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Law Treaty Making in Papua New Guinea After Two Decades Yumi Stap We? [1997] MLJ 3; [1997] 25 MLJ 43 (1 January 1997)

Treaty Law Making In Papua New Guinea: After Two Decades Yumi Stap We?

Eric L Kwa*

Introduction

The art of treaty law making is well settled in international law. The formulation and adoption of treaties are governed by established international rules and practices. Treaties may be global, regional or bilateral. It is one thing to accept a treaty in the international arena and it is another to apply it domestically. Different rules may regulate the application of a treaty at the domestic level. Even more so the applicability of a treaty to a member country may be unsuitable due to prevailing socio-economic and political circumstances. These existing circumstances may render a treaty inapplicable in the country.
The ability of a country to attend and participate in negotiations and the conclusion of a treaty may be enthusiastic and often indicate the country’s willingness to address the issues at stake. However, this enthusiasm may be influenced by a number of factors, such as the need to attract sympathy of the other parties to the peculiar problems being confronted by the country,[1] the lack of bargaining power[2] or the need to flow with the tide.[3]
The aim of this paper is to review the existing mechanism under the Papua New Guinea Constitution relating to treaty law making, and ascertain how the mechanism has fared over the last twenty years. In the process of this review, the paper highlights the struggle between the legislative and executive arms of government to gain control over this matter and shows that the constitutional framework on treaty law making contains various loopholes which the executive has been able to utilise to entrench its power in this area of constitutional law.

International Law Aspects of Treaty Law Making

Any discussion on treaty law must begin with international law because it is on this plane that it derives its stature. Treaties have been described as “an agreement between the governments of two or more states”.[4] Treaties can also be concluded between the governments of States and international organisations. A treaty may be either multilateral or bilateral. The former involves the participation of more than two parties to the treaty while the latter is an agreement between only two parties.
A treaty can take a number of forms. It can be a single written document, or two or more related instruments, or take a particular form as designated by the parties.[5] The term is broad and does not require the precision of the philologist. The definition has been readily accepted by Papua New Guinea with minor variations.[6] After the conclusion of a treaty the parties to the agreement are required to indicate their consent to be bound by the treaty. This consent may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval, accession or by any means agreed to by the parties.[7] The multiplicity of methods expressing consent has introduced confusion into the law. For instance, Akehurst points out that signature, ratification and accession (adherence or adhesion) were the traditional methods of expressing consent. Today consent can also be expressed by exchange of notes, acceptance and approval.[8] The expansion of the methods of expressing consent and their interchangeability have deemed the prescription of form of expressing consent insignificant.
A treaty will come into force as soon as all the negotiating parties have expressed their consent to be bound by the treaty. Where it is practically difficult to obtain the consent of all negotiating parties, especially where many parties are involved, the treaty may specify the minimum number of consenting parties to enable the treaty to enter into force. A treaty once in force will apply in respect of the entire territory of the member State.[9]
On the domestic level, the implementation of a treaty depends on its status under municipal rules which may vary from one State to another. A State may become a party to the treaty either by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any means agreed to by the parties. As some commentators have pointed out in relation to the ratification process, “a treaty is an international agreement to which governments become parties by ratification in accordance with their own constitutional or statutory provisions”.[10] By becoming a party, a State is bound by the treaty at international law. The process of domestic implementation occurs by a subsequent statutory adoption.[11]

The Constitutional Planning Committee (CPC) Report

An examination of the Papua New Guinea Constitution cannot be divorced from the report of the Constitutional Planning Committee (“CPC”), for it is in the CPC’s Report that one finds the true meaning of the constitutional provisions which were to be a reflection of the people’s aspirations.
The CPC was established by the House of Assembly on 23 June 1972. It was required “to make recommendations for a constitution for full internal self-government in a united Papua New Guinea with a view to eventual independence.”[12] The CPC began its task with enthusiasm. After twenty two months of consultation with the people at more than one hundred public meetings, and receipt of over 2000 submissions, the CPC finally submitted its report to the Chief Minister on 13 August 1974.
In its attempt to formulate a truly autochthonous constitution,[13] the CPC did not follow any firm precedent. Instead, it borrowed a variety of ideas from the world’s constitutions and transformed these ideas to “meet Papua New Guinean needs and circumstances.”[14]
On the subject of treaties the CPC made the following observation:

[W]e believe that it is desirable also that the National Parliament should have some say as to whether or not our country should enter into proposed treaties or other international agreements, conventions or acts which give rise to rights or obligations on the part of Papua New Guineans in international law.[15]


The CPC wanted to ensure that any international agreement which gave rights or obligations to Papua New Guinea was sanctioned only by the national Parliament. This arrangement espoused the power of the legislature to make laws for the peace, progress and welfare of Papua New Guinea.[16] It is suggested that this arrangement is envisaged to have a twofold effect. First, to restrain any State authority from entering into any formal agreement or agreements with another country or other countries or international institutions which may not be in the best interests of Papua New Guinea. And secondly, to strengthen the supervisory role of the legislature[17] over the executive arm of the government. It will however, be seen below that what eventually transpired in the Constitution defeats the visions of the CPC.
The CPC recommended that the national Parliament was to be given eight days to decide whether or not to allow the National Executive Council (“NEC”) to enter into a treaty, convention, agreement or an act after it had been tabled in Parliament. It went further by recommending that where the decision for Papua New Guinea either to enter into or not to enter into a treaty, convention or agreement was urgent, the Speaker (on behalf of Parliament) and the Prime Minister could make that decision. In that case, the only requirement was to be a certificate jointly signed by the Speaker and the Prime Minister confirming the urgency of the matter.[18]
The second component of the CPC’s recommendation is an attempt to preserve the right of the executive arm of the government to perform its executive functions. However, the performance of this function is limited by the involvement of the Speaker (who is the representative of the Parliament) in the determination of the issue of dispensing with the consent of Papua New Guinea to be bound by a treaty, convention or agreement.
The CPC’s recommendation can be described as a paradox. The difficulty of dealing with this subject is reflected vividly by the constitutional provisions relating to treaties. The problems relating to these constitutional provisions are discussed below.

