RETHINKING SOVEREIGNTY IN THE PACIFIC

Commentary

By Transform Aqorau

HONIARA, Solomon Islands (Solomon Star, May 11) – In April 2004, Forum Leaders met in Auckland, New Zealand, and agreed on a blue-print for regional co-operation in the Pacific that would entail "deeper and closer" co-operation.

This has prompted some academics and commentators of Pacific Islands politics to speculate that this is the genesis of a move towards greater integration in the same way as the European Union.

While closer and deeper co-operation could potentially involve greater integration, Forum Leaders have been careful about the way in which they have characterized the need for improved co-operation so that it is not misconstrued as usurping the sovereignty of Pacific Island States.

This is understandable given the fact that while there might not be any difficulties with integration at the procedural and processes level, such as harmonizing fisheries laws, customs and quarantine regulations, the same may not necessarily be true where such harmonization would involve the surrender of sovereign powers.

But for all their resolve and political machinations, there are already indications that the sovereign powers of Pacific Island States are already being ceded through collaborative and co-operative exchanges.

While politicians may perceive this as vitiating the idea of sovereign powers, it is argued that the collective exercise of such sovereign powers would, in fact and indeed, strengthen the Pacific Island States.

There seem to be two schools of thought in the Pacific.

The first school of thought seemingly finds support amongst the old politicians who were involved in bringing the Pacific Islands States to independence.

These politicians still cling to the ideals of absolute sovereign powers; that the State is the embodiment of the sovereign nation.

The views expressed recently by veteran Solomon Islands politician, Sir David Kausimae, that Solomon Islands should not change its currency from the Solomon Islands dollar to the Australian dollar because it would be an affront to its sovereignty and integrity would seem to be representative of the old school of thought.

The second and more contemporary school of thought is possibly represented by the current generation of politicians who recognize the strength of stronger and closer collective action.

It is argued in this paper that sovereignty in the Pacific Islands region is changing.

However, the broad policy question for Pacific Islanders to ask is whether these changes would lead to an improvement in the quality of their social and economic wellbeing.

The conclusion that this paper makes is that closer and deeper co-operation would require an erosion of the traditional notions of sovereignty, but whether it would lead to improved social and economic standards of living for Pacific Islanders would depend on the extent to which Pacific Islanders understand the process of change taking place in the region and their leadership in shaping those changes.

Old and new sovereignty

The rise of sovereign states in the traditional sense may be traced to the Peace of Westphalia in 1648 during which Europe consolidated its long transition from the Middle Ages to a world of sovereign states.

A definition of the term sovereignty is offered in the Island of Palmas Case (Netherlands v. USA) Permanent Court of Arbitration 1928, where the sole Arbitrator stated that

"… sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State. ….. Territorial sovereignty, as has already been said, involves the exclusive right to display the activities of a State. This right has as corollary a duty: the obligation to protect within the territory the rights of other States, in particular, their right to integrity and inviolability in peace and in war, together with the rights which each may claim for its nationals in foreign territory. Without manifesting its territorial sovereignty in a manner corresponding to circumstances, the State cannot fulfill this duty…."

If this were to be the case, it is arguable that Pacific Islands societies have been sovereign independent states even before they were colonized because each society or tribe was already exercising independence with respect to the territory in which it lived and where it held dominion.

These societies may have been clusters of families or tribes but each one of them within the geographic sphere of their influence exercised power and authority to the exclusion of other families and tribes.

There are significant similarities in the way that the idea of sovereign states evolved from components of fiefdoms in Europe to states and the evolution of states in the Pacific.

Europe was also a cluster of small kingdoms in much the same way that traditional Pacific Island societies were organized along tribal and linguistic lines.

The major difference in the evolution of sovereign statehood in Europe and the Pacific is that in the Pacific sovereign statehood, in the way in which we have come to appreciate the term, was the direct result of colonial subjugation, with which most of its inhabitants had no choice.

