On June 29, 2009, in Noumea, Kanaky [also known by its colonial name of New Caledonia -– Kanaky is a colony of France] twenty-eight members of USTKE (Federation of Unions of Kanak Workers and the Exploited) were given prison sentences. Six of them, whose committal orders were read out in court, are now serving time at Camp Est, a prison which is already overpopulated. The judgement targeted the leadership of the union, particularly the president Gérard Jodar, sentenced to one year’s imprisonment, and the general secretary of the construction union, Michel Safoka, also given one year.
The official grounds for the guilty verdict are “hindering the flight of an aircraft”. On Thursday May 28, a day of action organised by USTKE, during a protest outside Noumea Airport to support Air Caledonia workers who had been fighting for two months against a wrongful dismissal, mobile police and the GIPN (Intervention Group of the National Police) pushed the unionists onto the tarmac. Twenty-eight of them took refuge in an empty plane to protect themselves against a stream of tear gas. At the time of the police intervention, there were no planes in circulation and it was the very action of the police which disrupted the demonstration.
The verdict is a political verdict against the pro-independence union federation. Those in power are trying to muzzle the territory’s foremost organisation for defending the rights of all workers, whether they be Kanak [the Indigenous people of Kanaky] or of other origins. In this far-away colony where there are no industrial tribunals, employees are often forced to lead long conflicts to assert their rights, faced with arrogant bosses who mock their dignity.
We refuse to accept either the growing criminalisation of union action or unionists’ imprisonment.
We demand the immediate release of the USTKE unionists and their leaders.
Article 1 of PACER defines a ‘Party’ to mean a State that has signed and ratified the Agreement pursuant to Article 19. The Republic of the Fiji Islands is such a State. It is therefore a Party to PACER.
It should be presumed, in the absence of provisions to the contrary, that decisions under PACER are to be made in accordance with the convention of the Forum, being by consensus. That would require the participation of Fiji.
In any case, a process or decision under PACER that involves all parties to the agreement collectively must include Fiji. There is nothing in PACER to suggest that any implied power to suspend a Party from its rights and obligations under PACER was intended.
There are three routes by which a decision to launch free trade negotiations under PACER might lawfully be made:
(i) Commencement of negotiations in 2011 as agreed in Article 5. There is nothing in Article 5:1 (or the rest of the treaty) that entitles any Party to PACER or any group of such Parties to exclude any other Party to PACER from those collective negotiations, although a Party may elect to do so by withdrawing from the agreement.
(ii) If a PIC Party to PACER commences negotiations on a free trade agreement in goods with a non-PACER Party, it may trigger earlier consultations with a view to negotiations as soon as practicable. There are two relevant triggers:
ØIn Article 6:3 this applies to individual countries. Any such obligation is strongest in relation to Fiji and PNG, which have initialed (but not signed or ratified) the Interim EPA on trade in goods. It ceases to apply to individual FICs whose negotiations have concluded without an agreement.
ØArticle 6:4 applies where all the Parties to PICTA jointly commence such negotiations and requires collective action by PICTA Parties under PACER. Fiji is a Party to PICTA. Any collective action required of PICTA Parties, especially relating to the EPA goods negotiations with the EU, must include Fiji.
(iii) Agreement to launch negotiations before 2011 following a general review of PACER under Article 16:2. Article 16:3 states that one purpose of a review of PACER is to make decisions on the opening and timetabling of negotiations for economic integration agreements or arrangements. This provision must refer to a general review, unless a general review transferred that power to another forum. General reviews involve all Parties collectively. A Party cannot be arbitrarily excluded from the conduct of such a general review, or decisions as to its form or timing, or as to the transfer of any exercise of its functions.
A general review is distinct from an annual review by Parties to PACER of ‘the implementation and operation of the agreement and all aspects of trade and economic cooperation’ under Article 16:1. The Government of Fiji as a Party to PACER is entitled to attend this annual review. The annual review of PACER is distinct from the Forum Trade Ministers’ Meeting and may be held at the FTMM of or otherwise.
