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A prelude to self-government

Saturday July 21, 2018 Written by Published in Politics
Cook Islands premier Albert Henry (front, third from left), leads the Duke and Duchess of Kent at the old Rarotonga Airstrip back in 1966, one year after the Cook Islands became self-governing in free association with New Zealand. 18072010 Cook Islands premier Albert Henry (front, third from left), leads the Duke and Duchess of Kent at the old Rarotonga Airstrip back in 1966, one year after the Cook Islands became self-governing in free association with New Zealand. 18072010

Rarotonga writer and historian Howard Henry today concludes a two-part series on the Cook Islands’ prospects of becoming a member of the United Nations.

Henry was one of two original foundation staff members of the External Affairs Division (later the Ministry of Foreign Affairs) of the Cook Islands government in 1973. He was awarded a Study Fellowship by the Government of Australia in 1975 and spent three months in Canberra studying for his Certificate in “Diplomatic Practice and International Relations” under the auspices of the Australian Ministry of Foreign Affairs. He was awarded a UNDP scholarship to Oxford University in England 1977-78 where he obtained his Certificate in Diplomacy. He passed exams in International Politics, International Law and International Trade and Finance (with distinction).

 

The New Zealand Parliament, with Sir Keith Holyoake as prime minister, passed the Cook Islands Constitution Act 1964 as a prelude to self-government in the Cook Islands the following year.

The New Zealand Parliament then passed the Cook Islands Constitutional Amendment Act 1965.

This was to take into account a number of amendments that had been passed by way of the Cook Islands Constitution Act 1965 on Rarotonga (in mid-1965) by the newly elected Cook Islands Legislative Assembly now under the control of Albert Henry and the Cook Islands Party. And so both pieces of legislation, in both countries, were identical at the time Self-government was declared on August 4, 1965.

The Cook Islands Constitution Act 1964, as passed by the New Zealand Parliament, is still valid. If the Cook Islands Government desires to amend Section 5 of its own Cook Islands Constitution Act 1965, then a similar amendment would also have to go through the New Zealand Parliament for them to amend their copy of the 1964 Act as well.

So this portion of legislation, in both countries would continue to be identical.

The referendum to amend Section 5 of the Cook Islands Constitution Act 1965 should be held. Election time would have been ideal, but the timing of this year’s snap election would have precluded that. 

Once the election results have been finalised there will be ample time for public discussion, debate and consideration to all aspects of the Cook Islands taking full responsibility of its foreign affairs and diplomatic relations.

While the initial thrust of this constitutional amendment is to open the way to apply for UN membership, a whole range of other diplomatic and foreign affairs matters will also open up for the Cook Islands that will need to be explained and clarified to our people in the lead up to the referendum. One of these being an application to become a full member of the British Commonwealth.

A number of other small Pacific Forum countries are now members of the United Nations including Kiribati, Tuvalu, Nauru, Marshall Islands and the Federated States of Micronesia.

It is now appropriate that contact be made, through foreign affairs channels, seeking information on how each of these countries handle their participation at the United Nations with matters such as staffing and office accommodation, and annual budget costs to maintain a United Nations presence.

 

This information must be made available to the public.

Albert Henry – Norman Kirk: Exchange of Letters

In May 1973, the prime minister of New Zealand Norman Kirk, and the Premier of the Cook Islands, Albert Henry exchanged letters in which they clarified aspects of the relationship of free association between the Cook Islands and New Zealand.

This “Exchange of Letters” emphasised that there were no legal restrictions on the freedom of the Cook Islands, and that the relationship was a voluntary one of partnership turning on the wish of Cook Islanders to remain New Zealand citizens. It also said that shared citizenship created an expectation that the Cook Islands would uphold in its laws and policies a standard of values generally acceptable to New Zealanders.

Should the Cook Islands Government desire to delete the words “external affairs” from Section 5 of the Cook Islands Constitution Act 1965, then that same principle of commitment (turning on the wish of Cook Islanders to remain New Zealand citizens) must also be extended to matters of foreign affairs in which the Cook Islands Government commits to “upholding in all aspects of its foreign policy a standard of values generally acceptable to New Zealanders”.

 New Zealand – Cook Islands : Joint Centenary Declaration 2001  

In June 2001, to mark the centenary of formal relations between the New Zealand and the Cook Islands (from 1901 to 2001), a new statement was signed in Rarotonga by the Cook Islands prime minister Sir Terepai Maoate and New Zealand prime minister Helen Clark.

According to the Cook Islands Ministry of Foreign Affairs and Immigration website, the most notable elements of this declaration are:

 “1. With respect to the Head of State, Her Majesty the Queen, as Head of State of the Cook Islands is advised exclusively by Her Cook Islands Ministers in matters relating to the Cook Islands. In all matters affecting the Realm of New Zealand, of which the Cook Islands and New Zealand are part, there will be close consultation between the Signatories. 

“2. In the conduct of its foreign affairs, the Cook Islands interacts with the international community as a sovereign and independent state. Responsibility at international law rests with the Cook Islands in terms of its actions and the exercise of its international rights and fulfilment of its international obligations. 

“3. With respect to treaties, the government of the Cook Islands possesses the capacity to enter into treaties and other international agreements in its own right with governments and regional and international organisations. 

“4. With respect to diplomatic and consular relations, official relations between the Cook Islands and New Zealand are based on the 1961 Vienna Convention on Diplomatic Relations and the 1968 Vienna Convention on Consular Relations. The Cook Islands and New Zealand recognise the right of each other in accordance with its national interests, to establish diplomatic relations with third parties. 

“5. With respect to defence and security, the government of the Cook Islands has full legal and executive competence in respect of its own defence and security.

Section 5 of the Cook Islands Constitution Act 1965 thus records a responsibility to assist the Cook Islands and not a qualification of the Cook Islands statehood.”

Translated that last sentence means, Section 5 of the Cook Islands Constitution Act 1965 records that the New Zealand government has a “responsibility to assist” the Cook Islands in regard to foreign affairs matters, and so because of this arrangement, the Cook Islands does not qualify under “customary international law” in terms of statehood. And so by our own Cook Islands Government admission, through the Ministry of Foreign Affairs and Immigration, Section 5 of the Cook Islands Constitution Act 1965 means that the Cook Islands fails to “scrub-up” on the question/definition of “statehood”.

That “statehood” definition being defined in “customary International law” by way of :

a)         Article1 of the Montevideo Convention 1934, and

b) Article 4 of the United Nations Charter.

 Conclusion

For the Cook Islands to qualify under “customary international law” to be regarded as a country who has reached “statehood”, and therefore eligible to submit an application to join the United Nations in the first instance, it must assume “full responsibility” for its foreign affairs and diplomatic relations without the Government of New Zealand being “responsible to assist”.

To achieve this, the words “External affairs and” must be deleted from Section 5 of the Cook Islands Constitution Act 1964 in the New Zealand Parliament, and the Cook Islands Constitution Act 1965 in the Cook Islands Parliament.

In my opinion, Section 6 of both Acts of Parliament, regarding Cook Islanders having New Zealand citizenship, will not require any change in either parliament.

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