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Prsentation de la RJP
The European Union What's Next?
What Role does Competition Law Play in the Genesis of a Harmonised
European Private Law?

George Cunningham

Francesco A Schurr

Legal Education Reform in Australia and the Impact of Globalisation:

A Comparative Perspective
Recognition and Implementation of the Right to Health in Some
Small Island Countries

Martin Vranken 21
Alison Quentin-Baxter 29

Forgiveness is Melanesian for Individualism And Other Bad Translations

Violences et Discriminations dans les tats Insulaires du Pacifique Sud:
tat des Lieux au Vanuatu
EU and World Trade Law Economic Partnership Agreements and
Considerations for New Caledonia
Traditional Knowledge and Intellectual Property Protection
The Endeavour of Niue
"Wrestling with the Taniwha": An Analysis of Two Maori Language
Texts and their Engagement with Western Legal Concepts

Ian Fraser 43
Laurent Chassot 59
R C Plachecki 71
Ping Xiong 123
Mmari Stephens 135

Remarques sur l'Acte de Qubec d'Alexander Hamilton (crites en 1775)

Une Traduction et son Commentaire
Dominique Gaurier 157
Chronique de Jurisprudence Fiscale Relative la Polynsie franaise
Chronique de Droit Social

Xavier Cabannes 199

Alain Chirez 231




Direction scientifique
M Xavier Blanc-Jouvan, Professeur Emrite de la facult de droit de Paris I Panthon-Sorbonne
M le Doyen Paul Le Cannu, Professeur l'Universit de Paris I Panthon-Sorbonne
Sir Ivor Richardson, Distinguished Fellow Victoria University of Wellington
Mme le Professeur Horatia Muir Watt, Professeur l'Universit de Paris I Panthon-Sorbonne
Comit scientifique
Mme le Professeur Sylvie Andr, Professeur l'Universit de la Polynsie franaise
M Michel De Villiers, Professeur l'Universit de Nantes
M le Doyen Yves Brard, Professeur l'Universit du Maine
M le Doyen Grard Chiana, Professeur l'Universit P Mends France Grenoble
M Alain Chirez, Professeur l'Universit de la Polynsie franaise
M Marc Debene, Professeur l'Universit de la Polynsie franaise
M Olivier Gohin, Professeur l'Universit de Paris II Panthon Assas
M Jrme Huet, Professeur l'Universit de Paris II Panthon Assas
M Pascal Jan, Professeur l'Institut d'Etudes Politiques de Bordeaux
M Ichiro Kitamura, Professeur l'Universit de Tokyo
M Christian Montet, Professeur l'Universit de la Polynsie franaise
M le Vice-Doyen Pierre Murat, Professeur l'Universit P. Mends France Grenoble
M Mario Patrono, Professeur l'Universit de Rome I, La Sapienza
M Norbert Rouland, membre de l'Institut Universitaire de France, Professeur l'Universit
d'Aix- Marseille
Le Comit scientifique de Victoria University of Wellington Law Review et de la New Zealand
Association for Comparative Law (association affilie l'UNESCO)
Directeur de publication
Dr Yves-Louis Sage, Matre de Confrences l'Universit de la Polynsie Franaise, Teaching
Fellow Massey University



Comit de direction
A Angelo, Professeur l'Universit Victoria University of Wellington
Dr Xavier Cabannes, Matre de Confrences l'Universit Paris V
Mr Alberto Costi, Senior Lecturer l'Universit Victoria University of Wellington.
Dr Marc Joyau, Matre de Confrences l'Universit de Nantes
Professeur Jean-Paul Pastorel, Matre de Confrences l'Universit de la Polynsie Franaise
Cre en 1994, la "Revue Juridique Polynsienne" (R.J.P) est publie, une fois par an, hors
numros spciaux, sous l'gide l'Association de Lgislation Compare des Pays du Pacifique
(ALCPP) en collaboration avec Victoria University Law Review (VUWLR), la New Zealand
Association for Comparative Law (NZACL) et l'Universit de la Polynsie franaise (UPF). Revue
pluridisciplinaire, elle accueille des articles en langue franaise ou anglaise, relatifs diffrents
aspects des sciences sociales et humaines intressant principalement, mais pas exclusivement, les
pays de la zone Pacifique. Les articles publis sont galement consultables et tlchargeables
gratuitement partir du site Internet: http://www.upf.pf (Recherche; RJP). Les auteurs qui
souhaitent soumettrent leurs manuscrits peuvent le faire en les envoyant, Monsieur Y-L Sage,
Universit de la Polynsie Franaise, Campus Universitaire de Punaauia, BP 6570, Faaa Aroport,
Tahiti, Polynsie Franaise ou l'une des adresses lectroniques suivantes: sageyj@mail.pf ;
marc_joyau@yahoo.fr, alberto.costi@vuw.ac.nz, Tony.Angelo@vuw.ac.nz
Le comit de rdaction remercie le laboratoire EA 4240 (Gouvernance et Dvelopement
Insulaire) de l'Universit de la Polynsie Franaise et l'Office des postes et tlcommunications de
Polynsie (OPT) pour leurs contributions au financement de ce numro.
En couverture: JDS: "Sharp Cut Edges I" (2006); piecing of embroidery of dyed violet.
Ils remercient galement Denise Blackett pour la mise en page de cet ouvrage.



ISSN 1772-1644



Created in 1994, the "Revue Juridique Polynsienne" (RJP) is peer-reviewed and is published
once a year, in addition to its special issues, under the auspices of the Association de Legislation
Compare de Pays du Pacifique (ALCPP) [Association of Comparative Legislation of the Countries
of the Pacific], in collaboration with the Victoria University Law Review (VUWLR), the New
Zealand Association for Comparative Law (NZACL) and the University of French Polynesia (UFP).
Articles published are accessible on and can be freely downloaded from the following internet site:
http://www.upf.pf (Recherche; RJP)
Scientific Directors
Mr Xavier Blanc-Jouvan, Professor Emeritus at the Law Faculty of the University of Paris I
Dean Paul Le Cannu, Professor at the University of Paris I Panthon-Sorbonne
Sir Ivor Richardson, Distinguished Fellow at Victoria University of Wellington
Mrs Horatia Muir Watt, Professor at the University of Paris I Panthon-Sorbonne
Scientific Committee
Mrs Sylvie Andr, Professor at the University of French Polynesia
Mr Michel De Villiers, Professor at the University of Nantes
Dean Yves Brard, Professor at the University of Maine
Dean Grard Chiana, Professor at the University P Mends France, Grenoble
Mr Alain Chirez, Professor at the University of French Polynesia
Mr Marc Debene, Professor at the University of French Polynesia
Mr Olivier Gohin, Professor at the University of Paris II, Panthon-Assas
Mr Jrme Huet, Professor at the University of Paris II, Panthon-Assas
Mr Pascal Jan, Professor at the Institute of Political Sciences of Bordeaux
Mr Ichiro Kitamura, Professor at Tokyo University
Mr Christian Montet, Professor at the University of French Polynesia
Deputy-Dean Pierre Murat, Professor at the University P. Mends France, Grenoble
Mr Mario Patrono, Professor at the University of Rome I, La Sapienza
Mr Norbert Rouland, of the Institut Universitaire de France, Professor at the Law Faculty of the
University of Aix-Marseille


Dr Yves-Louis Sage, Matre de Confrences at the University of French Polynesia, Teaching
Fellow at Massey University
Professor Anthony Angelo, Professor at Victoria University of Wellington Faculty of Law
Dr Xavier Cabannes, Matre de Confrences at the University of Paris V
Mr Alberto Costi, Senior Lecturer at Victoria University of Wellington
Dr Marc Joyau, Matre de Confrences at the University of Nantes
Prof Jean-Paul Pastorel, Matre de Confrences l'Universit de la Polynsie Franaise
The Editors wish to express their gratitude and appreciation to Laboratoire EA4240
(Governance et Dveloppement Insulaire) (University of French Polynesia) and the OPT of
Polynesia for their valuable financial contributions.
They also wish to thank Denise Blackett for the typesetting and formatting of this book.
Cover credit: JDC: JDS: "Sharp Cut Edges I" (2006); piecing of embroidery of dyed violet.



George Cunningham *

This talk was delivered in the Victoria University of Wellington Law School on 1 November 2007
under the joint auspices of the New Zealand Centre for Public Law and of the New Zealand
Association for Comparative Law. It is a fitting way to mark the end of the EU jubilee year.
Cet article reprsente le texte dune confrence donne la facult de droit de Victoria University
of Wellington, le 1e novembre 2007 par M. George Cunningham, Charg dAffaires la
Commission Europenne en Nouvelle-Zlande.
Cette confrence a t organise sous les auspices du New Zealand Centre for Public Law et de la
New Zealand Association for Comparative Law. Lauteur y a expos les grandes lignes des futurs
dveloppements que devrait connatre lUnion Europenne.
Many thanks to the Faculty of Law at Victoria University and the NZ Association for
Comparative Law for having invited me.
It is really wonderful to be here. This is a happy occasion as it is my first talk here in New
Zealand, having only arrived in your pleasant land just over a month ago.
Oftentimes, I like to give talks which stimulate debate and add a bit of my personal analysis.
This occasion will be no different. I hope that will make it interesting.
We have just had the European Union's 50th anniversary celebrated with many events
worldwide, including in New Zealand. In our discussions about what to call this talk, someone
suggested "European Union: the next 50 years". Although that was a very visionary suggestion, I
believe it does not easily fit in with the realities of our modern times right now.
In a speech in Cape Town, South Africa in June 1966, Robert F Kennedy said, "There is a
Chinese curse which says, "May he live in interesting times". The popularity of this "Chinese curse"

Charg d'Affaires ai, European Commission Delegation to New Zealand. Mr Cunningham has been an EC
official for many years. He took up his New Zealand post in September 2007 having previously served in
Brussels, New York and Nicosia. He was coordinator for the EU's bilateral trade relations with the USA


has puzzled Chinese scholars, who have in fact as it turns out only heard it from Americans. The
origin of this phrase might be related to the Chinese proverb, "It's better to be a dog in a peaceful
time than be a man in a chaotic period". Whatever the origin, it is certainly true we live in
interesting times right now.
In a previous guise, as coordinator for EU-US bilateral trade relations, I had on many occasions
delivered talks to both EU and US audiences, explaining (and surprising) them that although the
US is perhaps unique in the world in terms of hard power the EU and US economies were of the
same magnitude. By working together, with the multilateral interest also at heart, I used to say, we
could make a constructive, positive difference in the world.
However a change is occurring. The EU is growing in terms of member countries. The euro is
on the rise. There is an economic slowdown in particular in the US economy because of the
subprime mortgage crisis. The outcome is that based on current exchange rates the size of the
EU economy has out-stripped that of the US economy. And this may continue for some time.
When I was serving the European Commission in New York in 2000, the euro had only just
been launched. The exchange rate had drifted downwards below parity rate against the US dollar,
bumping along at merely US$0.84: 1 Euro. By contrast, now it has reached the giddy heights of
almost US$ 1.45: 1 Euro.
Attending a New York party at a time the euro had reached rock bottom, a billionaire asked me
if I believed it was the right time to invest in euros. I said absolutely. He took my advice and did it.
He died around the time the two currencies reached back to parity again. He did not live long
enough to see the real fortune that he would have made.
There are many other global trends of note that are changing the way the world is functioning,
not least the rise of the so-called BRICs (Brazil, Russia, India and China), as well as other emerging
economies. Now that the relative certainties of the second half of the 20th century are well-behind
us, we need to adapt and face this brave new world together.
We are indeed living in interesting times. And New Zealand - despite geographic distance from
other countries is by no means isolated from what is happening in this globalised, shrinking world.
And that is why it is particularly important for New Zealanders like the rest of us to work
together to try to harness as much as possible this ongoing, unstoppable globalisation for our
In these turbulent times, it is difficult perhaps to predict too far ahead what may happen and
certainly not 50 years ahead. Nevertheless the European Union is evolving and has a clear
programme about what it wishes to achieve.
First of all, it is important to remember the EU's global soft power is quite substantial. Just three
quick facts:


As mentioned previously, the EU is now the world's biggest economy with a GDP of
NZ$ 22 trillion.

It is the world's biggest trader, accounting for 20% of global imports and exports.

It is also the world's largest donor, providing around 55% of the world's development

There are many themes that one can pick about the EU and its future, but let me concentrate
briefly on four: enlargement, climate change, freedom of movement of people within the EU and
changes to the way the EU is run.
Concerning enlargement, the EU is certainly very popular among its neighbours. Many
countries want to join it. We have now 27 Member States. Almost a half billion people.
Negotiations are in progress for Turkey and Croatia to join. Other countries of former Yugoslavia
have agreed a roadmap towards a European destiny. There are no geographic limits set for
However we have to be a bit more careful. EU citizens have become more cautious about the
current enterprise. Polls show, for instance, some resistance from the public in some countries to
Turkey's becoming a member. Nevertheless, the EU has given a clear undertaking to Turkey that it
should be a member once it has fulfilled all the criteria to join.
The success of the 2004 big bang enlargement of 10 new Member States can now be more
clearly seen. The influx of over half a million Poles into the UK since their country joined the EU in
2004 has not led to tensions there. Indeed a recent Home Office study has reportedly said Polish
workers have produced a benefit to the UK economy of an estimated 9 billion euros in the past year
And for those in the regions most immediately around us, we have a special European
Neighbourhood Policy which embraces countries further to the east in Europe and the
Mediterranean in a comprehensive programme to create more stability and prosperity.
Concerning the free movement of people, we are making advances there as well. Membership of
the so-called Schengen countries now stands at 15, including even Iceland and Norway which are
not members of the EU.
Just next month, there will be a another great leap forward as a further nine new EU Member
States (Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia)
will abolish their internal land and sea borders between them and the current 15 members of
Schengen. The same will happen for air borders by March 2008. This will lead to the expansion of
the Schengen area to 3,600 million km2 and should certainly make it easier for New Zealanders
traveling to Europe for their Overseas Experience to cross borders.


On climate change, the UN Bali Conference is coming fast upon us. The EU hopes that
international climate talks in Bali during the first half of December will establish a roadmap that
will lead to commitments from all developed countries to cut their greenhouse gas emissions by
30% by 2020, compared to 1990 levels. The EU has unilaterally already agreed to cut its gas
emissions by 20% during this period, agreement or not.
The recent announcement of an International Climate Action Partnership which aims to
coordinate and share information on existing regional cap-and-trade initiatives within Europe, New
Zealand, various US states and Canada is very welcome. Such a forum could act as a driver for
increased compatibility and potential linkage of regional carbon markets, which could ultimately
lead to the creation of a wider, international carbon market.
In 2008, the EU will assess the adaptation of its public policies to the new realities of climate
change. A wide range of EU policies such as agriculture, fisheries, biodiversity, energy, industry
and tourism will need to be adjusted. Particular attention will be given to the greening of the
transport sector. There will also be a strategic energy review.
Final among my four themes is changes to the way the EU is run. A new reform treaty has been
agreed. Those reforms are expected to start taking shape in 2009 if all goes well with the ratification
process in the 27 Member States, all of whom must ratify the Treaty. Some of the key changes are
as follows:

The creation of an EU Presidency (of the Council) for a two-and-a-half year term. This
replaces the rather short six-monthly Presidency rotation among Member States that happens
now, and will allow for better continuity;

the creation of the post of High Representative of the EU for Foreign Affairs and Security
Policy effectively a Foreign Minister for Europe;

a single legal personality for the EU;

an exit clause, which will for the first time permit members to leave the EU;

a stronger role for national parliaments;

A double majority rule for decision-making based on the votes of 55% of member states
combined with a total of 65% of the EU's population to pass legislation by qualified majority
from 2014;

extending qualified majority voting to another 40 policy areas, thereby easing decisionmaking within an enlarged EU.

The creation of an EU High Representative for Foreign Affairs and Security Policy is expected
to impact on the diplomatic functions of the EU worldwide and lead to the formation of an European
External Action Service.


This is just a flavour of what is going on. There are many other developments in the pipeline.
For instance, the increasing number of countries that are readying themselves to join an expanding
eurozone. Or our forthcoming summit with African Heads of State and Government this December
to move that relationship forward even further.
One of the fun things about working for the European Union is that there is continuous
evolution. Setbacks, when they do happen, usually, eventually, get resolved.
Finally, how about New Zealand's relations with the EU? Well, first of all, they've never been
better. There are currently no trade disputes between us a clean slate in the only area of potential
friction. And let us not exaggerate the importance of this area, given how we have so much in
common on all other fronts.
New Zealand is valuable and valued by the EU. It punches above its weight in the international
arena, particularly on trade matters. It assumes significant leadership in the Doha Round. Its position
in the Asia-Pacific region gives the EU a close friend in the region which is the engine of economic
growth for the whole world. And its lamb and other important food products grace the tables of
Europeans across the whole EU and not just in the UK.
The new Joint Declaration on relations and cooperation between the EU and NZ signed on 21
September this year has taken the relationship further. The aim there is to negotiate and conclude a
full air services agreement by the end of 2008; a new Science and Technology Cooperation
Agreement which we hope will be ready in the first half of 2008; and continued work towards a
Wine Agreement and a Customs Cooperation Agreement.
We will also enhance our cooperation on climate change, including support for the post-2012
international framework and carbon market; have new annual trade talks (back-to-back with more
traditional agricultural talks); look for practical cooperation in the areas of investment promotion,
regulatory and competition policy approaches; more educational cooperation; increased
coordination in the Pacific region; and closer cooperation on counter-terrorism.
This year alone has seen Prime Minister Helen Clark and Foreign Minister Winston Peters
engage actively Europe through extensive visits there. And in return, our External Affairs
Commissioner Benita Ferrero-Waldner and other senior officials have also made their journeys this
year to New Zealand.
It is through partnerships such as these that the European Union is creating a web of friends
throughout the world. And none does it feel closer to in terms of shared values than New Zealand.
Thank you for having me here, both in your country, and as my audience this evening.


Francesco A Schurr *

The goal of this article is to assess the relevance of competition law for the development of
European private law in general and for European contract law in particular. In the current debate
on the harmonisation of European private law the role of competition law has been either
completely neglected or at least underrated. The case law proves that the provisions of competition
law contained in the Treaty establishing the European Community and in various pieces of
secondary Community legislation have had a strong impact on the legal relationship between
private persons and thus on the reality of contract law in Europe. In the interpretation of the current
competition law provisions the European Court of Justice and the Court of First Instance have
employed the principle of direct application of EC law on private persons. This paper points out
how this case law serves as a catalyst for the harmonisation of private law. The topic covered by
this paper can be used as a guide to determine whether EC law is part of the civil law tradition or of
the common law tradition.
La fin de cet article est d'valuer la pertinence du droit de la concurrence pour l'volution du droit
priv europen en gnral et en particulier le droit europen des contrats. Dans la discussion
actuelle relatif l'harmonisation du droit priv europen le rle de la loi sur la concurrence a t
compltement nglig, ou au moins sous-estim. La jurisprudence manifeste que les dispositions du
droit de la concurrence contenues dans le Trait instituant la Communaut Europenne et dans de
diverses parties de la lgislation communautaire secondaire ont eu un fort impact sur la relation
juridique entre personnes prives, et donc sur la ralit du droit des contrats en Europe. Pour
l'interprtation de la lgislation communautaire actuelle sur la concurrence les jugements de la
Cour de Justice et du Tribunal de Premire Instance ont suivi le principe de l'application directe du

Associate Professor for Private Law and Comparative Law at the University of Innsbruck/Austria. Visiting
Lecturer, Victoria University of Wellington.


droit communautaire sur les personnes prives. Cet article souligne comment cette jurisprudence
sert comme un catalyseur pour l'harmonisation du droit priv. Le sujet de cet article peut tre utilis
comme paramtre fondamental pour connatre si le droit communautaire est plutt de la tradition
de droit civil ou de la tradition du common law.


Competition law deals with the relationship between private persons. Therefore it needs to be
appreciated as a fundamental driving force in the process of Europeanisation of private law. It is
surprising that in the current discussion regarding the harmonisation of private law 1 and especially
of contract law little attention has been paid to the enormous influence of competition law,
whereas other fields, such as consumer law 2 or comparative law 3 have been at the centre of the
debate. 4
From the very beginning of the European integration process, therefore already in the post-war
era, the European economic constitution was build on the idea of creating an area of free
competition between undertakings headquartered in different member states. 5 Easy access to the
market and especially the equal opportunities to participate in the game of the market are considered
as a cornerstone of the European economic constitution. The protection of free competition is based
on the existence and the enforcement of legal rules that are applicable between private persons and
public authorities (public law approach) as well as between two or more private persons (private law
approach). 6 Hence these rules of competition law have been essential for the Europeanisation of
private law.

On the process of private law harmonisation in general see eg Walter van Gerven "Bringing (Private) Laws
closer to each other at European Level" in Fabrizio Cafaggi (ed) The Institutional Framework of European
Private Law (University Press, Oxford, 2006) 37.

This topic has been discussed by the author previously, see Francesco A Schurr "The relevance of the
European consumer protection law for the development of the European contract law" in Tony Angelo (ed)
The Pacific and Europe: The 50th Jubilee of the European Communities (RJP Hors srie 2007) 131.

On this topic see eg Klaus Peter Berger "Harmonisation of European Contract Law The Influence of
Comparative Law" (2001) 50 ICLQ 877.

The joint influence of consumer law and competition law has been addressed by Albertina Albors-Llorens
"Consumer Law, Competition Law and the Europeanization of Private Law" in Fabrizio Cafaggi (ed) The
Institutional Framework of European Private Law (University Press, Oxford, 2006) 245, 260.

On this topic see Armin Hatje "The Economic Constitution" in Armin von Bogdandy and Jrgen Bast (eds)
Principles of European Constitutional Law (Hart Publishing, Portland, 2006) 587 ss.

The distinction between private law and public law plays a major role in the European legal tradition: On
this issue in comparison to the US legal system see Ralf Michaels and Nils Jansen "Private Law beyond the
State? Europeanization, Globalisation, Privatization" 54 Am J Comp L 843.


There are various other policy fields contained in the Treaties and in various pieces of secondary
EC legislation that contribute indirectly to the functioning of competition in the common market and
thus fall into the category of "peripheral parts" of competition law. Those fields of law (such as
consumer protection law 7 ) have an enormous relevance for the process of private law
approximation. However it needs to be noted that most of these fields of EC policy have developed
at a much later stage, 8 whereas the "central part" of competition law has been from the very
beginning a prerequisite for the realisation of the fundamental freedoms: the free movement of
goods, the free movement of services as well as the freedom of establishment, the free movement of
persons including the free movement of workers, and the free movement of capital.
This "central part" is composed of the provisions of articles 81 and following of the European
Community Treaty (ECT) and of a set of rules contained in various pieces of secondary legislation
focusing on procedural and substantive issues of competition law. 9 The statutory law belonging to
this category not only regulates the behaviour of the private market players, but also focuses directly
on the public interest by promoting and preserving the functioning of the game of competition.
According to our definition the "peripheral parts" of competition law embrace all those fields of
the acquis communautaire that without addressing directly the competition between undertakings
create equal market conditions through harmonisation, approximation or unification of law and
thus contribute to eliminating the distortion of competition. Especially those pieces of legislation
created to protect the weaker party to the contract, such as consumer law directives, directives that
protect the commercial agent, belong to this category.
This article intends to explain some essential aspects of the "central part" of EC competition law
and to outline their impact on the process of harmonisation of private law through the decision
making of the European Court of Justice (ECJ) and the Court of First Instance (CFI). When these
courts had to give an interpretation of pieces of legislation belonging to the "central part" of EC
competition law, they often set new standards that are vital for the private law harmonisation. 10

On the various methodologies of consumer protection in the present acquis communautaire, see Hannes
Unberath and Angus Johnston "The double-headed approach of the ECJ concerning consumer protection"
(2007) 44 CML Rev 1237.

See Albertina Albors-Llorens "Consumer Law, Competition Law and the Europeanization of Private Law"
in Fabrizio Cafaggi (ed) The Institutional Framework of European Private Law (University Press, Oxford,
2006) 245.

For example, Regulation 139/2004, OJ 2004 L 24/1; Regulation 1/2003 OJ 2004 L 1/1.


On the ECJ's role in the harmonisation of private law in general see Angus Johnston and Hannes Unberath
"Law at, to or from the Centre? The European Court of Justice and the Harmonisation of Private Law in the
European Union" in Fabrizio Cafaggi (ed) The Institutional Framework of European Private Law
(University Press, Oxford, 2006) 149.



Furthermore the article will expose a cross-influence between the "central part" and the "peripheral
parts" of competition law and identify situations of overlap.



A Banned Relationships between Undertakings

Article 81 (1) ECT addresses collusive behaviour of businesses: all agreements between
undertakings which affect the trade between member states and which have as their object or effect
the prevention, restriction or distortion of competition within the common market, are prohibited.
Decisions by associations of undertakings and concerted practices are also prohibited if they have
the abovementioned impact on the common market. 11
Apart from this general provision, article 81 (1) ECT mentions some circumstances where the
behaviour of businesses has a particularly negative impact on the common market, eg when
businesses fix directly or indirectly purchase or selling prices or any other trading conditions or
when they limit or control production, markets, technical development, or investment. The
European legislation emphasises that undertakings should refrain particularly from these forms of
Article 81 (1) ECT refers as well to the practices of sharing markets or sources of supply and of
applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing
them at a competitive disadvantage. In addition to that the European legislator made it clear that it is
prohibited to make the conclusion of contracts subject to acceptance by the other parties of
supplementary obligations which, by their nature or according to commercial usage, have no
connection with the subject of such contracts.
Horizontal agreements between competing undertakings are always at risk of being void under
article 81 (1) ECT. 12 This is less obvious when undertakings conclude agreements vertically; at a
first glance article 81 (1) ECT does not seem to be applicable to vertical relationships and leaves this
form of collusive behaviour uncovered. The ECJ started filling this normative gap in the early days
of its competition law related case law 13 and has emphasised on various occasions that article 81 (1)


Rotbero Nazzini "Article 81 EC between time present and time past: a normative critique of "restriction of
competition" in EU law" (2006) 43 CML Rev 497.


See Francisco Enrique Gonzlez Daz "Horizontal Co-operation Agreements" in Jonathan Faull and Ali
Nikpay (ed) The EC Law of Competition (2 ed, University Press, Oxford, 2007) 659.


Cases 56 and 58/64 Consten and Grundig v Commission [1966] ECR 299.


ECT is applicable to relationships between various members in the chain of marketing of goods and
services. 14
B Consequences of the Direct Nullity Principle in Competition Law and in General Contract
According to article 81 (2) ECT all these prohibited agreements or decisions are automatically
void. In Socit Technique Minire (LTM) v Maschinenbau Ulm GmbH (MBU) 15 the ECJ made it
clear that the automatic nullity of an agreement within the meaning of article 81 (2) ECT applies
only to those parts of the agreement affected by the prohibition. Only when it appears that those
parts cannot be separated from the agreement itself, can the whole agreement be regarded as void.
The ECJ tried to reduce the impact of competition law on the contractual freedom of the parties
by stating that other contractual provisions which are not affected by the prohibition of article 81 (1)
ECT should not be void. In this decision related to the "central part" of competition law, the ECJ has
strongly influenced the general private law of all the member states. The decision dealt with the
nullity of the whole contract as compared to the partial nullity of single contract terms and has given
a guideline for the general treatment of contract terms that are contrary to mandatory legal
Thus article 81 ECT restricts the contractual freedom of the parties in a way similar to various
pieces of secondary legislation belonging to the "peripheral part". 16 According to article 6 of this
Directive unfair terms in a contract concluded with a consumer by a seller or supplier are not
binding on the consumer; apart from that, the contract continues to bind the parties if it is capable of
continuing in existence without the unfair terms.
Therefore it is evident that the above sources belonging to the "central part" of competition law
as well as to its "peripheral part" are a major contribution to the harmonisation of contract law in




At first glance the impact of article 82 ECT on contractual relationships between businesses
seems harder to prove as this provision focuses mostly on unilateral behaviour that hinders
competition between businesses in the common market.


