UPDATE: Introduction to Researching South Pacific Law

By Peter Murgatroyd

Peter Murgatroyd is the Library and Knowledge Services manager at Counties Manukau Helath in Auckland, New Zealand. Formerly, he was the Law Librarian of the University of the South Pacific and Campus Librarian of the Emalus Campus of the University, located in Port Vila, Vanuatu. Peter has also managed the Information Resource Centre Manager at the Secretariat of the Pacific Regional Environment Programme [SPREP], and was the Coordinator of the Pacific Environment Information Network [PEIN]. Prior to working at the University of the South Pacific, Peter was a library manager at two leading corporate law firms in New Zealand.

Peter has been invited to speak on Pacific legal research issues at Conferences in Australia, New Zealand, Vanuatu and Great Britain. Peter Murgatroyd was a member of the working group that established the online Pacific Legal Information Institute [PacLII]. He has had articles on Pacific legal resources published in the 'Australian Law Librarian,' 'Legal Information Management' and 'The Journal of Academic Librarianship.'

Published September/October 2019

(Previously updated in February 2009 and in July/August 2014)

See the Archive Version!

1. Introduction

The focus of this guide will be on providing a context and resource guide for researching the following small island states of the South Pacific: the Cook Islands, Fiji, Kiribati, Nauru, Niue, Samoa, the Solomon Islands, Tokelau, Tonga, and Vanuatu. The scope of this research guide does not extend to the US Territories in the Pacific, the French Overseas Territories in the Pacific, Papua New Guinea, Australia, or New Zealand.

South Pacific Map

 

The islands of the South Pacific consist of thousands of scattered islands spread across hundreds of thousands of square miles of ocean. The islands and people of the Pacific Islands can be divided into three distinct groupings: Polynesia, Melanesia and Micronesia. Melanesia includes Papua New Guinea, the Solomon Islands, New Caledonia and Vanuatu. Fiji is considered part of Melanesia because of its location; however, its culture is much more like that of Polynesia. The Melanesian islands lie south of the equator. Micronesia means “tiny islands.” These islands lie north of Melanesia and most of them also lie north of the equator. More than 2000 islands make up Micronesia, most of which are low-lying coral islands. Micronesia includes Guam, the Caroline Islands, the Mariana Islands, the Marshall Islands, Kiribati, and the single island of Nauru. Polynesia means “many islands.” It occupies the largest area in the South Pacific and includes the Cook Islands, Kiribati, Niue, Samoa, Tokelau, Tonga and Tuvalu. The focus of this research guide will be on the islands of Polynesia and Melanesia.

2. Sources of Law

An understanding of the recent colonial and post-independence history of the islands is essential for identifying, accessing and understanding the relevant laws as they apply in each of the countries of the Pacific – in particular, which laws of England, New Zealand, Australia, France and the United States of America (USA) still have application in the Pacific.

By the late 1800s, Britain, France, Germany, Spain and the USA were all competing for control of islands in the Pacific. After Spain’s defeat in the Spanish-American War of 1898, Germany and the USA took over the Spanish possessions in Micronesia. By the early 1900s Germany also held parts of Nauru, New Guinea and Samoa, and the USA controlled Hawaii and the rest of Samoa. France controlled New Caledonia and French Polynesia and shared control of the New Hebrides (now Vanuatu) with Britain. Britain held Fiji, Papua, Tonga, the southern Solomons, and the Gilbert (now Kiribati) and Ellice Islands (now Tuvalu). After Germany’s defeat in World War I (1914-18), Japan received control of the German possessions in Micronesia, New Zealand took over German Samoa, and Australia took control of northeastern New Guinea.

Through all these changes of rule, the Pacific Islanders themselves had little or no voice in the government. After World War II (1939-45) the United Nations (UN) decided that four areas in the Pacific should be governed as trust territories until they were ready for independence.

British Fiji and Tonga gained their independence from the United Kingdom in 1970; the Solomon Islands in 1978; the Ellice Islands, renamed Tuvalu, also in 1978; the Gilbert Islands, which then became Kiribati, in 1979; and the New Hebrides, which Britain had administered jointly with France, in 1980. Australia, Britain and New Zealand governed Nauru as a trust territory until 1968, when it too became independent.