The exclusion of Fiji from either an annual or general review on the grounds that Fiji’s participation in the FTMM has been suspended cannot be justified. There is an implied obligation on the Parties to PACER to convene such meetings at a time and place from which no Party is excluded. Failure to do so would render decisions taken at such meetings open to legal challenge.
It is important to stress that Article 17 formally assigns to the Pacific Islands Forum Secretariat certain administrative and clerical functions under PACER that are separate from the responsibilities that it performs under its legal personality as the Pacific Islands Forum Secretariat. The suspension of Fiji from the Forum cannot affect the responsibilities of the Forum Secretariat in relation to Fiji under PACER.
What are the implications of this argument for the validity of any decision to launch the negotiation of ‘PACER-Plus’? The Parties, convened as the Pacific Island Forum Leaders, agreed in Niue last year on ‘the need for officials to formulate a detailed road map on PACER Plus, with the view to Leaders agreeing at the 2009 Forum to the commencement of Negotiations.’ However, no decision to commence those negotiations has been taken.
That decision is being sought by Australia and New Zealand at the Forum Leaders’ Meeting in Cairns in August 2009. The Leaders’ decision is largely contingent on a decision of the Trade Ministers of the Parties to PACER in Apia on 18 and 19 June 2009. That decision is intended to take place within the Forum Trade Ministers’ Meeting. The Government of Fiji has been excluded from both those meetings.
This opinion concludes that it is not lawful for the Parties to PACER other than Fiji to convene for their annual review, or to make a decision to launch negotiations under PACER, in the absence of the Government of Fiji.
The only way to proceed with the forthcoming meetings or to make decisions regarding PACER-Plus negotiations in a manner that is consistent with PACER, in the absence of the Government of Fiji, would be if:
(a) Fiji has consented. There is no evidence of such consent; or
(b) the PACER text has been amended to legitimize the exclusion of a Party to the agreement from activities in which it would otherwise be entitled to participate. Article 18 requires unanimous agreement of the Parties to any amendment to the text. Fiji’s exclusion from participation makes that impossible per se. Fiji would presumably veto any such amendment if its agreement were sought.
If the Government of Fiji considers that the actions of other Parties to PACER have breached its rights under the agreement it can notify them, through the Forum Secretariat, of its wish to enter consultations. The other Parties must respond in good faith and as soon as possible, with a view to seeking a mutually satisfactory solution.
THE LEGALITY OF EXCLUDING FIJI FROM
PACER-PLUS DISCUSSIONS
Prof Jane Kelsey LLB(Hons), BCL (Oxon), MPhil (Cantab), PhD
School of Law, University of Auckland
This legal opinion is provided for the Pacific Network on Globalisation PANG).
FIJI’S STATUS IN THE FORUM
Fiji was ‘suspended from full participation in the Forum’ as of 2 May 2009 on the terms agreed by the Forum Leaders in Port Moresby on 27 January 2009.
Participation ‘by the leader, ministers and officials of Fiji from all Forum meetings and events arranged by the Pacific Islands Forum Secretariat, including the annual Pacific Islands Forum Leaders Meeting’ was suspended indefinitely.
The Chair of the Forum made it clear that Fiji was not being expelled from the Forum and that the Republic of Fiji remains a member of the Forum group of nations.
FIJI’S STATUS UNDER PACER
Article 1 of PACER provides a number of relevant definitions:
‘Party’ means a State that has signed and ratified the Agreement pursuant to Article 19. The Republic of the Fiji Islands is such a State. It is therefore a Party to PACER.
‘Forum Island Countries’ are explicitly defined to include the Fiji Islands.
‘Forum’ means the Pacific Islands Forum, as referred to in the agreement establishing the PIFS. As noted above, suspension from participation is not expulsion. Fiji remains a member of the Forum.
DECISION MAKING PROCESSES UNDER PACER
Article 16 sets out the institutional mechanisms for decision-making under PACER, but it does not specify the rules for making decisions.
It should be presumed, in the absence of provisions to the contrary, that decisions under PACER would be made according to the convention of the Forum, being by consensus. That would require the participation of Fiji.
