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Angelo, Tony --- "Commentary on the Pacific Islands Forum 2005-2006" [2007] NZYbkIntLaw 15; (2007) 4 New Zealand Yearbook of International Law 287

COMMENTARY ON THE PACIFIC ISLANDS FORUM

2005-2006

Tony Angelo^[∗]

I. INTRODUCTION

The 37^th Pacific Islands Forum Leaders’ meeting was held in Nadi, Fiji, from 24-25 October 2006. The scheduled location was changed from Tonga to Fiji at short notice because of the deteriorating health and subsequent death of the King of Tonga in September 2006.

Pre-forum debate focused on the relationship of Australia with Papua New Guinea and Solomon Islands and particularly the role of Australians in RAMSI;^[1] debates which continued at the Forum. The other items of legal significance on the agenda followed on from the previous meeting of the Forum and its discussions about the Pacific Plan.

The Pacific Plan was still on the agenda but clearly overshadowed by other issues, in particular, the steps being taken towards a new constitutional structure for the Forum. This new structure and the issue of labour mobility may well prove to be the Forum’s main contributions to the international legal field.

II. PACIFIC PLAN

The Pacific Plan was the first matter addressed in the Forum communiqué. The comment was a very positive one, but indicated that the various regional initiatives needed to be “developed into plans and follow-up actions at the national level”.^[2] Among the priority areas identified was the implementation of PICTA and PACER,^[3] and an agreement that “consideration be given to the establishment of an effective regional dispute resolution mechanism to deal with differences that may arise out of regional trade and economic agreements”.^[4] The concerns of previous Forum meetings regarding regional shipping services, health matters and the environment were repeated. It was further noted that greater attention should be given to encouraging participatory democracy and implementing international conventions on human rights.

It therefore appears that the Plan may have some momentum, but tangible results are yet to be achieved.^[5]

III. CONSTITUTION OF THE PACIFIC ISLANDS FORUM

The Pacific Islands Forum developed from an initiative of the Fijian Prime Minister Ratu Sir Kamisese Mara. In 1971, there was an initial and informal meeting of interested countries: Nauru, Western Samoa, Tonga, Fiji, Cook Islands, Australia and New Zealand. Following further discussions in Canberra in 1972, arrangements were put in place for the establishment of a “bureau to deal with trade and related matters to be located in Suva subject to supervision by a committee”.^[6] And so the institution began – a South Pacific Forum constituted by the gathering of 15 heads of government with a supporting body of officials.^[7] A more formal agreement was prepared in 1991.^[8] This agreement identified the independent States of the Pacific as members of the South Pacific Forum^[9] with a forum secretariat based in Suva^[10] and an executive composed of one representative of each of the members of the Forum.^[11]

The purpose of the Forum was stated as being “to facilitate, develop and maintain co-operation and consultation between member Governments on economic development, trade, transport, tourism, energy, telecommunications, legal, political, security and such other matters as the Forum may direct”.^[12] Those purposes were consistent with the concerns of the countries represented at the first informal meeting that was held in 1971 in Wellington.^[13] The 1991 document was followed by a new agreement opened for signature at Tarawa in October 2000.^[14] In broad terms, the agreement in 2000 maintained the Forum’s structure and purposes as identified in the 1991 document.

In 2005 in Port Moresby, the Forum leaders agreed to a new document “establishing the Pacific Islands Forum”.^[15] This agreement has been signed by the 16 member States and was confirmed at the Nadi meeting in 2006. The agreement is subject to ratification and will only be effective after ratification by all the Forum member States.^[16] The ratification of the agreement will establish the Forum as an international organisation with “the legal capacity of a body corporate within the jurisdictions of its members”.^[17] This stops short of creating an international legal person. The Agreement envisages that, in most cases, national legislation will be required to recognise and confer rights upon the organisation created.

Features of interest in the agreement include the continuation of the broad institutional structure known since 1972, an annual leaders’ meeting (the Forum), a standing committee comprising of officials,^[18] and a secretariat.^[19] The purpose of the Forum has changed, however, and article II now states that it is “to strengthen regional co-operation and integration, including through the pooling of regional resources of governance and the alignment of policies in order to further Forum members’ shared goals of economic growth, sustainable development, good governance and security”. This covers a wider canvas than the earlier stated purposes, and significantly generalises the goals of the Forum. Another change is the progression from the purpose of facilitating, developing and maintaining “cooperation and consultation”, to strengthening “cooperation and integration”. Whether this is a consequence of the development of these ideas within the Pacific Plan or whether it is an acknowledgement of the difficulty of making Pacific-wide progress on specific items will be a matter for future assessment.

