In the island states of the South Pacific, state laws co-exist with customary laws. In addition, international law plays an increasing role in the region. In so far as international law governs the relationship between states, the position is not problematic, but the expansion of ‘modern’ international laws into the realm of individuals and non-State bodies increases the complexities of the relationship between the different types of law.
International Law in the Region
All Pacific Island countries have ratified the Convention on the Rights of the Child (‘CRC’). Fiji and Tokelau, and Cook Islands and Niue through New Zealand, originally lodged reservations, but these were subsequently withdrawn. However, most Pacific Island countries have a dualist system, meaning that conventions do not form part of the law unless they are encapsulated in local legislation. Very few Pacific Island countries have taken action to domesticate the CRC, although there is a gradual movement to introduce laws that incorporate some of its principles. Neither have countries which have ratified the CRC complied with their periodic reporting obligations, either missing deadlines or failing to report at all. Faced with a backlog of reports, the Committee on the Rights of the Child has frequently allowed Pacific Island countries to submit combined reports, covering all overdue reporting periods. There are a number of reasons for these failures including lack of political will and a lack of resources. Staff within relevant government ministries often have higher priorities and may be daunted by the language of international documentation. Moreover, international laws are sometimes regarded as a threat to sovereignty, and as undermining local traditions and values (Konai Helu Thaman, ‘Cultural Rights: A Personal Perspective’, in Margaret Wilson and Paul Hunt (eds), Culture, Rights and Cultural Rights: Perspectives from the South Pacific (Huia Publishers, 2000), 2-3.).
The Approach of the Courts
In cases where there is no legislation incorporating conventions into domestic law, some regional courts have nevertheless, on occasion, relied on international instruments as an aid to statutory interpretation or in the exercise of a discretion. In Attorney General v Maumasi, the Court of Appeal of Samoa made it clear that the principles of the CRC should be applied in relevant cases. More recently, in the Supreme Court of Samoa, Nelson J concluded:
[The] overwhelming abundance of international authority shows how parties to the Convention on the Rights of a Child notwithstanding the lack of specific domestic legislation have imported the Convention, its underlying principles and philosophies into domestic law. In doing so these countries have breathed life into the CRC and so it should in a modern world where children continue to be exploited in the areas of armed conflict, child pornography, child prostitution and such-like. Samoa should not be hesitant to take its place amongst the nations of the world active in this struggle.
In Fiji, the High Court referred to the CRC in State v Mutch when considering the penalty for rape and assault of children aged nine to 14, and took into consideration the ‘best interests of the child’. In Soeasi v R an appeal against the sentencing of a minor, the High Court of Solomon Islands took into account the requirements of the CRC, holding that the sentence imposed at first instance was excessive, even though it was in accordance with the Juvenile Offenders Act and the Penal Code.
Conventions have also been referred to in support of a broad interpretation of the right to be treated fairly by the police where children are involved. For example, in Simona v R the High Court of Tuvalu held that the accused, who was 17 at the time, should have been advised that he could have a parent or guardian present during questioning and that he had a right to consult a lawyer. Whilst the Constitution of Tuvalu did not expressly confer such a right, the court held that the right to personal liberty should be interpreted in the light of the CRC, stating that it was,
satisfied that the Constitution read in accordance with the terms of the Convention gives any child in the custody of the police the right to have a parent or guardian present unless that is impractical. The perception that a child needs special protection arises from the immaturity and vulnerability of children. That is the foundation upon which the Convention was constructed.
The Tongan courts took a similar approach in Fa’aosa v Paongo, where a 12-year-old plaintiff was awarded exemplary damages for unlawful imprisonment and assault by the police. The court noted that Tonga had still not been ratified the CRC, but considered that accession in 1995 indicated a willingness to be bound by the terms of the Convention, including those in Article 37 governing the apprehension and detention of a child.
In contrast, there are also examples of regional courts refusing to take account of international law in the absence of domesticating legislation. For example, in K v R, where a bail application was made on behalf of a minor charged with murder, the High Court of Solomon Islands considered that the relevant international conventions, including the CRC, had to be read ‘subject to the domestic legislation and the Constitution’. In Tepulolo v Pou, a contested custody case in Tuvalu, the court refused to be influenced by the CRC or the Convention on the Elimination of All Forms of Discrimination against Women, on the basis that, although Tuvalu was a signatory to both these conventions, they were not part of domestic law. Local legislation provided that if ‘the father being a native accepts the child as being his, such child shall after reaching the age of 2 reside with the father or his relations’. Noting that the legislation was ‘in accordance with customary law’, the court awarded custody to the father. Whilst the Interpretation and General Provisions Act directs courts to prefer a construction of written law consistent with the international obligations of Tuvalu, the court held that this was only relevant if the law was ambiguous.
Whilst Pacific Island counties have ratified the CRC they have not followed through with legislation to incorporate the convention into domestic law. Some regional courts have not allowed this to prevent them from recourse to the CRC to assist them in interpreting the law and in guiding them in the exercise of their discretion. However, this has not always been the case, and there are some instances where the courts have refused to consider international law. Whilst there is a discernible move within the region to increase the legislative protection of children, only Vanuatu has incorporated the CRC as a whole in a local statute. The absence of such domestic legislation provides courts with an excuse for failing to promote children’s rights if they are disinclined to do so, and this may be a particular issue where the values enshrined in the CRC conflict with customary laws.
Professor Jennifer Corrin is Director of Comparative Law in the Centre for Public, International and Comparative Law at the TC Beirne School of Law, The University of Queensland (UQ). Jennifer’s research focuses on law reform and development in plural legal regimes.