The two exceptional cases in the Pacific are Tonga, which was never colonized, although it is arguable that the considerable influence of the church could very well be construed as a form of colonialism, and Fiji, whose Chiefs actually ceded the Fiji Islands to Queen Victoria.

It has been said that sovereignty can be best understood through history which can be told as one of two broad movements – the first, a centuries – long evolution towards a European continent, then a globe of sovereign states, the second, a circumscription of absolute sovereign prerogatives in the second half of the twentieth century.

The same could be said of the evolution of statehood in the Pacific Island States with the exception that the idea of sovereign statehood as we have come to understand the term today was generally forced upon unwitting peoples through colonial subjugation.

As will be discussed later, the calls for a Pacific Plan and deeper and closer collaboration could well be the embryonic stages of a move towards a circumscription of absolute sovereign powers.

It is argued that the very fact that States are interdependent on each other for trade and economic development demystifies the idea that States are independent, for no one state can possibly be totally independent.

Sovereignty has therefore never been absolute although legally, "each sovereign state exercises unlimited territorial jurisdiction in respect of its own territory, subject only to such limitations as may be established by international customary law, treaties and the general principles of law recognized by civilized nations" .

Since the end of the Second World War, we have been witnessing the second strand of the evolution of sovereign statehood; the circumscription of absolute sovereign powers.

The emergence of the United Nations and the increasing use of multilateral treaties have come to abridge the rights of sovereign powers.

The two most prominent ways in which the curtailment of sovereign powers has developed have been through conventions, particularly human rights conventions and regional integration such as in Europe.

The following discussion aptly describes the process of change:

"It was in 1948 that the majority of states signed the Universal declaration of Human Rights, committing themselves to respect over 30 separate rights for individuals.

"As it was not a legally binding declaration and contained no enforcement provisions, the declaration left states’ sovereignty intact, but it was a first step towards tethering them to international, universal obligations regarding their internal affairs.

"Over decades, these human rights would come to enjoy ever stronger legal status.

"One of the more robust human rights conventions, one that indeed curtails sovereignty, even if mildly, through its arbitration mechanisms, is the European Convention for the Protection of Human Rights and Fundamental Freedoms, formed in 1950.

"Roughly contemporaneous, signed on December 9 1948, was the Genocide Convention, committing signing states to refrain from and punish genocide.

"Then in the mid-1960s, two covenants – the Covenant on Civil and Political rights and the Covenant on Economic, Social and Cultural Rights – legally bound most of the world’s states to respecting the human rights of their people."

Two of the biggest contributing factors eroding the idea of absolute sovereign prerogatives of states are globalization and liberalization.

Globalization and the rise in the power and wealth of transnational companies have seen the relative decline, at least in economic terms, of sovereign states.

This raises its own complex set of problems particularly with respect to governance and the control of entities, which are not accountable to any particular state authority.

Although this may not be a problem in most Pacific Island States, already there are indications in some of the Pacific Island States that transnational companies can have an influence on policies in a way that undermines the legitimacy of the sovereign states.

Sovereignty in the Pacific

If we were to accept that sovereignty signifies independence and the ability to make decisions and enforce those decisions then the argument postulated above must be true, that is, that Pacific Island societies have been exercising sovereign powers from time immemorial.

They have been doing so for years through their own tribal and linguistic groupings. If this were to be accepted as the form in which sovereignty has been exercised in the Pacific, it is argued that this might lead to a better understanding of the complex issues of governance and the problems that have beset the region in the past few years.

For it is true to say that generally Pacific Islanders do not identify themselves as being from their country until they are outside.

Even then, they will take time to explain that even though they may be from this or that country, they are from this particular province or the eastern or southern parts of the country.

Attitudes towards sovereign statehood in the Pacific have been largely influenced by people’s identity and this is attributable to their tribal affiliation or linguistic grouping. Thus for instance, a Tuvaluan from the outer islands has a very different perception of governance and allegiance from a Tuvaluan from Funafuti.