The Papua New Guinea Constitution

The recommendations of the CPC transpired in s 117 of the Constitution. There are four other provisions of the Constitution which also deal with treaties. However, three of these provisions deal specifically with two short matters on treaties, while the fourth creates a synthesis of the treaty law making process in Papua New Guinea. The four provisions will be examined in the next segment of the paper. At this juncture it is appropriate to deal firstly with s 117 which primarily deals with treaties. Its eight subsections make it one of the longest provisions of the Constitution. The vital elements of this provision are sub-ss (2), (3), and (5) which are set out in full below.

(2) Subject to Subsection (3), the consent of Papua New Guinea to be bound as a party to a treaty may be given only-

(a) by the Head of State, acting with, and in accordance with, the advice of the National Executive Council; or

(b) by a Minister authorised either generally or specifically for the purpose by the Head of State, acting with, and in accordance with, the advice of the National Executive Council; or

(c) otherwise in accordance with international law, usage and practice,

and in accordance with this section.


(3) Subject to Subsection (5), the consent of Papua New Guinea to be bound as a party to a treaty shall not be given-

(a) unless a treaty document relating to the treaty has been presented to Parliament for at least ten sitting days; or

(b) if within ten sitting days of the Parliament after the day on which the treaty document was presented to the Parliament the Parliament, by an absolute majority vote, disapproves the giving of the consent.


(5) Subsection (3) does not apply if-

(a) the Parliament has, by an absolute majority vote, waived the requirements of that subsection; or

(b) both the Speaker (acting on behalf of Parliament) and the Prime Minister are satisfied that the giving of the consent of Papua New Guinea to be bound as a party to the treaty is too urgent a matter to allow of compliance with that subsection, or that compliance would not be in the national interest.


