countries.
VII. PAPUA NEW GUINEA
The election of a new government in Australia and the arrest and
detention of Julian Moti, the former Attorney-General of the Solomon
Islands,
has provided a convenient ‘restart’ for the country and an
opportunity to review and restore a significant bilateral
relationship with
Australia during a period of political stability under the leadership of one of
the Pacific’s few remaining
elder Statesmen: Sir Michael Somare. The
impact of relative political and institutional stability for the last half
decade has also
resulted in a positive investment rating for the country by an
international ratings agency.[9]
This together with the growth of commodity prices (oil, gas, gold, silver and
copper) has contributed to an ever strengthening country
economy now assisted by
a relatively stable political environment. The challenge for the country is to
ensure the growth in commodity
markets is matched by the strengthening of
capacity and governance and the development of the private sector. Certain
events during
the year have placed these issues in sharp focus.
In May,
Taiwan’s Deputy Premier resigned in the aftermath of a diplomatic scandal
involving the embezzlement of over USD$30
million earmarked for PNG in a bid to
garner support for Taiwan’s campaign for international recognition over
the People’s
Republic of China. The funds however were diverted by two
Singapore based businessmen (intended to be Taiwan’s intermediaries)
which
led to freezing orders being issued in the High Court of Singapore over the
businessmen’s joint bank account.
This episode served to renew the
cries of corruption, alleged to be endemic throughout PNG’s political
system, and which have
continued to rage from within the country including
through certain addresses by prominent PNG citizens including the Attorney
General
Allan Marat.[10]
A
95th place in the World Bank’s Doing Business Survey for 2007
has also raised a call for the need for urgent reform of legislation
and the
administration of commercial transactions from the country’s Chamber of
Commerce. [11]
VIII. SAMOA
The Government’s decision to change the side of the road on which
its vehicles drive caused extensive public protests in the
country not seen
since a public sector strike which eventually led to the downfall of the
government in the early 1980’s. The
people’s movement that is
organized to oppose the change has filed an application under the Constitution
seeking protection
of constitutional freedoms, primarily the right to life, on
the basis that the adoption of a policy to change to right hand drive
(with over
15,000 left hand drive vehicles registered in the country as opposed to over
less than 2,000 right hand drive vehicles),
will certainly cause the loss of
life and is an unwarranted and an unacceptable risk to public safety. The case
is currently the
subject of a strike out application by the Attorney-General
alleging that there is no valid cause of action. The nature of the challenge
is
novel and wholly untested in the jurisdiction.
[12]
The passage of new land
registration legislation moving the country from a deed system to a Torrens land
registration system, whilst
intended to guarantee the accuracy of land tenure,
in a climate of public distrust, has been used to illustrate the current
administration’s
lack of accountability in the face of 27 years of
uninterrupted political tenure and the absence of a recognized parliamentary
opposition.
IX. SOLOMON ISLANDS
The 2008 year was one for introspection and review by the Forum of its
Regional Assistance Mission to the Solomon Islands (RAMSI).
A relatively rapid
and successful restoration and maintenance of peace in 2004 was upset by an
unexpected outbreak of renewed hostilities
in 2006 against the run of play,
followed by a year of consolidation and restoration of many public
institutions.
The aggressive stance of the previous administration in respect
of foreign relations was replaced at the beginning of 2008 by a more
conciliatory administration led by the newly elected Prime Minister, Dr Derek
Sikua, who has sought to rebuild public confidence
in the country’s public
institutions. The impact of the ‘non Police’ part of the RAMSI
mission is now being felt
more keenly as the various pillars of government
– the Executive, the Legislature and the Judiciary are strengthened with
the
assistance of RAMSI programme as well as many other bilateral and
multilateral donors.
X. TONGA
The coronation of HRH King George Tupou III, early in 2008, was a
spectacle as unique as it was symbolic in a country which is slowly
moving
towards democracy. The divestment by the King of many of his personal interests
in the ownership of public utilities and local
companies, the election of
certain people’s representatives with a democratic leaning, and the
appointment of citizens without
noble titles (or close blood ties with such) as
members of the Tongan Cabinet of Ministers reflects the country’s gradual
move
away from an absolute monarchy. A Constitutional and Electoral Commission
has been appointed to hasten constitutional reforms aiming
for full
parliamentary elections in 2010.
However, the continual renewal of emergency
provisions first imposed after the 2006 riots and the limitations they impose on
the movement
and activities of Tongan citizens still present an unwelcome
reminder of the unquestioned authority of Government even two years
after the
Nuku’alofa riots.