On the history of the application of art 81 ECT to vertical agreements, see Mario Filipponi and Luc
Peeperkorn and Donncadh Woods "Vertical Agreements" in Jonathan Faull and Ali Nikpay (ed) The EC
Law of Competition (2 ed, University Press, Oxford, 2007) 1129, 1132.


Case 56/65 Socit Technique Minire (LTM) v Maschinenbau Ulm GmbH (MBU) [1966] ECR 235.


An example would be unfair terms in consumer contracts. Directive 93/13, OJ 1993 L 095/29.




A The Concept of Abuse of a Dominant Position

Article 82 (1) ECT is one of the essential pillars within the "central part" of European
competition law. According to this provision any abuse of a dominant position within the common
market or in a substantial part of it is prohibited as incompatible with the common market in so far
as it may affect trade between member states. In the last five years an intense political and scholarly
debate relating to the burden of proof has taken place; it has been discussed whether it should be
sufficient for the Commission, the main executive body for EC competition law, to prove that the
behaviour under review is likely to distort market competition. Under this circumstance the
dominant undertaking should have a chance to prove that its conduct is objectively necessary or
justified. 17
In article 82 (1) ECT the European legislator has further specified some crucial cases of abuse
(eg when an undertaking imposes directly or indirectly unfair purchase or selling prices or other
unfair trading conditions, or when it limits production, markets or technical development to the
prejudice of customers and users).
Article 82 (1) ECT has a strong impact on the development of harmonisation of European
contract law: for example abusive clauses are often included in contracts between dominant
companies and economically weaker parties (such as consumers or distributors). Therefore it is vital
for this research to take into account the protection of the weaker contract party as an essential way
for the "central part" of competition law to penetrate into the development of private law
B Trends in European Statutory Law and Overlaps with Competition Case Law
The architecture of article 82 (1) ECT resembles various provisions of secondary EC law that
belong to the category of "peripheral parts" of competition law. In this area there are various
provisions that are focused on the protection of the weaker party in the contract from abuse of power
through the stronger party. EU law considers persons belonging to this target group (eg the
consumer, the commercial agent) as persons that are extremely vulnerable in the conclusion and in
the performance of contracts.
In the EC legislation of recent decades and in the legislation of EU member states a strong
emphasis has been put on the protection of the weaker parties to the contract. This trend can be
explained not only by the legislator's intention to promote the social role of private law in Europe, 18


See DG Competition discussion paper on the application of Article 82, www.ec.europa.eu/

comm/competition/antitrust/art82/discpaper2005.pdf; for a summary of the scholarly debate, see Roberto
Nazzini "The wood began to move: an essay on consumer welfare, evidence and burden of proof in Article
82 EC cases" (2006) 31 E L Rev 518.


On this topic see eg Ugo Mattei and Fernanda Nicola "A social dimension in European Private Law? The
Call for Setting a Progressive Agenda" (2006) 41 New Eng L Rev 1.


but also by the need to avoid situations where competition between undertakings is distorted
because those headquartered in member states with a low level of protection are privileged, since
they have to fear little or no sanction when dealing with the weaker party of the contract. Therefore
the provisions protecting vulnerable market players can be defined clearly as "peripheral parts" of
competition law.
The idea of preventing a business from abusing its power is present in article 82 (1) ECT as well
as in the "peripheral parts" that are designed to protect the weaker party of the contract. This article
will now focus on two essential examples of cross-influence and legal overlap between the "central
part" and "peripheral parts" of competition law.

Overlap in the field of pricing

Price fixing has been addressed by the European legislator in provisions belonging to the
"peripheral parts" of competition law. 19 According to article 6 of the Directive on commercial
agents, a commercial agent is entitled to the remuneration that commercial agents are customarily
allowed in the place where the activities are carried on. 20 If there is no such customary practice, a
commercial agent is entitled to reasonable remuneration taking into account all the aspects of the
transaction. Article 6 is focused primarily on the protection of the weaker party to the contract, and
therefore on the legal standing of the commercial agent. One of the means of protection is by
granting the commercial agent an adequate remuneration.
Thus the system of protection contained in article 6 of the Directive on commercial agents is
similar to that established by article 82 (1) ECT. The latter provision states that an undertaking
abuses its market power if, directly or indirectly, it fixes unfair prices. Article 6 of the Directive is
intended to prevent undertakings abusing the bargaining power that they have vis--vis the
commercial agents they cooperate with. Both provisions heavily restrict the bargaining freedom of
undertakings in a very similar way. Hence future case law will be able to rely on the possibility of
cross-influences between the "central part" and "peripheral parts" of competition law whenever
there is a need to evaluate the necessity to restrict contractual freedom related to price fixing.

Overlap in the field of contract terms

The "central part" of competition law has had a strong impact on the freedom to negotiate and to
use certain conditions in a contract. The case law has based the restriction of various contract terms
on article 82 (2) ECT and thus addressed only the target group of undertakings which have a


Directive 86/653, OJ 1986 L 382/17.


This provision is applicable only in the absence of any agreement on this matter between the parties, and
without prejudice to the application of the compulsory provisions of the member states concerning the level
of remuneration.




dominant position. In United Brands 21 the ECJ had to decide on the (un)fairness of several clauses
used by the applicant in contractual relations with its distributors.
Certain market players, such as small distributors and consumers, are particularly vulnerable
when entering into contractual relationships with large undertakings, as these are normally dominant
in relation to their counterpart in the conclusion of the contract. 22 The establishment of standards of
fairness in the legal context of the "central part" of competition law followed similar patterns of
legal thinking to that applied by the European legislator in the field of "peripheral parts" of
competition law, such as consumer law.
One example is the Directive on unfair terms in consumer contracts 23 . According to article 3 of
this Directive a contractual term which has not been individually negotiated is unfair if, contrary to
the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations
arising under the contract.
The restriction on contractual freedom is justified in the "central part" of competition law by the
objective fact of a dominant market position, and therefore has an absolute parameter. In contrast to
that the statutory provisions belonging to the "peripheral parts" of competition law, such as article 3
of the Directive on unfair terms in consumer contracts, restrict contractual freedom because of the
relatively unequal relation between the parties. Here the restriction can be justified by subjective
qualities of the parties, and the fact that large undertakings have a high level of experience and
therefore the counterpart is in a relatively weaker position and needs to be protected.



Generally speaking EC law is effective directly on individuals. Therefore it has been a main
focus of the EC legislator and of the ECJ to make sure that individuals can enforce their rights under
EC law before the national courts. This idea of decentralisation has been the motivation for
facilitating direct enforcement in the "central part" of competition law.
The direct enforceability of essential provisions belonging to the "central part" of competition
law has led to the EU-wide approximation of an issue of contract law that traditionally is extremely
controversial: Among the legal systems of the EU member states there are traditionally different
approaches towards the right of a contract party to claim damages from the other party to the


Case 27/76 United Brands v Commission [1978] ECR 207.


Albertina Albors-Llorens "Consumer Law, Competition Law and the Europeanization of Private Law" in
Fabrizio Cafaggi (ed) The Institutional Framework of European Private Law (University Press, Oxford,
2006) 245, 262.


Directive 93/13, OJ 1993 L 095/29.


The House of Lords considered private litigation for breaches of competition law in Garden
Cottage Foods v The Milk Marketing Board. 24 The defendant in this case had excluded the plaintiff
from the number of distributors of butter. Even though the House of Lords denied injunctive relief,
the majority of the House of Lords affirmed that there would be the possibility of bringing a claim
alleging the infringement of article 81 or 82 ECT. 25
In Gibbs Mew plc v Gemmell the Court of Appeal held that, as a party to an illegal contract
prohibited by article 81 ECT, the claimant was not entitled to a remedy in damages. 26 In this case
the Court of Appeal unfortunately did not refer the case to the ECJ, as it recognised just the public
law approach of protecting competitors and consumers the traditional goal of the rules belonging
to the "central part" of competition law. The Court of Appeal did not take into consideration the
protection of the weaker party of an agreement that infringes mandatory EC competition law.
According to this argumentation the parties to an agreement are the cause of the restriction on
competition and therefore cannot be regarded as victims entitled to claim damages.
In the landmark decision Courage Ltd v Bernard Crehan and Bernard Crehan v Courage Ltd
and Others 27 the ECJ restricted the power of the national legislators in the field of damages.
According to the ECJ any national rule under which a party to an agreement which is in breach of
article 81(1) ECT is barred from claiming damages for loss caused by performance of that contract
on the sole ground that the claimant is a party to that contract, is contrary to article 81 (1) ECT. This
judgment is one example of the enormous contribution of the ECJ to the Europeanisation of the
general private law. The background of this case was that under English law a party to an illegal
agreement generally cannot claim damages from the other contracting party. 28 This principle had to
be overridden in order to allow the private enforcement of the "central part" of competition law.
Courage Ltd v Bernard Crehan and Bernard Crehan v Courage Ltd and Others approximated
English contract law to other legal systems in Europe. 29 The ECJ applied the principle of direct
effect of EC law consistently and thus came to the conclusion that article 81 or 82 ECT and the


Case Garden Cottage Foods v The Milk Marketing Board [1984] AC 130.


On this case see eg Barry J Rodger and Angus MacCulloch Competition Law and Policy in the EC and UK
(3 ed, Cavendish, London, 2004) 56.


Case Gibbs Mew plc v Gemmell [1998] EuLR 588; [1998] EWCA Civ 1262; [1999] 1 EGLR 43.


Case C-453/99 Courage Ltd v Bernard Crehan and Bernard Crehan v Courage Ltd and Others [2001] ECR


Case Gibbs Mew plc v Gemmell [1998] EuLR 588; see also Tinsley v Milligan [1994] 1 AC 340; see Barry J
Rodger and Angus MacCulloch Competition Law and Policy in the EC and UK (3 ed, Cavendish, London,
2004) 57.


On the impact of this case on German law, see Wolfgang Weiss "Verbot wettbewerbsbeschrnkender
Manahmen" in Christan Callies and Matthias Ruffert (eds) Das Verfassungsrecht der Europischen Union
(3 ed, Beck, Mnchen, 2007) 81 EGV, No 149.




provisions of secondary law can be used in national litigation between parties to an agreement.
These provisions can be used to claim damages based on the infringement of these provisions or as a
defence to a breach of contract claim. 30 This decision of the ECJ has had a harmonising effect
within the member states as well as between the EU and the US. The interpretation of article 81
ECT contained in Courage Ltd v Bernard Crehan and Bernard Crehan v Courage Ltd and Others
brought EC competition law in line with US anti-trust law. In fact the US Supreme Court had
previously held in Perma Life Mufflers Inc v International Parts Corporation 31 that the
economically weaker party to an illegal anti-competitive agreement can claim damages from the
economically stronger party.
The application of the provisions belonging to the "central part" of competition law on the
relationship between private parties is significantly influencing the current private law of EU
member states and thus contributes to the Europeanisation of private law. This influence is
particularly strong due to the fact that the ECJ and the CFI have consistently followed the principle
of direct application.



Generally speaking a very large amount of the statutory law contained in the acquis
communautaire is somehow focused on the establishment of equal market conditions for all market
players. Thus the avoidance of distortion of competition is the rationale behind almost all pieces of
EC legislation, no matter whether they address competition law directly ("central part" of
competition law) or they influence competition indirectly ("peripheral parts" of competition law).
Typical questions of contract law (such as price fixing, unfair contract terms, the right to claim
damages between parties of the contract) have been regulated by a large amount of statutory law
falling into the category of the "peripheral parts" of competition law (especially by consumer law).
The ECJ significantly contributed to the establishment of a common European standard within
these fields of contract law. This happened not only in the case law where statutory rules of contract
law, consumer law, and labour law had to be interpreted by the court. On various occasions where
the ECJ had to apply provisions of statutory law belonging to the "central part" of competition law,
it created new legal standards applicable beyond the limits of this "central part". The legal findings
contained in the latter case law are not always in line with the substance of the contract law
provisions belonging to the "peripheral part". The difference depends on the fact that the "central


Barry J Rodger and Angus MacCulloch Competition Law and Policy in the EC and UK (3 ed, Cavendish,
London, 2004) 55.


Perma Life Mufflers Inc v International Parts Corporation (1968) 392 US 134.


part" of competition law is focused primarily on the protection of public interest objectives
(especially the promotion and preservation of free competition).
In the political and scholarly discussion regarding the necessity of a faster and more effective
Europeanisation of European private law, in particular of the law of contracts, the question needs to
be raised whether it is useful to rely on the technique of harmonisation through statutory law.
As mentioned in this paper the European legislator has been very active recently, enacting a
large number of pieces of statutory law which address directly the harmonisation of central issues of
contract law. These pieces of legislation can be criticised as being too far from the reality of the
market. In fact many of these provisions have been imposed artificially by the EC legislator without
having been tested in any jurisdiction.
In the constitutional system of the EU it is possible to enact law that harmonises contract law
only if there is a legal basis in the ECT enabling the legislator to do so. If there is no legal basis, the
European legislator has no power to act and thus cannot set any measure of harmonisation of private
law. In contrast the ECJ has the legal capacity to contribute to the Europeanisation of private law
without any restrictions imposed by the constitutional framework of the EU, whenever there are
cases that need to be decided.
This difference between the statutory law approach and the case law approach is vital for the
scholarly and political debate on how the process of Europeanisation of private law should continue.
The pieces of statutory legislation dealing with contract law and other fields of private law often
lack the systematic approach necessary for the creation of a properly harmonised contract law. This
results from the fact that the legal basis contained in the treaty does not allow the legislator to
address issues not absolutely necessary for the economic and political goals defined in the ECT. At
the moment there is no legal basis in the ECT that could enable the European legislator to enact a
piece of legislation covering all fields of contract law systematically. This will change little even
after the entry into force of the Treaty of Lisbon. 32
Should the constitutional framework of the EU enable the European legislator at some stage to
enact a code that systematically rules all parts of private law, many pieces of statutory law
belonging to the category of "peripheral part" of competition law will serve as tools for the
realisation of this project. 33 In the debate related to the legal nature of EC law this fact is often used
as a strong argument: The existence of those pieces of legislation rather proves the setting of EC law
within the civil law than the common law tradition.


Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European
Community, signed at Lisbon, 13 December 2007, OJ 2007 C 306/1; at the end of March of 2008 France,
Slovenia, Hungary, Romania and Bulgaria had ratified the Treaty of Lisbon.


On the Common Frame of Reference (CFR) and the toolbox principle, see Tony Ridge "Contract Law
Will a Euro-Code oust English Law?" 31 Commw L Bull 53, 55 ss.




As mentioned, the rules of the "peripheral parts" of contract law have been created with the goal
of protecting the weaker party of the contract such as the consumer. From the perspective of
competition law these "peripheral parts" are intended to harmonise the legal standing of the weaker
party of the contract in order to create equal market conditions. Therefore all EC provisions
harmonising the protection standards of weak market players (such as eg commercial agents) are
merely a by-product of the internal market. 34 Harmonisation is necessary since different standards
of protection of the weaker party hinder the free movement of goods, the free movement of services
as well as the freedom of establishment, the free movement of persons including the free movement
of workers and the free movement of capital.
On the other hand the pieces of legislation that directly approach the various problems of
competition between businesses and that belong to the "central part" of competition law, offer fertile
soil for the cultivation of a harmonised private law, and especially contract law, through case law.
This phenomenon is definitely proof of the fact that EC law as such is not only part of the civil law
tradition, but also part of the common law world.
The strategy applied by the ECJ and the CFI of harmonising private law when interpreting
existing statutory law is preferable to harmonisation through legislation. The law is harmonised only
in the fields that are crucial from the perspective of the market players and thus require measures of
approximation. A superfluous harmonisation, such as the creation of an overall codification of
contract law, could therefore be avoided. 35 In addition to these arguments it needs to be considered
that the ECJ has the ability to establish a systematic construction of contract law, as the court is not
restricted in its law making capacities by any legal basis contained in the ECT.
A last question that needs to be raised is whether "regulatory competition" is really undesirable
for the process of Europeanisation of private law. During recent decades economic circumstances
and the lack of a full harmonisation of essential legal standards in the EU have forced member states
to compete with each other in the creation of legislation to attract and retain economic resources.
This phenomenon is widely known as "competition between jurisdictions" or "regulatory
competition". 36 For instance the existing unequal standards of protection of particularly vulnerable
contract parties have lead to competitive advantages for member states with low protection
standards. Those member states generally attract and retain more economic resources than those
with a high level of protection. This phenomenon automatically forces the member states' legislators
to adjust their national legislation to the standards of those member states whose legislation is more


See Hannes Unberath and Angus Johnston "The double-headed approach of the ECJ concerning consumer
protection" (2007) 44 CML Rev 1237, 1242.


On this issue see the critical analysis of the current attempts of harmonisation through statutory law, Tony
Ridge "Contract Law Will a Euro-Code oust English Law?" 31 Comm L Bull 53, 56.


On this topic see eg Catherine Barnard and Simon Deakin "Market Access and Regulatory Competition" in
JHH Weiler (ed) Jean Monnet Working Paper 9/01 www.jeanmonnetprogram.org/papers/01/012701.rtf.


successful in the free competition between jurisdictions. The reason why regulatory competition can
be regarded as undesirable is the inherent risk of a race to the bottom of standards, a phenomenon
that is known from the law governing the incorporation of US companies, the so called "Delaware
effect". 37
There is one essential positive side effect of regulatory competition that needs to be mentioned.
Regulatory competition helps to generate a large amount of case law necessary for the
Europeanisation of private law through the courts. Members of the business community that
compete with each other in the market often use the courtroom as a battlefield. In the proceedings
the parties often argue about legal divergences in the member states' jurisdictions that lead to
competitive disadvantages. If the Europeanisation of contract law proceeds predominantly on the
above mentioned "Common Law road" then regulatory competition will help to generate a sufficient
body of case law that will give the ECJ the chance to build up a European private law.
Through case law it will be possible to obtain a set of rules that has previously been tested by
market players and that were not imposed artificially on them by the Brussels legislator. This is the
key advantage of the "Common Law approach" in the Europeanisation of private law. It is therefore
arguable that the "civil law strategy" will lose much of its current relevance in the near future if the
ECJ continues its strong activity of private law harmonisation.


On this issue see for example Simon Deakin "Legal Diversity and Regulatory Competition: Which Model
for Europe?" (2006) 12 European L J 440, 444.






Martin Vranken *

The emphasis on internationalisation of the Australian economy shows no signs of abating. This
state of affairs is not without repercussions for its legal system. Internationalisation has now also
started to affect legal education in Australia. This short article focuses on the proclaimed European
dimension of the Australian globalisation debate. Special attention is paid to the introduction of the
so-called "Melbourne model" in the aftermath of the Bologna Declaration. It would seem that policy
makers in both the northern and southern hemispheres have entered a brave new world the contours
of which remain imprecise.
Le processus dinternationalisation de lconomie australienne est en constante progression et ne
manque pas dinfluencer le systme lgal australien ainsi que la manire dont le droit est
aujourdhui enseign dans ce pays. Ce bref article sintresse aux consquences infres par la
mise en oeuvre en Australie de mthodes denseignement qui empruntent largement celles qui sont
en vigueur en Europe. Lauteur analyse la porte de la mthode dite de Melbourne , qui
directement inspire des prceptes poss par la Dclaration de Bologne, a pour objectif affich de
permettre une uniformisation des enseignements universitaires y compris celui du droit, afin de
permettre une plus grande mobilit des juristes australiens.
Au terme de son analyse, lauteur sans remettre totalement en cause le bien-fond de pareille
mthode, reste nanmoins rserv sur ses bnfices court terme dans la mesure o selon lui, elle
na pour seul objectif que de tendre vers une harmonisation des mthodes denseignement et non
pas vers leur vritable unification.

PhD (Leuven), LLM (Yale), Associate Professor and Reader, Faculty of Law, University of Melbourne.
This paper was completed in 2007. I would like to express my gratitude to Professors Othmar Vanachter
and Danny Pieters for their insightful observations during my visit at the Catholic University of Leuven
(Belgium) in July 2007.




Comparativists face an uphill battle. The practical relevance of their discipline is not always
apparent. The need to proceed with such caution as to avoid stepping on culturally sensitive toes can
be demoralising at times. 1 Even so, legal systems may benefit greatly from the occasional
comparison with one another. This is particularly true when grappling with domestic law reform.
How else can one find out about international trends? How better to establish whether any proposed
reforms domestically go with or against the grain internationally? Knowledge of foreign law then is
an invaluable guide in assisting domestic law reform without, of course, ever dictating or controlling
it. 2
The benefits of the comparative approach need not be restricted to substantive law. Rather they
can extend to the process of legal education itself. On 19 June 1999 representatives of (initially 29)
European governments signed a joint statement that has since become known as the Bologna
declaration. The stated objectives of the signatories are the establishment of "a European area of
higher education" and the promotion of "the European system of higher education" world-wide by
2010. 3 To this effect the various education ministers have committed to co-ordinate existing
national policies and, in particular, to adopt a system of easily readable and comparable degrees
based on two main cycles, undergraduate (bachelor) and graduate (master and/or doctorate).
Completion of the first cycle requires study for three years or more and is meant to provide an
appropriate level of qualification relevant to the European labour market. Access to the second cycle
is dependent on the successful completion of first cycle studies. Student mobility is to be promoted
further by the establishment of transferable credits for subjects undertaken.
In April 2006 the Australian federal government released its response to the Bologna declaration
by way of a discussion paper entitled The Bologna Process and Australia: Next Steps. The stated
purpose of the paper is to reflect on the significance of Bologna for Australia, including any possible
Australian responses to the creation of an integrated European higher education area. The paper
postulates that the Bologna process presents both opportunities and challenges for Australia's
relationship with Europe as well as with Asia. In particular, it expresses concern about the risk of
losing some of the current 32,000 enrolments by European students at Australian institutions to
"more attractive" destinations elsewhere. In this regard, the paper stresses the importance of

Most outspoken about the limits of the comparative method is Pierre Legrand "The Impossibility of Legal
Transplants" (1997) 4 Maastricht Journal of European and Comparative Law 111; see also "European Legal
Systems are not Converging" (1996) 45 ICLQ 52.

That is also what Otto Kahn Freund meant when he warned about the dangers of "transplantability" in his
classic "On Uses and Misuses of Comparative Law" (1974) 37 MLR 1.

The full text of the Bologna declaration can be found at http://www.bologna-berlin2003.de.


developing an "effective multilateral dialogue with Australia's key Asian education partners about
future directions in higher education". 4
In May 2006 the council of Australia's university presidents, the Australian Vice-Chancellors'
Committee (AVCC), published its own response to the government's discussion paper. 5 The AVCC
acknowledges the importance of understanding the changes occurring in Europe and the need to
consider the implications for Australia. But the paper warns against assuming too readily that "full
compatibility with the Bologna Process is the only option". The Australian government then is
urged not to throw out the proverbial baby with the bathwater in that: 6
Any engagement by Australia with Europe through the Bologna Process must not result in a diminution
of the diversity of the Australian university system its collaboration and cooperation with countries
around the world especially those in the Asia-Pacific region, nor in any approximation to a one-size fits
all approach.

The discussion below looks at the experience to date as regards legal education reform in both
Europe and Australia with special reference to the Catholic University of Leuven (Belgium) and the
University of Melbourne. Both tertiary institutions represent the author's former and current alma
mater. Both claim to have adopted a pro-active stance to legal education reform for purposes of the
twenty-first century.



Implementation of the Bologna "model" for higher education in Europe has started to affect
curriculum development in some 45 participating countries. Not surprisingly perhaps, especially
given the non-legally binding nature of the Bologna declaration itself, no uniform scheme has
emerged so far. In fact, some variations can be expected to continue to exist between countries and
even between individual universities within countries. Rather than adopting a tabula rasa approach,
which would have meant starting afresh completely, it appears that each educational institution is
making an attempt at revamping its pre-existing modus operandi as best as possible. A case in point
is the Catholic University of Leuven in Belgium.
Leuven is one of the traditional, established centres for higher education in continental Europe.
Founded in 1425, the roots of its University are squarely in medieval times. In the pre-Bologna era a
law degree at Leuven typically consisted of five years' study over two cycles. During a first period
of two years, the focus was on acquiring general background skills deemed necessary to succeed as

Australian Government, Department of Education, Science and Training, (2006) The Bologna Process and
Australia: Next Steps (text available on http://www.dest.gov.au).

Australian Vice-Chancellors' Committee, (2006) AVCC Response to Discussion Paper on The Bologna
Process and Australia: Next Steps (text available on http://www.avcc.edu.au).





a law student. Subjects compulsorily undertaken during the first cycle ranged from philosophy,
psychology and sociology to logics and even economics. This broad focus on, in essence, non-law
subjects made perfect sense in the Belgian context. University entrance in that country is generally
open to anyone with high school qualifications. No special law-school admission test applies. In
these circumstances the early years of university study were meant to be more in the nature of
acclimatisation and intellectual leveling among students. At the end of this first cycle, a nonprofessional degree of Candidate in Law (Kandidaat in de rechten/Candidat en droit) was awarded.
It gave access to the second cycle, comprising three years of law study proper and dominated by
compulsory subjects but with some scope for studying electives towards the end of the degree. Upon
completion of this second cycle, the degree of Licentiate in Law (Licentiaat in de rechten/ Licence
en droit) was awarded.
At Leuven only a handful of students traditionally were encouraged to undertake further postgraduate studies for a Master, let alone a Doctorate in law. Typically, students tended to go abroad
(usually to the UK or USA) for their Master's degree whereas doctoral studies were undertaken at
the home university under the direct supervision, effectively a form of tutelage, of a full professor in
the chosen area of specialisation.
Restructuring of the law degree in the wake of the Bologna declaration prima facie has resulted
in a reduction of the time required to obtain a professional law degree. The new Bachelor degree
(Bachelor in de rechten/Bachelier en droit) is henceforth obtained after only three years' study. That
may be one year longer than the old (non-professional) Candidate in Law degree, but it also is a full
year shorter than study for the old Licentiate in Law. A further two years of study now leads to the
new Master degree (Meester in de rechten/Mitre en droit) being awarded.
In principle, a Bachelor degree suffices to enter the labour market for all but the traditional
"gown" professions at the bar or the bench. It can be speculated, though, that on-going competition
among law graduates will result in a Master degree de facto becoming the new professional
requirement. In any event, the contents of the new "Ba-Ma" programme continues to be fairly
prescriptive, especially in the Bachelor degree where only six out of 180 study points have been set
aside for electives - to be undertaken during the second year of study. The situation changes
somewhat in the Master degree where students must choose their subjects by reference to one out of
six majors. The first Bachelor-in-law degrees at Leuven were awarded in July 2007.
There exists a remarkable similarity between the list of actual subjects offered before and after
Bologna. In terms of their contents, however, a careful restructuring of all subjects on offer may
very well result in the European dimension of each subject obtaining greater prominence henceforth.
Query, though, how the Leuven "translation" of the Bologna model is likely to fit with the situation
in neighbouring Holland where a Master degree can be obtained after just one additional year of
study. If, as some Belgian commentators suggest, the new degree structure fosters international
student mobility especially at the Master level, Leuven students may be tempted to undertake their
Master study in the Netherlands. These students thus effectively end up graduating one year ahead


of their fellow students who elect to undertake all of their law study in Belgium! Only time can tell
how Belgian employers will respond.