Subsection (2) stipulates that the consent of Papua New Guinea to be bound by a treaty may be given only by the Head of State acting with and in accordance with the advice of the NEC, or by the Minister authorised for that purpose acting with and in accordance with the advice of the NEC, or otherwise in accordance with international law, usage and practice. Subsection (2) is however, subject to sub-s (3). Subsection (3) expressly states that the consent of Papua New Guinea to be bound by a treaty cannot, subject to the exception in sub-s(3)(b), be given unless the treaty document[19] is presented to Parliament for at least ten sitting days.
Subsection (3) is however itself subject to sub-s (5). Subsection (5) allows for two situations that can bypass the stringent requirements of sub-s (3). First, the Parliament may by an absolute majority vote waive the requirements of the provision. Secondly, if both the Speaker (on behalf of the Parliament) and the Prime Minister are satisfied that the giving of consent of Papua New Guinea to be bound as a party to the treaty is a sufficiently urgent matter, they can dispense with the requirements of sub-s (3).
A number of observations can be made. First, sub-s (3) only requires the presentation of the treaty document to Parliament; it does not say whether the Parliament should give consent. In a rather intriguing fashion, this provision requires that Parliament must by an absolute majority disapprove the giving of consent. By normal rules of interpretation, it would follow that Parliament can give its consent by a simple majority vote or by other lesser methods of dispensing with consent.
Secondly, where the Parliament does not give its consent within the required period, the treaty document can be presented again to Parliament at any time after the lapse of the ten sitting days.[20]
Thirdly, it is suggested that s 117 contains two huge loopholes by which the executive has usurped power from the legislature. The first is contained in sub-s (3) which in a roundabout way requires that so long as the treaty document is presented to Parliament for noting within ten sitting days, Papua New Guinea is bound by a treaty which has been signed by the Head of State acting on the advice of the NEC (or a Minister authorised for that purpose acting on such advice) or otherwise in accordance with the rules of international law, usage and practice. The second is contained in sub-s (5), which essentially creates an escape route for the executive to abate the requirements under sub-s (3).
This point is important as it sheds some light on the current practices within the administrative organs responsible for the implementation of some of the treaties and the prevailing attitude of the legislature in dealing with this subject matter.
Subsection (6) stipulates that a certificate of the Speaker as to any matter arising under the section is, before all courts and before all persons acting judicially, conclusive evidence of the facts certified to. This provision is very broad and covers all parliamentary proceedings relating to treaties under s 117. This subsection deviates from the original recommendation of the CPC. The CPC strongly pointed out that the certificate should only be used if the second option under sub-s (5)(b) was employed by the Speaker of Parliament and the Prime Minister. The CPC’s recommendation on the issuance of a certificate was therefore limited to the process under sub-s (5)(b). As it is, the requirement was omitted from sub-s (5). It is unclear why it was left out, is unclear. Subsection (6) is probably an attempt to rectify this problem. However, it falls short of clearly spelling out when a certificate from the Speaker is required. And secondly, it creates an opportunity for abuse by the executive, especially in Papua New Guinea where the Speaker is usually from the political grouping that forms the executive government.
Subsection (8) in unambiguous terms stipulates that the mere fact that Parliament has dispensed with its consent for Papua New Guinea to be bound by a treaty does not give that treaty the status of a municipal law. Subsection (7) takes it further by stating that a treaty by which Papua New Guinea is bound does not become part of the domestic law unless it has been given the status of an Act of Parliament or a Constitutional Law.[21]
There are four other provisions of the Constitution which deal with different aspects of treaty law in Papua New Guinea. These are ss 202, 205, 206 and 273. Sections 202, 205 and 206 deal with among other things the engagement of Papua New Guinea Defence Force soldiers in fulfilling Papua New Guinea’s international obligations. Section 202 spells out the functions of the Defence Force which among other things include: (1) to assist in the fulfilment of Papua New Guinea’s international obligations, and (2) to perform, as directed, civil functions either within or outside Papua New Guinea in accordance with the Constitution or an Act of the Parliament.[22] Section 205 prescribes the procedures for committing the Defence Force for active service. For our purposes, the relevant part of s 205 is sub-s (2)(b), which says in substance that the Defence Force may not be ordered on, or committed to, an international peace-keeping or relief operation outside the country without the prior approval of Parliament. Sections 202 and 205 must be read together.
Section 206 deals specifically with the presence in the country of a foreign force and the presence abroad of Papua New Guinea soldiers. It states that an Act of the Parliament may provide for the presence in the country, by arrangement with the National Executive, of forces of another country,[23] and the presence in another country of the Defence Force or part of the Defence Force.[24]
The Papua New Guinea Constitution was formulated at a time when there were a number of armed conflicts being experienced around the globe and the United Nations was playing a greater role as the global peace-keeper. It was against this background that ss 202, 205(2)(b) and 206 were formulated. The CPC was aware of the possibility of engaging Papua New Guinean soldiers in some peace-keeping activities of the United Nations in the future.[25] The CPC was mindful of the dangers of vesting the power to commit Papua New Guinean soldiers in international engagements in the hands of a mere handful of people, by recommending that Papua New Guinean soldiers should not participate in peace-keeping or relief operations unless these international obligations arose under a treaty considered and approved by Parliament. Section 202(a) omits the term ‘treaty’. This omission proved fatal as was highlighted in the case of SCR No 4 of 1980 (No 2); Re Petition of M T Somare [1982] PNGLR 65.
The brief facts of the case were as follows. In the middle of 1980 there was an exchange of letters between Fr Walter Lini, the Chief Minister of the then condominium of New Hebrides, and Mr Julius Chan, the Prime Minister of Papua New Guinea. By his letter, Fr Lini requested the Papua New Guinea government to assist his government by providing military and police assistance (as from the date of Vanuatu’s Independence) to maintain law and order. In reply to this request, the Papua New Guinea Prime Minister gave an undertaking that Papua New Guinea would positively deal with the request.
The government then through the Head of State recalled Parliament to consider the request from Fr Lini. Consequently, the Defence Force (Presence Abroad) Act 1980 was passed by Parliament, paving the way for the deployment of part of the Papua New Guinea Defence Force to Vanuatu. The then Leader of the Papua New Guinea Opposition, Mr Michael Somare, petitioned the Supreme Court to declare that the deployment of Papua New Guinean soldiers to Vanuatu was unconstitutional, as it was inconsistent with ss 202 and 205, and that the 1980 Act was unconstitutional, null and void. After a lengthy court proceeding the Supreme Court refused to make the declarations as sought by Mr Somare.
For our purposes, the two relevant issues are: (1) whether or not the deployment of Papua New Guinean soldiers to Vanuatu was based on an existing international obligation as recognised by ss 202 and 205 of the Constitution; and (2) if there was an international obligation, what was the nature of that international obligation?
The petitioner argued that according to the facts there was no international obligation as recognised under ss 202 and 205 existing at the time the soldiers were deployed to Vanuatu. He also argued that the exchange of letters between Fr Lini and the Papua New Guinea Prime Minister did not amount to an international obligation as recognised under international law. The Principal Legal Adviser argued to the contrary. On the second issue, the Principal Legal Adviser argued that the exchange of letters between the two leaders did create an international obligation.
Of the five judges,[26] Kidu CJ concluded that the exchange of letters did not create an international obligation, and as such no international obligation as recognised under the Constitution existed at the time of the deployment of the soldiers to Vanuatu. Kapi J agreed with Kidu CJ, but went further by stating that the exchange of letters was a mere request, and as there was no international obligation as recognised by international law and consequently the Constitution, an Act of Parliament under s 205 could not remedy the anomaly. Kearney Dep CJ refused to comment on these two issues. Greville Smith J took the same approach on the issues as Kearney Dep CJ, but came to the simple conclusion that as the petitioner had not proven that no international obligation existed at the time of the deployment of the soldiers to Vanuatu, he was not prepared to take the matter further. Miles J reached the same conclusion as Greville Smith J.
Kapi J and Miles J were the only members of the court to discuss these two issues in detail. Miles J gave the major judgment which was agreed with in parts by the other three judges. The discussion of these two principal issues by Kapi J and Miles J was similar, but as noted above they reached different conclusions. An analysis of the two judgments reveals a number of important points which help us to understand the operation of the three main sections discussed in this case, namely ss 117, 202 and 205. These points are:

  1. an international obligation must be recognised by international law;
  2. an international obligation can be created by a treaty or by any other means recognised in international law;
  3. there is a connection between ss 117, 202 and 205;
  4. any international obligation must be approved by Parliament;
  5. the Prime Minister has no power to commit Papua New Guinean soldiers in an international engagement;
  6. the functions of the Defence Force under s 202 are exhaustive;
  7. section 205 is only procedural, and does not expand the functions of the Defence Force;
  8. the absence of an international obligation as recognised by s 202 cannot be rectified by an Act of the Parliament.

