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Keynote Address by DSG Teo at the 32nd Meeting of the Pacific Islands Law Officers' Network, Nuku'alofa, Tonga

32nd Meeting of the Pacific Islands Law Officers’ Network (PILON)
 Nuku’alofa, Kingdom of Tonga

5 - 6 November 2013


KEYNOTE ADDRESS
By

PACIFIC ISLANDS FORUM SECRETARIAT DEPUTY SECRETARY GENERAL
FELETI P. TEO


The Honourable Attorney-General of TongaOff
Distinguished Law Officers of Pacific Island Countries
Ladies and Gentlemen

1.         I am indeed very honoured for the privilege and the opportunity to address your meeting, the 32ndmeeting of the Pacific Islands Law Officers’ Network.

2.         Attorney General, allow me at the outset to convey the sincere regret of my Secretary General, Tuiloma Neroni Slade, in having to decline your original invitation to provide the keynote address.  The Secretary General was very much looking forward to attending this meeting of PILON, being a network with which he has had a long association.  However, he had to withdraw due to a late change to his travel arrangements for a meeting in China between Forum Leaders and the Government of China later this week.  Secretary General Slade has asked me to convey to you his very best wishes for a stimulating and productive meeting.

3.         In his absence, I thank you Attorney General for agreeing to allow me to stand in for Mr Slade and to share some perspectives on the important theme chosen for your meeting.           

4.         Attorney General, I congratulate you on assuming the role of the Chair of PILON for the coming year.  And I also commend you and your colleagues on the selection of an excellent theme for this meeting. 

5.         International law is a fascinating area of legal practice and it represents a fundamental tool for regulating the complex relationships between the many states that make up our global order.  But as a former Attorney General of Tuvalu, I can attest to the many challenges which small island countries experience in implementing international legal commitments.  I can also attest to the importance for government lawyers of small and remote jurisdictions in having PILON as a professional network, an invaluable opportunity to share our experiences and knowledge and, in turn, enhance the intellectual capital of our offices and ministries back home.  In my own case, I had the happy privilege to attend PILON – or as it was known then as PILOM – many times between 1991 and 2000, the period I was Attorney General of Tuvalu, including the time when Tonga hosted PILOM in 1997. 

6.         Over the course of the next two days, you will be sharing your experiences on implementing international obligations at the national level.  I would like to set the scene for these discussions by offering some observations about the role of international law, the development of treaties and their subsequent implementation from a regional perspective. And while there are undeniable challenges for small jurisdictions in domesticating international law, I hope to show that, through regional cooperation, these challenges need not be insurmountable.   I will focus on the development and implementation of treaties, but of course recognise that treaties represent just one facet of international law.

The Pacific Islands Forum – a brief overview

7.         I know that a number of you here today are very aware of the work of the Pacific Islands Forum Secretariat, the organisation which I represent.  But, conscious that this is not the case for everyone, I think it useful to provide some brief background on the Forum.

8.         The Pacific Islands Forum is a political grouping of 16 independent and
self-governing states.  Indeed, with the exception of Pitcairn Island, the governments of all PILON Members are Members of the Forum.

9.         Forum Leaders meet annually to develop collective responses on a broad range of issues which are of concern to the Pacific region.  These generally fall within the categories of: economic growth; sustainable development; good governance; and security. These are the four pillars of the Pacific Plan for strengthening regional cooperation and integration.
 

10.       As the Secretariat for the Forum, our organization is primarily responsible for providing policy advice, coordination and assistance to Members in implementing the decisions of Forum Leaders. This involves facilitating a wide range of officials and ministerial meetings to inform and guide the deliberations of Forum Leaders.  It also involves providing technical policy advice and assistance on specific issues, in particular in relation to regional security cooperation and trade agreements.  And we work closely with donors and other regional and international organisations to identify the resources necessary to assist Forum Island Countries progress regional priorities.

11.       Specialised regional networks or associations such as PILON are also very significant stakeholders for the Forum, even if not formally designated as Forum bodies.  From the perspective of the Forum Secretariat, PILON represents an important and necessary resource for government lawyers who are frequently tasked with the responsibility of translating commitments agreed at the regional level into effective laws and policies at the national level.