That interpretation is consistent with the requirement under Article 18 that any amendment to PACER can only be made by unanimous agreement of the Parties. The exclusion of Fiji would be a de facto amendment to the treaty to which it has not agreed.
Even if the requirement for consensus in general under PACER was doubted, any process or decision that involves all parties to the agreement collectively must include Fiji.
It might be argued that an activity involving or decision by ‘all parties’ means all parties present and voting or participating in an attempt to reach a consensus, and that a decision in the absence of Fiji would still be valid. However, United Nations’ precedents to that effect involve situations where a state has voluntarily absented itself from a meeting or decision, not the exclusion of a party from the process without its consent.
There is nothing in PACER to suggest that any implied power to suspend a Party was intended.
THE ROLE OF THE FORUM SECRETARIAT
In Article 17 the Pacific Islands Forum Secretariat is formally assigned the responsibility to provide secretariat services for PACER and other international agreements established pursuant to it.
The Secretariat is performing administrative and clerical functions under PACER that are separate from the responsibilities that it performs under its legal personality as the Pacific Islands Forum Secretariat. The suspension of Fiji from the Forum cannot affect the responsibilities of the Forum Secretariat in relation to Fiji under PACER.
Its functions are articulated in Article 17:2, as being a repository and conduit of communications and the provision of administrative and technical support services.
The Forum Secretariat has no other role in relation to PACER. Any direction of the Parties to the Secretariat requiring it to perform other functions would need to involve all the Parties, unless one or more Parties has voluntary absented itself from making such a decision.
The Secretariat cannot therefore act in any way that denies Fiji access to PACER meetings or decisions, or the right to send or receive communications among PACER Parties.
PROCESSES FOR A DECISION TO LAUNCH PACER-PLUS NEGOTIATIONS
There are three routes by which a decision to launch negotiations under PACER might lawfully be made:
1. A pre-commitment to negotiations in 2011 under Article 5;
2. ‘Triggering’ consultations with a view to negotiations before 2011 under Article 6;
3. Agreement to launch negotiations before 2011 following a general review of PACER under Article 16.
It is not clear which of these is currently being relied on, but it seems likely to be the third.
1. A Pre-commitment to begin negotiations in 2011 (Article 5)
Article 5:1 is a pre-commitment among the parties, including Fiji, collectively to enter into collective negotiations with a view to establishing reciprocal free trade arrangements between the Forum Island Countries (including Fiji) and Australia and New Zealand.
Such negotiations must be entered into eight years after PICTA came into force, i.e. 2011, unless earlier agreed under Article 16 or triggered by the provisions of Article 6.
There is nothing in Article 5:1 (or the rest of the treaty) that entitles any Party to PACER or any group of such Parties to exclude any other Party to PACER from those collective negotiations.
[Article 5:2 allows any party to PACER (eg Australia or NZ) to notify the Forum Secretariat that it wants to enter consultations with a view to negotiating the terms and conditions of new trading and economic integration arrangements. Whether or not Australia or NZ has formally notified the Secretariat under this provision, there is no corresponding obligation on any Parties who receive such notification to respond. It seems likely that any such notification would inform discussions under Article 16.]
2. Triggering of negotiations before 2011 (Article 6)
It might be argued that the process of consultations with a view to commencement of negotiations with Australia and NZ before 2001 has been triggered by the action of the FICs in two ways. It is important to note that these triggers relate to negotiations with non-PACER countries for a free trade agreement in goods.
ØArticle 6:3: an individual FIC that is party to PACER begins formal negotiations for a free trade agreement in goods with one or more developed non-Forum countries.
The trigger activates the obligation to ‘offer to undertake consultations with a view to commencement of negotiations free trade arrangements’ with Australia and/or New Zealand ‘as soon as practicable’.
Any reliance on this provision is strongest in relation to the two Parties that have initialed the Interim EPA on trade in goods, being Fiji and PNG.
This obligation is on each individual FIC Party to PACER that has commenced negotiations with an external developed country. It does not presume collective negotiations, as are currently under discussion.