A Antecedents in Asia
The focus on a multi-cycle, undergraduate-graduate approach to education in the Bologna
declaration resembles somewhat the educational system in the USA where undergraduate college
attendance is followed by graduate professional training at university. The American JD programme
has become a direct source of reference for the efforts at legal education reform by several countries
in Asia.
Japan was the first Asian nation to move towards a graduate law school model. Under
discussion since 1999, enabling legislation was passed by the Diet in December 2002 and took
effect in 2004. The Japanese graduate model is non-exclusive: it co-exists with undergraduate legal
education based on European models in place for over a century. 7
A US style law school system is expected to commence in South Korea from 2008 onwards.
Another country contemplating the move to a JD system along American lines is Taiwan. 8
B The "Melbourne Model"
The higher education environment in Australia is in a state of flux. Changes in the domestic
environment include a steady decline in public funding for student places, greater reliance on
student fees and more intense competition for the best students. Internationally, the emergence of a
global market for higher education, in particular, has been identified as a further trigger for change. 9
In response to these evolving environmental factors, the University of Melbourne developed a
strategy known as "Growing Esteem". 10 The so-called "Melbourne model" arguably constitutes its
most pivotal component.
The "Melbourne model" stands for curriculum reform aimed at aligning teaching at the
University of Melbourne with "the best of European and Asian practice and North American

Masahiko Omura, Satoru Osanai, Malcolm Smith "Japan's New Legal Education System: Towards
International Legal Education? (2006) 20 Journal of Japanese Law 39, 44.

Chang-fa Lo "Possible Reform for Legal Education in Taiwan: A Refined 'JD System'?" (2006) 1 Asian
Journal of Comparative Law 1 art 7.

Peter McPhee The Melbourne Model: New Generation Undergraduate Degrees. Summary Statement of
Presentation at AAGE Graduate Recruitment Conference 2006 (text available on http://www.aage.com.au).
Professor McPhee is vice-chancellor (academic) at the University of Melbourne.

10 See the University of Melbourne's own "Growing Esteem" website at http://growingesteem.unimelb.edu.au/





traditions". 11 From 2008 onwards six "new generation" undergraduate ("bachelor") degrees, each
three years in duration, are created in the fields of arts, bioscience, commerce, environments, music
and science. Completion of an undergraduate degree at a sufficiently high level of distinction
becomes the stepping stone for a further three year period of professional study at the graduate
("master") level. Nine "new generation" degrees cover such wide-ranging yet hands-on fields as
Master of Animal Science, Master of Architecture, Master of Forest Science, Master of Nursing,
Master of Property and Construction, Master of Public Policy and Management, Master of Social
Work, Master of Teaching, and Master of Urban Horticulture. The tenth "new generation"
professional graduate degree is the Juris Doctor in law.

Access to law study under the Melbourne model

From 2008 the new JD becomes the sole option for students wishing to study towards a law
degree at the University of Melbourne. Admission depends on the applicant's results in a newly
established law school admission test. In the past, access to university study including law
depended primarily on exam results achieved during the final years of high school. While
interpretation of the test scores is a matter for the Melbourne law school itself, the new admission
test is the same LSAT (Law School Admission Test) required for those seeking to be admitted to
law study in North America. It may be recalled that the LSAT is administered by the LSAC (Law
School Admission Council), a non-profit organisation whose members comprise some 200 law
schools in the U S and Canada. Aspiring JD students at the University of Melbourne are referred to
the web site of the LSAC. 12 They are expected to register for the LSAT (an application fee applies)
and sit the test, in Melbourne or elsewhere, before they lodge their application for admission to the
Melbourne JD. In addition to LSAT scores, a newly established Melbourne law school admission
committee will take into account each applicant's grade point average on the basis of all tertiary
study undertaken, whether at the University of Melbourne or elsewhere, with all subjects weighted
independently of year level or discipline. Finally, as the new type of law student is no longer simply
a high school leaver, all applicants are required to provide a statement about their personal
circumstances, including any work and life experience.
For the time being, the University of Melbourne is the only academic institution in the country
to go down the above road. Other universities within the Melbourne region and elsewhere in the
country have adopted a wait-and-see approach. As a result high school graduates wishing to study
law continue to have plenty of opportunities in the immediate future. Of course, that in turn means
that Melbourne risks losing out, unless it somehow can persuade 18-year olds to postpone their law
studies by a minimum of three years. To this end the brightest school leavers are being offered a

11 This quote has been taken from the web site of the University of Melbourne at http://www.futurestudents.

LSAC.org Homepage.


guaranteed place of sorts in the JD programme early, provided they do well required is a minimum
average of Second Class Honours or H2A in their undergraduate university degree.

Structure of the new JD degree

The structure of the new law degree requires students to undertake 24 subjects comprising 17
compulsory and seven optional subjects. The list of compulsory subjects reflects the results of an
earlier review followed by a decision to semesterise the LLB curriculum so as to bring the LLB in
line with a former, small-scale (in term of student numbers) graduate law degree (also known, with
the benefit of hindsight somewhat confusingly, as JD) that briefly operated side-by-side with the
undergraduate law degree at Melbourne.
The new JD programme starts with the introductory subject of Legal Method and Reasoning and
this is followed by Principles of Public Law (taught separately from the later year subjects of
Constitutional Law and Administrative Law), Obligations (taught separately from Torts and
Contracts), Dispute Resolution (again, taught separately from Remedies), Criminal Law and
Procedure, Property, Corporations Law, Legal Theory, Trusts, Evidence and Proof, Legal Ethics and
Legal Research. All, except for Legal Method and Reasoning which is to be taught intensively at the
start of the JD degree, continue to be one semester in length. The benefits of semesterisation, in
allowing for flexibility in international exchanges for both incoming and outbound students, are thus
The optional programme has been organised around a series of subject groupings that are meant
to assist students in deciding whether to pursue depth and/or breadth in their study of electives. The
official grouping headings are Asian law, corporate and commercial law, criminal law and justice,
dispute resolution, indigenous issues in law, intellectual property, media and information technology
law, interdisciplinary law, international and comparative law, labour law, law and the family, legal
theory, land and resources law, public law and taxation law. None are meant to be mutually



Australian students love to travel overseas and law students are no exception. International
exchanges with academic institutions in Asia, Europe and the USA are increasingly popular
opportunities to spend a semester or so away. Once graduated and having entered the workforce,
there may be less occasion for this to occur. Some of the larger law firms (Mallesons Stephen
Jaques or Minter Ellison, for instance) have offices outside of Australia, and self-proclaimed global
law firms such as Clifford Chance or Linklaters, while they may have no offices in Australia as
such, are equally well known for employing Australian law graduates whether in London or
elsewhere. This situation is unlikely to change in the near future.
Whether the recent educational reforms in Europe and Australia will prove an effective boost for
the internationalisation of law and law study remains to be seen. The jury is still out. Be this as it




may, it must be borne in mind that, even in Europe, the overall goal of the Bologna reforms is
harmonisation rather than unification. Differences between legal education institutions are therefore
bound to continue to exist well into the future. Once this is accepted, the reputation of individual
institutions may come into play more than ever before. No doubt the law schools of Leuven and
Melbourne count on it.



Alison Quentin-Baxter *

The right to health and the delivery of health needs in small island countries is addressed in this
paper. The difficulties of providing health services are explored in relation to the Marshall Islands,
Niue and St Helena against their specific constitutional backgrounds.
Lauteur sintresse au sort des Petits Etats Insulaires, comme Niue, les Iles Marshall ou St Hlne
en matire de sant publique. Ces trois entits sont confrontes des difficults communes tenant
essentiellement labsence dune autosuffisance conomique, situation qui les contraint maintenir
des liens encore troits avec leur ancienne ou actuelle, puissance tutlaire.
Ainsi, leurs populations qui bnficient toutes dun droit la sant pourtant reconnu spcifiquement
par leurs textes fondamentaux respectifs restent encore beaucoup dpendantes des moyens matriels
et humains qui lui seront octroys par des pays tiers.


I happen to have worked as a constitutional adviser in three of the smallest and most isolated
island countries on the planet. They are "countries" because each has its own constitution and
system of government with responsibility for all, or almost all, aspects of their people's wellbeing.
Their collective experience in providing adequate health care for their populations will, I think, be

DCNZM, QSO, LLD (Hon), LLB. This is an edited version of a paper delivered at a joint meeting of the
International Association for Humanitarian Medicine Brock Chisholm (IAHM) and Humanitarian Medical
Assistance Japan (HuMA), which was held in Tokyo, Japan, in January 2008. An abridged version of the
paper will be published in a forthcoming issue of the Journal of Humanitarian Medicine, published quarterly
by IAHM, a professional, non-profit, non-governmental, multidisciplinary organisation, which, among other
things, provides medical, surgical, nursing and rehabilitation care to patients in or from developing countries
deficient in the necessary specialised expertise, mobilises hospitals and health specialists in developed
countries to receive and treat such patients free of charge, and promotes the concept of health as a human



of interest to the members of the International Association for Humanitarian Medicine and
Humanitarian Medical Assistance Japan. That experience illustrates quite vividly both the problems
and the possible solutions for countries that are unable to be self-sufficient. It shows what might be
done in and for other countries in the same situation.



The three island countries are Niue in the South Pacific, the Republic of the Marshall Islands in
the North Pacific, and St Helena in the South Atlantic.
Niue is a single island in the form of an uplifted coral atoll. It is about 400 miles south-east of
Samoa, 760 miles west of Fiji and 1,500 miles north-east of New Zealand. It has the largest land
area of the three, 100 square miles, and the smallest population, 1516 at the last census in 2006.
Niueans are Western Polynesians. When the Cook Islands and Niue became a New Zealand colony
in 1901 their peoples became British subjects and later New Zealand citizens. Niue's population was
never more than about 5,000. Since the building of an airport in the early 1970s, its people have
taken advantage of the open door to New Zealand in ever increasing numbers.
The Marshall Islands consists of two chains of 29 coral atolls and five low islands stretching
several hundred miles from north to south, across more than 800,000 square miles of ocean. The
total land area is 70 square miles. In 2000, the population was estimated to be 52,671, up from about
36,000 20 years earlier. The people are Micronesians. The capital, Majuro, is about 2,300 miles
south-west of Honolulu and 1,900 miles south east of Guam. Because of the prevailing south-east
trade winds, the people of the Marshall Islands traditionally had an affinity with those of Nauru and
Kiribati to the south-west. If they sailed further west and north to the Caroline Islands, it was too
difficult to get back.
In the era of colonisation, the Marshall Islands had a chequered experience. The first contact
was with the Spanish who colonised the Philippine Islands to the south-west. Then, in the late 19th
century, they became a German colony. After the First World War, they became a Japanese
Mandated Territory. The cultural legacy of those episodes is still apparent in the German and
Japanese names of certain families and the dietary preference for rice as the main carbohydrate. In
the Second World War, many atolls and islands saw bitter fighting. After the war, the Marshall
Islands, together with the Caroline Islands, Kosrae, the Northern Marianas and Palau, were brought
together as the Trust Territory of the Pacific Islands, a United Nations Strategic Trust administered
by the United States of America.
St Helena is another single island. It is the top of a mountain rising steeply from the South
Atlantic just north of the Tropic of Capricorn, about 1,000 miles west of Namibia and 2000 miles
east of Brazil. The population is about 4,000. When first discovered by Portuguese sailors in 1502,
the island was uninhabited. Subsequently it was visited also by English and Dutch ships, and
became an important victualling station on the sailing ship route round the Cape of Good Hope to
India and the Far East. St Helena was administered by the East India Company from 1673 until


1834, when it became a British colony. The island was settled mainly by people from England,
Africa, China and the Indian subcontinent. Subsequent intermarriage has produced a homogeneous
population of English-speaking people who call themselves "Saints". They are British citizens with
the right to live and work in the United Kingdom or in other European Union countries.
None of the three islands or island groups is large enough or sufficiently rich in resources to be
economically viable, except at a subsistence level. All three are therefore committed to maintaining
a close relationship with their former, or in the case of St Helena, the present administering power.
Niue and the Republic of the Marshall Islands (RMI) are now states, 1 in relationships of free
association with New Zealand 2 and with the United States 3 respectively. Under those relationships,
the partner state does not have any constitutional power to intervene in the conduct of the associated
state's internal or external affairs, but it does provide ongoing material support. 4 In accordance with
the wishes of a majority of its people, St Helena remains a British colony. Its legislature is largely
elected. 5 The Governor exercises the island's executive authority, and, in most cases, must act in

Because there are constitutional elements in the relationship between Niue and New Zealand, including its
people's New Zealand citizenship, Niue is described as a "self-governing State", rather than an independent
one: Niue Constitution Act 1974 (NZ), s 3. It is, however, a full member of some of the United Nations
Specialised Agencies, including the World Health Organization. In its Compact of Free Association, as
Amended, with the United States of America (see fn 3 below) the people of the Republic of the Marshall
Islands are also described as "self-governing" (Art I, s 111), but as a member of the United Nations since
1991, as well as of some of the Specialised Agencies, including WHO, the RMI is regarded as independent.

The relationship of free association between Niue and New Zealand rests on their mutual consent. It has not
been formally spelt out, but its terms can be deduced from the provisions of the Niue Constitution Act 1974
(NZ), the Constitution itself (for the English text, see the Second Schedule to the Niue Constitution Act as
amended by the Niue Assembly), other relevant documents and the conduct of the parties.

The original Compact of Free Association between the Government of the United States of America and the
Governments of the Marshall Islands and the Federated States of Micronesia entered into force on 21
October 1986. Certain provisions, notably those concerning grant assistance, were expressed as coming to
an end on the fifteenth anniversary of its effective date. On 30 April 2003 a Compact of Free Association as
Amended was signed by representatives of the Governments of the United States of America and the
Government of the Republic of the Marshall Islands. It entered into force on 17 December 2003: See the
Compact of Free Association Amendments Act 2003, Public Law 108-188, 108th Congress, Title I. For the
text of the Compact as amended, see idem, Title II, s 201(b).

A relationship of free association involves a greater degree of commitment on the one hand and forbearance
on the other than is usual in relations between states. As well as having this quantitative element, it also
depends on the qualitative element of a mutual commitment to shared values. The free association
relationship between the partner states does not affect the relations of the associated state with other
members of the international community. See Alison Quentin-Baxter "The Constitutions of Niue and the
Marshall Islands: Common traits and points of difference" in Pacific Constitutions, Peter Sack (ed) Law
Department, Research School of Social Sciences, Australian National University, Canberra, 1982, 97, 121122.

The St Helena Constitution Order 1988, Schedule 1, The Constitution of St Helena, s 15.




accordance with the advice of the Executive Council (ExCo). 6 Most members of that body are
elected members of the legislature. 7 The United Kingdom Government retains an overall
responsibility. As the administering authority, it has the obligation, under the United Nations
Charter, to ensure the political, economic, social and educational advancement of the people of the
territory. 8




The Constitutions of both Niue and the Republic of the Marshall Islands provide that the
Cabinet is responsible for establishing and maintaining such hospitals and other institutions and for
providing such other services as it considers necessary for the public health. 9 The provisions reflect
the fact that the Constitutions transferred executive authority from the administering power to the
people's elected representatives.
In the Marshall Islands, the Constitution also provides that the Government of the Republic
recognises the right of the people to health care, education, and legal services and the obligation to
take every step reasonable and necessary to provide those services. 10 The proposal to include such a
right came from the floor of the Constitutional Convention that was drawing up the Constitution. On
the Bill of Rights, the Convention was advised by Professor Laurence Tribe of Harvard University
Law School, as well as by me. I was worried that the Government of the RMI, always likely to be
under financial pressure, might be faced with lawsuits claiming that it had not done enough to
implement the rights concerned. 11 Professor Tribe explained that a constitutional right to health care
and other services would not permit the courts to delve too deeply into the budgetary processes of
the executive or the legislature. As long as the Government, acting in good faith, was attempting to
honour the stated rights, they were unlikely to intervene. If the Government needed any further
encouragement to implement the right to health, that would have to come from the political process.
There is no express provision in the Constitution of St Helena about health care, but the
Governor must establish Committees of the Legislative Council (LegCo) "for such general or
special purposes as in his judgment would be most suitably regulated and managed by means of a

Idem, s 11.

Idem, ss 5, 22 and 23.

Article 73.

Constitution of Niue, fn 2 above, s 61(1); Constitution of the Republic of the Marshall Islands, Art V,
s 1(3)(g).


As to the enforcement of constitutional rights through the courts, see Constitution of the Republic of the
Marshall Islands, Art II, s 15.


Art II, s 18(2).


committee". 12 The committees include senior officials, as well as LegCo members. Ever since they
were first introduced, one of them has always had the responsibility for public health. 13
At present, neither the Constitution of St Helena nor that of Niue contains a Bill of Rights, 14
and, even if it were to do so, it might not include a right to health. But that does not leave their
peoples without such a right. The Government of Niue, acting in its own right since selfgovernment, and the United Kingdom Government in respect of St Helena, are bound by the
provisions of the relevant human rights treaties. These include the International Covenant on
Economic, Social and Cultural Rights of 1966. That Covenant recognises the right of everyone to
the enjoyment of the highest attainable standard of physical and mental health. 15 That right is to be
achieved progressively, to the maximum of available resources. 16
The international treaty obligations bearing on the right to health are not part of the domestic
law of either Niue or St Helena, or, for that matter, the Marshall Islands. They do, however, provide
standards for making health policy. The international treaties may also be reflected in the content of
the substantial body of domestic law in each of the three countries for the protection and promotion
of public health. In interpreting and applying that law, the courts will take relevant treaties into
account. In each country, a named office-holder or body has a clear statutory responsibility to
provide such health services as are required. 17 Obviously, however, they have to work within the
limits of the funds voted by their legislatures or available from other sources.


Section 23(1).


At the moment, this is the Public Health and Social Services Committee: http://www.sainthelena.gov,sh/
government/excouncil.htm .


The St Helena Court of Appeal has held that the Human Rights Act 1998(UK) is in force in St Helena as
part of its law, "so far as applicable and suitable to local circumstances": English Law Application
Ordinances 1987 and 1999 (SH), s 2.


Article 12(1). Article 12(2) spells out that the realisation of this right requires: the reduction of infant
mortality and the healthy development of the child; the improvement of environmental and industrial
hygiene; the prevention, treatment and control of epidemic, endemic, occupational and other diseases; and
the assurance to all of medical services. Art 12 as a whole builds on Art 25 of the Universal Declaration of
Human Rights. The rights declared in that document were originally thought of as persuasive but nonbinding because the Declaration is in the form of a resolution of the UN General Assembly. Now, however,
they are generally recognised as having the force of customary international law.


Article 2(1). The Government of Niue became bound by the Covenant by virtue of its signature and
ratification by the Government of New Zealand at a time when New Zealand was still responsible for Niue's
international relations. The United Kingdom Government is a party to the Covenant in respect of itself and
its dependent territories, including St Helena.


Niue Act 1966 (NZ), s 23A; Public Health, Safety and Welfare Act (RMI), s 3; Public Health Ordinance
(SH), s 3.




Each country is in receipt of substantial budgetary and other support from its partner state, as
well as from other States and international organisations. The New Zealand Government recognises
"a continuing responsibility to provide necessary economic and administrative assistance to
Niue". 18 The United States Government has undertaken to provide grant and Federal Programme
assistance in the agreed fields to the Republic of the Marshall Islands for a further period of 20 years
from 17 December 2003. These fields include the health care sector as a priority, along with
education. The objective is to "support and improve the delivery of preventive, curative and
environmental care and develop the human, financial, and material resources necessary for the
Republic of the Marshall Islands to perform these services". 19 The United Kingdom Government
provides budgetary and other assistance to St Helena through the Department for Overseas
Development. Its policy is to regard the reasonable assistance needs of the Overseas Territories as a
"first call" on its development programmeme. 20
That, then, is the legal and political framework for tackling the health needs and challenges
arising in each island country, and finding the economic and human resources with which to do so.



Each of the three countries is faced with the public health problems that arise from its
geography, the demography of its population, and their people's history, culture and stage of
development. In identifying the relevant issues, I have been greatly helped by a Report of the
Ministry of Health in the RMI for Fiscal Year 2004. This long document gives a full picture of the
health services provided to the people of the Marshall Islands in that and earlier years, and sets out
aspirations for the future. 21 I have also had the benefit of discussions with two knowledgeable


Niue Constitution Act 1974 (NZ), s 7.


Compact of Free Association, as Amended, fn 3 above, Title Two, Grant Assistance, s 211(a). There is also
provision for the establishment of a Trust Fund so that income from the Fund can take the place of grant
assistance when that form of assistance comes to an end: Idem, s 216. It is doubtful, however, whether
income from the fund will be sufficient for this purpose: United States Government Accountability Office,
Testimony before the Committee on Energy and Natural Resources, US Senate, Statement of David B
Gootnick, Director International Affairs and Trade, September 25, 2007, GAO-07-1258T, 13-16.


White Paper on International Development, Eliminating World Poverty: A Challenge for the 21st Century,
Cm 3789, para 2.28.


The report is available on the Internet: http://www.google.co.nz/search?hl=en&q=Republic+of



Niueans, Mrs Sisilia Talagi, Niue High Commissioner to New Zealand, 22 and Dr Colin Tukuitonga,
Chief Executive of the NZ Ministry of Pacific Island Affairs. 23 Prior to this Dr
First, the demography. Because of emigration, St Helena and Niue each have a declining
population, and St Helena has an aging one, putting a strain on the resources available for the care
of the elderly. Some Saints go offshore temporarily, to work in Ascension Island, the Falkland
Islands or the UK, leaving their children behind with family or friends. But absences tend to stretch
out longer than originally planned. This can lead to social disruption among the children left
behind. 24 Migration from Niue is mainly to New Zealand or Australia, tends to be of whole
families, and permanent rather than temporary. It has led to skill shortages in Niue, and increasing
difficulty in achieving economies of scale. The Marshall Islands has a rapidly increasing population.
As people move away from their own land in search of jobs, the problems of urbanisation,
unemployment and poverty increase.
Next, the lifestyle and environmental factors. In the Marshall Islands and Niue the people have
abandoned their former subsistence economy, with its reliance on catching fish for protein and
planting the traditional food sources such as coconut palms, taro and breadfruit. Instead, they are
dependent on a money economy and imported foodstuffs. Diabetes is the single greatest risk to
In St Helena, the clearing of the original forest has led to severe erosion and the remaining soil
is not as fertile as it was once. So that island, too, now imports most of its food. Approximately one
third of all deaths are associated with either high blood pressure and/or diabetes, and the immediate
cause of death is dominated by cardiac disease. 25
Another serious health risk is peculiar to the Marshall Islands. From 1946 to 1958, the United
States carried out 66 atmospheric nuclear weapons tests at Bikini and Enewetak Atolls. In


Mrs Talagi was formerly the Secretary to the Government of Niue, and, as such, the permanent head of the
Niue Public Service and the chief administrative officer of the Government of Niue.


Before taking up his present position, Dr Tukuitonga helped to establish the Department of Maori and
Pacific Health at the Faculty of Medical and Health Services at the University of Auckland, was head of the
office for the Surveillance and Prevention of Chronic Diseases at the World Health Organization in Geneva,
an Advisor to the Secretariat of the Pacific Community on Health Issues, and Director of Public Health and
Medical Officer of Health for New Zealand. Early in his career, he was Director of Health in Niue.


St Helena Public Health and Social Services Department, Saint Helena Herald, 10 October 2007:


Government of Saint Helena Public Health Department, Official Government Website:

http://www.sainthelena.gov.sh/government/phd-general_hospital.htm . The same source notes that a number
of medical conditions are unique to the island. The doctors are often struck by the frequency with which
they see otherwise rare conditions. 'Hereditary Angioneurotic Oedema' and 'Systemic Lupus Erythematosis'
are both relatively common.




September 2004, the United States National Cancer Institute published a report estimating that the
nuclear testing programme during those years will cause about 500 additional cancer cases among
Marshallese, about a 9% increase in the number that would otherwise have occurred. 26 About onehalf of the radiation related cancers are yet to develop or be diagnosed. 27 The study did not extend
to the radiation-based risk of other serious diseases. 28
In ongoing negotiations with the Government of the United States about redressing the
consequences of the nuclear weapons testing programme in the Marshall Islands, the Government of
the RMI points out that it created profound disruption to human health and the environment, as well
as to the economy, culture and political system and virtually every aspect of life. Some atolls remain
contaminated and their populations have been relocated, sometimes more than once. 29
Generally speaking, tropical diseases are not a major problem in any of the three countries,
though dengue fever is endemic in Niue. Climate change, however, creates major risks of harm to
public health or the health infrastructure, or even worse.
First, the vectors of disease, such as mosquitoes, may move into new areas. Already, malaria is
occurring in parts of Melanesia, in the Western Pacific, where it was not present earlier.
Secondly, there may be an adverse effect on the quality and supply of water. St Helena depends
on natural streams and springs, and already has a Water Authority with the responsibilities and
powers necessary to develop, control, conserve and distribute fairly the water resources of the
island, whether for domestic, industrial or farming purposes. 30 In Majuro, the capital of the RMI,
the airport runway and hard standing areas are used as a rain water catchment, but storage facilities
are limited. When I was working there at this time of year, which is the dry season, the taps used to
be turned on only for an hour a day, between 6am and 7am. Niue has a good water supply in the


Estimation of the Baseline Number of Cancers Among Marshallese and the Number of Cancers Attributable
to Exposure to Fallout from Nuclear Weapons Testing Conducted in the Marshall Islands, prepared by the
Division of Cancer Epidemiology and Genetics, National Cancer Institute, Department of Health and
Human Services, prepared for the Senate Committee on Energy and Natural Resources, September 2004,


Idem, 14. The Institute emphasised, however, that the assumption of proportionality between radiation dose
and radiation-related cancer risk, which has been shown to hold reasonably well at lower doses, cannot be
assumed to hold at the extremely high radiation doses to the thyroid gland and the colon estimated for the
populations of the neighbouring atolls of Rongelap and Alinginae who were not evacuated beforehand. The
excess numbers of cancers estimated for those populations should not be taken at its face value but should
be treated as a crude upper limit.


Idem, 2.


Senate Energy Committee Hearing, Testimony of the Marshall Islands Minister Witten Philippo,
5 November 2007: http://www.yokwe.net/modules.php?name=News&file=article7sid=1928 .


