New Zealand Yearbook of International Law
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Tony Angelo[*]
At the 35th Pacific Islands Forum of 2004, French Polynesia was welcomed to observer status to the Forum on the basis that it was progressing towards exercising its rights to self-determination. For similar reasons, Tokelau was present as an invited observer.
On the constitutional and international law side the Forum expressed support to Papua New Guinea and Bougainville for the upcoming autonomy decision. This had a positive outcome with the success of the Bougainville presidential elections in mid-2005. Also of significance in the discussions were the references to HIV/AIDS for which a regional strategy was endorsed. The identification of this as a “most urgent issue” bore fruit at the 36th Forum of 2005. As might be expected, matters relating to resource management and fisheries received particular attention.
The main item on the agenda at the 2004 Forum was the Pacific Plan.[1] The Forum commissioned the Pacific Plan Taskforce to do more work before the next meeting of the Forum and in particular to advance matters of a practical nature and to provide suggestions as to priorities. The plan was effectively referred for endorsement to the 36th meeting.[2]
This was held in Port Moresby in October 2005. Tokelau was formally admitted to observer status. Tokelau also received a commitment from Forum members that on self-government they would support an application by Tokelau to accede to the Cotonou Agreement.[3]
The HIV/AIDS regional strategy received a substantial boost with the ADB announcing a multi-million dollar support package to the region, and further targeted support was provided for Papua New Guinea.
A major item was the Pacific Plan and it was endorsed without significant debate. The consideration of the Plan was supported by background papers prepared by the Secretariat. Those papers dealt with Civil Society; Culture; Disability; Gender; Human Rights; Human Security; Poverty Reduction; and Youth. The most significant from the law point of view was that on Human Rights.[3]
There was considerable discussion about movement of workers generally and suggestions made for possible future developments in this area. The plan was also considered in the light of two reports. The first was commissioned by the Pacific Plan Taskforce and written by Anthony Hughes; the second was a joint document from the ADB and the Commonwealth Secretariat. The focus of the Hughes paper was on the restructuring of regional organisations in the interests of efficiency. The ADB report considered at length the nature of regionalism, and matters of particular law interest suggested that there be regional accountability arrangements in the form of a regional ombudsman and a regional audit taskforce.
Following the 35th Forum meeting, the Secretariat engaged in consultations with Governments in the region and with civil society in a number of countries with a view to informing communities about the Pacific Plan and to developing the Plan in a practical way for Forum endorsement. There was first a working draft and then a final draft entitled A Pacific Plan.
The working draft covered a wider range than the final draft and often dealt more specifically with legal issues. In the final draft the legal issues are of a more limited range. For example, the working draft directed attention to the “development of appropriate models for land ownership, tenure and associated legislative frameworks... to help minimise social tensions and maximise economic opportunities and resource conservation” but that was not retained in the final draft.
The draft Plan appeared to encapsulate specific references to projects that, taken collectively, may have represented the idea that it was possible to achieve some harmonisation of laws across the region. For example the ideas about harmonising customs and bio-security regimes in the interests of economic development have survived in muted references in the context of regional security.
Another example is the reference which began as “free labour movement” reduced in significance to the point that the free movement of labour in the Forum region failed to get general political support at the 36th Forum. In particular free movement of labour from Pacific Island countries to Australia or New Zealand was not supported by Australia or New Zealand. The economic benefit of such movement of labour cannot be denied, however concerns about opportunistic migration clearly dominated. The free movement of labour within the Pacific and the associated opportunities for industrial social and security mechanisms to be harmonised remain on the agenda and are actively supported by SPOCTU.[4]
One interpretation of the shift of focus that is found in moving from the working draft to the final draft, with respect to the law and related endeavours, is that it is a shift from a plan with specific national implications to a plan that has a more general regional role. The region-wide focus avoids some of the difficulties associated with obtaining agreement on projects with specific national impact.
For many years the Forum has been concerned with methods by which traditional knowledge and Pacific cultural rights might be protected. Work has been done on this issue by bodies such as WIPO,[5] and by Professor Kamal Puri who drafted a model law on Intellectual Property that was presented to a meeting of Pacific ministers who endorsed it in 2002. This concern with intellectual property rights is reflected, in the implementation strategy of the Plan, as an initiative to be fulfilled by 2008.