A point that was strongly argued by the Principal Legal Adviser was that the definition of international obligation was to be as determined by the executive. Of the five judges, only Kapi J and Kidu CJ specifically rejected this argument. Kearney Dep CJ was silent on this issue, while Greville Smith J and Miles J agreed with some reluctance with the proposition of the Principal Legal Adviser. Miles J went further by introducing a new formulation concerning the nature of an international obligation, which it is suggested will create a lot of uncertainty in the future. After considering the speeches of the Papua New Guinea Prime Minister to Parliament, Miles J stated that:

“At the least [the speeches] are statements of principles of foreign policy based on moral and political considerations; at the most they may amount to a recognition by the Government of some sort of legal or quasi-legal obligation to Vanuatu. Taken as a whole they fall somewhere between the two. ...

This sense of obligation derives not merely from what was seen as in Papua New Guinea’s own interest: a similar obligation would have been seen by the Government to rest on any nation in Papua New Guinea’s position in the light of the relationship between the two countries concerned and of the understanding reached between their leaders. To that extent I think it would be impossible for this Court to be satisfied that no international obligation existed.”[27]


What Miles J has introduced is a scale for measuring the activities of the executive on the international front, but without specifying the parameters upon which these activities can be measured. It is submitted that this formulation is wrong. The very essence of the formulation defeats the spirit of the constitutional framework on treaty law making in Papua New Guinea as envisaged by the CPC. The assessment lacks any appreciation of the concerns raised by the CPC. The CPC was very cautious about leaving open too wide a room for the executive to operate in. It tried to define the boundaries of executive power so as to limit the abuse of that power by the executive (as was evidenced in the above case). In the overall picture, the CPC wanted the legislature to maintain its supervisory role over the executive. This point was clearly highlighted by Kapi J, when he said that in Papua New Guinea only the Head of State can commit Papua New Guinea to international obligations with the approval of Parliament. The Prime Minister (and the NEC) has no such power.[28]
It is also submitted that the reasoning of Miles J, on this aspect of his judgment, is confusing. Having tried to explain the terms “obligation” and “international”, he then concluded that an international obligation exists between Papua New Guinea and another State where by its interaction with that State or other States, that interaction is recognised in international law as creating an international obligation. He also concluded that Papua New Guinea had to develop its own system of international law on this and other matters, based on its interactions with other States in the international community. By following this analysis he finally concluded that Papua New Guinea did have an international obligation to Vanuatu based on the transactions that transpired between the two leaders. Commenting on this aspect of the court’s decision, Brunton and Colquhoun-Kerr suggested that:

[I]t is clear that an international obligation cannot be constituted by a mere request from another nation for military assistance followed by Papua New Guinea’s agreement to provide that aid ... It must be an international obligation, the nature of which is recognised by international law.[29]


As stated, Miles J’s conclusion deviates from the spirit of the Constitution espoused by ss 117, 202 and 205, which vest the Parliament with a supervisory role over the executive arm of government.
Section 206 creates a juxtaposition. On the one hand it regulates bilateral agreements concerning the presence of armed forces of another country in Papua New Guinea and vice-versa. These agreements are in their very nature bilateral treaties. On the other hand these agreements are not regarded as treaties by the Constitution. Section 117(1) which defines the meaning of the term ‘treaty’ excludes from its ambit Visiting Forces Agreements under s 206. This matter has been left to the NEC. It is suggested that the exclusion of agreements envisaged by s 206 by s 117(1) exempts those agreements from the purported stringent requirements of s 117. Where then do we place Visiting Forces Agreements? It is submitted that on the international plane these agreements will be deemed as treaties, but on the domestic plane they will not obtain that label per se. A number of issues of public international law and private international law may arise. However, it is not necessary or possible to deal with those issues in this paper.
Since Independence there have been three Visiting Forces Agreements. The first is the Agreement Between Papua New Guinea and Australia regarding Status of Forces of each State in the Territory of the Other State which was concluded in 1977. The second is the 1980 Interim Agreement Between the Government of Papua New Guinea and the Government of Vanuatu concerning the Status of Elements of the Papua New Guinea Defence Force in Vanuatu. And the third is the Papua New Guinea - Indonesia Agreement Regarding the Status of Forces of Each Other in the Territory of the Other State concluded in 1992.
As noted, the deployment of troops to Vanuatu was challenged by Michael Somare in the case of SCR No 4 of 1980 (No 2); Re Petition of M T Somare [1982] PNGLR 65. The Supreme Court refused to make a declaration as to the constitutionality of the deployment of soldiers to Vanuatu, because by the time the matter came before the Supreme Court for judgment the soldiers had already returned to Papua New Guinea from Vanuatu.
The Supreme Court, however, by majority, agreed that the functions of the Defence Force under s 202 are exhaustive. No other sections of the Constitution impose any other functions on the Defence Force. As to the operation of ss 202(b) and 205, Kapi J held that the existence of an international obligation is a condition precedent to the deployment of soldiers in international engagements. Where no international obligation exists, this cannot be remedied by an Act of the Parliament.[30] It is submitted that the judgment of Kapi J on this issue is correct.
Section 273 relates to pre-Independence treaties. This section preserved Papua New Guinea’s treaty obligations that immediately prior to Independence applied to the Territory of Papua and New Guinea. These obligations were deemed to apply for a period not exceeding five years.[31] At Independence it was estimated that over 200 bilateral and about the same number of multilateral treaties applied or extended to Papua New Guinea.[32]
The provision required the Head of State (after receiving advice from the NEC) to make a declaration spelling out those treaties which were binding on Papua New Guinea. To this end the Head of State made a declaration to that effect on 7 October 1975. This practice was consistent with contemporary international rules on state succession, and put to rest in Papua New Guinea the issue of the “clean slate” theory.[33]
A large number of treaties have been accepted, acceded to or ratified by Papua New Guinea. A number of them predate the date of Independence while the rest were accepted, acceded to or ratified after 16 September 1975. The questions that now face us are: how has treaty law making fared over the last twenty years? Has Parliament or the NEC complied with the constitutional framework? Has Papua New Guinea been able to cope with its international obligations under the treaties to which it is a party? These and other issues are considered immediately below.

