New Zealand Yearbook of International Law
Last Updated: 9 February 2019
SOUTH PACIFIC JOURNEYS IN 2008
Brenda Heather Latu[∗]
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 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, 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’. 
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) 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) 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. 
The passage of the Official Information Act 2008 distinguishes the country as the first Forum island country to pass freedom of information legislation.
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.
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. 
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. 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.
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. 
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. 
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.
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.
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
 The traditional external powers with an interest in the Pacific are mainly Western states.
 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,  PITSE 13 (entered into force 1 April 2003).
 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.
 Pacific Island Countries Trade Agreement, opened for signature 18 August 2001,  PITSE 4 (entered into force 13 April 2003).
 Pacific Agreement on Closer Economic Relations, opened for signature 18 August 2001, 2198 UNTS 171 (entered into force 3 October 2002).
 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.
 Pacific Islands Forum Secretariat, Forum Communiqué: Thirty-Ninth Pacific Islands Forum, Alofi, Niue, 19-20 August 2008 (2008)  <http://www.forumsec.org.fj/_resources
/article/files/FINAL%202008%20Communique.pdf> at 26 November 2009.
 Qarase v Bainimarama  FJHC 241.
 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.
 See, e.g., New Zealand Papua New Guinea Business Council, Newsletter (28 March 2008),  <http://docs.google.com/viewer?a=v&q=cache:PEpgyIKhNlsJ:www.nzpngbc.
+marat,+address&hl=en&gl=nz&sig=AHIEtbTOyh41v9umsC-fH-C7c3_6bn-8CQ> at 15 November 2009.
 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.
 ‘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.