One interesting idea which was not carried through to the final draft was that there be some co-ordination or “regional register” of judicial and prosecutorial services in the region. There was also “development of a regional judicial mechanism or process to deal with important legal issues arising out of major extra-constitutional crises in or between Forum countries”. The original idea undoubtedly built on the fact that many of the final courts of appeal for the region have New Zealand or Australian senior judges on the bench.
The Pacific Plan as endorsed has retained references to “key institutions such as audit and ombudsman offices, leadership codes, anti-corruption institutions and departments of attorneys general; including through judicial training and education” and “where appropriate, ratification and implementation of international and regional human rights conventions, covenants and agreements...”. This does reflect the abiding interest in good governance and supporting international human rights endeavours.
The Pacific Plan 2005 provides a very good work plan and series of goals for the Forum Secretariat. The deliberations and documentation about the Plan during the preceding 18 months or so provides much written detail for the ideas in the Plan. Many of those ideas are not new. An interesting comparison can be made between the appended South Pacific Forum’s 1995 Plan of Action entitled “Securing Development Beyond 2000” [6] and the Pacific Plan 2005 (appended to this note).
The 37th Forum is scheduled to meet in Tonga in 2006.
1. The 26th South Pacific Forum which met in Madang from 13-15 September 1995, gave close consideration to a wide range of strategies for securing development beyond the year 2000. In doing so, it recognised that security involves strengthening national and regional relations, especially capacities to sustain development in the medium and long terms, as well as regional stability.
2. Specific measures to which the Forum has agreed to give prompt attention are listed below. They include the endorsement of a Logging Code of Conduct, measures to cooperate in promoting Trade, Transport and Tourism and an examination of how the Forum might embrace regional support arrangements. Other measures may be added by agreement as those listed are put into effect, and further consideration, given to related and additional strategies are devised for strengthening cooperation in “securing development beyond 2000”.
3. Forum members are conscious of the changes in international economic relations consequent on the formation of the World Trade Organisation, and likely to follow from the agreement by members of the Asian Pacific Economic Cooperation (APEC) forum to lower tariffs in the wider Asia-Pacific region. They are also aware of the increasing opportunities for mutually beneficial interaction arising from development in Forum member countries, and keen to cooperate in putting them into mutual advantage. They have, therefore, agreed to review existing patterns of trade, investment and other aspects of regional economic relations with a view to broadening, deepening and diversifying regional economic cooperation.
4. Issues to which they believe that particular attention should be given include strategies for increasing national and regional competitiveness by cooperating in reducing both tariff and non-tariff barriers to trade in the region, drawing on experience with other regional and sub-regional arrangements and consistent with the principles of he World Trade Organisation. The implications – of and for – taxation regimes, exchange rates, transport arrangements, and labour costs should be carefully examined. Niche markets should be identified and developed. Quarantine requirements should be clarified in purpose, scope and application, and, as far as possible, standardised.
5. Opportunities for enhancing regional cooperation in respect of standards, product identification and consumer protection should be explored, particularly insofar as national institutions might help to achieve economies of scale by performing regional rules.
6. The South Pacific Forum Secretariat will identify practical options, and submit them for consideration by the FOC, which will recommend a plan of action to enhance regional economic cooperation for discussion at the Twenty-Seventh South Pacific Forum.
7. Individual forum members will seek funding, from domestic and/or other sources, to assist in promoting regional economic cooperation, including shop/front facilities to publicise products exported from and investment possibilities in other Forum member countries.
8. Forum members will approach other Governments and international organisations for assistance in mounting regional promotions, including permanent South Pacific Trade Commissions, in East Asia, Europe and North America.
9. Aware of the difficulties involved in travelling or moving goods within the region, the Forum members have agreed that their Minister responsible for transport, including shipping and civil aviation, should meet in order to discuss common problems and to identify areas where enhanced cooperation might provide solutions. The formation of strategic alliances between services providers is an option which they believe is especially worthy of close attention.
10. Particular issues and options which they believe that relevant authorities should consider carefully include the economies that might be achieved by sharing aircraft; the manner in which travel and trade might be facilitated by coordinating airline and shipping schedules; the designation of additional regional and sub-regional hubs; and the advantages of jointly promoting links into, within and out of the region.