Under the latest agreement, the category of associate membership was created. New Caledonia and French Polynesia were approved as associate members. Wallis and Futuna, the United Nations, the Commonwealth Secretariat and the Asian Development Bank were invited to become observers.^[20]

At the time of the drafting of the Pacific Plan there was some public comment that the future of the Forum might be in a European Union style organisation. The 2005 agreement shows no signs of advancing the Forum towards that goal. The institutional structure will not be empowered in any manner similar to the European Union institutions, likewise any focus on specific areas appears to be in abeyance, except in relation to trade.

A consideration of the European Union would show an emphasis not only on goods but also on people. While the Pacific Island countries clearly had an interest in free movement of labour, their aspirations were rebuffed by Australia and New Zealand at the Forum in 2005. The importance of movement of labour from Pacific Island countries to other States (particularly to Australia and New Zealand) cannot be under-estimated and the pressure for relaxation of restrictions on movement of labour continued through to the Forum in 2006.

Notably during the course of 2006, New Zealand government policy developed from the arrangement for seasonal workers that had been in place for some years^[21] to a specific proposal that will admit up to 5000 Pacific Island workers into New Zealand for short-term employment.^[22] This policy development of the Government of New Zealand was supported by a well-publicised meeting of the Pacific Co-operation Foundation in June 2006, which was dedicated to labour mobility in the Pacific.^[23] The New Zealand policy was announced at the Pacific Forum meeting. The Australian approach to the matter is a different one and involves vocational training in selected Pacific Island countries.^[24]

IV. INTEGRATION OF INSTITUTIONS

The Regional Integration Framework review, which would regroup and directly connect a large number of regional organisations such as SPC, SPREP, USP and SOPAC^[25] to the Forum, was referred to a taskforce, which will work through the issues identified in the review and report back to the Forum in 2007.

V. RAMSI

The Regional Assistance Mission to Solomon Islands (RAMSI) attracted much attention during 2006 and sustained criticism from the Prime Minister of Solomon Islands, who complained of an overbearing attitude of the Australians, disregard of the laws of Solomon Islands by RAMSI, and interference into their domestic politics by Australia. The matter came to the Forum in October with a call from Solomon Islands for a substantial review of that initiative.

RAMSI is the creation of the Townsville Treaty of July 2003.^[26] The agreement is stated to be between Solomon Islands, Australia, New Zealand, Fiji, Papua New Guinea, Samoa and Tonga but was signed by the leaders of all Forum member States. The treaty is not a Forum initiative, however its relationship to Forum interests is clear and is reflected in the invitation to all members of the Forum to sign the treaty.^[27]

Domestic implementation of the treaty for New Zealand and Solomon Islands came in the form of the Facilitation of International Assistance Act 2003 of Solomon Islands^[28] and the Crimes and Misconduct (Overseas Operations) Act 2004 of New Zealand.

The treaty and the legislation of Solomon Islands clarify that the forces are under the control of the contingent leader and fall subject to their own disciplinary procedures. The treaty also states that the commander of the participating police force will be the most senior Australian police officer of the force and this officer will be a Deputy Commissioner of Solomon Islands police force.^[29] Departure from these core principles would require a change to the treaty.

The 2006 Forum meeting was therefore a gathering of interested persons and participants rather than a meeting with the ability to amend the treaty. Against that background the Pacific leaders agreed to “establish a taskforce to expeditiously review RAMSI, to report back to foreign ministers who will make recommendations to Leaders”, and in the meantime RAMSI “would continue in its current form”.^[30] The leaders decided that a “consultation mechanism” would be established to meet quarterly and to act as a “high-level reference group” in respect of the policy directions and progress of RAMSI.^[31]

VI. CONCLUSION

The next meeting of the Pacific Islands Forum is scheduled to be held in Tonga in 2007.

^[∗] Professor of Law, Victoria University of Wellington, New Zealand.

^[1] Regional Assistance Mission to Solomon Islands: see online <http://www.ramsi.org/> (last accessed on 17 November 2006).

^[2] Thirty-Seventh Pacific Islands Forum “Forum Communique” (24-25 October 2006) page 1 para 4 available at <www.pacificplan.org/tiki-download_file.php?fileld=216> (last accessed 20 February 2007).

^[3] Pacific Island Countries Trade Agreement, opened for signature 18 August 2001, entered into force 13 April 2003), available at <http://forumsec.org/_resources/article/files/ PICTA%2020endorse%20&%20sign(18-8-01).pdf and Pacific Agreement on Closer Economic Relations, opened for signature 18 August 2001, [2004] ATS 10 (entered into force 3 October 2002).

^[4] Thirty-Seventh Pacific Islands Forum “Forum Communique” (24-25 October 2006) page 8 available at <www.pacificplan.org/tiki-download_file.php?fileld=216> (last accessed 20 February 2007).