Common concerns about international law

12.       In reflecting on the theme for this meeting, it occurred to me that concerns often expressed about international law, and international treaties in particular, suggest that this body of law is foreign to our region; that international treaties are imposed on our governments by other more powerful and well endowed countries; that we have had little say in the development of treaties.  I don’t deny that there is some foundation to these claims. Indeed, many treaties were negotiated in an era preceding the attainment of independence by many countries in our region.  And the scarce resources of our national administrations often prevent us from taking an active role in the negotiation of new treaties. Moreover, globalisation and the post 9/11 world have generated increasingly complex international financial and security legal regimes which do not easily countenance non-participation by a State. 

13.       However, I would like to balance these claims with the view that we as a region have the ability to make valuable contributions to the development of international law, and in fact have done so throughout the 42 year history of the Forum. Moreover, we as a region regularly employ international law as a tool for pursuing regional objectives.

The Forum’s role in international treaty negotiations

14.       Let me elaborate on my first point about our region’s contribution to the development of international law.  Two fields stand out in particular, being the international law of the sea and disarmament and non-proliferation.

15.       The first decade of the Pacific Islands Forum – then known as the South Pacific Forum – coincided with the period of intensive international negotiations which led to the development of the UN Convention on the Law of the Sea (UNCLOS).  From the outset, Leaders emphasised at Forum meetings the unique dependence of Pacific countries on marine resources which, in their view, merited special consideration in the recognition of territorial claims. 

16.       Pacific Island Countries became directly involved in the negotiations for international norms and standards concerning the ocean and fisheries. For many Pacific countries, it was their first real experience of multilateral negotiations. It was also the first opportunity for Pacific countries to contribute to the development of substantive international law principles.

17.       In the area of the conservation and management of highly migratory fishery stocks, the Pacific region continued to pursue a coordinated approach, supported by the Forum Fisheries Agency, in the negotiations of the Fish Stocks Agreement in 1995 and more recently in the Western and Central Pacific Fisheries Commission Convention of 2000.   

18.       Pacific countries also played a proactive role in the international arena to advocate for international legal frameworks preventing the spread of nuclear weapons and weapons technology.  As an active supporter of the Nuclear Non-Proliferation Treaty (NPT) of 1973, Forum Members initiated the development of a South Pacific Nuclear Weapons Free Zone. This zone, which is the product of international legal obligations documented in the Raratonga Treaty of 1985, was the world’s second nuclear weapons free zone to be declared in a permanently inhabited area and has served as a model for subsequent regional treaties.

19.       More recently, Forum Members came together to develop a common set of principles to advocate in the negotiations at the UN for an Arms Trade Treaty (ATT). The development of a common Forum position had been proposed by Forum Leaders in 2011, and in 2012 Forum Members, with the assistance of the Forum Secretariat, consulted amongst themselves to identify the key issues for the Pacific concerning the international transfer of conventional weapons.

20.       The ATT, which was concluded in March this year, reflects in large part key aspects advocated in the common Forum position.  Notably: small arms and light weapons fall within the scope of the Treaty; there is a clear statement about State Parties’ obligation to prevent the diversion of weapons; and the Treaty establishes a framework for international assistance to support State Parties with the implementation of the Treaty.

21.       It is obvious that the negotiation of an international treaty is a complex process, influenced by many geo-political factors. However, small jurisdictions should not underestimate their capacity to effectively contribute to the process and to influence the content of international treaties. This capacity is significantly enhanced when we work together and so amplify our advocacy of issues of common regional concern.  Indeed, Forum Members have as a group agreed on common negotiating positions in many international fora, not just those concerning the development of international treaties.

22.       It is relevant at this point to acknowledge the important role of government lawyers in advising governments in the development of international treaties. While treaty negotiations may sometimes be seen as primarily the province of diplomats, government lawyers bring an invaluable set of skills to the process, with their keen eye for detail, their affinity for language and drafting, and their appreciation of the implications of complying with international obligations at the national level.  I am aware that at the recent ATT negotiations, a number of Pacific delegations greatly benefited from the participation of lawyers from their offices of attorney-general or lawyers based within their foreign ministries.

Reliance on international law at the regional level

23.       Turning from the international stage to our own region, we can see that international law plays a critical role in underpinning many regional initiatives. In addition to the Raratonga Treaty which I mentioned earlier, Forum Members have concluded between themselves a number of regional treaties, spanning a broad range of areas, including but not limited to economic cooperation and integration, environmental regulation and cooperation in civil aviation.  Indeed, the Forum itself is established by treaty as an international organisation, the relevant treaty being the 2005 Agreement Establishing the Pacific Islands Forum.