The Article 6:3 obligation ceases, pursuant to Article 6:9, if the negotiations with the non-Forum country are discontinued without an agreement on trade in goods being reached. It is arguable that Article 6:3 no longer applies to the majority of FICs who have not signed the interim EPA on trade in goods and indicated that they do not intend to do so.
ØArticle 6:4: all the Parties to PICTA jointly commence negotiations for a free trade agreement with a non-Forum country.
This trigger involves a collective action by all the Parties to PICTA. Fiji is a Party to PICTA.
When, and even whether, formal negotiations a free trade in goods agreement with the EU commenced is disputed. However, it is certainly arguable that all the Parties to PICTA, organized as the PACP states, did jointly commence such negotiations.
A number of PACP states appear to have since discontinued their participation in the goods EPA, which would remove any obligation under this paragraph. That seems to contradict the purpose of this trigger, which is to entitle Australia and NZ to negotiations where all PICTA Parties have negotiated an agreement on goods. Whatever, that situation does not apply to Fiji.
Assuming that the triggering has been activated, the obligation under this paragraph is for the PICTA Parties collectively to offer to undertake consultations, as soon as practical, with Australia and New Zealand, individually or separately.
The words ‘individually or separately’ must be read as referring only to the consultations with Australia and/or New Zealand, given identical wording in paragraph 3, which refers to an offer of negotiations by an individual FIC, and the joint action by PICTA parties that triggers this obligation.
Again, any collective action required of PICTA Parties, especially relating to the EPA goods negotiations with the EU, must include Fiji.
3. A General Review of PACER (Article 16)
Article 5 states that negotiations with a view to establishing reciprocal free trade arrangements between the FICs and Australia and NZ may be agreed to earlier than 2011 as part of a general review under paragraph 2 of Article 16.
Article 16 provides for two different kinds of reviews of PACER.
Article 16:1 provides for an annual review by Parties to PACER of the implementation and operation of the agreement and all aspects of trade and economic cooperation.
This annual review may take place at the annual meeting of the Forum Trade Ministers or ‘otherwise as appropriate’.
The meeting of PACER Parties is clearly distinct from the Forum Trade Ministers’ Meeting and could be held in a different form, time or place.
The Republic of Fiji is a Party to PACER and is entitled to attend this meeting. The exclusion of Fiji from the annual review of PACER on the grounds that Fiji’s participation in the FTMM has been suspended cannot be justified.
There is an implicit obligation on the other Parties to PACER to convene an annual meeting from which no Party is excluded. Failure to do so would render decisions taken at such a meeting open to legal challenge.
Article 16:2 mandates a general review of the operation of PACER no later than three years after it enters into force, and every subsequent three years, unless otherwise agreed by the Parties.
‘Otherwise agreed’ relates to the conduct of a general review at three yearly intervals. The wording is ambiguous. It could relate to agreement to conduct a general review of PACER otherwise than through three yearly reviews; or that the frequency may not be every three years. Whichever, it still refers to the conduct of a general review.
Paragraph 2 refers to all Parties collectively. This does not justify the exclusion of any Party from the conduct of the general review or decisions as to its form or timing.
As argued previously, it must be assumed that decisions under Article 16:2 are made by consensus in the absence of any contrary intention. Fiji is therefore entitled to be present at and participate in the conduct of any general review, in any decision on any agreed alternative to a general review, and in any such alternative process.
Article 5 explicitly states that the decision to launch negotiations earlier than 2011 would be made as part of a general review under Article 16:2, not an annual review under Article 16:1.
As Fiji is entitled to participate in the activities mandated under paragraph 2, it is entitled to participate in any decision to launch negotiations.
Article 16:3 refers generically to ‘the reviews’, whereas paragraphs 1 and 2 distinguish between annual reviews and three yearly general reviews.
One of the purposes of ‘the reviews’ specified in paragraph 3 is to make decisions on the opening and timetabling of negotiations for economic integration agreements or arrangements. This cannot override the explicit intention of Article 5 that a decision to begin negotiations prior to 2011 must be made at a general review conducted either three yearly as otherwise agreed.