Water Ordinance, Cap 55, s 6.


form of a reservoir of rain water that has seeped through the porous coral and is prevented from
mingling with the surrounding sea water by a natural lens. But rising sea levels could lead to the
contamination of this valuable fresh water supply.
Thirdly, there could be an increase in the frequency and severity of natural disasters. St Helena
seems to be relatively safe, but, at least once in its long history, the capital, Jamestown, situated in a
steep, narrow valley, suffered damage from a flash flood. It could be at risk again.
Not long after self-government in the RMI, which took effect on 1 May 1979, Majuro Atoll
suffered a mysterious wave storm, possibly caused by a tsunami. There was no wind, but the waves
breaking on the surrounding reef were so huge that, at high tide, they flowed right through the
administrative centre, and spilled into the lagoon on the other side of the islet, carrying with them
everything movable. That included houses that had not been tied down on their foundations. This
continued for a fortnight. The effect of the large waves was all the greater because the town centre
had developed around the wartime airstrip on the windward side of the island, in contrast to the
traditional settlement which was on the leeward side. That settlement was not affected.
Niue is in the cyclone zone from about November to March. From time to time it has suffered
disastrously. The worst damage has been caused by the mountainous seas. As recently as 2004, a
severe cyclone destroyed some parts of the capital, Alofi, including the hospital which had been
built on the cliff edge. Earlier, in a 1990 cyclone, the hospital had been badly damaged. At that time
the Niueans urged the New Zealand Government to move it to a site further away from the sea, but,
on the grounds of cost, that advice was not followed. Since the 2004 cyclone, however, the New
Zealand Government has funded the total rebuilding of the hospital on higher ground. The French
Government has supplied equipment.
Natural disasters such as these do not usually cause injury or loss of life, though that can
happen. The main risk is the destruction of infrastructure and the interruption of communications.
Niue, for example, cannot afford to stockpile supplies of essential pharmaceuticals, so any loss of
air services creates problems. The greatest risk of all is to the low-lying atolls of the Marshall
Islands. It is hard to imagine any land territory more fragile than an atoll. From the air, it looks like a
string of green beads floating on the ocean. In Majuro, for example, the highest point is only 6 feet
above sea level. If that level rises significantly, many atolls will simply disappear.
Finally, in this section, I would like to say something about the communications linking each
country with the outside world. Those govern the ability to bring in specialised medical services and
needed supplies, and to send out patients referred offshore, especially in a medical emergency. The
RMI has a good air service with daily flights east to Hawaii or west to Guam. When the wave storm
struck, the United States disaster assistance services flew in the necessary personnel and supplies
and set up a tent city. That was needed for about a year.
Since the early 1970s, Niue has also had a good airport. Services have at times been a problem,
but, generally there is a weekly flight to and from Auckland, and sometimes to other Pacific




destinations as well. To deal with a medical emergency, NZAID funds mercy flights, either by the
RNZAF or by a private contractor.
St Helena is the least well off in terms of communications. The steep and broken terrain makes
it difficult to build an airport capable of taking aircraft large enough to make the long over-ocean
flight without any alternative landing place. An airport is now planned, but there has been a delay in
finding a suitable contractor. Meantime, the only regular communication is by sea, using the island's
own ship, the RMS St Helena. The ship carries both passengers and cargo.
The regular route connects with Ascension Island, two days' sailing to the north, and Capetown,
5 days' sailing to the south-east. From Ascension Island, the RAF makes scheduled flights to
England and to the Falkland Islands. This year, the ship is also visiting Walvis Bay in Namibia,
from which air connections are available, but even that port is two or three days away. At
Jamestown, and also at Georgetown in Ascension Island, where the ship has to anchor in the open
roadstead, the transfer between shore and ship can be difficult in rough weather. If a medical
emergency arises when the RMS St Helena is not in St Helena or expected soon, the only possibility
is to get on the radio and see if there is a container ship anywhere near that might be willing to come
by and pick up a passenger.
Those then are the challenges. Next I will look at how they are met.


There are Government-run hospitals in Alofi in Niue, in Jamestown in St Helena and in Majuro
and Ebeye 31 in the Marshall Islands, and clinics in the rural areas of St Helena and the outer islands
of the RMI. Medical care, including the cost of prescription medicines, is either free or highly
subsidised. It therefore accounts for a significant proportion of total public expenditure.
For the most part, all three countries rely on expatriate doctors, but, to the extent possible, their
governments provide access to training opportunities for their own people and encourage them to
work in their own countries. Low local salary levels in comparison with what people could earn
offshore, even in unskilled work, are the main reason for recruitment and retention problems where
these occur.
For more than a hundred years, the Fiji School of Medicine has trained doctors, nurses and other
health professionals from all over the Pacific. A majority of the doctors and nurses in Niue graduate
from there. It is the policy of the RMI to train Marshallese citizens to fill health care positions, so far
as possible. Eighty-two percent are now filled by Marshallese. In St Helena, all the doctors and the


Ebeye is an islet of Kwajalein Atoll, the site of the agreed US Military operations in the RMI. The
population of Ebeye comprises people from other parts of Kwajalein Atoll that are now leased to the US,
and also people from other atolls and islands in the Marshalls who are employed by the US military or by
civilian contractors. It is said to have a population density greater than that of Kowloon in Hong Kong.


Nurse Tutor are expatriates, but other posts are filled by locally-trained staff. Nursing training in
St Helena is supported by the School of Nursing and Midwifery at Queens University, Belfast,
Northern Ireland, under a Nurse Education Link. Among other things, this has provided a new
nursing curriculum for the island and online modules that are accessed by students who are unable
to come to Belfast. 32
Because of the high cost of offshore referrals, the RMI is trying to build up the range of
diagnostic and treatment services that can be provided onshore. It is employing more doctors and
other health professionals with specialised qualifications and purchasing more sophisticated capital
equipment. This increasing onshore capacity is supplemented by the visits of consultants with
additional specializations. In St Helena, too, there are regular visits from health professionals with
specializations not otherwise available on-island.
A 1998 conference on telemedicine in the Pacific, in which a doctor from the RMI participated,
recognised that medical practitioners in small island countries often operate in relative isolation,
dealing with diverse care needs, many of which arise infrequently because of the small populations
served. The use of telemedicine can allow:

nurses to consult doctors on medical cases when doctors are not available at the site

doctors to consult one another on case management

doctors to consult external specialists on case management.

Modern technology allows the Internet transmission of digital colour images of patients, patient
data and x-ray images, together with a written medical report. Use of the Internet significantly
reduces the cost, compared with that of telephone bills in the pre-Internet era. The same technology
also has an important role in referrals offshore. The conference adopted an action plan for
integrating methods and resources for distance consultation. 33
Despite these various ways of enhancing the onshore delivery of health care, offshore referrals
still have an important role. In conjunction with its funders, St Helena has arrangements for medical
referrals to hospitals and specialists in England and in South Africa. Similarly, the RMI has long
standing referral arrangements with hospitals and other treatment providers in Hawaii and on the
West Coast of the United States. More recently, because of the cost-savings involved, it is referring
patients to health care providers in the Philippines.
All the health care issues I have just identified are equally relevant for Niue. The Niue
Government and its partner, the Government of New Zealand, have sought to tackle them in a
coordinated and comprehensive way. The Niue Department of Health has entered into a


See http://www.qub.ac.uk/schools/SchoolofNursingandMidwifery/International/StHelena/.


See http:hero.enigma.co.website/index.cfm?fuseaction=articledisplay&FeatureID=60.




Development Partnership Arrangement with Niue's main funder, NZAID, and Counties-Manukau
District Health Board. 34 The Health Board is responsible for providing health services to the
residents of the Counties-Manukau District, in the south Auckland region of New Zealand. Many
Niuean and other Pacific Island families have settled in that region. The Health Board therefore has
recognised expertise in designing and delivering health care for Pacific peoples.
The tripartite arrangement was made under the umbrella of an earlier arrangement between the
Government of New Zealand and the Government of Niue, under which all New Zealand
government departments would give stronger support to their counterparts in Niue. 35 As a Crownowned entity, Counties-Manukau District Health Board has undertaken the following
responsibilities in respect of Niue:

to support and cooperate with the Niue Department of Health in enhancing the capacity of
the Niuean health service;

to act as the central point of contact for both the New Zealand Government and the
Government of Niue on Niuean health and health system matters;

for this purpose, to establish a regular formal system of communication with the Niue
Department of Health and NZAID;

to take the initiative in putting forward annual funding requests in the form of a detailed
work plan and budget;

to engage in annual talks with the other two parties, about November each year, on what
will be required in the next calendar year and how those requirements will be met;

to appoint a liaison officer to manage the Health Board's relationship with the Niue
Department of Health and NZAID.

By 15 December in each year, the parties are required to have met and agreed the Programmeme
Plan and budget for the following year. The Health Board must then provide the agreed services, in
Niue or New Zealand. Subject to an appropriation by the New Zealand Parliament, NZAID must
pay for those services in accordance with the agreed budget.
The arrangement is working well. Counties-Manukau District Health Board is involved in the
provision of health care to the people of Niue in a number of practical ways. The Government of
Niue is able to exercise autonomy and participate actively in the development of health services for
its own population, even though it is not the funder or the provider of the services concerned. In the


The arrangement came into force on 1 January 2005 and expires on 31 December 2007, but the parties may
agree to extend it for up to two more years.


Halavaka ke he Monuina Arrangement between the Government of New Zealand and the Government of
Niue for a Programme of Strengthened Cooperation, 2004-2009.


field of health care, inequalities have been reduced as between New Zealand citizens in Niue and
New Zealand citizens in New Zealand.



The right of the peoples of Niue, the Marshall Islands and St Helena to the highest possible
standard of health care is taken seriously by their own governments and those of their partner states.
Their experience is proof, if that is needed, that, in the wake of the colonial era, not all political
entities can realistically find within their own borders sufficient material and human resources to
provide their people with an adequate standard of health care. All three island countries are
fortunate in having partner states that are willing to provide the outside support on which they
depend. For that reason, their peoples are not to be counted among the poorest of the poor. But
governments and government agencies are not robots that can work without human involvement.
The health care arrangements in each of the three small island countries still depend on their own
people and others willing to live there, people in their partner states, and in other provider countries
with enough foresight, determination, and sometimes generosity of spirit to make those
arrangements work well.
For that reason, their cooperative arrangements can be seen as inspirational. There are many
other countries, in the Pacific and further afield, where health care resources are limited, many of
them without the kind of support that St Helena, Niue and the RMI can count upon. But some of the
practical solutions the three counties have put in place may be feasible elsewhere, with or without
adaptations. Partnerships are the key partnerships between and among a variety of people and
bodies: governments, their departments and other agencies, public and private health care providers
and teaching institutions, and other organisations, whether national or international, governmental or
non-governmental. Such partnerships, however, do not just happen. They are born of human
ingenuity and goodwill and can grow and flourish only with the benefit of human insights and






Ian Fraser *

Melanesia famously has a plethora of languages and cultural groups. A refrain since the various
independence dates of Papua New Guinea, Solomon Islands, and Vanuatu has been that the
multiplicity of customs frustrates any ambitious effort to legislate or otherwise formally recognise
the legal elements of custom. This paper proposes a reconsideration of one of the few unifying
customary features said to apply to Melanesia generally, and to distinguish it from "the West", or at
least the cultures of the countries which were once colonial powers and remain culturally
influential. The peoples of Melanesia are said to be communitarian as distinguished from
individualistic peoples. It is here proposed that this distinction is misleading.
Il est dusage de soutenir que Mlansie se singularise par la multiplicit des groupes ethniques qui
la composent et par lextrme varit des langues qui y sont parles. On ajoute bien souvent aussi,
que depuis laccession lindpendance de la Papouasie-Nouvelle-Guine, des les Solomon et du
Vanuatu, la multiplicit des coutumes en vigueur, forment un obstacle la reconnaissance de
celles-ci en tant que normes juridiques part entire. En fait, des caractristiques communes
lensemble des rgles coutumires existent dans toute la Mlansie. Lun de ces points de
convergences est lopposition que lon fait entre les cultures traditionnelles et les modles imports
par les anciennes puissances coloniales, modles dont linfluence reste encore maintenant trs
forte. Or, si lorganisation socitale du peuple mlansien est gnralement prsente comme
fondamentalement communautaire par opposition une organisation occidentale empreinte
dindividualisme, lauteur soutient quune telle assomption est non seulement rductrice, mais aussi
The peoples of Melanesia are said not to be "individualist", in a sense that creates a distinction
between them and the cultures of the developed English-speaking world. The term for what they are

Senior Lecturer in Law, University of the South Pacific, Port Vila.



might be collectivist, or communitarian, or just group-oriented; but in any event, what they are not is
what the formerly colonial cultures are, and that is individualist.
The distinction could be and is said to operate across the spectrum of social activities, from
work and business to art to law and governance to family life. This paper concerns all of those, but
the emphasis will be on matters that the largely adopted formal law of Melanesia treats as public
affairs: law and governance.
In this comment, it is proposed that this individualist/communitarian distinction is misleading.
This is done not on the ground that it is simplistic or shallow or misses the nuances of lived culture
and personality; of course it is open to such critique, as is any other generalisation about culture
large enough to be useful. We must be clear when we are discussing patterns of how a population
behaves as opposed to characteristics of actual persons or particular relationships.
Rather, I propose that it is misleading because, in the admittedly broad sense of such
generalisations, it is backwards. Melanesian peoples, relative to societies in the West, are precisely
more individualistic.
Now even in a broad sense, when assertions must tend to the fuzzy, we must allow for two
sources of particularly crucial fuzz.
One is on the Melanesian side of the distinction. There is the literal individualism of giving one's
personal interests priority, and there is the extended individualism of prioritising one's extended
family. It might be fair to treat the latter wantokism as constituting a kind of individualism. But
this would defy received understandings of what these terms mean, and it is not what I mean to
argue. I will accept as individualism the desire to gain advantage for oneself and one's immediate
household but not the larger, kin chauvinism referred to as wantokism. In public affairs, an
orientation to the interests of one's household, as opposed to those of the community or nation, is
functional individualism.
The other is on the Western side. The contrary to individual could be associations, or society, or
community or state. State is not like the other terms, being not only structured and empowered by
the ultimately coercive legal system, and comprehending the legal system itself, but in being
objectified as a single entity. Indeed as a person, in law. It might be fair to treat orientation to the
interests of government as compatible with being individualist. In a deep way that carries a valid
and important point, to which I will return. But I will accept the deference to state interests as a
contrary to individualism, for in societies which have developed their own governments in form
and in function governments do represent collective interest to members of society.
Of course the state in Melanesia has relatively foreign origins, indeed its continuing
characteristics are largely foreign, so here, this representativeness is problematic. It is this that
explains much of the apparent paradox of individualism in a village-based society in the early 21st



Even allowing for a certain fuzziness of conceptual definition, this subject, whether Melanesian
culture is more or less "individualistic" than the culture of the West, is difficult to analyse. The
problem most disconcerting is not in the relevant concepts, nor is it in the fabled diversity behind
the convenient term "Melanesian". The key problem is causation. When can we say that this or that
phenomenon is due to individualism, or to some contrary?
The problem is not eased much by making it categorical: When can we say that this or that
phenomenon is an aspect of individualism or some contrary?
To describe the comparison intended, I will draw out some salient examples.



Compared to Western jurisdictions, Melanesia seems "soft on crime". Offences are committed to
wide public knowledge and never prosecuted; prisoners are loosely confined and pardons are
relatively common. Crimes by men in high political office, in particular, are not only generally
unpunished by the criminal justice system, they are unpunished by the electorate too, even when
criminal convictions have resulted.
In this sphere the reversed comparison seems undeniable, and simple. The community-oriented
purpose of the criminal law is clear in Western societies, among the public and in legal doctrine.
Police are visibly and practically present almost everywhere, and policing is a perennially important
political issue. Although rehabilitation of the offending individuals is always a legitimate concern,
and the interests of individual victims always a matter of debate, the priority of the common good in
both directions is unquestioned. Offenders will be removed from the community even when
rehabilitation is acknowledged to be unlikely, and prosecutions will be undertaken even without the
victims' cooperation if the offenders appear dangerous to the public at large. And of course a great
deal of the "crime", drugs prohibition, is not based on individuals' complaints at all.
By contrast, the police are not very apparent in Melanesian societies, and literally absent in most
rural areas. Even in towns they are notoriously slow to appear when summoned, and as
organisations police have always been underfunded and neglected even in comparison to other
government agencies. 1 Prosecution services (primarily police responsibilities in all jurisdictions) are
likewise neglected and likewise notoriously slow and unreliable. Sentencing usually features the
argument on behalf of the prisoner that he has made some form of custom settlement with the
victim, and indeed these are common and effective in reducing sentences. Prosecution of victimless

The colloquial complaint is that the police, when contacted, say they have no truck or no petrol to attend the
crime scene; and this seems often to be true. Complaints by police of unpaid salaries and benefits, and unfit
housing, have been frequently upheld by courts in PNG, the Solomons, and Vanuatu, and constitute an
important source of political instability in all three jurisdictions.




crime is rare, although the same range of these is on the books as in Western societies (indeed the
"books" are the criminal laws of those societies adopted at independence). And although law and
order is a topic of great public discussion, it does not appear as an issue to affect the political career
of any leaders or political parties.
But the comparison is not so simple. The criminal justice systems of the West are indeed harsh
in principle; offenders are removed from society and assigned to prisons with little regard for their
own improvement, the priority clearly being the good of the community. But the process of
determining guilt is deeply characterised by regard for the individual accused.
This often works to the accused's benefit, as in the basic presumption of innocence and the
constitutional or Common Law rights and privileges concerning the use of evidence against the
accused at trial. On some points it does not necessarily benefit the accused, however, as in the
acceptance of guilty pleas and plea-bargains and the way procedural rights secure information but
not psychological support. Individualism in framing these procedures assists individuals who are
capable of asserting their self-interest, but only traps the weak or confused. Rights to information
about the charges or to refuse searches and seizures serve some kinds of individuals more than
others indeed, the system's very reliance upon rights that must be asserted, as opposed to rules
restricting government action, serves some kinds of individuals more than others. It should be
acknowledged that what the law of criminal process respects, in the West, is a value of
individualism more than actual individuals.
That individualism is nonetheless undeniable too, complicating the picture of community
ruthlessly ridding itself of the actual individuals who trouble it. And that individualism, of course, is
also one of the dominant motifs in the celebratory rhetoric of Western liberal liberties. It was thus
adopted along with the rest of the constitutional heritage of legal institutions and texts by the
independent Melanesian states. So in comparing the West and Melanesia on this score there is a
commonality; the contrast appears only in the respective practices.
The contrasting practice in Melanesia relating to crime complicates the picture of tolerant and
forgiving individualism on its side, too, just as the individualism of due process complicates the
Western picture. For what characterises police powers as actually exercised in Melanesian
jurisdictions is not just police inefficacy in apprehending and prosecuting offenders, it is also police
brutality with the prisoners they do hold.
Police beatings of suspects are routine in all three countries, even the famously pacific Vanuatu.
Prosecution of police officers for this is rare, and there is no public record of discipline within a
force for it. The public is uniformly aware; even law students typically find it strange that
technically, such violence is unlawful. It has never been a political issue, as though people find it
either inevitable or, perhaps regretfully, necessary. The similarity of this attitude to the way public
opinion in the West seems to regard the pains of imprisonment is striking.


The ready acceptance, even legitimation, of police brutality could be taken as a sign of
orientation away from individual interests, toward a tougher, public-interest stand: the bashing as
punishment for deviance. Certainly the rhetoric of discourse both public and private on this issue,
when it occurs, features the same "law and order" terms as in the West.
Forgiveness of criminal deviance is not what it appears; it is, rather, an expression of



When we notice that contraceptives are freely available in the West, we will with some
confidence say that this is due to or an aspect of individualism as a general attitude. People
should be allowed to do what they like in such matters of intimate relationship and privacy. 2 Of
course there remain many people opposed to this choice, as is at least one collective manifestation
of group identity, but that opposition is relegated, with little debate, to the private sphere.
So when we notice that contraceptives are not freely, or even widely, available in Melanesian
societies, to what may we plausibly attribute that as effect or as aspect? The answer seems to be
beliefs, beliefs about the proper place and role of sexual relations. These are almost always
expressed in religious terms. 3 The beliefs are collective, to be sure, in the sense of embodying
collective feeling and in the sense of advocated by collective institutions. But they are also
individual. There does not seem a way to attribute a practice so supported to either individualism or
to a collectivist impulse, at least not any obvious way.
There is, however, an observation to be made of this example, relevant to the individualism
issue. What is different in the West is the private/public distinction.
This distinction is notoriously problematic in legal debates within the West, mostly because
there is no objective way to draw the distinction objective in the sense of compelled by logic, or
by factors beyond "contingent" human views. It is unstable, precarious, even incoherent. But these
critiques concern the drawing of it in a given application. The very idea of it is universally known
and acknowledged. It is characteristic, indeed distinctive, of liberalism, and constitutes the liberal
way of dealing with matters morally contentious but within an individual's control; and every strand
of Western mainstream values is "liberal" to this extent.

This reasoning is formalised as constitutional law in the USA: Griswold v Connecticut 381 US 479 (1965),
holding that such choices are within the sense of "liberty" as guaranteed in the Bill of Rights. Carried further
in the subsequent Roe v Wade 410 U.S. 113 (1973), this was the reasoning for holding a choice about
abortion to be likewise within constitutional "liberty".

That is, formalised in religious terms, as opposed to the American formalisation in constitutional terms. But
this opposition is less neat when one takes account of the fact that a basis of the legal order in Christianity is
part of each Melanesian (and Polynesian and Micronesian) constitution. Constitutional and religious
arguments are not mutually exclusive in the insular Pacific, even in the law.




Intense commitment to a vision of the good intense enough that opposition seems to be evil
cannot be accommodated by the law, as a source of law, if there is not near-universal agreement on
what amounts to "good". This becomes only more pressing in a democratic context. So matters
provoking such commitment, where consensus is lacking, are assigned by liberal law to the private
sphere. That is, the law does accommodate them, but by expelling them from itself, from the sphere
of legal regulation the "public" sphere.
So the ease of access to contraceptives might indicate widespread individualism it is a choice
like others, which like others should be made by individuals rather than society or it might be part
of the general Western strategy for avoiding the conflict of ideological incompatibles, the
Enlightenment heritage, of dealing with intense ideological antagonism by avoidance. And this
strategy is a communal impulse.
Why do we do that, in the West? In the contraceptives example, it obviously expands the scope
of individual choice, to the benefit of many individuals opting for recreational sex; but by the same
token it frustrates individuals whose ideal preference is for a society where fornication, if not absent,
is at least formally condemned. That looks individualist, assuming a privilege for individual
concerns about one's "own" life. But then it also seems to conduce to social peace, plausibly the
point of the private/public strategy. Moreover it is to society's benefit, especially a welfare society's
benefit, that unwanted children are prevented from appearing. 4
So are we being individualist when we allow the sale over the counter, to anyone, of condoms?
And in Melanesia, if the reluctance to allow such open distribution is a consequence of beliefs
about sex and religion (or beliefs about sex put in religious terms), and the beliefs are widely held,
how can we say this is individualist individual convictions in the aggregate or collective
individuals deferring to communities or community leaders? We would have to sort out which
religious justifications are genuinely held on an individual scale, widely, and which are asserted by
leaders and, perhaps for other reasons, submitted to by the people. We would indeed have to
operationalise that concept of "genuine", distinguishing it from submission to authority, in a context
where submission to authority is part of even the explicit belief system.
To top it off, it is to society's benefit in at least the short term that such deference be common
to the extent peace is a high social benefit, which it certainly is thought to be in Melanesian cultures
(and Pacific culture generally). We might take normative deference to be the Pacific way of dealing
with potentially morally intense issues, corresponding to the Enlightenment avoidance strategy of
liberal societies.

To say nothing of AIDS; note the serious consideration, and growing practice, of distributing condoms in
prisons, where promoting individual liberty is assuredly not the point.


Relative social conservatism in Melanesia, that is, does not so clearly reflect a relative



Recently adopted by aid and development organisations as the most promising avenue to good
governance and effective democracy, the representation of groups and special interests within
society in formal, voluntary organisations "civil society" does offer a contrast between the West
and Melanesia.
The agents of politics in the West include many kinds of such groups, sometimes working with
government agencies, sometimes against them, and sometimes quite apart from them. Trade unions,
chambers of commerce and more specialised business groups, sports leagues, residents associations,
groups with overtly political aims like environmental advocates and anti-corruption groups,
educational and charity organisations, churches and church coalitions, youth groups, women's
associations, groups promoting the interests of the handicapped or ethnic identities all operate
politically to organise and publicise preferences and issues. They structure how people interact
politically beyond the political parties, and interact with government both as lobbies and as ways for
government to consult and secure public opinion. Although unions and business groups traditionally
tended to associate with political parties of the left and right respectively, even forming the support
bases of such parties in some jurisdictions, other "non-state actors" typically maintain a distance
from particular parties.
The significance of civil society for the argument here is how it channels individual opinion and
preferences into collective action, within the overall collectivity of the polity, and even as it allows
particular individuals to provide distinct allegiances to different political agents. Western political
leaders outside the state structure are representatives rather than heroes or champions, matching the
formal status of politicians as representatives, and bureaucrats as servants of the public. Leadership
is a collective quality: the prominent voices of civil society for their memberships like the
politicians embodying their parties, and the bureaucrats their powers delegated by legislation. NGOs
matter to the extent they draw public support.
Melanesian "civil society" is different from this in three main ways. It is first of all relatively
sparse (provoking the plans for its elaboration as a means of development). There are not so many
groups, they do not draw support as widely or deeply, and they do not participate as routinely in
political developments and debates. Secondly, they are not as stable; indeed they are markedly
unstable, characterised much more by the personal relations among their leaders than by the
aggregate will of the people they formally represent. Finally, they, or rather their leaders, are
typically associated very closely with the leading figures of parliamentary politics.
Overall they do not serve nearly so well as ways of connecting individual citizens to government
decisions and actions; they do not mobilise individuals politically, to the extent their counterparts do
in the West.




Indeed they tend to be vehicles for particular individuals to mobilise personal support, and to
access, for personal use, funds provided by other agencies governmental and foreign. 5 In this they
are very like statutory bodies and quangos, used in the same way by the leaders of parliamentary
So where Western politics maintains a collectivising tendency even outside the bounds of party
politics, Melanesian politics retains its character as an arena for personal careers, within football
associations and women's groups as much as within Parliament.
I will suggest that this is due, again, to the institutional forms involved and how they fit with
Melanesian culture for like Parliament, football associations and women's groups are very
distinctly "introduced" forms, consciously imported into societies which knew only unitary political
forms: families and villages.
This explains the exceptional status of the churches, which are not only much more integrated
into popular culture than any other introduced Western organisational form, but more importantly
are themselves unitary in Melanesia. Churches do not associate people across their other
allegiances, as they generally do in the English-speaking West. Rather they are villages at prayer, a
given village usually adhering to a single denomination; Melanesian religious allegiance simply
tracks the general political allegiances, much as linguistic identity does.
However, it must be acknowledged that this phenomenon, naturally, cannot continue so neatly
in Melanesian towns and that since the 1990s new churches (foreign-based pentecostal for the
most part) are splitting religious allegiances even in many villages.
The relative weakness of "civil society" in Melanesia indeed reflects a weak state, but the
relatively strong civil society in the West betokens not a greater individualism, but a more
comfortable communalism.