Twenty Years of Treaty Law Making Under the Constitution

On 7 October 1975, Papua New Guinea acquired certain rights and obligations under a number of multilateral and bilateral treaties which were entered into on its behalf by Australia.[34] By virtue of a principle of state succession, Papua New Guinea was not legally bound by those treaties.[35] The parties to those treaties were also not bound to accept a new party.[36] However, to comply with modern trends in international law, Papua New Guinea adopted the procedure under s 273. A review was conducted by the Department of Foreign Affairs and Trade (DFA) to identify those treaties that were not relevant to Papua New Guinea and for which consent was to be withdrawn. Annexure D contains a list of those treaties.
The five year grace period allowed under s 273 expired on 15 September 1980. To comply with the requirements of this provision, the Governor-General formally advised the Secretary-General of the United Nations on 24 September 1980 that Papua New Guinea would not from that date be bound by those treaties to which it had not succeeded.[37] It would follow that of the large number of treaties (about 400) which were succeeded to on 16 September 1975, only those that Papua New Guinea had specifically succeeded to by 15 September 1980 apply to Papua New Guinea. It is significant to note that s 273 became inoperative on 16 September 1980.
Ratification of treaties since 1975 has proceeded in accordance with s 117. The current and past practice has been merely to table the treaty documents in Parliament and request the Parliament to take note of them. A major cause of concern is the frequent use of the escape route under sub-s (5)(b) of the same section by the executive branch of government to avoid the scrutiny of Parliament as contemplated by sub-s (3).
The administration of treaties is usually the responsibility of the DFA. The day to day management of Papua New Guinea’s treaty relationships is vested in the Treaty and Legal Branch of the DFA. Treaties that relate to credit and loans are managed by the Department of Finance. Other treaty obligations are shared between the DFA and other government agencies such as the Department of Defence.
For instance, the Defence Force in collaboration with the DFA supervise the implementation of the existing Visiting Forces Agreements concluded pursuant to s 206 of the Constitution. Currently there are two. These are the agreements previously mentioned between Papua New Guinea and Australia (concluded on 26 January 1977), and between Papua New Guinea and Indonesia (concluded in 1992). The previous Visiting Forces Agreement between Papua New Guinea and Vanuatu (signed on 15 August 1980) was a self-executing agreement, to expire after 180 days. The agreement therefore expired in February 1981.
Some of the treaties which have the force of municipal laws are administered by specific government instrumentalities. For instance, the policing of the Dumping of Wastes at Sea Act (Ch 369) and the Prevention of Pollution of the Sea Act (Ch 371) are the responsibility of the National Fisheries Authority; the International Trade (Fauna and Flora) Act (Ch 391) and the Environmental Contaminants (Amendment) Act 1994[38] are administered by the Department of Environment and Conservation.
An outsider will easily commend Papua New Guinea on the performance of its treaty law making program. However, a closer examination of the process in Papua New Guinea will reveal a number of disturbing factors.
First, one will find that Papua New Guinea is a strong advocate of global co-operation. Its involvement in numerous international conferences and acceptance of international obligations under numerous treaties is a reflection of this. The unfortunate thing is that Papua New Guinea has not been able effectively to fulfil these obligations. This failure can be attributed to a number of factors. These are: (1) lack of political will,[39] (2) lack of funds,[40] (3) lack of expert personnel, and (4) lack of coordination between the implementing agencies.[41] These problems are interrelated and endemic in the public sector.
Secondly, a review of the relevant treaties indicate that some of the treaties are either not in the interests of Papua New Guinea, or are not relevant to Papua New Guinea.[42] Thirdly, many of these treaties require immediate to long term policy and legislative changes at the domestic level. Papua New Guinea has not been able to comply with these conditions.[43] The issue is: what will happen to Papua New Guinea’s international standing in view of this situation?
A number of other factors[44] which have contributed to the non-implementation of many of our international obligations are quite transparent and need no mention here. The treaty law making process in Papua New Guinea over the last two decades can be described as “too much writing with less walking”.