24.       The most recently concluded of the regional treaties is the Trade in Services Protocol to the Pacific Island Countries Trade Agreement, which was opened for signature in August 2012. The Pacific Island Countries Trade Agreement and the new Protocolrepresent an important foundation for facilitating trade in goods and services between Forum Island Countries. With four more ratifications, the Protocol will enter into force for the relevant countries and enable their private sectors – particularly for tourism and transport and business services – to broaden their opportunities for growth within the region.

25.       Few would deny that one of the most significant and successful example of regional cooperation in the last decade has been the Regional Assistance Mission to the Solomon Islands, otherwise known as RAMSI.  The success of this mission rested in no small part on the strong legal framework which underpinned the Mission.  Known in shorthand as the RAMSI Treaty, the treaty was agreed between the Solomon Islands Government and the other 15 Members of the Forum and set out the respective responsibilities and rights of the Solomon Islands and the Forum Members providing assistance to Solomon Islands through the provision of military, police and civilian personnel.

26.       And finally, I note the opening for signature in 2012 of the Agreement on Strengthening Implementation of the Niue Treaty on Cooperation in Fisheries Surveillance and Law Enforcement in the South Pacific. This Agreement, known as the NTSA, is an important initiative driven by our close regional partner, the Forum Fisheries Agency.  It will serve to facilitate the sharing of Members’ fisheries data and intelligence with other Parties for broader law enforcement purposes, consistent with the call by Forum Leaders in the Vava’u Declaration on Pacific Fisheries of 2007.

27.       The fact of these regional treaties demonstrate that our jurisdictions collectively recognise international law as a fundamental tool in supporting the mechanisms and institutions that enable us to work together to achieve a wide range of regional goals. 

The decision to become a party to a regional or international treaty

28.       Of course, I must acknowledge that many of our regional treaties currently suffer a lack of full subscription and implementation.  This leads to the next issues I want to discuss, being the decision by a government to become a party to a treaty and the consequences of so doing.

29.       A government’s decision to become a party to a treaty, whether it be of a regional or international nature, may be influenced by an array of political, legal, diplomatic and financial factors.  There is no universally standardised process for making that decision. And I am aware that amongst the countries represented here today, there is a diverse approach to the way in which governments consider undertaking new treaty commitments.  For example, the constitutions of some jurisdictions require some form of parliamentary consent before a treaty can be ratified.  In other jurisdictions, the authority to ratify or accede to a treaty rests with the executive arm of government. Jurisdictions also differ in their practices of consultation with the broader community before proceeding to join a treaty.  As a side note, this strikes me as a really interesting and useful area for research, comparing and contrasting the different ways that our jurisdictions deal with treaty-making.

30.       Notwithstanding these different approaches, I understand that all our legal systems are similar to the extent that treaties are not part of our national laws unless incorporated in some way.  It is for this reason that I emphasise the importance of the early involvement of lawyers in a government’s deliberations as to whether it will become a party to a treaty.

31.       Government lawyers have a critical role to play in ensuring that government understands the fundamental principle of international law, being that in accepting to be bound by a treaty a State undertakes to perform that treaty in good faith.  Furthermore, that there may be consequences under the international legal system for failure to give effect to the treaty. 

32.       Government lawyers can identify whether their jurisdictions’ existing laws are consistent with the obligations under the treaty requiring legislative action.  And where the laws are not consistent, lawyers can advise governments on a range of options, whether it be to defer acceptance of the treaty until new legislation is enacted, or to proceed with joining the treaty but with the government making reservations or declarations, as permitted under the treaty, in respect of obligations which the government does not accept or for which it offers a specific interpretation. 

33.       It is my understanding that our jurisdictions may differ in our approaches to the timing of a treaty action.  Some jurisdictions have a clear policy of ensuring that their legislation is consistent with the terms of a treaty prior to ratifying or acceding to a treaty.  Other jurisdictions have a practice of proceeding to ratify a convention first and then proceed to progress legislative implementation.  While there are different views as to the legal desirability of this latter approach – especially where the treaty obligations are not expressed as ‘progressive’ commitments – it is undeniable that government lawyers have an important role to play in ensuring that the laws of your jurisdictions meet the minimum internationally agreed standards set out in the treaty which your government has joined, or proposes to join.