XI. VANUATU
Vanuatu has been successful in meeting many development goals in 2008
including the distinction of being the only Pacific country
to qualify for the
US Millennium Challenge Fund worth USD$66 million released over 5 years.
Political stability ensures the resource
rich country will continue to develop
its management of those resources and the strengthening of its public
institutions.
XII. DEVELOPMENTS IN THE NORTHERN PACIFIC
The proposed relocation of a US military base from Japan to Guam and a
proposed investment of USD$10.2 billion by the US Government
for the relocation,
has reverberated throughout the region as all Guam’s neighbours –
near and far, seek to participate
in this investment bonanza ranging from offers
of workers from smaller island states to efforts by others to provide a range of
products
and services to the US military.
In November, the first non-voting
member of the US Congress for the Commonwealth of the Northern Mariana Islands
(CNMI) was elected.
This came 30 years after the islands became a commonwealth
of the US in 1978. They were the last US jurisdiction to be granted
representation
in Congress.
[∗] Partner, Latu, Ey &
Clarke Lawyers, formerly Attorney General of
Samoa.
[1] The traditional external
powers with an interest in the Pacific are mainly Western
states.
[2] Partnership
Agreement between the Members of the African, Caribbean and Pacific Group of
States of the One Part, and the European
Community and its Member States (The
Cotonou Agreement), opened for signature 23 June 2000, [2000] PITSE
13 (entered into force 1 April
2003).
[3] See ‘Pacific Trade
Ministers Slam EU Trade Commissioner Mandelson: Pacific Trade Ministers Slam EU
Bullying in Trade Deal’,
18 April 2008,
<http://www.bilaterals.org/
article.php3?id_article=11848> at 30
November 2009; exchange of letters between Wilkie Rasmussen, the Cook Islands
Minister of
Foreign Affairs, and Peter Mandelson, the EC Trade Commissioner:
Letter from Peter Mandelson to Wilkie Rasmussen, 27 March 2008,
PANG
<http://www.pang.org.fj/doc/Mandelson_and_Rasmussen_Letters.pdf>
at 19
November 2009; Letter from Wilkie Rasmussen to Peter Mandelson, 11 April 2008,
PANG
<http://www.pang.org.fj/doc/Mandelson_and_Rasmussen_Letters.pdf>
at 19
November 2009.
[4] Pacific
Island Countries Trade Agreement, opened for signature 18 August 2001,
[2001] PITSE 4 (entered into force 13 April
2003).
[5] Pacific Agreement on
Closer Economic Relations, opened for signature 18 August 2001, 2198 UNTS
171 (entered into force 3 October
2002).
[6] See, e.g., Greg Ansley,
‘Chinese Aid Spree may be Ending’, New Zealand Herald
(Auckland), 23 July 2009
<http://www.nzherald.co.nz/cook-islands/news/article.cfm?l_id=
30&objectid=10586107>
at 15 November 2009; ‘China Rejects Charge of Aid Diplomacy in the
Pacific’, ReutersAlertNet (London), 25 July 2008
<http://www.alertnet.org/thenews/
newsdesk/PEK335715.htm> at 15
November 2009.
[7] Pacific Islands
Forum Secretariat, Forum Communiqué: Thirty-Ninth Pacific
Islands Forum, Alofi, Niue, 19-20 August 2008 (2008) [15]
<http://www.forumsec.org.fj/_resources
/article/files/FINAL%202008%20Communique.pdf>
at 26 November 2009.
[8]
Qarase v Bainimarama [2008] FJHC 241.
[9] Financial Standards
Foundation, Country Brief, Papua New Guinea (21 August 2008), 5
<http://estandardsforum.org/system/briefs/305/original/brief-Papua%20New%20Guinea.
pdf?1254987857>
at 15 November 2009.
[10] See,
e.g., New Zealand Papua New Guinea Business Council, Newsletter (28 March
2008), [16]
<http://docs.google.com/viewer?a=v&q=cache:PEpgyIKhNlsJ:www.nzpngbc.
org.nz/docs/news/0803-NZPNGBC-News.pdf+corruption,+PNG,+attorney+general,
+marat,+address&hl=en&gl=nz&sig=AHIEtbTOyh41v9umsC-fH-C7c3_6bn-8CQ>
at 15 November 2009.
[11] Steve
Marshall, ‘PNG a Difficult Place to do Business: Survey’, ABC
News, 10 September 2008
<http://www.abc.net.au/news/stories/2008/09/10/2361345.htm>
at 15 November
2009.
[12] ‘Samoa
Government Seeks to Stop Road Switch Challenge’, Radio New Zealand
International (Wellington), 1 April 2008
<http://www.rnzi.com/pages/news.php?
op=read&id=38891> at 15
November 2009.
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