Conclusion

The CPC viewed Papua New Guinea’s international relations as very important and therefore recommended that Parliament should actively take on the role of treaty law making. The CPC proposals laid the foundation for the development of a system of international law which was appropriate for Papua New Guinean circumstances. The proposals recognised the existing rules and the principles of international law governing treaties, and sought to modify those rules and principles to suit the Papua New Guinean circumstances. The constitutional provisions pertaining to treaty law making has to a large extent diminished this vision.
The CPC vision was abandoned by the Constituent Assembly, as is reflected in ss 117 and 206. These provisions have effectively weakened the supervisory role of the legislature over the executive. The executive overreacted with this newly found power when it committed Papua New Guinean troops to Vanuatu in 1980 for peace-keeping duties. The Supreme Court was reluctant to make any declarations as to the constitutionality of this exercise in the SCR No 4 of 1980 (No 2) case ([1982] PNGLR 65). Two views have emerged from that case in relation to treaty law making: that of Kapi J and Miles J. It is suggested that the view of Kapi J is correct, as it captures and re-establishes the vision of the CPC. The views of Miles J on this subject should be rejected.
The pressing issue that requires consideration is: how do we strengthen the traditional role of the legislature on this important matter? It is suggested that Papua New Guinea must recapture the visions of the CPC. To this end, the loopholes within the constitutional provisions as highlighted above need to be rectified.
Papua New Guinea is fortunate that it has not yet experienced another fiasco similar to the one in 1980. It is in this malleable situation that Papua New Guinea has to take stock of its constitutional framework pertaining to treaty law making.

ANNEXURE A

Some of the treaties which have the status of municipal laws in Papua New Guinea are:


CONVENTION
ACT OF PARLIAMENT
  1. International Convention for the Regulation of Whaling
Whaling Act (Ch 225)
  1. Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)
International Trade (Fauna and Flora) Act (CITES Act) (Ch 391)
  1. Convention on International Civil Aviation (Chicago Convention)
Civil Aviation Act (Ch 239)
  1. International Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter
Dumping of Wastes at Sea Act (Ch 369)
  1. Ozone Convention
Environmental Contaminants (Amendment) Act 1994
  1. Vienna Convention on Diplomatic Relations
Diplomatic and Consular Privileges and Immunities Act (Ch 83)
  1. Convention on the Continental Shelf
Continental Shelf (Living Natural Resources) Act (Ch 210) [repealed in 1994 by Fisheries Act 1994]
  1. Agreement between Australia and Indonesia concerning Certain Boundaries between Papua New Guinea and Indonesia
Indonesia Border Agreement Act (Ch 85)
  1. Articles of Agreement of the International Monetary Fund
International Financial Organisations Act (Ch 86)

ANNEXURE B

This annexure contains a list of some of the treaties which Australia concluded with other countries and which Papua New Guinea acceded to, or succeeded to, after Independence. The list is not exhaustive.


1. Convention between Great Britain and the Netherlands Defining Boundaries in New Guinea

(The Hague, 16 May 1895)*

2. Agreement Between the Government of the Commonwealth of Australia and the Government of the Republic of Indonesia Establishing Certain Seabed Boundaries

(Canberra, 18 May 1971)*

3. Agreement between Australia and Indonesia concerning Certain Boundaries Between Papua New Guinea and Indonesia

(Jakarta, 12 February 1973)*

4. International Telecommunications Convention and Additional Protocol (Malaga–Torremollinos, 25 October 1973) (PNG acceded to this treaty on 31 October 1973 and it became effective in PNG on the same date.)

5. Convention of the World Meteorological Organisation (Washington, 11 October 1947) (PNG acceded to this treaty on 15 December 1975.)

6. Convention on International Trade in Endangered Species of Wild Fauna and Flora (Washington, 3 March 1973)

(PNG acceded to this treaty on 12 December 1975.)

7. Convention on International Civil Aviation

(Chicago, 7 December 1944) (PNG adhered to the treaty and the Protocol on l5 December 1975.)

8. Convention for the Unification of Certain Rules Relating to International Carriage by Air (Warsaw, 12 October 1929)

(PNG succeeded to the treaty on 11 December 1975.)

9. Convention Supplementary to the Warsaw Convention for the Unification of Certain Rules Relating to International Carriage by Air Performed by Person Other than the Contracting Carrier

(Guadalajara, 18 September 1961) (PNG succeeded to the treaty on 3 December 1975.)

10. Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface

(Rome, 7 October 1952) (PNG succeeded to the treaty on 31 December 1975.)

11. Convention on Offences and Certain Other Acts Committed on Board Aircraft

(Tokyo, 14 September 1963) (PNG succeeded to the treaty on 31 December 1975.)

12. Convention for the Suppression of Unlawful Seizure of Aircraft

(The Hague, 16 December 1970) (PNG succeeded to the treaty on 4 December 1975.)

13. Convention for the Suppression of Unlawful Acts Against Safety of Civil Aviation

(Montreal, 23 September 1971) (PNG succeeded to the treaty on 4 December 1975.)

14. Convention on the Privileges and Immunities of the United Nations

(London, and adopted by the General Assembly of the United Nations on 13 February 1946) (PNG succeeded to the treaty on 4 December 1975.)

15. Convention on Diplomatic Relations

(Vienna, 18 April 1961) (PNG succeeded to the treaty on 4 December 1975.)

16. Convention on Consular Relations

(Vienna, 24 April 1963) (PNG succeeded to the treaty on 4 December 1975.)

17. Constitution of the World Health Organisation as Amended

(New York, 22 July 1946) (PNG accepted the treaty on the 29 April 1976 and became a full member of the World Health Organisation on the same date.)

18. The Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field

(Geneva, 27 July 1929) (PNG succeeded to the treaty on 26 May 1976.)

* PNG regards itself as bound by these bilateral treaties in its own right. Notification to this effect was served on the Republic of Indonesia on 12 September 1980.