The same could be said of all the Pacific Islands. The idea of sovereign statehood or the state as being an instrument through which they align themselves is anathema to their notions of sovereignty.

Sovereignty to them is limited to their own religious, tribal, landholding and language groups.

As stated above, sovereignty as we have come to use the term was superimposed on an unwitting people.

Thus, the idea of sovereign statehood by peoples of different cultural and historical backgrounds is alien to most Pacific Islanders.

To a large extent, the shades of sovereign powers which are often exercised by government officials seem to belong to a totally different world to the majority of Pacific Islanders most of whom live lives that are unaffected by what those government officials do or say. This poses considerable challenges for nation building and national identity.

Be that as it may, the wider world only recognizes sovereign states that are constitutionally established. This discussion must therefore be informed by the constitutional trends that have occurred in the region.

Samoa was the first country in the Pacific to become independent in 1962 and Palau, the most recent in 1994. There is quite a wide variety in the constitutional structures and forms of the Pacific Island States.

They range from an Island Kingdom (Tonga), constitutional monarchies (Solomon Islands, Tuvalu and Papua New Guinea) freely associated states (Cook Islands, Niue, Federated States of Micronesia, Marshall Islands and Palau) and republican states (Kiribati, Vanuatu, Nauru, Fiji and Samoa).

There are also territories and independence movements in the Pacific that are vying for their own independent sovereign states. The West Papua movement and the Republic of Mekamui on Bougainville are just some of the examples of the ongoing trends towards self-determination in the Pacific.

In many ways the process of decolonization continues to be played out in the Pacific. This is because the superimposition of sovereign government on peoples who have not been used to living under the influence of an overarching national authority has not worked as well as originally thought because Pacific Islanders still see themselves as being primarily from their tribal and language groupings.

One of the areas in which the original framers of many of the constitutions in the Pacific Islands States have failed, has been in not acknowledging the importance of customary landholding groups and resource owners.

(The terms landholding groups and resource owners are used interchangeably in the context of this discussion.) The failure specifically has been in not taking into account the fact that eighty to ninety percent of all resources and land actually come under customary ownership.

There is no traditional concept of state ownership over the majority of the resources in the Pacific Islands. This is the opposite of the situation in developed countries where most of the resources and land are state owned and therefore the state as an entity has a far greater impact on people’s daily lives than in the Pacific Island States.

In a real sense therefore, the idea that there is some supranational authority exercising powers and responsibilities in a spatial jurisdictional zone is not widely accepted. Colonial subjugation and even post-colonial governments have failed to exert any real control over the way in which people control their resources and land.

The only influence that they have had is arguably the imposition of law and order but even then it is debatable whether governments do in fact and indeed exert any real influence at all over people’s daily lives and whether such obedience, if any, is attributable more to the influence of churches and traditional chiefs.

It is true to say that generally for most people in the Pacific Island States their lives revolve around the Churches and traditional community activities. The government’s influence and impact over their lives is minimal to almost non-existent.

The process of decolonization has reached a stage where Pacific Island States are questioning the utility and efficacy of the constitutions, which they were given at independence.

The concentration of power away from the resource owners has resulted in increased agitation for the decentralization of power, control and responsibilities. Various models of decentralization have been tried in the Pacific albeit with little effectiveness.

One of the problems with the way in which decentralization has been planned and implemented is the assumption that by decentralizing power and replicating the system of government applied at the national level, at the provincial or local level, it is possible to localize effectively the decision-making process.

This is not always the case. Decentralization must involve empowerment in a legal sense of resource and landowners - it must involve a process to formally recognize the power and authority that traditional land and resources have always held from time immemorial.

This is the latest process of decolonization that is slowly taking place throughout the Pacific Islands States.