A striking contrast between Western societies and Melanesia is in leadership. In Western

political, economic, and social activities politics and business as well as voluntary associations
institutions are structured so as to promote decision.
Leadership is concentrated, and it is effective, in the sense that people lower in hierarchies both
public and private do as they are instructed and, between the points in time constitutionally assigned
for the purpose, they generally do not challenge incumbent leadership. One does often not read of,
say, litigation concerning the legality of a football league's steering committee's motions, or factions
of political parties denying the legitimacy of the party's executive's decisions. And Cabinet members

Subscriptions and donations by individual citizens are not important revenues for civil society groups in
Melanesia with the notable exception of churches.


amongst themselves, or ministers and their departments, are rarely at public loggerheads (for long).
The dissenting or disadvantaged individuals involved seem to defer to the organisation's need for
In Melanesia, on the other hand, such splitting disputes are rather common, and generally
attributed by participants to personality conflicts. The disputes are sometimes fatal to the
organisation, but never to the personalities' careers. The contrast I am proposing Western
communal thinking, Melanesian individualism seems clear.
But traditional Melanesian leadership operated with objectives intrinsically individual the
success of a particular big man which did not necessarily have serious consequences for the
collectivity. The village would have other big men. With the arrival two or several generations ago
of elections to a national parliament, 6 and the possibility of national "civil society" organisations
attracting foreign funds and providing exposure useful for political careers, this changed. The formal
objectives became intrinsically collective indeed national and the actions of these organisations
did have serious consequences for the nation, especially the actions of government. But they are
operated, even used, in the traditional individualist style.
Does this manifest a hardy indigenous individualist political culture? Or does it manifest a
disconnect between indigenous political culture and the "new" forms of association, still widely
considered foreign (or "introduced", or even "white-man's")?
If the latter, then the point is not individualism, it is the failing struggle of real community
politics whatever its position on an individualist-collectivist spectrum to realise itself in these
foreign forms. Perhaps too many people just find it too difficult to understand how to make their
preferences felt. Perhaps too little political support is translatable into the terms of the modern
government and the modern organisations.
An example to watch in this regard is the push by Vanuatu's President to have the constitution
amended to provide for Presidential election. The Solomons and PNG retain a Governor-General,
and Vanuatu, like Fiji, has a Presidency which functions like a Westminster monarch and is selected
by the legislature. In all the jurisdictions, then, the head of state is essentially a figurehead and does
not directly represent the voters' choice. President Mataskelekele is urging that Vanuatu's President
be chosen by nation-wide election. He would then be the only government figure elected by the
whole nation the popular mandate of the Prime Minister, as in any Westminster-based system, is
only his victory in his own constituency and the support of a majority of other MPs. In a system
with very many significant political parties, none ever dominating, this means a voter can never be
confident that the leader of the party he or she votes for, even if it does as well as hoped, will

In the 1960s in PNG, with a sovereign parliament following in 1975; and 1978 and 1980 respectively for the
Solomon Islands and Vanuatu, with independence. Fiji, whose political culture is only tentatively to be
placed with these as "Melanesian", began elections in the 1960s and achieved independence in 1970.




become Prime Minister will lead the country. The same situation obtains in the Solomons and
PNG (although not in Fiji, where the party system is relatively very simple).
Such a President could be a leader in a form no other figure has a simple one, analogous to a
chief in most traditions. He would be head of the state, as before, but also head of the nation.
Comparison with American and French Presidencies would be unavoidable, whatever the formal
limits to his powers set by the constitution. He would be in a real sense above politics, since in
Melanesian countries the term "politics" essentially means parliamentary manoeuvring. If the
foreign character of formal politics is what allows politicians to behave so individualistically, the
course of such a presidency should offer a contrast useful to observers.
What looms in each of these matters is the question of institutional form, the models of
organisation, official and unofficial, in which individualist and collectivist impulses express
themselves in Melanesia.



It is hard to say "I like you" in French, when one is learning French. There is no word meaning,
simply, to like. Nor is there one for to love. Instead there is aimer, which means either and both, and
possibly neither precisely, depending on how and with what modifier it is used. So je t'aime is what
a lover would say. Je vous aime is what a very warm student might say to a teacher (vous being
more distant than the tu in t'aime). And je t'aime bien is what a friend would say, although its literal
meaning is "I love/like you well".
One can appreciate how English-speakers communicating in French might come across in
misleading ways. Without making too much of the sheer linguistic difficulties, I would suggest that
a difficulty of a similar sort explains much of the seeming individualism in Melanesian politics and
The translation is not simply from one culture, or cluster of cultures, to another. It is the way
Melanesian peoples are shifting from traditional lives to more modern ones, through the Westernmodelled institutions they have adopted, or that have been adopted for them, first by the colonial
powers in the transition to independence and then by the successor political elites. Individualist
practice is favoured not so much because individualism impregnates the institutions, but because of
how those institutions fit with Melanesian cultures.
The central point is ambiguity: ambiguity in what Melanesians do with the institutions their
societies have adopted. Where the political culture looks for something meaning "to like" or "to
love", it finds only aimer, so to speak. The institutions, in particular the forms for doing politics and
making law, are inapt for the culture. And they are especially inapt for expressing collective ideas
and preferences.
That is, there are few Melanesian communities able to handle the "new" institutions, from the
voting franchise to commercial leases, with much facility, whereas there are a great many


Melanesian individuals able to deal very well with them. So the individual-communal tension within
Melanesian societies, the social mobility within fixed forms that combines egalitarianism with
deference is broken. Political entrepreneurs, in government and outside it, are able to act freely in
ways they could rarely manage in the West, with the same institutional forms, because in the West
communities too make themselves felt through these forms. The grasp with which the individual in
Melanesia is constrained by his community is loosened, even broken, within the adopted
Not only is the apparent extent of individualism exaggerated, then, but its reality is promoted, as
politics and other interactions carried on within or using these institutions affects the larger culture.
And this is not the "individualism" of the Western tradition, which the institutions are meant or
acknowledged to promote. That individualism occurs with a community or collective pressure very
effective in those institutions and forms. This modern Melanesian individualism has the run of those
institutions, very little touched by communal concerns at all.
Individualism, so to speak, escapes the communities, through the modern communal institutions.
It does so along three salient channels.
One is what I shall call, crudely enough, "village culture". Its relevant features are the avoidance
of confrontation and the low level of information about the outside world. The second is "Christian
culture", ideas and practices now largely assimilated into that traditional culture but traceable to
Christianity as introduced to Melanesia. The last is "state culture", the general pattern of interaction
between communities, including villages, and the state.
All the channels drain the communal pressures on individualism which operate in traditional
Melanesian societies, as individuals take up powers and roles offered by the adopted institutions.



The external media can suggest a violent picture of Melanesian culture. But the more striking
reality is peacefulness. "Harmony" is universally the most highly valued condition, and this is not
just rhetoric; even law-school exams are peppered with why-can't-we-all-just-get-along reactions to
disputes. People speak softly, compared to Western counterparts, and resentment and even mere
disagreement are expressed as gossip and absence far more than to the face.
There is, in short, a marked reluctance to confront marked in relation to Western ways.
This is reflected in customary law, in which the main sanction is reconciliation: payment by the
party in the wrong to the wronged of an amount agreed by both sides. The amounts do not reflect
the extent of damage or loss, in the way compensation does in Western law although the term
"compensation" is universally used. This compensation represents a bargain, a level one side is




prepared to pay and the other to accept. The goal is appeasement and harmony, rather than
indemnity (as in Western civil law) or deterrence (as in Western criminal law). 7
In one sense this justice system is collective-oriented. Individual claims or disputes become
family ones, and are then dealt with according to collective feelings (and means). The system is
capable of disregarding individual interests and preferences, notably where the wronged individual
is personally of little influence (rapes often lead to "reconciliation settlements" between families,
which notoriously ignore the victim's personal losses and prospects).
However, notice what drives such a system: it is the ability of the wronged "party" to drive a
bargain, rather than vindicate a right. Now this in itself need not conduce to individualism, or
communalism. But in a social context where modern institutions like schools, businesses, and
especially government permit people to aggrandise power and wealth, on an individual basis, at
levels far higher than any available within the village, it means those individuals can break free of
customary law's constraints even within the customary law's terms. That is, to perform acts in
violation of custom, the empowered individual need not physically escape the village, nor need he
openly defy tradition. He can avoid settlements by refusing offers or demanding payments, without
thereby explicitly "breaking the law"; and he can pay off those he wrongs at little effective cost to
In the traditional order, Melanesian society could maintain control of individual deviancy while
being rather easy-going, since ultimately the individual could only gain power and collect wealth
through the cooperation of others in the village. An individual depended on extended family to pay
not only any compensation settlements his activities might make necessary, but the ceremonial
payments of a normal life, like those for marriage and the deaths of relatives. And he gained
prominence, and power, by organising others to aid him do the same things that everyone did
grow crops, make artefacts, raise pigs.
"Power" and "wealth" meant, essentially, the cooperation and support of neighbours. With the
modern institutions this linkage, even identity, is broken. Power may be gained through
government; wealth may be gained through schools and government.
In addition, there is a feature of the dynamics of economic activities within the village context.
To the traditional system of farming, hunting, fishing, and home manufacture, modernity has added
"projects". With them comes a moral hazard which fosters individualism.
Ostensibly community projects like the improvement of aid posts or schools, or the construction
of facilities for processing crops or seafood, or the improvement of water supplies, are subject to

The "parties" are actually the families of the individuals in the dispute, although for minor disturbances and
violations of custom chiefs may fine individual offenders.


what economists call a "moral hazard". Doing the wrong thing does not necessarily result in less
The version of this applicable in Melanesia arises from the way projects are financed.
The money is not clearly from the community. It is either literally from outside, aid in some
form, or it is from the government, its character as borrowing on the people's credit or sales revenue
from selling the people's resources obscured, indeed disguised, as people do see it as "from" the
government. Even the taxes that people do pay are obscured, as they are indirect: duties and sales
taxes within the prices of goods.
So the prospect of government money being wasted does not dismay people as much as if it
were clearly their money being wasted. The waste is of other people's money money belonging to
the aid donors or to "the government". This lack of anxiety for how public money is spent is part of
the moral hazard.
And the money wasted or lost can be replaced almost any time, when for whatever reason the
donors or the government decide to spend it. The point is not that the money comes easily or often.
The point is that it can come, and at any time, because what makes it come is not the structural
needs of the community or the community's political or economic significance to the country, or a
communal decision at village level, but the inscrutable decisions of aid agencies and the political
fortunes of relevant politicians. This is the other part of the moral hazard, for it cheapens the value
of the community undertaking the hard work of pulling together sacrifice to achieve some project:
as much can be achieved, at any time, when suddenly a grant or loan or gift comes through from the
The effect is to weaken communal resentment when such money is wasted, even when it is
stolen, by deviant individuals. Projects get hijacked to the service of particular individuals;
individuals embezzle development funds; opportunities to improve the collective life or prospects
are lost, yet little is done about it.
Little is done, most notably, as an aspect of the reluctance to confront. Harmony being so critical
to village life, confrontation is avoided whenever possible. For village "projects" in particular, this is
fed by three factors making it easier for individuals to get away with anti-social acts.
One is the absence of routine procedures for dealing with misbehaviour which could be effective
against resistance from the malefactor. If the individual is prepared to bear up under the gossip, and
defy (or pay off) the chief's fines, and the community as a whole is not prepared to resort to the
alternative to these measures violence then there is little in the way of lawsuits or licence
retractions or even police prosecutions to stop him.
Secondly, there is the nature of what the community loses when an individual hijacks a project.
This is opportunity opportunities to improve life, not to preserve it. The village economy is
essentially subsistence; villagers grow their own food and build their own homes. They do not need




projects to get by. When a project collapses because an individual has taken its money or individual
disputes have derailed the management, the community does not clearly see lost wealth or the threat
of destitution; rather, it sees loss of opportunity for improvement. Perhaps that just does not seem
bad enough given the other disincentives to oppose community interest to individual will.
Finally, the ways that agencies of both donor organisations and government make their
decisions are opaque to most rural people, who lack even rudimentary media coverage of such
things. What seems often to happen is that a particularly energetic, well-connected, or lucky
individual brings in a project or subvention. This only reinforces the paradoxically individualoriented nature of community projects. When the project goes bad, it is often perceived more as a
loss for the individual who "brought" it than as a loss for the community.


Christianity has been compatible with both strong individualism and strong communitarianism
in various contexts. I do not mean to argue here that the conversion of the islands had to favour
individualism, but I do suggest that Christianity reinforced the existing tendency to avoid
Forgiveness offers a religious approval for seeing good in a person despite the person's actions,
for failing to attribute bad conduct to bad character for, finally, not acting on another's fault.
This aspect of Christianity thus fits well with the established disposition in village social life to
deal with aggressive or anti-social individuals peaceably, even to the point of evident failure to stop
the anti-social behaviour. When results are not achieved when the forgiven individual acts badly
again this is, to a significant extent, only what God intends the people to tolerate.
At the village level, this seems compatible with the element of pre-Christian religious thinking
that has survived the great conversions: sorcery. A person who repeatedly or emphatically displays
serious social aggression is dealt with by classifying him or her as a sorcerer or a victim of sorcery.
In this way the reality of people inherently disposed to act anti-socially is denied.
Perhaps Christian forbearance does play an important part in village life, and perhaps it does
not. But the natural fit of it does seem to extend to national politics. Based on how people describe
their motivations, it is an important element in the way Melanesian politicians' careers seem little
affected by allegations, non-judicial findings such as Ombudsman's reports and newspaper
investigations, and even criminal convictions, revealing corruption and abuse of powers.
The politicians are forgiven, and allowed another chance. As with sorcery, this obscures the
reality of anti-social individuals here by insisting that, deep down, they are properly social; their
anti-social acts are but momentary back-sliding. This makes it difficult, of course, to screen out such
people from politics. It also makes it difficult to institute reforms to the procedures and institutions


of politics which would allow for self-aggrandisement 8 since reform is generally thought of as
primarily a matter of attitudes.
In the result, individuals willing to defy social norms of cooperation and honesty find their way
more open than the ubiquitous invocations of harmony and good faith might suggest.



The outstanding feature of the state in modern Melanesia is its remoteness from almost all
people. The disconnection or at least lack of connection between the populace and the
government is important for present purposes not by promoting individualism, but by impeding its
contrary. The state's remoteness unfits it for embodying or even reflecting community will.
The remoteness is a product of two kinds of factors. One is the history and associated culture of
government in Melanesia. The other, partly the consequence of that, is the small and shrinking
material capacities of present governments.
The first government of modern form the first "state" in these islands was colonial. Like any
state it suppressed warfare on the part of the authorities it dominated; unlike most states, it itself
engaged in no warfare against other like states. Modern government brought peace to Melanesia, in
the sense of an absence of organised political violence pitting community against community. In
much of rural Melanesia, this was virtually all that "guvman" brought, but the people of many areas
were also introduced to schools, clinics, and road connections that is, services.
The upshot is that the colonial time did not promote identification with government among the
ordinary people. Villages were no longer military units, and so were less demanding as political
communities, while the proto-national state was, at most, a source of services. But for individual
political entrepreneurs, the colonial regime offered opportunities of advancement and wealth,
through the civil service via the education system. Government in colonial times could be used by
individuals, and provided services of benefit to communities, but it could not be influenced by
communities except, to limited and not always legitimate extents, by their prominent individuals.
It did not engage community feelings or attachment, neither aggregating village identities nor
replacing them.
When the franchise came, first for assemblies and then for sovereign parliaments, benefits were
attainable by community action by organising sufficiently to place a local son in Parliament but
these benefits were not essential. They were useful, of course, but they were not necessary, for the
economy remained basically subsistence. As described above they represented opportunities for
development more than the maintenance of an accustomed standard of living.

In the nature of the US Constitution's "checks and balances".




And despite some experiments with poll taxes, the new independent state did not engage
communities by imposing taxes either. This was a state unlike the state of Western experience
neither essential nor aggressive. Thus it did not conduce to "national" identification or even
community involvement with national politics. The new governments inspired, practically, neither
communal commitment nor communal resistance. 9
In more recent times, since the 1980s, this historical lack of salience in political culture of the
state as embodiment of communal sentiment has been reinforced by the material performance of
what "state" there is. The educational and health services and the transport infrastructure (and,
especially in PNG, law enforcement) have declined, in quality and in extent. More than ever, the
state is an entity existing separately from the villages in which people live, located away in the
capital town.
Moreover, with independence the structure and operations of the state did not change.
Melanesian traditions and ways of doing politics did not inform the organisation of the new
governments. Government is organised as it was in colonial times and proceeds as it did then. And
although it operates informally in Tok Pisin or Bislama, the linguae francae, it continues to operate
formally in English, and remains oriented to the metropolitan models. Indeed some of the actual
staff are still foreign, especially at the higher levels of legal services. The demands and ways of
Melanesian governments are still easier to understand, and use, for foreigners of the anglophone
West than they are for the people the governments serve and represent.


All this goes to show no more than that it is misleading to think of Melanesian cultures as
communitarian where the Western "we" are individualist. What distinguishes the political cultures
and general cultures where politics or the law is involved in the two areas is much more obvious:
it is through "our" institutions that Melanesians, both as individuals and as communities, must
operate politically. Because of the misfit of these institutions to Melanesian societies, a kind of
individualism, taking advantage of unaccustomed institutional openings, thrives.

In this the Melanesian states were not like most other post-colonial regimes of the British Empire, eg
Malaysia or the African states.


Laurent Chassot *

Une des critiques majeures adresse la coutume porte sur les violences et la discrimination non
dissimule subies par les femmes au quotidien. Cette responsabilisation de la coutume est-elle
fonde? Quelle part de responsabilit jouent les traditions dans cette rupture avec le droit
international et ses normes? Les auteurs s'accordent pour affirmer que seul un accs rapide la
justice pourra enfin garantir et protger les droits constitutionnels des femmes. On touche ici
un vritable problme public et politique qui porte sur une violation caractrise des droits de
l'homme. Mme s'il semble tabli que l'influence extrieure a jou une part considrable dans
l'approche sexiste des socits mlansiennes, la volont de faire changer les mentalits doit
s'appuyer sur la rigueur des normes internationales, allie, en amont, un travail de terrain, men
par les associations, les institutions, les individus.
One of the major criticisms regarding customary law concerns violence and discrimination against
women. Is this assertion justified? How far are the customs and traditions involved inconsistent with
international law principles? Authors agree that only by favouring faster access to justice will
constitutional rights be guaranteed. There is a fundamental "public and political" policy issue
grounded on a violation of human rights. The role of the colonisation and its consequences are
doubtless responsible for the conservative approach of Melanesian societies, but it is now time to
involve the actors of the South Pacific region in order to change mentalities. The application of
international norms in connection with fieldwork by associations and individuals is here promoted
as the only way to a brighter future.
L'exception culturelle des pays pris dans leur diversit a favoris la prise en compte des
spcificits dans les structures constitutionnelles des Etats du Pacifique Sud. Mais coutume et
dispositions constitutionnelles soulvent invitablement des problmatiques majeures sur des

ATER l'Universit de Paris I Panthon Sorbonne.



questions aussi varies que l'galit, la non-discrimination ou encore la notion de dignit humaine.
La garantie du respect de ces droits fondamentaux a souvent t remise en question ces dernires
annes dans la rgion Pacifique.
Le Vanuatu n'chappe pas cette rgle. Situ au sud-ouest de la rgion et compos de plus de 80
les et lots, le territoire habitable s'tend sur une superficie de 12,900 km, soit la moiti de la Corse,
pour une zone conomique exclusive totale de prs de 680,000 km. Ancienne colonie francoanglaise, le pays est indpendant depuis 1980 et s'appuie uniquement sur une conomie touristique
allie une aide internationale massive. Une particularit reste propre au Vanuatu et la rgion dans
son ensemble: le rle et la place encore considrables occups par la coutume aujourd'hui. Or, le
processus coutumier semble remettre en question le caractre inalinable des droits de l'homme, et
met mal la rhtorique qui consacre son caractre universel. La ralit quotidienne des pays
mlansiens marginalise la femme, en l'cartant des sphres sociales, conomiques et politiques, de
la discussion la prise de dcision 1 . Cette exclusion se retrouve tous les chelons de la structure
sociale, et prends une dimension nationale.
La sous-reprsentation fminine est une donne qu'on ne peut ignorer car elle influe directement
sur la socit mlansienne dans son ensemble, et la situation des femmes vcue au quotidien en
particulier. L'analyse des pratiques traditionnelles soulve un dbat de fond, notamment sur le rle
de la femme dans la socit vanuataise. En considrant la place essentielle qu'elles occupent dans la
vie communautaire depuis toujours, il est difficile d'apprhender les raisons qui lgitiment les
violences dont les femmes sont victimes au quotidien, et les raisons qui justifient ces pratiques. Bien
sr, il en est de mme dans les socits occidentales ou dans les socits plurielles comme
Nouma, o les violences contre les femmes affectent toutes les ethnies et toutes les classes sociales.
Mais la particularit du Vanuatu tient au difficile accs la justice doubl d'une interprtation
errone du droit coutumier qui fragilisent un peu plus un pays tourn vers le 21e sicle. La Cour
suprme a ainsi d se prononcer plusieurs reprises sur la question de l'galit hommes/femmes afin
de rappeler les principes constitutionnels 2 .
L'introspection vise dnoncer ces violences, et proposer des solutions viables afin de faire
prendre conscience aux hommes et aux femmes de la gravit de ces actes pour y mettre un terme
dfinitif. La femme est dconsidre, exploite et censure alors qu'elle maintient l'quilibre d'une
socit mlansienne dpasse par l'conomie de march et la globalisation. Elle est victime d'une
vritable entrave un accs l'ducation, la formation ou encore l'emploi dans la vie

I Fraser "Human Rights v Custom in the Pacific: Struggle, Adaptation or Game?" Passage of Change
(Collection Pandanus, 2003) 199-214.

Public Prosecutor v Kota (1989-1994) 2 Van LR 661. Suite l'enlvement et la squestration d'une jeune
fille par des hommes de son village parce qu'elle souhaitait quitter son mari, le juge Downing souligna que
la femme est considre comme un simple bien, entranant une violation fondamentale des droits
mentionns dans la Constitution, et notamment l'art 5(1) sur la libert d'aller et venir.


conomique, sociale, politique et culturelle de son pays. Prive de ses droits fondamentaux, le
silence qu'on lui impose pour des raisons la fois culturelles et coutumires est-il en adquation
avec les ralits sociales du pays? Les violences faites aux femmes se sont multiplies ces dernires
annes, et la socit institutionnalise ne remet pas en question la ngation de la dmocratie vcue
tous les jours par chaque femme du Vanuatu. Qu'elle mane des institutions de l'Etat (police, justice)
ou des institutions informelles (ONGs, Eglises, chefferie), la rponse aux violences dont les femmes
sont victimes est pleinement insatisfaisante. La lgitime galit des droits garantie par la
Constitution leur a t refuse jusque l, et occulte ainsi leur panouissement social et/ou



Quel a t l'impact des premiers contacts d'origine europenne sur la socit mlansienne?
L'influence extrieure considrable, porte sur une priode de temps rduite, a peut-tre jou un rle
non ngligeable dans la perte de repres d'une socit du type de celle du Vanuatu 3 . Quelle tait la
place et le traitement fait la femme dans la socit traditionnelle, compar ce qu'il est
aujourd'hui? Quelle interaction peut-on tablir entre coutume et violence? A cet gard, comment
amliorer la communication, l'information, la diffusion de notions aussi fondamentales que l'galit
des droits de l'homme et de la femme?



La colonisation a introduit un nouveau mode de vie, de la faon de travailler celle de s'habiller,

de se nourrir, dans les croyances religieuses, les valeurs et les attitudes. Progressivement, l'attrait
pour le monde extrieur a incit les insulaires migrer vers les zones urbanises, dlaissant leur rle
au village, au sein de la communaut. Le dpart non programm des hommes a t inexorablement
support par les femmes dans toutes les sphres d'activit journalires: travail de rcolte, plantation
et entretien des jardins, auxquelles se sont ajoutes toutes les obligations affrentes la
famille (disputes, tensions intergnrationnelles, etc.). A ce labeur quotidien se sont
progressivement juxtaposes de nouvelles tches mnagres, qui n'existaient pas jusqu'alors.
L'introduction de biens matriels nouveaux, tels que la vaisselle, le tissu et le coton pour les
vtements, un habitat plus moderne, a entran une multiplication des tches domestiques. Enfin, la
ferveur religieuse substantielle qui a dcoul de la colonisation et de l'influence du christianisme,
dfenseur des valeurs traditionnelles et de la domination des mles, n'ont pas jou en faveur de
l'galit des sexes. Associes l'introduction de la scolarisation des enfants, toutes ces
responsabilits nouvelles ont plac la femme un rang bien infrieur celui de l'homme, la

Sur la question de l'influence de la colonisation dans la rgion du Pacifique, lire l'article d'Yves louis Sage
paru la Revue Juridique Polynsienne, Emergence et volution du droit dans les petits Etats insulaires du
Pacifique Sud anglophone, vol 1 hors srie, 2001.




rduisant une activit domestique considrable, compte tenu de sa charge de travail journalire. En
ralit, l'ordre chrtien s'est insinu dans le cadre de l'ordre traditionnel, et a permis d'uvrer en
faveur d'une plus grande galit. Il a permis de dvelopper la scolarisation, l'ducation, par
l'intermdiaire des bonnes surs notamment. Mais cet aspect de l'influence religieuse a t occult
par les populations mlansiennes qui n'ont gard l'esprit que la vision dichotomique entre
l'homme et la femme.
L'arrive des missions au dbut des annes 1850 va srieusement corner les croyances
ancestrales. Le rvrend John Geddy est le premier s'installer au Vanuatu, sur l'le d'Aneityum, o
il rsidera jusqu' sa mort en 1872. Le christianisme, au mme titre que les normes occidentales
issues de la colonisation, s'est progressivement fondu dans le systme traditionnel du pays. De par la
multiplicit des chefferies en vigueur dans chaque le, colons et missionnaires ont favoris la mise
en place d'un systme plus centralis, afin de pouvoir dsigner un interlocuteur unique. Cette
dmarche s'est alors faite au dtriment de la chefferie originelle, en brouillant considrablement la
hirarchie des chefs, le choix tant plus rationnel (capacit s'exprimer en anglais ou en franais,
pacifisme, servitude, etc.) que lgitime (descendance, respect, reconnaissance). La conversion au
culte chrtien impliquait la ngation des pouvoirs divins que les chefs revendiquaient jusqu'alors.
Cette remise en cause brutale de leurs attributions divines supposes n'a pas t sans gnrer de
nombreux conflits dans un premier temps. Plus de 90% de la population sera d'obdience chrtienne
au dbut du 20e sicle, peine quelques dizaines d'annes aprs l'installation des missionnaires, ce
qui tmoigne de la vigueur du proslytisme mis en place travers l'archipel. L'impact religieux a
permis d'enrayer les guerres tribales, et de mettre un terme des pratiques aussi archaques que le
cannibalisme dans certaines parties recules des les. En favorisant la culture ou l'enseignement de
type occidental, le travail a t progressivement catgoris, avec d'un ct celui des hommes, et de
l'autre celui des femmes. Alors que les pouses des missionnaires apprenaient aux jeunes filles
indignes cuisiner, coudre ou encore s'occuper des enfants, les hommes taient orients vers le
travail manuel, l'interprtation des textes religieux, la lecture. Marque par une lourde tradition de
domination masculine, en limitant l'accs au pastorat ou la prtrise aux seuls hommes, l'idologie
chrtienne a faonn l'image de la femme. Et cette place est manifestement subordonne celle de
l'homme. A la lecture des textes religieux, la femme est dfinie comme devant se soumettre
l'autorit de l'homme l'intrieur de la maison ou de l'glise. L'ordination des femmes n'est pas
reconnue par le catholicisme notamment, et leur place est exclusivement associe l'ducation des
enfants et la bonne gestion de la maison.




A chaque fois que la question de l'galit des sexes a t souleve dans le dbat public, la notion
de coutume est venue justifier la diffrence de traitement qui tait faite entre les genres. Sous
couvert de la coutume, les chefs rfutent toute galit de statut, de manire laconique.
En s'appuyant sur la tradition, on relve les postulats de dpart suivants:


le Vanuatu est une socit communautaire dans laquelle chaque membre de la famille, du
village, de la communaut travaille en harmonie pour permettre de faciliter les intrts
collectifs du groupe, et galement individuels dans une moindre mesure;

les pratiques socio-culturelles sont encadres par la coutume, la famille largie tant le
rfrent social. L'assistance mutuelle des membres entre eux est ici une philosophie;

les enfants sont considrs comme un maillon indispensable la prennit du groupe: ils
sont le gage la fois de la scurit des anciens pour les annes venir, et de la translation
des terres aux gnrations futures 4 ;

enfin, la femme est le pilier central de la socit, sa fonction tant aussi varie que
l'entretien et l'ducation des enfants, les tches domestiques, alimentaires, le support
psychologique de la famille, les soins prodigus aux anciens, le travail aux champs, et toute
forme de tche requise dans la vie de tous les jours.