ANNEXURE C

This annexure contains as an example a list of treaties (relating to extradition) which PNG wanted to accede to after Independence on 16 September 1975. The first part indicates the countries with which Australia had concluded extradition treaties before PNG’s Independence. The second part indicates the countries which refused to accept PNG as a party to the treaties. [Note: See Sch 2 of the Extradition Act (Ch 49). As to the application of the Act to Commonwealth countries, see s 2 of the Act and the Regulation.]


Extradition treaty between Australia and:

  1. Albania
  2. Argentina
  3. Austria
  4. Belgium
  5. Bolivia
  6. Chile
  7. Colombia
  8. Cuba
  9. Czechoslovakia
  10. Ecuador
  11. El Salvador
  12. Finland
  13. France
  14. Greece
  15. Guatemala
  16. Haiti
  17. Hungary
  18. Iceland
  19. Iraq
  20. Italy
  21. Liberia
  22. Luxembourg
  23. Monaco
  24. Mexico
  25. Netherlands
  26. Nicaragua
  27. Norway
  28. Panama
  29. Paraguay
  30. Peru
  31. Poland
  32. Portugal
  33. Romania
  34. San Marino
  35. Spain
  36. Sweden
  37. Switzerland
  38. Thailand
  39. United States of America
  40. Uruguay
  41. Yugoslavia

Countries which refused to accept Papua New Guinea as a party to these treaties:

  1. Albania
  2. Argentina
  3. Bolivia
  4. Colombia
  5. Cuba
  6. E1 Salvador
  7. Finland
  8. France
  9. Haiti
  10. Italy
  11. Liberia
  12. Mexico
  13. Netherlands
  14. Norway
  15. Panama
  16. Peru
  17. Romania
  18. San Marino
  19. Spain
  20. Sweden
  21. Thailand

ANNEXURE D


This annexure contains a list of treaties which were reviewed within the five year grace period guaranteed by the Constitution under s 273 and were regarded as of no relevance to Papua New Guinea as of 7 October 1980.


1. Agreement between Australia and Japan on Fisheries and Agreed Minutes

(Canberra, 27 November 1968) (Withdrawal by PNG on 30 November 1976)

2. Convention on Fishing and Conservation of the Living Resources of the High Seas

(Geneva, 29 April 1958) (Withdrawal by PNG on 25 February 1976)

3. International Sanitary Regulation

(Geneva, 25 May 1951) (Withdrawal by PNG on 5 April 1976)

4. International Health Regulation

(Geneva, 23 May 1973) (Withdrawal by PNG on 5 April 1976)

5. Convention for the Protection of Industrial Property and Final Protocol

(Paris, 20 March 1883) (Withdrawal by PNG on 16 August 1976)

6. Additional Act Modifying the Industrial Property Convention

(Brussels, 14 December 1900) (Withdrawal by PNG on 16 August 1976)

7. International Convention for the Protection of Industrial Property and Final Protocol

(Washington, 2 December 1911) (Withdrawal by PNG on 16 August 1976)

8. International Convention for the Protection of Industrial Property

(The Hague, 6 November 1925) (Withdrawal by PNG on 16 August 1976)

9. International Convention for the Protection of Industrial Property

(London, 2 June 1934) (Withdrawal by PNG on 16 August 1976)

10. Paris Convention for the Protection of Industrial Property (Paris, 20 March 1883, as revised at Stockholm)

(Stockholm, 14 July 1967) (Withdrawal by PNG on 16 August 1976)




* Lecturer in Law, University of Papua New Guinea.

1 The Lome Convention provides a good example.

[2] The arrangement between Australia and Papua New Guinea in the PACTRA agreement has been hailed as a fair agreement between these two countries. But a close examination of the agreement shows that Australia stands to benefit more than Papua New Guinea. And it is suggested that one of the main reasons why Papua New Guinea signed the agreement was because it did not have much bargaining power. See C Murphy, “Economic Duress and Unequal Treaties,” (1970) 11 Virginia Journal of International Law 51.

[3] The events leading up to the Biodiversity Conference in Rio in 1992 illustrates this point. The smaller developing nations had to choose between joining the party, thus deriving benefits in the form of handouts from the developed nations in order to protect their environment, or miss out on these handouts by not joining the global community.

[4] Osborn’s Concise Law Dictionary, 7th ed by R Bird (London, Sweet and Maxwell 1983), at 328. In the Papua New Guinea context, see the definition as set out under s 117(1) of the Constitution. See also the definition under Art 2(2)(a) of the Vienna Convention on the Law Of Treaties 1969. This Convention codified the customary international law rules on treaties. The text of the Convention is set out I Brownlie, Basic Documents in International Law, 3rd ed (Oxford, Clarendon Press 1988), p 349.

[5] Art 2(1)(a) of the Vienna Convention on the Law of Treaties 1969.

[6] Constitution, s 117(1).

[7] Vienna Convention on the Law of Treaties 1969, Art 11. For a simplified explanation of the operation of the Convention, see M Akehurst, A Modern Introduction to International Law, 6th ed (London, Allen and Unwin 1987).

[8] M Akehurst, above n 7, p 129.

[9] Vienna Convention on the Law of Treaties 1969, Art 29.

[10] K Burke, S Coliver, C De La Vega, and S Rosenbaum, “Application of International Human Rights Law in State and Federal Courts”, (1983) 18 Texas International Law Journal 291, at 295. However, the practice of becoming a party by ratification is different from that of a State adopting treaties to form part of its municipal laws.

[11] As an example, see ss 117(7)-(8) of the Papua New Guinea Constitution. This section is discussed in detail below.