Sovereignty and regional co-operation

The Pacific Island States are a grouping of diverse states and Pacific Island peoples are an even more diverse group.

The biggest challenge facing the governments of the Pacific Island States is to unite a very broad and diverse group of peoples. Regional co-operation in the modern contemporary sense has only assumed importance in the past thirty or so years, but Pacific Islanders have been co-operating with each other for many centuries.

For instance, in many of the larger islands, the coastal dwelling people co-existed with the bush people through bartering and exchange of food. The coastal people depended on the bush people for taro and other root crops while the bush people looked to the coastal people to provide them with fish.

During the warring days, alliances were made between families and tribes for protection. Regional co-operation and working together had a purpose, and Pacific Islanders clearly understood the importance of strength in numbers. Pacific Islanders not only exchanged goods.

They understood the need to share whatever skills, knowledge and resources they had. Many of the early missionaries that served in Melanesia came from Samoa, Tonga, Cook Islands and Fiji.

They not only taught the Bible, but they also passed on weaving skills, singing and dancing. These contacts have served to strengthen the relationships between Pacific peoples, which are not built with bricks and mortar but in their hearts and souls.

Regional co-operation therefore has had a far longer history in the Pacific Islands than most people realize. In calling for the establishment of the South Pacific Forum to discuss matters of mutual interest and concern, the late Ratu Sir Kamisese Mara was merely playing out on a much wider and broader scale the meetings of the great council of elders that traditionally gathered to discuss problems affecting their communities.

The Forum continues to play its part in fostering and harnessing the lives of Pacific Islanders in a non-interventionist, consensus-based way.

The problems faced by Pacific Islanders today are, however, more complex. Not only have the traditional values of Pacific Islanders been eroded through the introduction of western lifestyle, food, and indoctrination through the mass media, their resources and basis of sustenance are threatened through overexploitation by unscrupulous investors often aided and abetted by corrupt government officials and politicians.

Generally Pacific Island States have traditionally behaved towards each other in a very non-interventionist and non-provocative way, respecting each other’s sovereignty. This is merely a reflection of their traditional norms and customary practices based on respect for one another, and abhorrence of criticism of each other.

The conformist, non-interventionist style of conducting business has probably not resulted in any significant improvements in the quality of life enjoyed by Pacific Islanders. While there have been important measurable outcomes as a result of regional co-operation by Pacific Island States, the vast majority of Pacific Islanders are still insulated from the benefits of regional co-operation.

This is through no fault of their own, since state co-operation only operates through state institutions, which are frequently alienated from the general populace anyway. This raises some very serious questions about sovereignty and governance. For instance, there are serious limits to what governments in the region can do.

Not least, they face a lack of both financial resources and an adequately equipped and skilled human resource pool.

This suggests that Pacific Island States may not be as sovereign in the strict sense of the word as they would like to believe. For what is sovereignty when one is so dependent on others for development?

Even though they are legally independent most, if not all, the Pacific Island States are dependent on aid and trade as a means of survival.

In recent years, there has been a noticeable shift in the behavior of regional states, from a non-interventionist, pacifist approach to a more proactive interventionist posture.

The willingness of the Pacific Islands States to intervene in the affairs of fellow Pacific Forum States in accordance with the principles of the Biketawa Declaration represents a fundamental shift in both policy and perceptions.

It is ironic in that traditionally Pacific Islanders have invariably been prepared to assist one another, to provide a social support outlet for each other, but as sovereign states they were shy to exercise the kinds of assistance that they would traditional give to their kin. The shift in policy not only represents a fundamental transformation in the attitudes towards the sovereign omni-power of the State but also a reversion to long held practices of helping one another.

It is no coincidence therefore that the Regional Assistance Mission to Solomon Islands was code named "Operation Helpim Friend", the pigeon English terminology for helping a friend, because that is essentially what Pacific Islanders and Pacific Island States have been doing for a long time. It is somewhat of a paradox that for so long since becoming independent states, Pacific Island States have been hung up on principles of international law developed elsewhere, including, for example, the principle of non-intervention in the affairs of another country, even when that country is in dire straits.