Les hommes prennent les dcisions importantes, les femmes n'ont pas leur place en
politique 5 .
Cette dclaration tmoigne bien de la vision archaque empreinte de l'hritage culturel du pays.
Pour autant, toutes les recherches menes sur l'origine de la violence semblent carter, ou tout le
moins modrer, l'argument tir de la coutume, celle-ci condamnant toute forme d'intolrance et de
brutalit. En effet, une analyse plus approfondie des pratiques traditionnelles du Vanuatu rvle une
interprtation errone de la place accorde la femme au sein des communauts locales. Bien avant
l'arrive des colons, les femmes disposaient d'un systme de grades au mme titre que les hommes
dans de nombreuses les (Malekula, Pentecte, etc.). La chefferie n'tait donc pas rserve qu'aux
hommes, de mme que les femmes exeraient un vritable rle de co-dcision au sein de la
communaut, avec un partage des tches sur les questions domestiques. L'ascendance religieuse,
l'volution des mentalits allies une mconnaissance de la coutume ont progressivement tendu
vers plus de domination masculine, ce qui a induit une aggravation de la violence l'gard des
femmes. 6
In the small scale societies of Vanuatu, as in any other indigenous culture, everybody is basically related
to one another. A woman walking down the road meets a man, he is never just a man. He's a father, a
grandfather, an uncle, a cousin, a son [...].

S Farran "Land in Vanuatu: Moving Forward Looking Backward" (2002) Revue Juridique Polynsienne,
vol 2 hors srie, 213 223.

Chef Lenelgau, ancien Prsident de la Rpublique du Vanuatu Daily Post, en date du 23 avril 2004.

L Bolton Gender Development and Discrimination (2000). A review of legislation in Vanuatu

Development Bulletin, March 2000 S Farran, 17-19.




Avant que naisse la notion d'unit nationale associe celle d'Etat moderne, les indignes
vanuatais s'identifiaient principalement un groupe communautaire, rparti sur une zone
gographique de l'le, aux contours indtermins et imprcis, mais tenue pour sacre. L'unit
politico-sociale tait le Nasara ou Nakamal, lieu de runion, de concertation et de pouvoir de la
chefferie. Le groupe en tant qu'entit s'est maintenu l'chelle insulaire parce que l'Etat moderne n'a
pas su, mais surtout n'a pas pu s'implanter sur l'ensemble du territoire, compte-tenu de l'immensit
de la zone gographique que couvre l'archipel. Chaque clan, chaque tribu possde un systme de
chefferie, vecteur de cohrence et d'quilibre du groupe. La socit mlansienne reste marque par
des traditions encore trs prsentes. Le rang de chef s'acquiert au cours d'une vie marque par les
preuves, que l'on ait hrit du titre ou bien qu'il s'obtienne au travers de crmonies de grades. Il
faut dmontrer une capacit couter, faite de personnalit, de charisme et/ou d'autorit naturelle.
Tous les membres d'une communaut donne sont lis au groupe, et chacun est tenu un rle pour
garantir l'unit et l'effectivit de la micro-socit dans laquelle ils voluent. Ds leur plus jeune ge,
les enfants grandissent dans un cadre prdtermin, o chacun tient son rle et assume ses
responsabilits, aussi bien dans la sphre publique que dans le cadre priv. On distingue d'un ct
l'ducation des garons, et de l'autre celle des filles. Ainsi, les jeunes garons prparent le kava et
s'occupent de toutes les tches lies la bonne tenue des runions au Nasara. Ils assistent les
anciens, en coutant les conseils tout au long de leur parcours initiatique pour devenir des hommes.
Les filles sont, elles, leves par les femmes, et s'occupent de toutes les tches mnagres et des
ncessits lies la survie du groupe.
Chaque entit joue cependant une fonction complmentaire et d'une importance identique.
L'quilibre se maintient selon une structure complexe base sur l'change, au cours des diffrents
vnements qui rythment la vie, de la naissance, la circoncision, en passant par le mariage, les
crmonies de grades ou les funrailles. Ainsi, l'occasion d'un dcs, la participation de la
communaut la crmonie, par l'octroi de dons et de cadeaux notamment, s'assimile une dette de
la famille vis--vis des autres membres. Celle-ci se perptue tout au long de la vie et renforce le
tissu socital, et par l l'apprhension globale d'une communaut donne. On retrouve les notions de
valeur et de respect dans toutes les langues et au sein de toutes les communauts de l'archipel,
quelque soit la relation, le statut, l'ge, mais elles prennent une dimension particulire dans le
Pacifique Sud tant le respect incarne l'quilibre, l'identit mlansienne.
Quelles sont les solutions qui s'offrent aux femmes dans ce contexte particulier d'un pays o
l'interprtation parfois errone des coutumes, un accs limit l'ducation associ une
mconnaissance du droit ont conduit cette situation injuste?




La discrimination avre l'gard des femmes gangrne l'ensemble des secteurs de la vie
sociale, politique et culturelle de l'ancienne colonie des Nouvelles-Hbrides. Le professeur I. Jalal la
dfinit comme le fait de traiter les gens de manire distincte raison de leur sexe, de leur race, de


leur religion, de leurs opinions politiques, etc. [] La discrimination pourra tre positive ou
ngative selon qu'elle favorise ou au contraire entrave les droits d'un groupe d'individus
dtermin 7 . Quant la discrimination sexuelle, elle se fonde sur une caractristique propre la
femme, relle ou suppose. Elle peut tre directe en ce sens qu'elle est faite une femme en raison
de la nature mme du sexe de l'individu, ou au contraire indirecte quand elle privilgiera les droits
des hommes au dtriment de ceux des femmes. Elle traduit une altration de l'galit des chances et
des choix dont les femmes devraient bnficier 8 . Bien qu'il soit acquis que le droit coutumier soustende une certaine forme de discrimination, le systme lgal semble incapable de corriger ces
pratiques quand il ne les occulte pas purement et simplement. C'est l'affirmation progressive de la
hirarchie entre l'homme et la femme qui a volu vers une forme d'oppression puis de contrainte
physique et/ou morale.
La violence domestique s'entend de toute forme de violence perptre au sein de la famille.
Phnomne qui touche l'ensemble des pays, sans distinguer entre les clivages culturels, raciaux ou
religieux, il dcoule d'une vritable volont d'entretenir l'ingalit des relations. La violence pourra
provenir du mari, du petit ami ou de tout autre membre de la famille entendue au sens large. Elle va
prendre diffrentes formes telles que l'agression physique, l'abus sexuel, le viol, les menaces ou
encore l'intimidation. Les violences psychologiques peuvent se traduire par un dnigrement de la
femme dans sa valeur en tant qu'individu (contrle constant, harclement, chantage, menaces). Les
violences verbales prendront la forme d'humiliations par des messages de mpris, d'intimidation et
des propos racistes ou sexistes. Les violences physiques sont les plus frquentes. Elles visent
atteindre l'autre dans son intgrit physique (gifles, coups, etc.). Les violences sexuelles sont des
actes sexuels forcs, par des menaces ou des pressions. Le viol est une des infractions les plus
courantes au Vanuatu, et reprsente plus de 30% des dlits caractre sexuel rpertoris chaque
anne. Enfin, la privation de libert ou de ressources financires est galement une forme de
violence courante. Une femme sur quatre serait victime de violences au Vanuatu, et les institutions
semblent incapables d'enrayer ces pratiques rptes et assimiles dans le quotidien des insulaires.


La Convention des Nations Unies sur l'limination de toutes formes de discrimination l'gard
des femmes 9 , entre en vigueur le 3 septembre 1981, et ratifie par le Vanuatu en 1993, dfinit

R Tor (2004) Rapport du dpartement des affaires fminines Gender, Kastom and Domestic Violence

La polygamie est l'illustration parfaite de la discrimination directe reconnue dans le processus coutumier,
parce que cette pratique accepte dans de nombreuses socits traditionnelles permet aux hommes d'avoir
plusieurs pouses quand celles-ci n'ont pas la possibilit de s'unir plusieurs hommes. Au Vanuatu, la
polygamie a progressivement dclin au cours des dernires dcennies et ne subsiste que dans de rares
villages reculs.

Reconnue sous le sigle CEDAW.




l'expression "discrimination l'gard des femmes" comme toute distinction, exclusion ou

restriction fonde sur le sexe qui a pour effet ou pour but de compromettre ou de dtruire la
reconnaissance, la jouissance, l'exercice par les femmes, quel que soit leur tat matrimonial, sur la
base de l'galit de l'homme et de la femmes, des droits et liberts fondamentales dans les domaines
politique, conomique, social, culturel et civil ou dans tout autre domaine 10 .
Le principe de non discrimination est repris l'article 5(1) de la Constitution du Vanuatu.
La Rpublique de Vanuatu reconnat que [] sont accords toutes personnes, quels que soient sa
race, son lieu d'origine, ses croyances religieuses ou traditionnelles, ses opinions politiques, sa langue ou
son sexe, les droits fondamentaux et liberts individuelles suivants: la vie, la libert, [] un traitement
gal devant la loi, etc..

Le droit ambitionne de renforcer l'galit hommes/femmes, et a prvu des mesures lgislatives

en ce sens. Si la violence l'gard des femmes n'est pas spcifiquement vise par une loi, l'article
107 du code pnal du Vanuatu prvoit expressment le dlit d'assault 11 .
No person shall commit intentional assault on the body of another person.

If no physical damage is caused, imprisonment for 3 months;


If damage of a temporary nature is caused, imprisonment for 6 months;


If damage of a permanent nature is caused, imprisonment for 5 years;


If the damage so caused results in death, imprisonment for 10 years.

A cet gard, on peut considrer que le systme judiciaire a assimil les violences conjugales de
simples questions domestiques, alors qu'il apparat aujourd'hui essentiel de lui consacrer une place
part entire dans le code pnal. Il est paradoxal de constater que les violences volontaires entre deux
personnes dans le cadre d'une rixe sont plus svrement rprimes que si elles sont le fait d'un mari
violent qui bat sa femme. Dans la pratique, la lgislation semble trop floue et imprcise pour tre
suivie d'effets. Les influences socio-conomiques tendent galement interfrer sur cette pseudogalit. L'interprtation patriarcale du droit crit comme du droit coutumier, combine aux pressions
politiques et culturelles du pays, agissent sur les habitants comme un miroir qui renvoie l'image
d'une socit irrmdiablement domine par les hommes. (Care, 2003)


Article premier de la Convention sur l'limination de toutes les formes de discrimination l'gard des
femmes, rsolution 34/120 du 18 dcembre 1979.


Le terme anglais assault est entendu de manire large, et englobe toute forme d'agression physique ou


Les dpts de plainte adresss aux commissariats de police n'entranent pas toujours l'ouverture
d'une information judiciaire, pour diffrentes raisons (intervention des chefs qui dtournent le
diffrend vers les tribunaux coutumiers, violences domestiques courantes des policiers dans leur
cadre de vie personnel, liens de parent avec l'poux prsum tre l'auteur des violences). Un projet
de loi sur la protection de la famille a t rdig en 1998 pour garantir un vritable cadre lgal la
dfense des femmes. Ce texte ambitieux n'tait initialement que la matrialisation l'chelle
nationale des dispositions de la CEDAW. Aprs plusieurs consultations menes au travers des les
par les associations fminines et les ONGs, le projet fut soumis aux dputs lors de la premire
session parlementaire en 2004, mais finalement repouss pour des raisons obscures. A ce jour,
aucun parti politique ne soutient le projet, soumis au vote des parlementaires chaque session. La
volont affiche de promouvoir le rle des femmes dans la socit et d'uvrer en faveur de leur
participation pleine et entire sur toutes les questions ayant trait aux affaires politiques ou
domestiques menace directement le statut d'hommes politiques et de chefs coutumiers des dputs.
Les hommes bnficient aujourd'hui d'une vie plus confortable que celle qu'ont pu endurer leurs
parents et grands-parents, parce que le dveloppement des outils, des moyens de production ou des
moyens de transports ont considrablement simplifi le travail dans les champs. Aussi souhaitent-ils
maintenir cette situation de fait o la majorit des contraintes qu'impose la vie en socit repose
uniquement sur la femme. Les institutions informelles telles que les ONGs ont progressivement pris
le relais des juges, face la paralysie avre du systme judiciaire.
Cr en 1992, le Vanuatu Women's Centre (VWC) est un centre d'coute, d'accueil et d'aide aux
victimes. Il joue un rle associatif depuis maintenant 15 ans, en offrant un refuge et une structure
adapte aux femmes dmunies. Le VWC s'appuie la fois sur la prvention et une politique proactive d'aide aux victimes. Il exige notamment l'application de la lgislation existante, en
l'assortissant des sanctions adaptes afin de lutter contre les impunits. Enfin, il se mobilise en
articulant sa dmarche sur l'ducation et la formation des jeunes. Le VWC compte aujourd'hui 15
centres travers l'archipel. Il s'agira pour la majorit de points d'accueil mobiles qui se dplacent
d'les en les, afin de couvrir l'ensemble du territoire. 400 femmes environ franchissent les portes du
centre chaque anne, et les chiffres traduisent bien une prise de conscience progressive des droits
des femmes aujourd'hui. En 1993, le centre avait recens prs de 180 cas de violences domestiques,
viols et autres abus sexuels. Ce nombre est pass plus de 850 en 2000. Les donnes statistiques
sont la fois vecteurs d'inquitude et d'espoir. En effet, l'augmentation des plaintes est
proccupante, sans compter qu'elle ne rvle que la partie immerge de l'iceberg. La majorit des
jeunes femmes ne disposent d'aucun accs au Centre des femmes, uniquement situ en zone urbaine
tout au long de l'anne. La dnonciation des violences dont une femme peut tre la victime
quotidienne est encore trs rare, marque par la peur, la honte, ou simplement l'impuissance. Les
femmes sont conditionnes pour accepter la situation de violence perptuelle dans laquelle elles
vivent, mais galement dissuades de dnoncer cette situation leur proche ou d'autres personnes. Il
s'agit l d'un phnomne universel, mais de quel recours, de quelles ressources disposent-elles pour




ne serait-ce que prendre conscience de ces ralits? Dans une autre perspective, on peut considrer
que cette augmentation substantielle des plaintes rvle une prise de conscience par les femmes de
leur situation, de l'injustice qu'elles subissent au quotidien. L'information est aujourd'hui relaye,
l'accs l'ducation facilit, bien que limit, et cette dcouverte des ingalits et des violences
imposes cre une rsistance plus forte chaque jour. Entre 1988 et 2002, la police a trait plus de 7
000 dossiers portant sur des agressions et violences, et environ 500 dpts de plaintes pour viol ont
t enregistrs.



Il faut entreprendre un travail d'information et de prvention, afin d'impliquer chaque citoyen

pris individuellement dans l'laboration et le vote des lois, de manire directe et transparente. C'est
cette dynamique participative associe une volont politique qui permettra d'instaurer durablement
la notion d'galit des sexes, avant de servir peut-tre de modle pour les autres Etats de la rgion du
Pacifique Sud 12 .
A cet gard, sanctionner les actes de violence domestique doit devenir une priorit, afin d'offrir
une protection efficace aux victimes et de faire prendre conscience aux auteurs de la gravit de leur
geste. L'information passe par une sensibilisation des citoyens indignes, et une communication
objective de l'ensemble des dlits punissables, du local vers le global. Doivent tre encourags:

une aide judiciaire en faveur des victimes, qui doivent notamment pouvoir bnficier de
conseils juridiques gratuits par le truchement du bureau du Public Solicitor;

la cration de centres de soutien psychologique, par l'intermdiaire du VWC et du

VNCW 13 . C'est en soutenant financirement les associations que l'on pourra tendre leur

un renforcement des mesures de protection sociale, en identifiant les problmes des

couples, et en duquant les jeunes aux notions aussi importantes que la sexualit, les
rapports conjugaux, les liens du mariage, par la scolarisation notamment;

parce que les mariages font l'objet d'une crmonie religieuse avant d'tre prononcs devant
les chefs coutumiers, il faut procder un encadrement du mariage un double niveau.
D'une part, il faut encourager les prtres et le personnel ecclsiastique qui prononcent le
mariage religieux tenir des runions pr-maritales avec les futurs poux, qui permettront
de dfinir les tenants et les aboutissants d'un tel engagement. D'autre part, en associant les
chefs coutumiers qui supervisent le mariage traditionnel prendre part ces runions, afin


I Fraser "Legal theory in Melanesia: Pluralism? Dualism? Pluralism long Dualism?" (1999) 3 J of South Pac


Vanuatu National Council of Women.


d'informer les couples sur des questions aussi varies que le planning familial, la sexualit
ou encore la gestion financire de la future entit familiale;

pourquoi ne pas prconiser une action parallle en faveur de la restauration des conceptions
originelles de la socit vanuataise en matire de position de la femme 14 ?

La question du libre consentement des femmes, des consquences du mariage (notamment

compte-tenu de la disparit institutionnelle entre les sexes), ou encore des motifs et de la procdure
de divorce sont autant d'ingalits flagrantes qui vont l'encontre des droits de l'homme les plus
lmentaires. Ces pratiques sont dsormais inconciliables avec les dispositions constitutionnelles du
pays et doivent faire l'objet de changements majeurs. Le mode de vie traditionnel, la culture comme
les coutumes du Vanuatu ont progressivement volu au gr des influences extrieures, et doivent
s'adapter aux nouvelles exigences internationales. La notion de famille largie en tant que
fondement du systme communautaire a t bouleverse, et une redfinition du systme est
aujourd'hui souhaitable qui prenne en compte la culture dans une socit ouverte et dmocratique
fonde sur la dignit humaine, l'galit et la libert 15 .



Le problme des violences l'encontre des femmes n'est pas propre au Vanuatu et ses
coutumes. Le pays est effectivement cartel entre deux mondes ou deux espaces mentaux tant en
son sein que vis vis du monde extrieur. D'un ct, la sphre gouvernementale, occidentalise,
caractrise par les idologies et les principes dmocratiques, auxquels les citoyens indignes
adhrent selon les rgles de la citoyennet et de la nationalit du pays. Mais d'un autre, il existe un
monde encore traditionnel domin par les rgles de la rciprocit et de l'change, o chaque membre
de la communaut est uni par des liens de parent indfectibles, et la chefferie est toute puissante.
Au Vanuatu comme dans la majorit des nations du Pacifique, certains personnes se sont adaptes
ces deux mondes, d'autres n'en connaissent qu'un. D'autres encore n'en connaissent plus aucun,
comme la jeunesse dsuvre des squats de Port-Vila. Chaque systme va placer sur les populations
des devoirs et des obligations inconciliables, o s'opposent la fois l'intgrit des personnes et
l'intgrit des cultures indignes du Pacifique 16 . Bien que les chefs se dfendent de privilgier les
hommes au dtriment des femmes, de nombreux diffrends ont mis mal l'galit des sexes perue
par la coutume. Les raisons historiques traduisent le malaise n d'une altration de la coutume
originelle 17 .


J Vanderlinden Le Juriste et la Coutume: un couple impossible Centre Scientifique et Mdical de

l'Universit Libre de Bruxelles, 1988).


R T Nhlapo Dmocratisation et droits de la femme dans la Constitution sud-africaine: le problme du droit

coutumier africain (2004) 17 et s.


S Farran "Human Rights in the Pacific Region: Challenges and Solutions" 2005 Lawasia Journal 39 68.


J C Care "Issues in Contemporary Customary Law" (University of South Pacific, 2003).




La rgle de droit consacre dsormais les concepts anglo-saxons de natural justice, fairness,
reasonableness et due process repris dans la Constitution du pays. Les juges peuvent galement
s'appuyer sur les normes de droit international pour fonder leurs dcisions. Mais cette accs la
justice sur le papier des dcisions judiciaires n'est et ne sera jamais qu'un leurre, tant les contraintes
traditionnelles (machisme, autoritarisme naturel, etc.), matrielles (dpendance financire lie au
travail dans les jardins, communautarisme exacerb) ou encore gographiques (moyens de
transports inexistants, distances considrables entre les les) limitent l'accs l'information ou
l'ducation ds que l'on s'loigne de la capitale. Tout ceci ne relve-t-il pas d'un vux pieux? Les
intentions sont louables, mais o trouver les intervenants et les financements pour ce faire?



R C Plachecki *

This paper concerns international and regional integration and in particular, it addresses how
regional integration is a positive first step for countries in the Pacific to conform to international
demands. The trade preferences that are currently available to ACP states and the liberalisation of
trade in the Pacific promoted by the Cotonou Agreement are considered as is the proposed
comprehensive EPA between the EU and the Pacific region. The paper discusses the potential
relevance of the EU/ACP trade arrangements to New Caledonia and argues that it would be in New
Caledonia's interests to become actively involved in the EPA negotiations with the prospect of
joining the Pacific EPA. The paper then addresses whether there is any constitutional impediment to
New Caledonia's increased participation in the EPA negotiations or membership of a free trade
agreement. The conclusion is that New Caledonia should be more actively involved in the Pacific
region by fully participating in the EPA negotiations as a potential member of the Pacific Group.
Les accords commerciaux entre la Nouvelle-Caldonie et lUnion Europenne viennent expiration
en 2012. Cet article sintresse au bnfice que pourrait dores et dj retirer la NouvelleCaldonie de participer au processus de ngociations entre les pays ACP et lUnion Europenne
dans la perspective de pouvoir bnficier du rgime des EPA.


New Caledonia 1 as an overseas territory (OCT) of France, 2 presents unique issues concerning
free trade. Although not a WTO member, New Caledonia's trading arrangements with the European

LLM, Barrister and Solicitor of the High Court of New Zealand. This paper was substantially drafted in
2006-2007 and accordingly the research is reflective of that date save the updating to take account of the
2008 CPA deadline that was missed by several ACP states. There is limited data on the 2008 situation
(namely the development and nature of the so-called 'Interim' Economic Partnership Agreements).



Union (EU) have been subject to WTO influence. And, being an OCT of France, there are certain
expectations from third countries that New Caledonia comply with international trade rules and
The EU is supportive of international trade liberalisation and therefore has been fostering the
OCT into the world market. 3 Consequently, the current trade arrangement between OCT and the
EU, which provides the OCT with non-reciprocal trade preferences is temporary only. 4
Like the OCT, many African, Caribbean, and Pacific (ACP) countries currently benefit from
non-reciprocal preferential treatment from the EU. The trade regime between the ACP states and the
EU was regulated by the Cotonou Partnership Agreement (CPA) and in effect still is until 'Interim'
Economic Partnership Agreements are superseded with binding final Economic Partnership
Agreements (EPAs). 5 The CPA is a descendant of the Lom IV Convention. 6 Since 1975, Lom
had provided a framework for trade, aid, and political relations between the EU and 78 ACP

New Caledonia is situated 1,500km north-east of New Zealand (and therefore effectively New Zealand's
closest foreign neighbour). The population estimates are between 220,000 and 235,000 (2005 statistics). Its
main resources are minerals. New Caledonia is not independent. The political and administrative structures
of New Caledonia are set out in the Nouma Accord, signed in May 1998 between the Government of
France, the pro-independence Front de libration national kanak socialiste and the integrationist
Rassemblement pour la Caldonie dans la Rpublique. For further information about geopolitical and
economic issues see, New Caledonia: Yesterday, Today, and Tomorrow <http://www.otago.cc.nz/
otagofps/pdfs/Deckker.pdf> (last accessed 18 November 2006). See also, UNGA "New Caledonia"
(29 March 2005) Working Paper prepared by the Secretariat A/AC.109/2005/13 2.

It is a territory of France now called a "pays" (country). However, there is some debate on its exact status.
See below, Part IV,B,1. The Treaty Establishing the European Community (25 March 1957) 298 UNTS 3
(EC Treaty) Part Four (art 182) and annex II together refer to New Caledonia as being one of the EU's
Overseas Countries and Territories (OCT). An OCT is defined in art 227.3 of the EC Treaty. And, in
relation to the OCT trade regime, New Caledonia is listed as an OCT to which it applies: Council Decision
(EEC) 2001/822 Overseas Association Decision [2001] OJ L 314, annex IA.

Council Decision (EEC) 2001/822 Overseas Association Decision [2001] OJ L 314, art 16.

The OTC/EU trade arrangement contains a sunset clause. The current trade regime will therefore need to be
reviewed/replaced in 2012. See Council Decision (EEC) 2001/822 Overseas Association Decision [2001]
OJ L 314, art 63.

Partnership Agreement Between the Members of the African, Caribbean and Pacific Group of States of the
One Part, and the European Community and its Member States, of the Other Part signed on 23 June 2000

Lom I was successor to Yaound II. The Yaound Agreement of July 1963 lasted until 1969; Yaound II
followed and ended in 1975. The first Lom Convention came into force in April 1976; The Convention
was renegotiated and renewed three times. The subsequent agreements were: Lom II (January 1981February 1985); Lom III (which came into force in March 1985 (trade provisions) and May 1986 (aid) and
expired in 1990); Lom IV (December 1989-1999).


countries. 7 The CPA, signed on 23 June 2000 in Benin, emphasised the move away from treating
aid as the main instrument of development cooperation to focus instead on trade. 8
The CPA and now the 'Interim' EPAs, like the OCT arrangement, provide transitory trade
arrangements and generally promote the liberalisation of trade. More particularly, the current
preferential arrangements available to ACP states by the EU have been deemed WTO-inconsistent. 9
Thus, negotiations for free trade agreements (the final EPAs) are currently underway. Although
originally to be negotiated by 2008, an extension of time was granted for the ACP states to enter
binding EPA's. The 'Interim' agreements have been introduced until the conclusion of a
comprehensive EPA.
While trade liberalisation has benefits, it is first desirable for both the OCT and the ACP states
to be regionally integrated. 10 The paper therefore discusses the EU/ACP trade arrangement and its
potential relevance to New Caledonia. Given the scheduled demise of New Caledonia's current trade
regime with the EU in 2012, the paper concludes that New Caledonia should become actively
involved in EU/ACP negotiations with the prospect of joining the Pacific EPA. 11 This way, the
benefits of regional integration and global trade liberalisation objectives can become a reality.
Inevitably, it is in New Caledonia's interests to have a voice in trade negotiations that directly or
indirectly affect its market the EPA therefore will have ramifications for New Caledonia, whether
or not it becomes a party.



A Internationalisation
No country weak or strong "can escape the pressures of globalisation". 12 The WTO 13 has a
major influence on freeing trade in the international context by promoting the worldwide

Welcome to the DTI's Website for Europe & World Trade <www.dti.gov.uk/ewt/lom.htm> (last accessed
20 August 2006). This paper is concerned with the Pacific countries. See below, n 38 for a list of the
countries that form part of the Pacific ACP group.

Jane Kelsey "A People's Guide to the Pacific's Economic Partnership Agreement" (World Council of
Churches, Suva, March 2005) 13. This report is available at <http://www.arena.org.nz/REPA.pdf> (last
accessed 2 February 2007). The CPA was concluded for a 20-year period (2000-2020) and, among other
things; it regulates trade and cooperation between the EU and ACP states. The CPA deals with areas other
than trade. For example it has a comprehensive political dimension (covering topics such as human rights).
This paper is only concerned with its trade provisions.

See below, Part III, A 1 and 2.

10 For example an enlarged production base enables small states to better overcome their vulnerabilities to
ultimately compete in the world market. See below Part II, B.
11 This is because the EU/ACP relations affect the South Pacific region generally.
12 EU Trade Commissioner, Pascal Lamy "ACP/EU Joint Ministerial Trade Committee" (2003 JMTC
Address, St Lucia, 1 March 2003) 2.




liberalisation of trade through its policies and rules. 14 Although globalisation entails risks for less
developed countries, it also offers opportunities. 15
No country simply experiences globalisation passively, nor can any country base its domestic strategies
on permanent protection from it. Rather [countries]must become pro-active. [Countries]have to do
all in [their] power to maximize the benefits deriving from globalisation andmust do everythingto
address the dark side of globalisation which tends, if not properly harnessed, to make the big stronger
and the small weaker.