[12] Constitutional Planning Committee (“CPC”), Final Report of the Constitutional Planning Committee, Part 1 (Port Moresby, Government Printer 1974), p iv.

[13] For a discussion of the autochthony of the constitution, see J Goldring, The Constitution of Papua New Guinea (Sydney, Law Book Company 1978), p 27.

[14] CPC Report, above n 12, at p 1/2.

[15] Id, at p 6/7.

[16] Constitution, s 109.

[17] The supervisory role of the legislature over the executive was clearly pronounced by the Supreme Court in Haiveta v Wingti (No 3) [1994] PNGLR 197.

[18] CPC Report, above n 12, at p 6/25.

[19] The term “treaty document” is defined in s 117(1) to mean: “(a) the text of a treaty that it is proposed to accept or to ratify; or (b) a statement of the effect of such a treaty; or (c) a copy of the document by which it is intended that Papua New Guinea will express its consent to be bound by such a treaty”.

[20] Constitution s 117(4).

[21] Some of the treaties which have been converted into ordinary Acts of Parliament are contained in Annexure A.

[22] See Defence Act (Ch 74).

[23] The relevant Act is the Defence (Visiting Forces) Act (Ch 77).

[24] See Defence (Presence Abroad) Act 1980.

[25] CPC Report, above n 12, at p 13/5.

[26] Kidu CJ, Kearney Dep CJ, Greville Smith J, Kapi J, and Miles J.

[27] [1982] PNGLR 65, at 87 and 88.

[28] Id, at 79.

[29] B Brunton and D Colquhuon-Kerr, The Annotated Constitution of Papua New Guinea (Port Moresby, UPNG Press 1984), at p 427.

[30] [1982] PNGLR 65, at 77.

[31] This provision finds its roots in a declaration to the Acting Secretary-General of the United Nations in 1961 by the government of Tanzania. The declaration was to the effect that all treaties validly entered into on behalf of the territory of Tanganyika by the United Kingdom would apply to the independent state of Tanzania for a period of two years from the date of its Independence: see I Brownlie, Principles of Public International Law, 4th ed (Oxford, Oxford University Press 1990), at p 671.

[32] PNG Department of Foreign Affairs and Trade, Treaty List (No 2) (Port Moresby, Department of Foreign Affairs, 1991), at p 2. The author of the document mentions that most of those treaties were not relevant to Papua New Guinea.

[33] The essence of the theory is that an emerging State is not bound by the treaties of its predecessor sovereign.

[34] Annexure B contains a list of some of these treaties.

[35] These treaties do not form part of municipal law: see Costello v Controller of Civil Aviation (No 1) [1977] PNGLR 229, at 236.

[36] As an illustration see Annexure C, which sets out a list of some countries with which Australia had an extradition treaty prior to Papua New Guinea’s Independence. Following Papua New Guinea’s Independence, however, those countries refused to consider themselves bound by those treaties.

[37] Brownlie, above n 31, at p 4.

[38] Act No 16 of 1994. The amendment was required to enable Papua New Guinea to comply with its obligation under the Vienna Convention for the Protection of the Ozone Layer 1985 and the Montreal Protocol on Substances that deplete the Ozone Layer 1987.

[39] Lack of political will is an entrenched problem in Papua New Guinea. Papua New Guinean politicians show a lot of enthusiasm in concluding treaties. However, after a treaty is signed and ratified that zeal is no longer there. The political pressure which was persistent before the signing and ratification of the treaty tends subsequently to fade away (personal communication with Jimmy Bokomi, an officer of the DFA).

[40] This is a two-pronged problem. First, the country lacks the necessary funds effectively to implement at home its treaty obligations. Secondly, the country lacks the funds to meet its international annual financial obligations under relevant treaties which require financial contributions from member countries.

[41] For instance, Papua New Guinea ratified the Convention on the Rights of the Child 1989 on 1 March 1993. Under Art 44 of the Convention, member countries are required to submit a Country Report within 2 years of ratification. For this purpose, a Joint Working Committee was initiated by the DFA in 1996, with members from the DFA, Department of Education, Department of Home Affairs, Youth and Religion, Attorney-General’s Department, the Child Welfare Office and the Department of Health. The initiative never in fact got off the ground. The Department of Home Affairs, Youth and Religion is planning to resurrect the Joint Working Group. This is only one example of the many initiatives involving various Departments which have stalled over the years.

[42] For example, the Antarctic Treaty acceded to by Papua New Guinea on 16 March 1981, and the Treaty on the Principles Governing the Activities of States in the Exploration and the use of Outer Space including the Moon and Other Celestial Bodies acceded to by Papua New Guinea on 16 March 1981; and the Treaty Banning Nuclear Weapons Tests in the Atmosphere, in Outer Space and Underwater 1963, which was acceded to on 13 January 1982.

[43] For instance, Papua New Guinea has bilateral agreements with a number of South Pacific Island countries (eg Fiji, Tonga, Tuvalu, Cook Islands and Kiribati), called Technical Cooperation Agreements. Under these treaties, Papua New Guinea is required to draw up programs on matters such as training and exchange of professional personnel to assist these countries where they lack the relevant expertise. To date, Papua New Guinea has not drawn up these programs to fulfil its treaty obligations.

[44] These include bureaucratic “red tape”; indifferent attitude and lack of commitment by public servants to duties associated with the implementation of the agreements; and generally poor working conditions and lack of appropriate office equipment and other technical back-up facilities.


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