^[5] AusAID, ‘Pacific 2020: Challenges and opportunities for growth’, online: <http://www.ausaid.gov.au/hottopics/topic.cfm?ID=4696_2977_1016_710_2650> (last accessed on 24 January 2007). Of interest is the Pacific 2020 report prepared by AusAID, published in May 2006, which in some respects takes an independent and different view of some Pacific priorities set out in the Pacific Plan.

^[6] South Pacific Forum Canberra (23-25 February 1972) Communique available at <http://www.forumsec.org/_resources/article/files/1972%20Communique2.pdf> (last accessed 20 February 2007).

^[7] The South Pacific Bureau for Economic Cooperation (SPEC).

^[8] Agreement establishing the South Pacific Forum Secretariat, opened for signature 29 July 1991, Australian Treaty Series 1993 No 16 (entered into force 23 April 1993).

^[9] Ibid, art I.

^[10] Ibid, art II.

^[11] Ibid, art V(2).

^[12] Ibid, art III.

^[13] The first communiqué is available at <http://www.forumsec.org/_resources/article/files/ 1971%20Communique2.pdf> (last accessed 20 February 2007).

^[14] AUSTLII Australian Treaty Series (not yet in force), ‘Agreement Establishing the Pacific Islands Forum Secretariat’, online: <http://www.austlii.edu.au/au/other/dfat/treaties/ notinforce/2000/14.html> (last accessed on 17 November 2006).

^[15] Thirty-Sixth Pacific Islands Forum (25-27 October 2005) PNG available at <http://www.forumsec.org/_resources/article/files/2005%20Forum%20Communique,%20Madang%20-%20Final%2016%20Nov%2005pdf> (last accessed 20 February 2007).

^[16] According to art XI, ratification shall be notified to the Government of Fiji being the depositary State, and shall be registered with the United Nations.

^[17] See art X. On 16 November 2006 the New Zealand Foreign Affairs and Defence Committee issued its report on the Treaty for noting by Parliament. New Zealand practice is likely to result in the diplomatic status being accorded to the Forum and its officers by way of order in council under the Diplomatic Privileges and Immunities Act 1968. Such order will supersede the Diplomatic Privileges (South Pacific Forum Secretariat) Order 1996.

^[18] The Pacific Islands Forum Officials’ Committee.

^[19] The Pacific Islands Forum Secretariat.

^[20] Timor-Leste and Tokelau were observers also. Applications by American Samoa and Guam to have observer status were deferred.

^[21] The seasonal work permit pilot. For information on this permit system see <http://www.immigration.govt.nz/migrant/stream/work/swp/> (last accessed 20 February 2007).

^[22] New Zealand Minister for Social Development and Employment and Minister of Immigration, ‘Seasonal Work Scheme for Pacific Workers’, online: <http://www.beehive.govt.nz/Documents/Files/Seasonal%20work%20info.pdf> (last on accessed 17 November 2006).

^[23] The outcomes from this conference are located at Pacific Cooperation Foundation, ‘Labour Market’, online: <http://www.pcf.org.nz/events/labour_market> (last accessed on 17 November 2006).

^[24] All of these developments are consistent with the “at Home and Away” report of the World Bank: The World Bank, ‘Publications and Reports’, online: <http://web.worldbank. org> (last accessed on 17 November 2006).

^[25] Secretariat Pacific Community, South Pacific Regional Environmental Programme, University of the South Pacific, South Pacific Applied Geoscience Commission. Many of these institutions evolved independently. Some evolved from others, for example, SPREP evolved from SPC. The common feature of the institutions covered by the framework review is that the countries or States that are parties are largely co-terminous with the membership of the Forum.

^[26] Agreement between Solomon Islands, Australia, New Zealand, Fiji, Papua New Guinea, Samoa and Tonga Concerning the Operations and Status of the Police and Armed Forces and other Personnel Deployed to Solomon Islands to Assist in the Restoration of Law and Order and Security, opened for signature 24 July 2003, ATS 2003 No 17 (entered into force 24 July 2003) (‘Townsville Treaty’).

^[27] Art 24 of the Townsville Treaty provided that the treaty came into force on the notification by the Solomon Islands and one other of the six assisting States, in this case Australia, that their formalities had been completed.

^[28] PACLII Solomon Islands Sessional Legislation, ‘Facilitation of International Assistance Act 2003’, online: <http://www.paclii.org/sb/legis/num_act/foiaa2003386/> (last accessed on 17 November 2006).

^[29] The Townsville Treaty.

^[30] Forum Secretariat, ‘Forum Communiqué PIFS(06)12’ (24-25 October 2006) online: <http://marshall.wetserver.net/livefiles/finalforumcommunique2006_documents_25.doc> (last accessed on 24 January 2007) para 20-22.

^[31] Ibid.