New Zealand Yearbook of International Law
The 38th Pacific Islands Forum Leaders summit was held in Tonga on 16 and 17 October 2007. The 16 members of the Forum were represented as were the two associate members (New Caledonia and French Polynesia) and the three observer countries (Timor-Leste, Tokelau, Wallis and Futuna). At the Post Forum Dialogue, 14 States plus the European Union were represented.
The notable aspect of the Forum meeting was that the leader of the December 2006 military coup in Fiji Commodore (now Prime Minister) Frank Bainimarama came, and that the Solomons Prime Minister Manasseh Sogavare stayed away - he went to Majuro to a regional meeting with the President of Taiwan. Those facts and the Forum outcomes in relation to Fiji and Solomon Islands clearly identify the abiding features of the Forum: it is a gathering of political leaders and it is a forum for discussion of political issues of common regional interest. As for Fiji, the Forum
welcomed the undertaking by the Leader of the Fiji Interim Government to the Forum Leaders today that a parliamentary election will be held in the first quarter of 2009, and noted that he also stated to Forum Leaders that he and the Republic of Fiji Military Forces will accept the outcome of the elections of the first quarter of 2009.
The Regional Assistance Mission to Solomon Islands (RAMSI) was commended by the Forum leaders ‘as an outstanding example of cooperative regionalism’. This was, undoubtedly, much to the chagrin of the Sogavare Government which is reported to have regarded RAMSI, on occasion, as an occupying force. The Government of Solomon Islands is clearly out of step with the Pacific mood and from all reports out of touch with the feelings of the people of Solomon Islands. RAMSI is based on an international treaty which has force in Solomon Islands by virtue of the Facilitation of International Assistance Act. The Solomon Islands Government has struggled with the reality of this situation and evidence of that comes through in the Forum Communiqué at paragraph 16(h) where it is noted that the Solomon Islands government had given assurances that any proposal to amend the Facilitation of International Assistance Act would follow consultation with the countries participating in the RAMSI.
The Pacific Islands Forum Communiqué issued on 18 October 2007 is notable both for the range of topics covered - from global warming and tuna fisheries to kava and rugby - and the fact that many of the recorded decisions are familiar in terms of progress and are largely aspirational in nature.
The first item recorded in the Communiqué relates to the Pacific Plan. As at the Forum meeting in 2006 the tone is positive, but it is observed that much remains to be done in order to have practical outcomes. Under the Pacific Plan, fisheries are the key topic. The issue is familiar; no mention however is made of the development of a ‘south pacific fisheries management regime to protect the high seas biodiversity between New Zealand, Australia and Chile in 2006’, despite some effort apparently being made prior to the Forum to develop such a regime.
Another item of interest under the Pacific Plan concerns trade and economic integration. The focus here is on PICTA and PACER. Comment is made concerning slow progress. Interestingly there is no mention of the Economic Partnership Agreement which was, if everything progressed according to the regional timetable, to be signed before 31 December 2007. As it will involve a majority of the Pacific Island Forum Members and have an impact on the others, it is surprising that there is no mention of it in the Forum Communiqué.
On the law side, it is recorded in an Annex to the Communiqué, that the Leaders indorsed a ‘proposed new initiative’ called ‘legal infrastructure strengthening’. This is in connection with the Pacific Plan and it is said it will begin with two studies to explore ways to strengthen the region’s legal infrastructure. The Communiqué gives no details. The region’s legal infrastructure is comparatively weak, but would provide an essential underpinning for much of what is envisaged by the Pacific Plan. This proposed initiative is therefore a welcome, albeit belated, recognition of the importance of the legal infrastructure to progress with the implementation of the Plan.
Item 28 in the Communiqué relates to the constitution of the University of South Pacific. The University of South Pacific was formally established by British Royal Charter on 4 February 1970 following consultations with 11 regional governments. These governments represented in essence the current membership of the Pacific Islands Forum. The governments of Australia and New Zealand were not participants in the formal process of establishment of the Charter nor were the three former US Trust Territories of Micronesia. The Communiqué of the 2007 Forum notes that the Council of the University of the South Pacific is proposing to conclude a new foundation document for the University which will take the form of a multilateral treaty signed by the 15 member governments of the University.
In paragraph 22 of the Forum Communiqué there is an indication of concerns about the weakening of the Forum by the development of strong regional sub-groups. It is recorded that the Secretary General was requested
to look into this issue and… to examine what possible practical measures may be made in the procedures and conduct of the Forum’s business that could reduce the risks to the coherence and cohesiveness of the Forum.
The Leaders dealt with the Regional and Institutional Framework Review. Their decision can be understood against the background reports prepared over recent years on the existing framework of the regional institutions. They are the Hughes Report and the Tavola Report.
‘Strengthening Regional Management’ by Tony Hughes was presented to the Forum in August 2005. The main conclusion of the Hughes Report was that the five main intergovernmental Pacific regional organisations (G5) should be converted into a Pacific Commission
by amalgamating their operation and funding arrangements under a unified management structure... The separate (but overlapping) memberships and political character of the Forum and the Pacific Community would be preserved, but they would be served by a unified Secretariat and Directorates forming the Pacific Commission. Over time the Forum and the Community would inevitably move closer together until eventually a form of merger becomes possible that will be acceptable to all members.