34.       Furthermore, government lawyers can provide an important service to their fellow colleagues in government in explaining the objectives and operation of a treaty more generally.  In my experience, there is a common misconception that legislation is the only way to implement or domesticate a treaty.  But often – and particularly in the case of human rights conventions – the review and reform of existing non-legislative government actions, such as policies and programmes, are also important components of an implementation strategy. 

Challenges for government lawyers in small island countries

35.       Of course the reality for most government law offices in our region is that our ability to provide comprehensive legal and policy advice on regional and international treaties is constrained by the small number of lawyers in our offices, and the significant workloads.  Based on my own experience, I can well empathise with those of you here today who are expected to run a criminal prosecution in the morning, advise Cabinet on a new commercial tender in the afternoon, and where time permits, draft some legislation to ensure that your government is not in breach of a treaty which it just ratified.   

36.       I note in particular the challenges for Forum Island Countries in maintaining effective national legislative drafting services.  Indeed Secretary General Slade reminded me that the scarcity of legislative drafting resources was one of the key issues considered in the early meetings of PILON in the 1980s

37.       For our part, the Forum Secretariat has been working in various ways to assist Members address the various factors which impact on the availability and quality of legislative drafting in our countries. For example, to address a gap in regional networking opportunities for legislative drafters, in 2012 the Forum Secretariat convened a meeting of the Pacific Legislative Drafters’ Technical Forum. The Drafters’ Forum was attended by parliamentary counsel, senior legislative drafters and senior government lawyers from most Member countries, as well as representatives from national, regional and international organisations which provide legislative drafting assistance or work with Forum Island Countries on projects involving legislative reform.  The Forum provided a much-needed opportunity for legislative drafters to build professional contacts and learn how different jurisdictions work to overcome commonly experienced problems, particularly in the management of donor projects involving legislative reform, and the management of consultants.

38.       The Forum Secretariat has consolidated many of the issues raised at the Drafters’ Forum into a report which we have circulated to this meeting, and will shortly make publicly available.  By doing so, we hope that this report will inform the broader regional and international community, and in particular development partners, about the particular context and challenges of legislative development for small island countries and in turn, encourage better cooperation and better standards in this area.

39.       Building the networks and skills of our legislative drafters, as well as educating the broader development community are obviously long-term endeavours.  But there is also a broad range of assistance available at the regional level to support your countries in the short term in developing laws to give effect to international treaty commitments.  For example,  I note the valuable assistance that the Secretariat of the Pacific Community – specifically the SOPAC Division – is providing to support countries develop legal and regulatory frameworks to enable them to sustainably regulate and benefit from deep sea mining.   

40.       From my own organisation, technical assistance is available for countries to ratify and implement international human rights conventions.  While the Pacific has long been regarded as an ‘outlier’ in the international human rights system, we have seen considerable progress in the last few years in terms of governments’ understanding about, and receptiveness to, human rights treaties.  Just a few weeks ago, a team from the Forum Secretariat worked with officials in Palau to convene and facilitate public consultations about the UN Convention on the Rights of Persons Living with Disabilities (CRPD).  Through this process, a range of options were identified for legislative and policy reform, and the Forum Secretariat stands ready to provide assistance to Palau and other governments in giving effect to their commitments under human rights treaties.

41.       The Forum Secretariat also works closely with other regional partners, such as RRRT of SPC and the Regional UN Human Rights Office, to assist Members in preparing the reports required under these treaties, and in participating in the Universal Periodic Review before the UN Human Rights Council.

Conclusion

42.       As I come to the end of my address, I acknowledge that I have focussed on domestication of international law in terms of legislative implementation.  There are of course other aspects to implementation, not least being the issue of how our national courts interpret international treaties.  This is a fascinating subject in itself although time does not permit me to explore it.  But I will be interested to see if and how this issue arises in the course of discussions over the next two days.

43.       Colleagues, it is over thirteen years ago since I last attended PILON in a national capacity.  It is really pleasing to see that this network has continued since that time and more so, that it appears to have grown and thrived.  I understand that the establishment of an independent Secretariat for PILON has been instrumental in strengthening PILON as an increasingly useful and responsive regional resource and I commend PILON for this initiative. 

44.       To end, colleagues and friends let me again thank the Attorney General of Tonga for inviting me to present today.  I wish you all the best for your meeting, and on behalf of the Secretary General, I convey to you his gratitude and appreciation for your vital service as the legal advisers of the governments of our region. 


End

 

  

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