The WTO supports the comparative advantage theory which is predicated on the belief that if
each country exports the product of what it can do best, this increases efficiency overall and
accordingly long-term financial benefits are gained domestically. 16 Generally speaking, the notion
of free trade at the international level becomes a reality when countries conform to the main
objectives of the WTO Most Favoured Nation Treatment (MFN) which requires equally
favourable treatment of imports from all WTO members; 17 and National Treatment (NT) which
requires equally favourable treatment of imports as compared to domestic products. 18 The WTO
supports the view that economic prosperity at the domestic level is achieved through the
internationalisation of markets.
WTO initiatives have a global impact even on non-WTO members. 19 However, those countries
less prominent in the world market struggle to meet all the consequential demands from the
international community. The WTO is largely influenced by the large developed states, which are
the main players in international organisations. Those main players are often quite unaware of the
vulnerabilities and local conditions (such as the extent of and lack of human and economic

13 There are currently 139 WTO members. Apart from the size of the WTO (which, in itself, suggests the
WTO has a global impact), it has ramifications for non-WTO members. An exchange of preferential
treatment between the WTO-member and non-WTO members may give rise to a violation by the WTO
member of the MFN treatment obligation of the WTO agreement the very situation which gave rise to the
demise of the ACP preferences by the EU (discussed in this paper). See generally, Won-Mog Choi "Legal
Problems of Making Regional Trade Agreements with Non-WTO-Member States" (2005) 8 J Int'l Econ L
14 For example the Most Favoured Nation Treatment and National Treatment principles.
15 EU Trade Commissioner, Pascal Lamy "ACP/EU Joint Ministerial Trade Committee" (2003 JMTC
Address, St Lucia, 1 March 2003) 2.
16 For further information on the evolution of international trade theory and policy see, Michael Trebilcock
and Robert Howse The Regulation of International Trade (2ed, Routledge, New York, 1999) Ch 1, 1-24.
17 General Agreement on Tariffs and Trade (GATT) (1 January 1948) 55 UNTS 194, art I.
18 GATT (1 January 1948) 55 UNTS 194, art III.
19 WTO Pacific Islands Forum
(WT/MIN(01)/ST/29, Doha, 2001).








resources) of smaller countries such as the Pacific island countries (PIC). The concept of regional
integration has therefore become an important ideal for less developed countries such as those in the
South Pacific. If the PIC are united as a region then they have a better chance of strengthening their
economies than were they to compete on an individual basis in the world market. Regional
integration provides the platform for ultimate integration into the global economy.
B Regionalisation
Regional integration is of the utmost importance to alleviating the natural handicaps of
smallness and vulnerability. Regional integration will enlarge the production base, allow more
rational exploration of resources, improve specialisation and increase attractiveness for
investment. 20
Regional integration encourages countries to network and share responsibility in achieving
international goals. 21 This shared responsibility means countries can more effectively voice their
concerns and vulnerabilities to the international community and in turn goals, such as trade
liberalisation, have a better chance of eventuating. 22 Given the rapid proliferation of preferential
trading arrangements within and outside the Pacific region, regional integration will help raise the
less influential countries' capacity in trade negotiations and policy analysis. 23 The Pacific office

20 EU Trade Commissioner, Pascal Lamy "ACP/EU Joint Ministerial Trade Committee" (2003 JMTC
Address, St Lucia, 1 March 2003) 2-3.
21 Shared responsibility is a positive way to achieve global goals. An analogy can be made with the responses
PICs have made in responding to United Nations initiatives. The members of the Pacific Islands Forum
(PIF) worked together to devise counter-terrorism model laws to be put in place by PIC and the Forum
provides assistance to help improve their infrastructure. The same approach of shared responsibility through
regionalisation could assist, for example, the reform of legislation and policy analysis to reflect WTO
objectives. The PIF could develop strategies to increase human and economic resources that align with the
development of free trade. See Rebekah Plachecki "Beyond the Southern Cross International CounterTerrorism Initiatives from a Pacific Perspective" (2006) 12 RJP 55, 65.
22 A particular example of shared representation is the Pacific WTO Office in Geneva: see EU-ACP: Pacific
Islands Get Permanent Representation to WTO <http://www.delfji.ec.europa.eu/en/whatsnew/euacp_pacific_islands_get_permanment_representation_to_wto.htm> (last accessed 1 November 2006). Other
specific reasons for regional integration are contained in the Council Decision (EEC) 2001/822 Overseas
Association Decision [2001] OJ L 314, art 16. For example regional integration can foster the gradual
integration of the OCT into the world economy, accelerate economic cooperation, and promote the free
movement of persons, goods, and services. For a scholarly article see, The Pacific Island Nations: Towards
Shared Representation <http://www.wto.org/English/res_e/booksp_e/casestudies_e/case33_e.htm> (last
accessed 31 August 2006).
23 See, A Study on Regional Integration and Trade: Emerging Policy Issues for Selected Developing Member
Countries <http://tcbdb.wto.org/trta_project.asp?ctry=998&prjcd=35234-01> (last accessed 24 December
2006). See also above, n 22.




based in Geneva is one example of how the countries of the South Pacific can a have a stronger
impact in multilateral trade negotiations than were they to negotiate independently. 24
Regional integration can lead to ultimate integration into the world market and "WTO
agreements recognise that regional arrangements and closer economic integration can benefit
countries." 25 Further, the EU has argued that regional integration not only makes sense
organisationally, but would benefit countries more than were they to interact bilaterally with the
EU. 26 The EU sees itself as a regional role model that should have impact on other regions. 27
C Examples
In recent years the South Pacific has been a hive of regional activity. 28 Although the CPA and
the EPA are the focus of this paper, it is relevant to note other Pacific agreements and organisations
mentioned in this Part. This is because, generally speaking, they support the trend to liberalise
markets through regional integration. For example the Pacific Island Countries Trade Agreement
(PICTA) is a regional trade agreement which provides for the gradual establishment of a free trade
area among members of the Pacific Islands Forum (PIF); 29 the PIF 30 is concerned with developing

24 Many of the PIC could not afford to have their own office in Geneva. An office representing the entire
region is cost-effective.
25 Regionalism: friends or rivals? <http://www.wto.org/english/thewto_e/whatis_e/tif_e/bey1_e.htm> (last
accessed 24 December 2006).
26 Governance, Capacity and Legitimacy: EPAs, EBA and the European Union's Pacific Regionalism after
Cotonou <http://www.otago.ac.nz/otagofps/FPS%2005/fps2004/pdfs/Holland_Koloamatangi.pdf> (last
accessed 24 November 2006).
27 See, Governance, Capacity and Legitimacy: EPAs, EBA and the European Union's Pacific Regionalism
after Cotonou <http://www.otago.ac.nz/otagofps/FPS%2005/fps2004/pdfs/Holland_Koloamatangi.pdf>
(last accessed 24 November 2006). See also, Tony Angelo and Rebekah Plachecki "The Pacific and Europe
50 year Jubilee of the European Communities" (2007) 38 VUWLR 5.
28 See, Geoff Leane and Barbara von Tigerstrom (ed) International Law Issues in the South Pacific (Ashgate,
2005) 259.
29 PICTA came into force in 2003 and trading under PICTA was scheduled to begin in 2006. The PIF is a
regional body that deals with various political and economic issues in the Pacific. Its mission is "to work in
support of Forum member governments, to enhance the economic and social well-being of the people of the
South Pacific by fostering cooperation between governments and between international agencies, and by
representing the interests of Forum members in ways agreed by the Forum:" Pacific Islands Forum
Secretariat <http://www.sidsnet.org/pacific/forumsec/> (last accessed 2 February 2007). Further information
about the PIF can be obtained at: Pacific Islands Forum Secretariat Website <http://www.forumsec.org.fj/>
(last accessed 22 November 2006).
30 Australia, the Cook Islands, the Federated States of Micronesia, Fiji, Kiribati, Nauru, New Zealand, Niue,
Palau, Papua New Guinea, the Marshall Islands, Samoa, Solomon Islands, Tonga, Tuvalu, and Vanuatu are
all members. New Caledonia became an observer in 1999 and an associate member in 2006. French
Polynesia is an associate member; Tokelau and Timor-Leste are observers.


international trade to improve the quality of life in the Pacific region; the Pacific Agreement on
Closer Economic Relations (PACER) provides a framework for trade negotiations in the Pacific
region; 31 and regional economic integration is supported by the Pacific Plan. 32 Furthermore, New
Zealand and Australia as the larger developed nations in the Pacific have assumed responsibility for
many PIC. Regional trade agreements therefore already exist between certain PIC and Australia and
New Zealand. For example, the South Pacific Regional Trade and Economic Cooperation
Agreement (SPARTECA), in force since 1981, provides "for non-reciprocal duty free access to New
Zealand and Australian markets for products" from members of the PIF. 33 Finally, the CPA and
now the 'Interim' EPAs between the EU and countries of the Pacific region are further steppingstones toward free trade in the Pacific and trade liberalisation. 34 The CPA provided a framework for
the development of a free trade agreement, which is still being negotiated via the Pacific EPA. 35



This Part considers EU/ACP trade relations which have led to the development of EPAs. It will
consider the WTO-incompatible trade preferences available to ACP states and how the WTO has
played a major role in the imminent demise of those preferences. It also addresses how the change
to EPAs will affect ACP states and more particularly, the Pacific states of the ACP group. This Part
is divided into two sub-Parts: The first is concerned with the CPA; the second discusses the Pacific

31 Leane and von Tigerstrom, above n 28, 263.

32 "The Pacific Plan was endorsed by Leaders at the Pacific Islands Forum meeting in October 2005. It is a
'living' document ensuring flexibility so that the Vision of the Leaders and the goal of regional integration
extend far into the future. This revised version of the Pacific Plan follows decisions taken by Leaders at the
Forum meeting in October 2006 where they welcomed the considerable progress made in implementing the
Pacific Plan, noted the key challenges that need to be overcome in order for the Plan to continue to be
effectively implemented, and agreed on a number of key commitments in order to move the Plan forward":
Pacific Islands Forum Secretariat "The Pacific Plan for Strengthening" (25 October 2006). Available at:
<http://www.sidsnet.org/pacific/forumsec/> (last accessed 2 February 2007).
33 This Agreement is distinguishable from Free Trade Agreements (FTAs) such as the FTA between Australia
and New Zealand. See also PACER which provides a legal framework for future negotiations of FTAs
between certain PIC and Australia and New Zealand. The Pacific Agreement on Closer Economic Relations
(PACER) (18 August 2001) is available at: Pacific Islands Forum Secretariat <http://www.forumsec.org.fj>
(last accessed 2 February 2007).
34 There will be one EPA for each region. The focus of this paper is on the EPA for the Pacific region.
35 CPA arts 36-37.





WTO-Incompatible Trade Preferences

The Lom IV trade preferences incorporated into the CPA 36 were incompatible with WTO rules
and accordingly scheduled to be abolished by 2008. 37 The CPA, which superseded Lom IV,
allowed ACP states 38 to maintain the trade preferences from the EU but only until WTO-compatible
EPAs were devised. It therefore provided a transitory trade arrangement until 2008. However,
because the deadline was missed by several states, 'Interim' EPAs have been introduced adding yet
another tier to the process for the removal of trade preferences.
Although several of the ACP states are not WTO members, the EU must comply with WTO
rules in the trade arrangements it makes with them. Countries within the EU are WTO members and
therefore the WTO binds any of its members which enter into regional trade agreements on goods
and/or services with another state regardless of whether that other state is a WTO member or not. 39
Until the final EPAs come into force, ACP countries maintain tariff preferences, which "grant an
advantage to ACP products imported into Europe in relation to competing products from other
countries." 40 The preferences are not reciprocal. Therefore, ACP countries are "not obliged to offer
special access to EU products in their own markets, and are able to restrict their entry by taxing
them." 41 These preferences contradict the principle of non-discrimination under article I of
GATT. 42 Although there are exceptions to this GATT principle, none of them applies to the

36 CPA art 36(3).

37 Title II of the CPA provided for a transitional trade arrangement between the EU and ACP states. From
2002 until 31 December 2007, the parties were required to negotiate new trading agreements EPAs. See
CPA art 37(1). Effectively, Title II of the CPA was intended to become redundant once the EPAs were in
force from 2008.
38 The Pacific Group of the ACP states includes 14 countries: the Cook Islands, the Federated States of
Micronesia, Fiji, Kiribati, Nauru, Niue, Palau, Papua New Guinea, Republic of the Marshall Islands, Samoa,
Solomon Islands, Tonga, Tuvalu, and Vanuatu.
39 "A People's Guide to the Pacific's Economic Partnership Agreement", above n 8, 29. See the wording of
GATT 1947 art I in Appendix 3 (particularly the words: "any other country"). Based on GATT article I, a
WTO member may be subjected to challenge by another WTO member if it offers more preferential trade
arrangements to other countries (whether or not they are WTO members). More particular issues arise in the
context of GATT art XXIV, see below, Part III, A, 3, (a) where a Free Trade Agreement contains both
WTO and non-WTO signatories.
40 Cotonou Infokit From Lom to Cotonou <www.http://www.ecdpm.org> (last accessed 10 August 2006).
There are some specific arrangements for example in regard to manufactured and processed products and
tropical products.
41 Cotonou Infokit From Lom to Cotonou <www.http://www.ecdpm.org> (last accessed 10 August 2006).
42 This is the MFN principle. See Appendix 2.


preferential trading arrangements between the EU and the ACP states. Special arrangements may
only be permitted under the following reservations: They can be reciprocal in accordance with
article XXIV of GATT. The trading arrangement between the EU/ACP states as mentioned, is nonreciprocal. Alternatively, they may be granted by a developed country to developing countries (or to
LDC) in accordance with the 'Enabling Clause' permitting special and differential treatment of
developing countries. 43
The Enabling Clause was established as an indirect 44 response to the recommendations of the
United Nations Conference Trade and Development (UNCTD). The UNCTD hoped to establish: 45
a mutually acceptable system of generalized, non-reciprocal and non-discriminatory preferences
beneficial to developing countries in order to increase the export earnings, to promote the
industrialization, and to accelerate the rates of economic growth of these countries.

The 'Enabling Clause' applies as part of GATT 1994 under the WTO. 46 However, there has
been some debate whether the Enabling Clause requires that special treatment must be made
available to all developing countries. For the time being, EC-Tariff Preferences 47 suggests that the
answer is no. That case provided insight on the relationship between the Enabling Clause and GATT
1994 article I. 48 The Appellate Body in EC-Tariff Preferences ruled that the Enabling Clause, as the

43 Differential and More Favourable Treatment Reciprocity and Fuller Participation of Developing Countries
(Enabling Clause) (28 November 1979) L/4903. The Enabling Clause "allows derogations to the mostfavored nation (non-discrimination) treatment in favour of developing countries. In particular, its paragraph
2(c) permits preferential arrangements among developing countries in goods trade.": Differential and more
favourable treatment reciprocity and fuller participation of developing countries <http://www.wto.org/
english/docs_e/legal_e/enabling1979_e.htm> (last accessed 2 February 2007). Further general information
can be found in: Mitsuo Matsushita, Thomas J Schoenbaum and Petros C Mavroidis The World Trade
Organization Law, Practice, and Policy (2ed, Oxford University Press, New York, 2005) 219.
44 The word 'indirect' is used because the direct response was the granting of a waiver in 1971 under GATT
1947 art XXV:5. The Enabling Clause replaced the waiver and provides a permanent legal solution to allow
for trade preferences.
45 Lorand Bartels "The WTO Enabling Clause and Positive Conditionality in the European Community's GSP
Program" (2003) 6 J Int'l Econ L 507, 512 (emphasis in original).
46 See Appendix 2.
47 European Communities Conditions for the Granting of Tariff Preferences to Developing Countries (ECTariff Preferences) (7 April 2004) WT/DS246/AB/R (AB). In this case, India argued that the special
arrangements to combat drug production and trafficking under the EC Council Regulation No. 2501/2001
violated GATT 1994 art I.1 despite the provisions of the Enabling Clause.
48 For clarity it should be noted that GATT 1994 and GATT 1947 are compatible. GATT 1994 confirms that
after the establishment of the WTO, the GATT 1947 continues to apply. Hence, the MFN (GATT 1947
art I) is an integral part of GATT 1994.




more specific rule, prevails over the GATT article I. 49 However, the instances in which a country
cannot offer preferences to all developing countries are limited. The EC-Tariff Preferences case
suggests that a country could validly have a scheme that was tailored to the needs of all similarly
situated countries. 50 In theory, this could exclude some developing countries. Nevertheless, this
paper proceeds on the assumption that even after this case, the WTO would still find the Lom IV
trade preferences in breach of the GATT. This is because the benefits extend to all and only ACP
developing countries. Thus, whether the developing country is part of the ACP group is the sole
determining factor (and not whether the country has similar economic development challenges or
similar production possibilities) to benefit from the preferences.

The WTO Waiver

The question therefore arises what the legal basis was for the continuance of the Lom IV trade
preferences in the absence of WTO compliance. Responding to this issue was largely due to the EC
Bananas 51 decision which confirmed the EC had trading arrangements with ACP countries which
were incompatible with WTO rules. In that case, the issue was whether the Lom preferences for
ACP banana products violated the GATT. Although the original complaint to the GATT was
unsuccessful, 52 when the WTO was established in 1995 a subsequent complaint to the WTO led to a
decision that the EC were in breach of the GATT. It was this ruling that prompted the EC to obtain a
temporary waiver from the WTO until the Lom IV trade preferences were removed. This waiver
was granted on 14 November 2001 pursuant to GATT article IX(3) and continued until
31 December 2007. 53 The waiver allowed the EU temporarily to grant preferential treatment to
products from ACP countries without being required to grant the same preferential treatment to

49 EC - Tariff Preferences (7 April 2004) WT/DS246/AB/R paras 101-102 (AB). The Appellate Body upheld
the Panels decision. See, EC - Conditions for the Granting of Tariff Preferences to Developing Countries
(1 December 2003) WT/DS246/R (Panel) para 7.45.
50 EC - Tariff Preferences (7 April 2004) WT/DS246/AB/R paras 175-176 and 180 (AB).
51 European Communities Regime for the Importation, Sale and Distribution of Bananas (22 May 1997)
WT/DS27/4/USA (Panel).
52 This was because the EC "had been able to block any such findings under the old GATT dispute system,
which gave it a power of veto. That veto was removed when the WTO was created in 1995": "A People's
Guide to the Pacific's Economic Partnership Agreement", above n 8, 19.
53 European Communities the ACP-EC Partnership Agreement Decision of 14 November 2001
<http://www.wto.org/English/thewto_e/minist_e/min01_e/mindecl_acp_ec_agre_e.htm> (last accessed
20 August 2006). Note that the waiver contains some special requirements for the trade of bananas in the
annex. Before 2008, the new tariff regime takes effect; members of the CPA will conduct a consultation
process of which the ACP states will be informed of the EC intentions concerning the rebinding of the EC
tariff of bananas. Article IX(3) GATT provides that: "In exceptional circumstances, the Ministerial
Conference may decide to waive an obligation imposed on a Member by this Agreement or any of the
Multilateral Trade Agreements, provided that any such decision shall be taken by three fourths of the
Members unless otherwise provided for in this paragraph."


similar products of other WTO members. However, the waiver has restrictions - it only applied
temporarily and it did not waive all WTO principles only the MFN one. 54
It should be noted that the EC-Bananas decision was made while the Lome IV Convention was
in force. Thus, following the EC-Bananas decision and the WTO's granting of the waiver, new trade
arrangements under the CPA came into force. The CPA provided for a transitory trade regime,
which corresponded with the waiver requirements and the Panel's decision. 55 Accordingly, although
the Lom IV trade preferences continued under the CPA they were only temporarily available and
therefore consistent with the WTO waiver.

WTO Compatibility

The CPA actively encouraged the ACP countries to comply with WTO objectives. This is
evidenced throughout the CPA. For example, the Preamble confirms generally that the
commitments within the framework of the WTO were significant to the conclusion of the
agreement. Also, one of the CPA's aims was to integrate ACP countries into the global economy.
This too is consistent with trade liberalisation ideals. To achieve this long-term goal, regional
integration and cooperation is promoted. 56 Finally, and more particularly, the CPA expressly
provided that the new trade framework between the EU and ACP states will be WTO compatible: 57
Economic and trade cooperation shall be implemented in full conformity with the provisions of the
WTO, including special and differential treatment, taking account of the Parties' mutual interests and
their respective levels of development.
[T]he parties agree to conclude new WTO compatible trading arrangements, removing progressively
barriers to trade between them and enhancing cooperation in all areas relevant to trade.

54 European Communities the ACP-EC Partnership Agreement Decision of 14 November 2001

<http://www.wto.org/English/thewto_e/minist_e/min01_e/mindecl_acp_ec_agre_e.htm> (last accessed
20 August 2006). See also, Abou Abass "The Cotonou Trade Regime and WTO Law" (2004) 10 European
Law Journal 439, 451.
55 It is interesting to note that negotiations for the CPA and the signing of the CPA occurred before the waiver
was granted the negotiations started in September 1998 (COM(97)537 final of 29 October 1997
"Guidelines for the negotiation of new cooperation agreements with the African, Caribbean and Pacific
countries"); and the CPA was signed on 23 June 2000. However, the coming into force of the CPA followed
the waiver. The CPA came into force on 1 April 2003. It seems that the EU argued for the waiver (the
deadline originally being 31 December 2007) to fit with what had been negotiated in the development of the
CPA. See, The Cotonou Agreement <http://www.concordeurope.org/download.cfm?media=pdfUK&id
=478> (last accessed 11 February 2007).
56 CPA art 28(a). See also CPA arts 29(d) and 30.
57 CPA arts 34(4) and 36. It should be noted that the reference to special and differential treatment in this
article would offer options to ACP states that are not free trade arrangements but are nevertheless WTOcompatible. See below, Part III, A, 3, (b).




The CPA arrangements were to be superseded in 2008 by the WTO compatible trading
arrangements referred to as EPAs. However, it became clear that not all ACP states would
realistically be able to negotiate before the deadline. Now that 'Interim' EPAs 58 have been
introduced countries that did not agree to binding EPAs (such as those of the Pacific) have further
time but must commit themselves to eliminate trade restrictions such as export subsidies within an
acceptable time frame.
Although, certain ACP states may continue to have preferences post 31 December 2007, the
'Interim' EPAs are consistent with WTO rules as they establish binding commitments for countries
to eventually remove trade barriers. They will gradually be replaced by full comprehensive EPAs.
Such final EPAs are currently still being negotiated and will effectively be the implementation of
the CPA's trade provisions.

GATT article XXIV



The idea behind the change from the Lom Convention to EPAs is free trade. 59
[T]he way to strengthen the participation of ACP countries in the global economy was to
embrace(reciprocal) free trade. Opening their markets and allowing unrestricted foreign investment
offered the ACP greater opportunities for growth than continuing to rely on non-reciprocal tariff

Accordingly, the EPA will progressively remove the barriers to trade between the EU and the
PIC pursuant to article XXIV of the GATT. 60


Article XXIV of the GATT allows WTO members to enter into free trade agreements subject to
restrictions. Article XXIV requires parties to a free trade agreement to "remove the tariffs on
substantially all trade between them, normally within 10 years." 61 The Pacific EPA will in effect


Their purpose was to prevent trade disruption although they have also created policy space for the ACP
regions who, free of devisive deadlines and the threat of legal challenges to non-LDC market access, can be
certain they are approaching EPA negotiations on their own terms: <trade.ec.europa.eu/

59 "A People's Guide to the Pacific's Economic Partnership Agreement", above n 8, 19. For greater detail on
the EU perspective, see: European Commission "Green Paper on Relations between the European Union
and the ACP Countries on the Eve of the 21st Century" (20 November 1996, Brussels) available at
<http://aei.pitt.edu/1206/01/ACP_21st_gp_COM_96_570.pdf> (last accessed 2 February 2007).
60 Welcome to the DTI's Website for Europe & World Trade <www.dti.gov.uk/ewt/lom.htm> (last accessed
20 August 2006). See CPA art 36(1)-(2).
61 "A People's Guide to the Pacific's Economic Partnership Agreement", above n 8, 28.


provide for a free trade agreement (FTA) and therefore it must be reciprocal in accordance with
Article XXIV. However, complex issues arise where the FTA includes non-WTO members. One
scholar has discussed this particular issue and doubts whether a FTA that includes non-WTOmember signatories is exempt from MFN requirements under GATT article I. This is because the
wording of article XXIV refers to "contracting parties". If this view is accepted, new complications
arise as to legality of the proposed EPA. As will be discussed shortly, the structure of the proposed
EPA will be to have an annex on goods which PIC may choose to sign. Thus, article XXIV will only
apply to the PIC that do sign the goods annex (which is effectively an FTA) with the EU. So far two
non-WTO members of the Pacific group 62 have expressed an interest in signing this FTA.
Accordingly, if these countries do wish to join, and subsequent other non-WTO members such as
New Caledonia, then it seems that approval by the WTO under paragraph 10 of the GATT article
XXIV may be necessary: 63
[I]f an [FTA] comprises even one single state not a member to the GATT, it must either obtain approval
under paragraph 10 of Article XXIV in order to entertain some degree of flexibility in meeting
conditions stipulated in the article, or receive a waiver from GATT obligations.

In the absence of such approval the EPA may be subject to challenge and, ironically, have to
comply with GATT article I. 64

Other WTO compatible options

The CPA and the 'Interim' EPAs take into account that not all ACP countries are in a position to
benefit from a free trade agreement. Accordingly, while the EPA annex on goods will be
reciprocal 65 and consistent with article XXIV of the GATT, there are other options available to
LDC and developing countries that are WTO-compatible. Therefore, ACP states must consider
whether a trading regime under the EPA is the most appropriate option. The alternatives to the EPA
for LDC and developing countries will now be addressed. It should be noted that the CPA

62 Vanuatu and Samoa. Other interested countries were Fiji, Solomon Islands, PNG, and Tonga. Minutes of
the PACP Trade Ministers Meeting, Nadi, June 2006. See also Jane Kelsey "The Pacific's EPA Negotiations
with the European Union" (2007) 38 VUWLR 79, 85.
63 Won-Mog Choi "Legal Problems of Making Regional Trade Agreements with Non-WTO-Member States"
(2005) 8 J Int'l Econ L 825, 834.
64 Further discussion on this issue can be found in "Legal Problems of Making Regional Trade Agreements
with Non-WTO-Member States" above n 63, 825.
65 See, Jane Kelsey "Free Trade Agreements Boon or Bane?: Through the Lens of PACER" (2006) 37
VUWLR 391, 392; and "A People's Guide to the Pacific's Economic Partnership Agreement", above n 8, 28.




distinguishes LDC from developing countries. 66 And, it acknowledges that even developing
countries are at different levels of development. 67


A GSP scheme is a preferential tariff system extended by a developed country to developing

countries (including LDCs). It allows reduced MFN tariffs or duty-free entry of eligible products
exported by the developing countries to the markets of developed countries. Under the Enabling
Clause, tariff preferences granted by developed countries must not discriminate among developing
countries. However, there is an exception to this non-discrimination principle a developed country
may provide more generous preferences to all least-developed countries than those offered to the
developing countries. 68 Thus, the EU may grant preferential treatment solely to all LDCs and still
be in compliance with WTO obligations.
At the time the CPA was drafted, the EU had in mind a special regime for LDCs. This is
reflected in article 37(9) of the CPA: 69
The Community will start by the year 2000, a process which by the end of multilateral trade negotiations
and at the latest 2005 will allow duty free access for essentially all products from all LDC building on
the level of the existing trade provisions of the Fourth ACP-EC Convention and which will simplify and
review the rules of origin, including cumulation provisions, that apply to their exports.