The Hughes Report recognised the constitutional differences between the G5. It recommended that existing intra-G5 working groups should be quickly reconstituted ‘as if there were no institutional barriers between them’.
In the first stage there would be no changes to the constitutional base or legal personality of the G5. What was proposed was a coordination of administration and IT services at a practical level. The second step would be to amalgamate the institutions to form a Pacific Commission. The proposed Pacific Commission would have a single Secretariat to be known as the Pacific Commission which would serve both the Pacific Islands Forum and the Secretariat of the Pacific Community. The governing bodies of the Forum Fisheries Agency (FFA), the Forum Secretariat, the Secretariat of the Pacific Community (SPC), the South Pacific Regional Environment Programme (SPREP) and the South Pacific Applied Geoscience Commission (SOPAC) would be required to transfer their functions, assets, liabilities, and financial support to the Pacific Commission. The bodies with separate legal existence (FFA, SOPAC and SPREP) would cease to exist in that form.
With the benefit of hindsight, it can be said that the particular value of the Hughes Report is its overview of the operation and interrelationship between the Pacific regional organisations, the extensive detail provided on them, and the acknowledgement that change should be gradual.
The Pacific Plan Action Committee commissioned a report in response to the Hughes Report. This project team was chaired by Kaliopate Tavola and presented its report in August 2006. The two reports are complementary, and the detail and forthright comment in the Hughes Report provides essential background to the Tavola Report.
The Tavola Report rejected the ‘single organisation’ model proposed in the Hughes Report. It proposed instead a more limited restructuring of the regional institutions. The Forum and its Secretariat would remain unchanged except for the assimilation of some FFA functions into the Forum Secretariat. The other major technical agencies would be formed into one Secretariat under the governance of the existing Pacific Community. The benefit of this scheme, it was stated, at page seven was to allow for more coherent planning and implementation of regional programmes while at the same time keeping political processes separate from non-political ones.
The response to the Tavola Report was for the Regional Institutional Framework Task Force to engage a consultant in 2007 to examine the legal framework of regional technical agencies proposed to be amalgamated by the recommendation of the Tavola Report. That Report being favourable, the Leaders in Tonga decided as is reported in paragraph 19 of the Communiqué:
Leaders agreed to;
(a) the inclusion of the Pacific Island Forum Fisheries Agency (FFA) into Pillar 1, in order to recognise the Agency’s central regional role and to provide fisheries issues with a political profile they require; (b) the need to rationalise the functions of the Pacific Islands Applied Geoscience Commission (SOPAC) with the work programmes of the Secretariat of the Pacific Community (SPC) and the Secretariat of the Pacific Regional Environment Programme (SPREP) with a view to absorbing those functions of SOPAC into SPC and SPREP;
(c) the South Pacific Bureau for Educational Assessment (SPBEA) merging into SPC, and (d) the University of the South Pacific (USP) and the Fiji School of Medicine forming part of Pillar 3 (Education).
The statements concerning Fiji and Solomon Islands appear to represent significant achievements and show the political value of the Forum as an organisation. The 2005 Agreement establishing the Pacific Islands Forum was not mentioned. That indicates a weakness of the Forum. The Agreement which was signed by Forum members during 2005 and 2006 would have gone some way towards strengthening the Forum as an institution. The fact that the Agreement is not in force and that it did not warrant mention in the Communiqué clearly indicates how members see the Forum.
The next Forum Islands Leaders meeting will be hosted in Niue in July or August of 2008.
[∗] Professor of Law, Victoria University of Wellington, New Zealand.
 Forum Communique 35th Pacific Islands Forum Paragraph 15(b), available at < http://
tinyurl.com/2zq7f3> at 10 June 2008.
 Above n1, paragraph 16(a).
 See Pacific Islands Forum Secretariat, ‘2007 Forum Communiqué’, online: <www.forumsec.org> at 30 January 2008.
 The Pacific Plan is available at Pacific Plan Online <www.pacificplan.org/> at 30 January 2008).
 On 8 September 2006, a draft ‘South Pacific Ocean Regional Fisheries Management Agreement’ was distributed. See: South Pacific Regional Fisheries Management Organisation, online <www.southpacificrfmo.org/event.second-meeting> at 30 September 2006; New Zealand Ministry of Fisheries, Latest News, ‘New Zealand in Leadership Role Protecting Marine Environment’ (May 2007), online: <http://www.fish.govt.nz/en-nz/Press/> at 30 January 2008.
 Annex A, page 11.
 Paragraph 28.
 Paragraph 22.
 The Hughes Report is available at: Pacific Islands Forum Secretariat, Strengthening Regional Management, online: <www.pacificplan.org> at 12 June 2008.
 Comprising of the Forum Fisheries Agency, the Forum Secretariat, the South Pacific Regional Environment Programme and the South Pacific Applied Geoscience Commission. They are referred to by Hughes as the G5.
 The Hughes Report, above n 10, 3.
 Ibid 4 (italics in the original).
 Ibid 7, para 15.
 The Tavola Report is available at: Pacific Islands Forum Secretariat, Communiqués and Other Documents, Reforming the Pacific Regional Institution Framework 2006, online: <http://www.forumsec.org/pages.cfm/documents/other/> at 30 January 2008.
 Pacific Islands Forum Secretariat, Documents, 2007 Forum Communiqué, online: <www.forumsec.org> at 21 December 2007.
  ATS 5.