The Parties, convened as the Pacific Island Forum Leaders, agreed in Niue last year on ‘the need for officials to formulate a detailed road map on PACER Plus, with the view to Leaders agreeing at the 2009 Forum to the commencement of Negotiations.’
No decision to commence those negotiations has been taken. That decision is being sought by Australia and New Zealand at the Forum Leaders’ Meeting in Cairns in August 2009.
The Leaders’ decision is largely contingent on a decision of the Trade Ministers of the Parties to PACER in Apia on 18 and 19 June 2009. That decision is intended to take place within the Forum Trade Ministers’ Meeting.
The Government of Fiji has been excluded from both those meetings.
CONCLUSION
It is not lawful for the Parties to PACER other than Fiji to convene for their annual review, or to make a decision to launch negotiations under PACER, in the absence of the Government of Fiji.
If Fiji considers that the actions of other Parties to PACER have breached its rights under the agreement it can notify them, through the Forum Secretariat, of its wish to enter consultations. The other Parties must do so in good faith and as soon as possible, with a view to seeking a mutually satisfactory solution.
The only way to proceed with the forthcoming meetings or to make decisions regarding PACER-Plus negotiations in a manner that is consistent with PACER, in the absence of the Government of Fiji, would be if:
(a) Fiji has consented. There is no evidence of such consent; or
(b) the PACER text has been amended to legitimize the exclusion of a Party to the agreement from activities in which it would otherwise be entitled to participate. Article 18 requires unanimous agreement of the Parties to any amendment to the text. Fiji’s exclusion from participation makes that impossible per se; and Fiji would presumably veto any such amendment if its agreement were sought.
With photography by Robin Hammond of Panos Pictures, this multimedia piece looks at the island nation of Tuvalu, as the Tuvaluan people become some of the first environmental refugees, a direct result of man-made climate change.
In December this year a treaty to replace the Kyoto protocol will be drawn up at the climate change conference in Copenhagen. At a preliminary summit in March, scientists presented new information that revised previous estimates of future sea level rise. The new figures suggest that by the end of the century the oceans could be one metre or more above their current levels. Coastal regions will be flooded and low-lying nations such as the tiny South Pacific country of Tuvalu could be submerged.
The impact of rising seas and the increase in extreme weather events can already be seen in Tuvalu. It is one of 22 Pacific island nations with 7 million inhabitants between them that contribute only 0.06% of global greenhouse gas emissions but are three times more vulnerable to climate change than countries in the North.
At the primary school in Funafuti, children are taught about climate change from the age of six. They are also learning what it means to emigrate, because this could be the last generation of children to grow up in Tuvalu. Its people are already in flight. More than 4,000 live in New Zealand, and the Tuvaluan government is planning the migration of the remaining 10,000.
Between 1946 and 1958, the U.S. detonated 67 nuclear devices in and around the Marshall Islands. The impact of these tests on the Marshallese people was profound - in terms of both actual radioactive exposure and the displacement of people from their home islands due to contamination.
by Navanethem Pillay United Nations High Commissioner for Human Rights
More than a symbolic celebration
The estimated 370 million indigenous peoples need and deserve more than just symbolic celebrations on 9 August, when they commemorate everywhere the International Day devoted to the reaffirmation of the value and resilience of indigenous life and cultures. After centuries of repression, they need comprehensive tools to defend their human rights, their way of life, and their aspirations.
One such tool is the UN Declaration on the Rights of Indigenous Peoples. Among other provisions, the Declaration emphasized human rights principles of equality and non-discrimination for indigenous peoples. It established their right to self-determination and to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully in public life. Crucially, this document underscored indigenous peoples’ right to preserve or freely dispose of and trade their traditional lands and resources.
Following negotiations that spanned more than two decades, the Declaration was adopted in September 2007 by the General Assembly with the support of 143 member states. This support keeps expanding. Significantly, Australia and Columbia—two of the countries that originally did not approve the text—have now endorsed the Declaration. These developments are encouraging, but we must continue to strive for universal acceptance of this crucial document.