11. The need for additional facilities, including accommodation, at prospective stopovers and destinations will also be examined.
12. The South Pacific lies at the centre of one of the most rapidly growing tourism networks in the world. The region has much to offer to potential visitors in search of natural beauty, cultural spectacles and diversity, and recreation, including rest, sport and adventure.
13. Individual countries have priorities of their own, especially in trying to balance the kinds and numbers of tourists they seek with maintaining cultural integrity and environmental conservation. Together, they can offer a great deal to visitors from within the region or beyond, including distinctive cultural experiences
14. Forum members have, therefore, agreed to direct their respective tourism authorities to explore options for increasing joint promotions, both within and beyond the region. In particular, they will examine transport needs, including national facilities and international links, as well as needs – and openings for investment – in relation to accommodation.
15. Their over-all aim will be to encourage everyone concerned with the industry’s future to take a long-term view; to ensure that visitors are made welcome by local communities (which should benefit from their presence) and to see that tourists get genuine value for the money they spend. Issues like seasonality should also be addressed.
16. Expert bodies like the Tourism Council of the South Pacific and the Pacific Area Travel Association will be invited to give advice.
17. The Forum agrees that the various measures outlined in this Plan for promoting regional cooperation in trade, transport and tourism should be implemented without delay.
18. The Forum agreed that its Chairman convene or ensure meetings are convened of relevant Ministers during the next 12 months to implement this plan, and that the Twenty-Seventh South Pacific Forum should review progress made in “securing development beyond 2000” through enhancing regional economic cooperation.
19. Forum members endorsed the draft regional Code of Conduct on Logging and committed themselves to implementation of its provisions as part of their national code.
20. Having considered possible threats and existing arrangements, Forum Members have agreed that the most serious threat that the region seems likely to face in the future are not military in nature but may include challenges to national integrity and independence, environmental damages and national disasters. The Forum, therefore, agreed to examine a comprehensive approach towards security and to broaden and deepen cooperation accordingly.
21. The Forum Officials’ Committee (FOC) has, therefore, been directed to report back to the Twenty-Seventh South Pacific Forum with detailed proposals for arrangements designed to ensure that the region can consult promptly in response to legitimate requests, and provide such assistance as may be agreed in a timely, efficient and cost effective manner.
22. The arrangements must be consistent with – and supportive of – other arrangements for regional cooperation, while avoiding waste and duplication.
23. Issues to be addressed in the FOC’s report will include a mechanism providing consultations between regular, annual Forum meetings; procedures for facilitating cooperation through appropriate preparations in respect of training logistics, and control of agreed operations; as well as the legal safeguards required.
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[*] Professor of Law, Victoria University of Wellington, New Zealand.
[1] This comment covers the period 1 July 2004 to 1 December 2005. The purpose of the change from the annual reporting date for the Year Book has been made to relate to the meetings of the Pacific Islands Forum in a more timely way as they typically take place in the third quarter of each year.
[2] The 35th Pacific Islands Forum was scheduled to be held in Niue in 2004. The devastation caused by cyclone Heta necessitated the rescheduling of the Forum meeting. It was then held in Apia, Samoa in August 2004.
[3] The Cotonou Agreement came into force in 2002 and sets out the relationship between the European Union and the African, Caribbean and Pacific governments on issues of foreign aid, trade, investment, human rights and governance.The agreement can be viewed online at: <http://www.europa.eu.int/comm/development/body/cotonou/agreement_en.htm> (last accessed on 10 April 2006).
3 These papers can be accessed at the Pacific Plan, online at: <http://www.pacificplan.org/
tiki-page.php?pageName=HomePage> (last accessed on 10 April 2006).
[4] The South Pacific and Oceanic Council of Trade Unions, online: <http://www.icftu-apro.org/aplabour/APLabour034.html> (last accessed on 10 April 2006).
[5] World Intellectual Property Organisation.
[6] The Pacific Islands Forum was earlier named the South Pacific Forum. The plan was reported in The South Pacific Forum, ‘Information Bulletin No. 56’ (Ministry of Foreign Affairs and Trade New Zealand, 1996) 64-67.
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