The EU has therefore (since the drafting of the CPA) altered its trading regime to allow duty
free access for essentially all products from all LDC pursuant to this article.
The process began in 2000. The new regime avoids the problem of WTO inconsistency "by
extending unilateral EU trade preferences to all LDC, including those that are not members of the
ACP group." 70 Consequently, the EC has adopted a regime that provides zero-duty access for all
products except arms from the LDC. 71 This arrangement is consistent with the Enabling Clause.

66 CPA arts 29(b) and 35(3).

67 See CPA art 35.
68 Differential and More Favourable Treatment Reciprocity and Fuller Participation of Developing Countries
(Enabling Clause) (28 November 1979) L/4903. See also, The Status of Trade Preferences in WTO
<http://www.fao.org/DOCREP/004/Y2732E/y2732e08.htm> (last accessed 2 February 2007).
69 CPA art 37(9).
70 The Status of Trade Preferences in WTO <http://www.fao.org/DOCREP/004/Y2732E/y2732e08.htm> (last
accessed 1 September 2006).
71 EC Council Regulation No 2501/2001. See also, The Status of Trade Preferences in WTO
<http://www.fao.org/DOCREP/004/Y2732E/y2732e08.htm> (last accessed 1 September 2006). This is
known as the 'Everything but Arms (EBA)' arrangement.


ACP states that are LDC, therefore have the choice to either maintain the status quo (and benefit
from EBA), or be party to an EPA. The CPA foresees that LDC which have decided not to conclude
EPAs: 72
will continue to benefit from non-reciprocal preferential tariff treatment, which means that the future
trade regime between a LDC regional group member and the EC could be different from the regime
applicable to trade relations between the latter and the other (non-LDC) members of the same grouping.


Developing Countries

The CPA provided that ACP countries that are non-LDC, which decide that they are not in a
position to sign EPAs, will be able to benefit from another trade regime that will govern their
relations with the EC. Developing ACP states have three options available they can become party
to an EPA, benefit from the General System of Preferences (GSP), or may seek an alternative
framework. However, what those other 'alternative' arrangements might be remains unclear. The
chances of another alternative framework (that is neither an EPA nor falls into the GSP category,
but is nevertheless WTO-compatible) being developed is slim hence that option has not yet been
taken up by the ACP states.
A GSP is WTO-compatible if it is in accordance with the Enabling Clause. 73 Such arrangement
does not necessarily have to benefit all developing countries. 74 However, the determining factor of
which developing countries could benefit from the arrangement cannot be solely based on whether
they form part of the ACP group as that would render the regime discriminatory. Therefore, the
current GSP offered by the EU, benefits developing countries regardless of whether they form part
of a particular geographical group. 75 It should also be noted that a GSP is unilaterally devised by
the developed country offering the preference (here the EU), and any amendment or withdrawal of
the benefits are at the discretion of the developed country. 76

72 "The Cotonou Trade Regime and WTO Law", above n 54, 458.
73 Agreement on Differential and More Favorable Treatment, Reciprocity and Fuller Participation of
Developing Countries (the Enabling Clause) Decision of 28 November 1979 (L/4903).
74 The EC Tariff Preferences case suggests that a country could validly have a scheme that was tailored to the
needs of all similarly situated countries. In theory this could exclude some developing countries. See above,
Part III, A, 1.
75 "A new GSP regulation, the third of the 10-year cycle, (Council Regulation (EEC) 2501/2001 as last
amended by Council Regulation (EEC) 2211/2003) implements the current scheme from 1 January 2002 to
31 December 2005. New guidelines for the next 10-year cycle 2006-2015 are currently being prepared":
The European Union's GSP < http://trade-info.cec.eu.int/doclib/docs/2004/march/tradoc_116448.pdf> (last
accessed 11 February 2007).
76 "A People's Guide to the Pacific's Economic Partnership Agreement", above n 8, 27. See also, Mitsuo
Matsushita, Thomas J Schoenbaum and Petros C Mavroidis The World Trade Organization Law, Practice,
and Policy (2ed, Oxford University Press, New York, 2005) 774.




B The Pacific EPA

Because of the strong emphasis on regional integration under the CPA, 77 the ACP countries
were divided by region and each region is negotiating its own EPA if they have not already done
so. 78
The aims and objectives of economic trade cooperation between the EU and the Pacific region
include: 79
Enabling the Pacific ACP States to play a full part in international trade, to manage the challenges of
globalisation and to adapt progressively to new conditions of international trade in a manner and at a
pace conductive to overall economic and social development; enhancing the production, supply and
trading capacity of the Pacific ACP States as well as their capacity to attract investment; supporting
regional economic initiatives in the Pacific ACP region; creating a new trading dynamic between the
Pacific ACP States and the EU; strengthening the trade and investment policies of the Pacific ACP
States; and improving the capacity of the Pacific ACP States to handle all issues related to trade.

Because goods and most agricultural products from ACP countries already enter the EU duty
free, the EPA will not have much effect on the EU imports from ACP states. 80 It is "the ACP States
that will have to remove their tariffs on substantially all trade with the EU within a finite period." 81
It should be noted that the EU's continuance of external relations with the Pacific was addressed
in 2006 "Communication from the Commission to the European Council of June 2006." The EU is
committed to the long-term support of initiatives that increase development and multilateralism
particularly those which concern the ACP group. 82

77 See below Part IV,A,2. Regionalisation is a fundamental principle of the CPA: CPA art 2.
78 It should also be noted that the section in the CPA on economic trade cooperation covers a number of areas.
It first has a chapter on new trading arrangements - EPAs. Then, there are separate chapters on: trade in
services; trade-related areas of competition policy, intellectual property rights, technical standards and
certification, quarantine-type measures, trade and environment, trade and labour standards, and consumer
protection; and special provision for cooperation on fisheries and food security. This paper is primarily
concerned with the chapter concerning EPAs.
79 Pacific ACP EC EPA Negotiations Joint Road Map 10 September 2004 <http://www.forumsec.org.fj/
docs/Gen_Docs/PacificACP-ECEPANegotiations.pdf> (last accessed 1 September 2006).
80 Except of course the OCT of the EU which may be indirectly affected. See below, Part IV.
81 "A People's Guide to the Pacific's Economic Partnership Agreement", above n 8, 28.
82 Commission of the European Communities (Brussels, 08.06.2006 COM (2006) 278 final) Communication
from the Commission to the European Council of June 2006 Europe in the World Some Practical
Proposals for Greater Coherence, Effectiveness and Visibility <http://ec.europa.eu/comm/external_relations/
euw_com06_278_en.pdf> (last accessed 24 December 2006).


The new Development Strategy and comprehensive policies towards Africa, the Caribbean, and the
Pacific, demonstrates the EU's major role in support of the Millennium Development Goals and
effective multilateralism, in the context of globalisation.

This communication, which addressed specifically the EU's future external relations, confirms
the EU's interest in PIC which may have been doubted given the main trading region is Africa. 83
The countries which have decided to negotiate an EPA with the EU as part of the Pacific region
are: the Cook Islands, the Federated States of Micronesia, Fiji, Kiribati, the Republic of the Marshall
Islands, Nauru, Niue, Palau, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu and
Vanuatu. 84 It is notable that any formal involvement of the French territories has been denied by the
EU. 85 Thus, New Caledonia for example, has not appeared individually in the negotiations.


The EPA negotiation process was originally divided into two stages but now there is a third tier
with the introduction of 'Interim' EPAs. The first stage, which began in October 2004 and ended in
December 2006, dealt mainly with finding solutions to substantive issues 86 and the second stage
(January 2007 to 31 December 2007) was intended to finalise those findings in a binding text. Many
of the ACP states missed the deadline and now the 'Interim' EPAs allow further time for those
countries to agree on final trading arrangements.
The EPA between the EU and Pacific region will obviously involve reciprocal free trade
between parties who are not in the LDC category. 87 Therefore, it becomes a relevant enquiry
whether all PIC are ready for a reciprocal relationship with the EU. If the answer is no, would that
mean not all PIC should participate in the EPA?

83 "When the EU released its Green Paper reviewing the Lom Convention in 1996 its underlying concern was
to refocus its attention and resources on Africa, where it competes with the US for influence, and minimize
its obligations to the Caribbean and Pacific." Jane Kelsey "Regionalism: An Opportunity or an Imposition
on Fiji" (Workshop on Globalisation and Challenges to Fiji's Diplomacy, Lautoka, 22-24 June 2006) 17.
84 The LDCs have preferred to pursue the EPA as opposed to the EBA option. It is unclear exactly why that is
so but it may be that there is a fear that they might lose access to EDF money if they do not retain a formal
special link with the EU. Or, maybe they are hoping for the proposed EPA two-tier structure to be accepted
by the EU in which not all countries will have to comply with GATT art XXIV. This is explained in Part
III, B, 1.
85 This is discussed below in Part V.
86 Such as the principles, scope, and content of the EPA, "rules to cover special and different treatment,
financing of adjustment, rules of origin, sanitary and phytosanitary rules, framework agreement on services,
development aspects of services, fisheries, trade-related issues, [and] investment and promotion":
"A People's Guide to the Pacific's Economic Partnership Agreement", above n 8, 36.
87 Unless of course they choose to opt out and instead benefit from the EU's existing GSP. See above, Part III,
A, 3, (b).




In answering this question it must be noted that while the PIC share many characteristics, they
are at different levels in economic capacity. Some PIC are categorised as LDC; 88 others as
developing countries. 89 Some have more trade exports than others. 90 Therefore the answer is no not all PIC have the capacity to implement commitments to reciprocal free trade. In order to deal
with the different peculiarities of each PIC, it has been proposed that the EPA should be structured
to accommodate all PIC. This can be achieved by the EPA involving a master agreement and a
series of subsidiary agreements. 91 This is what the PIC have proposed to the EU.
Flexibility would be built into the broadly agreed framework of the EPA to allow each PIC to
"adjust the pattern and schedules of implementation consistent with their national circumstances,
while pursuing the objective of regional integration." 92 This master agreement would not contain
any specific commitments to reciprocal free trade in goods. 93 Therefore compliance with Article
XXIV GATT is not necessary. That commitment would be contained in the separate subsidiary
agreement on trade in goods which is the focus of this paper. 94 Only PIC that are ready to
implement commitments to reciprocal free trade in goods would join that agreement. 95 However
this structure is subject to acceptance by the EU. Even if the EU agreed, issues for PIC still arise
such as whether the master agreement should exclude anything that could fall within the ambit of
the subsidiary agreements. 96

88 Of the PIC who are WTO members only Solomon Islands is a LDC. However, Samoa and Vanuatu (which
are in the accession process) have been categorised as LDCs.
89 Of the PIC who are WTO members, Fiji and PNG are categorised as developing countries.
90 For example Niue's exports in 2006 totaled about US$200,000 (see Niue Exports <http://indexmundi.com/
niue/exports.html> (last accessed 2 February 2007)). Compare Fiji: in 2005 its exports were about
US$700,000,000 (see Fiji <https://www.cia.gov/cia/publications/factbook/print/fj.html> (last accessed
2 February 2007).
91 The Way Forward <http://www.forumsec.org.fj/docs/Gen_Docs/Wayforward.pdf> (last accessed 1 August
92 Pacific ACP EC EPA Negotiations Joint Road Map 10 September 2004 <http://www.forumsec.org.fj/
docs/Gen_Docs/PacificACP-ECEPANegotiations.pdf> (last accessed 1 September 2006).
93 The Way Forward <http://www.forumsec.org.fj/docs/Gen_Docs/Wayforward.pdf> (last accessed 1 August
94 The Way Forward <http://www.forumsec.org.fj/docs/Gen_Docs/Wayforward.pdf> (last accessed 1 August
95 Countries which have expressed interested in signing the goods annex are Fiji, Samoa, Solomon Islands,
PNG, Tonga and Vanuatu. Minutes of the PACP Trade Ministers Meeting, Nadi, June 2006. See also Jane
Kelsey "The Pacific's EPA Negotiations with the European Union" (2007) 38 VUWLR 79, 85.
96 For example, Fiji would have an interest in protecting its sugar. And, assuming New Caledonia's potential
involvement, it would have an interest in protecting its nickel industry. See below, Part IV.



The coverage of the EPA will be broad. Fishing, agriculture, tourism, investment, trade
facilitation, trade promotion as well as trade in goods and services are areas that have been subject
to the EPA negotiations. 97 Every topic that the agreement will potentially include requires careful
negotiation by PIC. However the most critical issue has concerned 'goods': 98
The EU interpreted the Cotonou Agreement to mean that EPAs must cover trade in goods. Pacific ACP
states had ample reason to be cautious about a deal that would replace their one-way preferential access
into the European market with reciprocal access to their own.

PIC with exports destined for the EU must consider how the EPA annex on goods (as a free
trade agreement) will require them to make tariff adjustments so as to conform to GATT article
PIC therefore, are currently in the process of negotiating with the EU to develop an EPA that is
suited to its needs. In light of the proposed EPA and the current negotiations, the next Part of this
paper discusses particular considerations for New Caledonia.



As an OCT, New Caledonia has an interesting status in the trade world. It is constitutionally and
internationally a territory of France, but geographically part of the Pacific region. New Caledonia is
not traditionally considered a PIC and therefore does not form part of the ACP group in terms of the
CPA nor the EPA negotiations. Its trade regime with the EU is separate to that of the ACP states.
However, the EU has expressed that its trade arrangements with the OCT should in principle have
identical rules to those of the ACP states. 99 The EU supports both the integration of the ACP states
and the integration of the OCT into the world economy.
New Caledonia shares many of the geographical characteristics of the Pacific states. 100 From an
international perspective it is small in size and population. 101 However, unlike many of the
97 See, State Play in Pacific Negotiations <www.oxfam.org.nz/imgs/pdf/state%20of%20play%20in%20pacp%
20negotiations%20oct%202006.pdf> (last accessed 11 January 2007).
98 And hence has been the focus of this paper. "Regionalism: An Opportunity or an Imposition on Fiji", above
n 83, 6.
99 Commission Regulation (EEC) 2304/2002 implementing Council Decision 2001/822/EC on the Association
of the Overseas Countries and Territories with the European Community (Overseas Association Decision)
[2002] OJ L 348, Preamble. See below, Part IV,A,1.
100 It is surrounded by water and has a warm climate. It is relatively isolated which makes the country less
threatening to other countries. Terrorism has been much less of a concern for PIC and New Caledonia than
for example environmental and economic development concerns. Like many PIC a main resource in New
Caledonia is fish. It is also, like Fiji, the Cook Islands and French Polynesia, attractive to tourists.
101 See above n 1.




PIC, 102 New Caledonia's economy is currently secure. In fact, it is the third largest economy in the
Pacific. 103 Nevertheless, the country's inability to be self-sufficient let alone competitive cannot be
ignored. 104 Apart from nickel (which accounts for 90 per cent of New Caledonia's export earnings)
New Caledonia's other industries are very small and the country depends heavily on imported
products. 105
Like the PIC, New Caledonia benefits from non-reciprocal preferential treatment from the EU
and it has barriers to trade in place to protect its domestic industry. 106 The EU is New Caledonia's
main trading partner both in terms of imports 107 and exports. 108 And, as an OCT, New Caledonia
also receives aid from the EU via the Economic Development Fund (EDF). 109 Accordingly, the EU
is an important link for New Caledonia for both aid and trade.
This Part will consider how the EU/ACP trade arrangements are relevant to New Caledonia's
trade future. It finds that there are positive reasons for New Caledonia's increased involvement in

102 As at 2003 the GDP per capita of PIC (of the ACP group) was as follows: Cook Islands (US$7,332); Fiji
(US$2,762); Kiribati (US$781); Marshall Islands (US$1,600); Nauru (US$3,465); Niue (US$3,600); Papua
New Guinea (US$577); Samoa (US$1,807); Solomon Islands (US$568); Tonga (US$1,626); Tuvalu
(US$2,285); and Vanuatu (US$1,140).
103 Behind Australia and New Zealand. The island has a GDP per capita of US$14,128: Accordingly, it would
not be a LDC in WTO terms. Statistics (as at 2001) were produced by the Worldbank; Available at
22 November 2006).
104 The reason New Caledonia is arguably unable to be self-sufficient is because even though it has a large
nickel industry, its GDP figure includes subventions from France. In absence of the French subventions, the
GDP figure would be lower. See, <https://www.cia.gov/cia/publications/factbook/print/nc.html> (last
accessed 11 February 2007).
105 See Appendix 1.
106 It was only in 1982 that income tax was introduced. Previous to this the only tax received by the
government was by way of customs duty.
107 Sixty per cent of New Caledonia's imports come from the EU: Fiche Pays N Caledonia
22 November 2006).
108 Forty-one per cent of New Caledonia's exports are destined for the EU; 25 per cent go to Japan; 10 per cent
to South Korea; eight per cent to Australia, and 16 per cent to other countries. Facts were obtained from:
Fiche Pays N Caledonia <http://ec.europa.eu/comm/development/oct/docs/statistics%20trade%202004%
20.pdf> (last accessed 22 November 2006).
109 The EU provides financial aid to ACP states through the 9th EDF. Aid from the EU to ACP states was
formerly part of the Lom conventions since 1975 (see above Part I). The current official document for the
regulation of the fund is: Council Decision (EEC) of 12 July 2002/647 Rules of Procedure of the European
Development Fund Committee [2002] OJ L 212. For allocation of EDF money under the current 9th EDF
(due to expire in 2007 and will be replaced by the 10th EDF), see Council Decision (EEC) 2001/822
Overseas Association Decision [2001] OJ L 314, annex II A.


EU/ACP trade relations. Increased involvement could be either by New Caledonia as part of the EU
or as part of the ACP Pacific group.
A Conformity with WTO Objectives
A positive reason for New Caledonia's involvement in the EPA negotiations is because the EPA
will conform to WTO objectives. New Caledonia's current preferential trade regime with the EU is
non-reciprocal and expires in 2012. 110 Given the worldwide erosion of trade preferences and the
evolution of free trade, for New Caledonia, closer participation in the EPA negotiations is desirable.
This would allow New Caledonia to be better integrated into the Pacific region. Ultimate integration
into the world market therefore becomes a genuine and realistic goal. 111 This sub-Part will first
discuss why the expiry of New Caledonia's current trade regime with the EU is a positive reason for
its active participation in the EPA negotiations; and second, how regional integration (and therefore
ultimate integration into the world market) is a feature of both the OCT trade regime and the CPA.

Expiry of the OCT trade regime

Although France signed the CPA, 112 the OCT do not fall within the EU custom union. 113
Therefore, special trade arrangements apply for New Caledonia (and other OCT) notwithstanding
the CPA. This is consistent with Part Four of the EC Treaty - which makes special allowances for
the OCT of the European signatories of the Treaty. 114 The segregation of the OCT markets from
those of the EU must necessarily be taken into account in the application of the CPA. However,

110 Council Decision (EEC) 2001/822 Overseas Association Decision [2001] OJ L 314, art 63.
111 Although New Caledonia, would not want to give up trade preferences, the EU (which gives the
preferences) actively supports trade liberalisation and is trying to prepare the OCT for integration into the
world market. See Council Decision (EEC) 2001/822 Overseas Association Decision [2001] OJ L 314, arts
12 and 16(2).
112 This is confirmed in art 92 of the CPA: Subject to the special provisions regarding the relations between the
ACP States and the French overseas departments provided for therein, [that is, Part Four of the EC Treaty
and the Council Decision (EEC) 2001/822 Overseas Association Decision [2001] OJ L 314] this Agreement
shall apply, on the one hand, to the territories in which the Treaty establishing the European Community is
applied and under the conditions laid down in that Treaty and, on the other hand, to the territories of the
ACP States. Two Bills ratifying the CPA and the EDF were unanimously adopted by the Senate on
February 2002 and National Assembly on 21 February 2002.
113 Council Decision (EEC) 2001/822 Overseas Association Decision [2001] OJ L 314, preamble para 6.
Therefore, despite a Member State of the EU (that is not an OCT) being a WTO member, its OCT is not
automatically included. Ie France is a WTO member but New Caledonia is not.
114 Part Four of the EC Treaty provides for a special relationship between the EU and OCT. For example the
OCT are formally not part of the EU customs union.




what equally must be considered is that Part Four of the EC Treaty should not be used to completely
subvert common EU standards. 115

Trade preferences under the OCT trade regime

Similarly to the PIC under the CPA, the OCT benefit from an advantageous trade regime. The
EU Decision of 2001 governs the current OCT trade regime. 116 Like the CPA for PIC, the OCT
trade regime allows for non-reciprocal arrangements. That is, products originating in the OCT
imported into the EU are not subject to import duties or quantative restrictions, but products
originating in the EU are subject to the import duties established by the OCT. The preferential
measures are found in article 40 of the Council Decision: 117
In view of the present development needs of the OCTs, the authorities of the OCTs may retain or
introduce, in respect of imports of products originating in the Community, such customs duties or
quantitative restrictions as they consider necessary.

The trade arrangements applied to the Community by the OCTs may not give rise to any
discrimination between Member States nor be less favorable than most-favoured-nation


Notwithstanding specific provisions of this Decision, the Community shall not discriminate
between OCTs in the field of trade.


The provisions of (a) shall not preclude a country or territory from granting certain other
OCTs or other developing countries more favorable treatment than that accorded to the

Although this preferential treatment is granted to countries based on whether they are an OCT,
the OCT regime is an 'internal' trade arrangement and is therefore not discriminatory under WTO
principles. Unlike the external trade arrangement the EU had with the ACP states, justification for
the OCT regime's continuance did not require a WTO waiver. 118

115 This proposition is based on an analogy to the decision: CJCE, 22 novembre 2001, Royaume des Pays-Bas
contre Conseil de l'Union europenne, aff C-110/97, Rec 2001, 1-08763. The conclusion of that decision
was that Part four must be taken into account in the application of EU law to OCT. However, other EU
principles must equally be taken into account. Part Four could not be used to subvert the EU Common
Agriculture Policy.
116 Council Decision (EEC) 2001/822 Overseas Association Decision [2001] OJ L 314, art 40.
117 Council Decision (EEC) 2001/822 Overseas Association Decision [2001] OJ L 314, art 40(1) and (2).
118 Some might dispute this. See below, Part IVB for arguments under GATT art XXIV:12.



Replacement/Renewal of trade regime

Like the CPA, the OCT trade regime provides only for a temporary arrangement. 119 It contains
a 'sunset clause' 120 and is due to expire in 2012. Its replacement is uncertain. However, it is a
reasonable prediction that a new trade regime will reflect the trade regime of the EU and ACP
states. WTO objectives are becoming more predominant in relations between WTO and non-WTO
members. 121 To support this proposition, it should be noted that the EU actively supports the
integration of the OCT into the world economy. This is clearly expressed in article 16(2) and
implied in article 12 of the Council Decision, 122 and the Commission Regulation implementing the
Council Decision states in the preamble that "[in] order to facilitate regional cooperation and
integration between OCT and ACP countries, identical rules in principle should apply." 123
Furthermore in respect of services, the WTO framework is relevant to the implementation of the
Council Decision Rules. 124 A contextual interpretation therefore suggests that WTO influence is
great and there is no guarantee that non-reciprocal arrangements will extend beyond 31 December
The replacement trade regime for OCT in 2012 might take a number of forms: the status quo
(that is, another OCT regime); the GSP (that has been unilaterally composed by the EU 125 ); the
Pacific EPA. 126

119 The Decision will remain in force until 31 December 2011. The Decision was implemented in the
Commission Regulation (EEC) 2304/2002 of 20 December 2002; and Corrigendum to the Commission
Regulation (EEC) 2304/2002 of 20 December 2002.
120 Article 63 of the Decision makes it clear that the Decision is applicable until 31 December 2011.
121 Jane Kelsey discusses WTO-compatibility in respect of PACER and notes that WTO compliance extends to
both WTO and non-WTO members. See "Free Trade Agreements Boon or Bane?: Through the Lens of
PACER", above n 65, 401.
122 The implication in article 12 is from the trade development aims increasing self-reliance of the OCT.
123 Commission Regulation (EEC) 2304/2002 Implementing Council Decision 2001/822/EC on the Association
of the Overseas Countries and Territories with the European Community [2002] OJ L 384, para 5.
124 See, Council Decision (EEC) 2001/822 Overseas Association Decision [2001] OJ L 314, art 44. For
example, the OCTs cannot discriminate among countries in respect of their provision of services: Council
Decision (EEC) 2001/822 Overseas Association Decision [2001] OJ L 314, art 45(2)(b).
125 New Caledonia can be merely associated in any future discussions. See below, Part IV, A 1(e); and Nouma
Accord art 3.2.1.
126 For those countries in the Pacific region. Other OCT for example those in the Caribbean might raise a
similar argument for the replacement of the OCT trade with the Caribbean EPA.




Given the demise of the OCT regime, the EU's general support for the involvement of the OCT
in the EPA negotiations is not surprising: 127
It will come as no surprise that the Commission encourages OCT's to proceed in the direction of more
regional integration, among others through EPAs, especially given the erosion of the trade regime
applicable to OCT's due to the progressive liberalization of international trade. Indeed, there is added
value for OCT's in exploring and effectively making use of the advantages of regional trade

New Caledonia's eligibility for involvement in the EPA negotiations should therefore be

New OCT regime for New Caledonia

The Pacific EPA will indirectly impact on any new OCT regime. 128 This is because the current
trade preferences between the EU and OCT might no longer be tenable were the PIC to expect
unrestricted access to the EU's OCT under the EPA. 129 The OCT therefore ought to be voicing their
opinion and concerns while the EPA negotiations are in progress. 130
Although New Caledonia is one of the world's largest producers of nickel, 131 and the country
does not currently face the same economic challenges as most PIC, its integration into the world
market needs careful consideration. New Caledonia consistently runs a trade deficit. 132
Liberalisation of its trading regime would mean it would have to compete in the world market. It
will face the same problems as other PIC imports will overwhelm the local producers. This is a
concern whether the imports are from a PIC such as Fiji or from an EU member. While the country
may be able to survive through its tourism and production of nickel, there is no level playing field

127 Closure by DG DEV

25 November 2006).




128 The EPAs of other regions will also have impact.

129 The PIC would not be successful in arguing this in respect the current CPA trade arrangements because
there are special conditions for the OCTs CPA art 92. The CPA is subject to special provisions that apply
to the OCT. However, the move to EPAs might suggest a change. The future EPA trade arrangement will be
reciprocal. The PIC which sign the annex on goods will be expected to open their markets to the EC. Thus,
it seems that the PIC, may expect the same of the OCT by virtue of their status within the EU. Fiji as a
potential signatory to the EPA FTA would have an interest in making this argument given the increased
trade with New Caledonia in recent years. See below n, 154.
130 Fiji's exports to New Caledonia are increasing. New Caledonia therefore would have a strong interest in
voicing its concerns to the PIC particularly Fiji. See below, n 154.
131 Behind Russia and Canada.
132 New Caledonia <http://www.mfat.govt.nz/Countries/Pacific/New-Caledonia.php>
20 November 2006).




on the international scale. If local industries are unable to compete, there may be an increase in
unemployment. Whether New Caledonia's concerns would be adequately catered for by the EU in a
new OCT trade regime remains uncertain. There exits a disparity of power between OCT and the
EU. In respect of New Caledonia, although there is a special provision in the Agreement signed at
Nouma on 5 May 1998 (Nouma Accord) 133 allowing New Ca