Such acceptance is key to counter the daily hardship and discrimination that indigenous peoples endure. It is estimated that at least one in every ten indigenous peoples in the world is facing extreme poverty. These peoples are more likely to receive inadequate health services and poor education—if any at all. Economic development plans often bypass them or do not take into sufficient consideration their particular needs and traditions. Other decision-making processes are often equally contemptuous of or indifferent to their contribution and customs. As a result, laws and policies designed by majorities with little regard to indigenous concerns frequently lead to land disputes and conflicts over natural resources that threaten the way of life and very survival of indigenous peoples.
We must step up our common efforts to make the Declaration something more than a mere pledge of intent. We must translate its letter and spirit into concrete change, change that can be felt in indigenous peoples’ daily life.
In line with the United Nations Declaration on the Rights of Indigenous Peoples and other human rights instruments, States, indigenous peoples, the United Nations system and others concerned must join their efforts and reach solutions based on true dialogue, mutual understanding, tolerance and respect for human rights.
I am confident that giving indigenous peoples a true voice and say in decision-making would benefit not only them, but also our whole societies, as we look for answers to address major challenges. Consider, for example, the impact of climate change. Indigenous peoples, such as indigenous reindeer herders in the Arctic or the pastoralist Maasai community in East Africa, face the risk of bearing the brunt of climate change. But their cultures, experience and knowledge of the environment can—and ought to—provide solutions to address this and other common global threats. When we defend indigenous peoples’ rights in the face of land grabs and expropriation, we are also likely to protect biodiversity. This is evident in places, such as the Amazon region, where sustainable forestry methods mastered by indigenous peoples can help to address the serious problem of deforestation.
Ways to promote indigenous peoples’ rights in policy development and their participation in public life must be found primarily at the national level. But governments can also benefit from the human rights expertise, legislative savvy and advocacy of UN human rights mechanisms, as well as contributions from civil society. These partners in indigenous rights can help refine reforms according to international standards and make indigenous peoples’ concerns resonate at the international level. These mechanisms include the Permanent Forum of Indigenous Issues, which gathers hundreds of indigenous representatives annually, and the Special Rapporteur on Indigenous Peoples, who has helped to advance their human rights in a range of country situations. In addition, the UN Expert Mechanism on the Rights of Indigenous Peoples is tasked to formulate advice on their entitlement to education, a key theme for indigenous peoples around the world.
There is still a long way to go. No doubt the road ahead will be bumpy. But let us work together to move the principles of the Declaration from paper into practice. We need to act now to ensure that indigenous peoples live in dignity and prosper. They have waited a long time. They expect nothing less. - - -
The forum will bring together formerly imprisoned people and their family members, advocates, lawyers, activists and interested community members, to discuss and workshop effective measures and strategies for social justice for imprisoned people, and a reduction in rates of recidivism. The forum will have a strong focus on Indigenous women’s experiences of the criminal justice system.
Speakers include Rachel Herzing, (Creative Interventions, USA), Cassandra Shaylor (Critical Resistance, USA), Kim Pate (Canadian Association of Elizabeth Fry Societies, Canada), Debbie Kilroy (Sisters Inside, QLD), Antoinette Braybrook (Aboriginal Family Violence Prevention Legal Service, VIC), Vicki Roach (human rights advocate and activist, VIC), and other men and women with the lived experience of imprisonment.
Who Should Attend? Organisers of this forum are prioritising involvement from people most impacted by imprisonment and related issues; men and women who have been imprisoned or their family members, Indigenous people, culturally and linguistically diverse community members, consumers of the mental health system, and others.
About FVPLS Victoria, CHRIP and Flat Out: FVPLS Victoria was established in October 2002 to provide assistance to victims of family violence and sexual assault and to work with families and communities affected by violence. Flat Out has been in operation since 1988 and is a state wide service that provides housing and re-integration support to women leaving prison. CHRIP is a project of Flat Out that aims to build the capacity of organisations that provide advocacy and support to prisoners, and establish a dedicated Prisoners’ Legal Service in Victoria.
Please find a flier and registration form attached, numbers are limited so interested people should RSVP as soon as possible.
On the evening of the forum (Thursday 10th September) we will be holding a celebration evening with a film screening, prisoner art show, and music. More details to come.