 

Towards a Pacific Community

It is interesting to note how some commentators were quick to point out that the decision by the Forum Leaders to develop a Pacific Plan to facilitate "deeper and stronger" co-operation would lead to the evolution of a European Union type Pacific region, with a common Parliament and possibly a common passport.

No one is arguing that eventually these things will not happen in the future but any assumption that they will automatically follow was quickly quashed with cautious skepticism by some of the Leaders themselves who probably see such moves as a threat to their careers!

The Pacific is already a community with shared values and a common heritage linked by the vast Pacific Ocean. The Pacific separates but also joins the Pacific Island States together.

In this day and age with increasing uncertainty over security and environmental threats, it is more important than ever that the Pacific Island States strengthen the Pacific Community and become more united.

Already in some fields the benefit of working together has shown to be of considerable advantage to the Pacific Island States.

The most classical illustration of how they have benefited from regional co-operation and working closely with each other as a bloc is in the management and conservation of the region’s lucrative tuna resource.

This resource, which is shared by all the Pacific Island States is the envy of vessels from powerful fishing states such as China, the United States and Japan. Without regional co-operation, these powerful fishing states can very easily play the Pacific Island States off against each other and thus take away the controls that they currently exert over the tuna resource.

Although there is strength in numbers, it must be exercised carefully and used in a way that maximizes mutual benefits for all the Pacific Island States and not just some at the expense of others.

There is also another very good reason why the Pacific must move towards a closer Pacific Community and that is because the very viability of some of the Pacific Islands States is being questioned.

Niue, for instance, has a population that is dwindling to the point that if it goes down even further, there would be serious doubts about Niue’s viability as a nation state. Furthermore, Tuvalu and Kiribati face a real danger of being washed under water as a result of climate change and sea level rise.

In the true Pacific spirit of assisting each other, the Pacific Island States should help these states, which face serious threats to their existence. This would accord with the traditional spirit of helping each other.

Conclusion

Generally man is territorial and loathes to give away what he has enjoyed for a long time. In a way, the loss of sovereign powers enjoyed by traditional leaders and ceded to a central government elected through universal suffrage is being played out also at the regional level.

There are increasing moves to bring the Pacific Island States closer together in a way that circumscribes the absolute sovereign prerogative of states.

In some ways, the Pacific Island States are merely going through the motions being played out by history. In the 17th century, the different kingdoms in Europe evolved from the middle ages to become sovereign states, by the 1940s the move towards the circumscription of absolute sovereign powers was set in train. It is still being played out with multilateral institutions now becoming an important factor in influencing state policies.

The Pacific has not been immune from these trends with important developments taking place over the past five years, which have significant implications for their sovereignty.

The Pacific Islands Countries Trade Agreement (PICTA), Pacific Agreement on Closer Economic Relations (PACER), the Treaty on Fisheries between the Governments of Certain Pacific Island States and the Government of the United States, and the Pacific Islands Air Services Agreement (PIASA) are only some of the agreements in which individual Pacific Island States have ceded some aspects of their sovereignty to co-operative regional action. As argued in this paper, the notion that there is some limit to sovereignty is not new to Pacific Islanders.

The nationalist argument that this is "our sovereignty" and therefore no one else can have a say or do anything about it is totally out of step with international practice.

The major impetus for rethinking sovereignty in the Pacific Islands region, however, should be the common good and welfare of Pacific Islanders.

If rethinking sovereignty will lead to a better quality of life for them, then so be it.

[Dr. Transform Aqorau is the Legal Advisor in the Political, International, and Legal Affairs Division of the Pacific Islands Forum Secretariat in Suva, Fiji.]

May 12, 2006

Solomon Star: http://www.solomonstarnews.com/

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