New Zealand administered Western Samoa (now Samoa) until 1962 when it gained independence. The Cook Islands became self-governing in free association with New Zealand in 1965 and Niue followed in 1974. The Tokelau Islands were made a British protectorate in 1889. They were transferred to New Zealand’s administration in 1925. A referendum for independence was held in February 2006 but failed to reach the two thirds majority necessary for Tokelau to become self-governing; as such, Tokelau continues to be administered by New Zealand.

The Trust Territory of New Guinea was governed by Australia until 1973. It then became part of the self-governing territory of Papua New Guinea (PNG). PNG gained full independence in 1975. The USA administered the Trust Territories of the Pacific Islands, encompassing all the islands of Micronesia, with the exception of Nauru. The Marshall Islands and the Federated States of Micronesia became independent nations in free association with the USA, as did Palau, in 1994.

In order to provide for independence or full internal self-government, a written constitution was enacted in each country of the region which was stated to be the supreme law. However, at the time of independence, none of the countries of the region actually rejected their preexisting laws outright. Laws which remained included:

In addition to the various sources of law indicated above, there is an increasing tendency to incorporate aspects of customary law as well. Legislation is in place currently in Samoa, Solomon Islands, Vanuatu, Nauru, Kiribati and Tuvalu proposing that customary law be part of the law applied by all courts. Furthermore, all countries, with the exception only of Tonga, have express provisions for customs or customary law to be used as the basis for determining rights to customary land. Much of what constitutes customary law is, however, not recorded in a written form but is passed on orally by chiefs.

To summarize, all countries in the region have several different kinds of laws deriving from several different sources:

Sources of law for each of the countries of the region can be browsed from the PacLII website – see “Other materials” in each country library.

2.1. Constitutions

All the countries of the region have a written constitution, except Tokelau, and all of these written constitutions are stated to be the supreme law in their respective countries. The written constitution of most countries in the region is to be found in the first volume of the revised laws of the country. Usually it appears as the first law in the first volume. In the revised laws of Samoa, however, the written constitution appears in the first volume but in strict alphabetical order under the letter “C,” and the constitution of Nauru is found in the collection of laws, 1965-1972, amongst the laws enacted for 1968, about halfway through the volume.

The constitutions are freely available online via the Pacific Legal Information Institute website located at the Emalus Campus of the University of the South Pacific in Port Vila, Vanuatu.

The constitutions of the following 12 countries – Cook Islands, Kiribati, Marshall Islands, Nauru, Niue, Samoa, Solomon Islands, Tokelau, Tonga, Tuvalu, and Vanuatu – are also gathered together in “Selected Constitutions of the South Pacific”/ Don Paterson, editor. Suva, Fiji: IJALS & USP, 2000 (the Fiji Constitution was omitted due to political instability and uncertainty in Fiji at the time of publication).

2.2. Systems of Government

The systems of government adopted by the island states of the South pPcific largely resemble the forms of government in place within the former colonial powers in the Pacific. Countries formerly associated with Great Britain, Australia and New Zealand now have parliamentary systems. Kiribati elects from parliament a head of the executive who is also the head of state. In Tonga, the King of Tonga is the Head of State. Some former Commonwealth countries retained the British monarch as head of state, represented by a governor-general appointed by the Queen on the advice of the executive.

Pacific Island legislatures are based on universal suffrage; however, in Samoa only chiefs may be elected to parliament. In parliamentary systems in the region, executive power is held by a cabinet, derived from and responsible to the legislature. Legislative elections are held throughout the Pacific Islands.

2.3. Court Systems

During the colonial period, court systems were introduced along with laws. These systems have remained in place throughout the region. The regional model is hierarchical and typically consists of three levels: inferior courts, a superior court, and an appeal court, with the superior court having supervisory jurisdiction over the inferior courts. Outside of this formal hierarchy, customary tribunals and courts often exist at the village level. These customary courts and tribunals commonly do not have any formal legal recognition but are based on respect of customary authority. A description of the Court system for each country is available from the PacLII website – see ‘Other materials’ in each country library.

2.4. Additional Readings on the Context of Pacific Law

Further analysis and commentary can be found in the following publications:

The following texts have been selected by Professor Guy Powles of Monash University and Peter Murgatroyd, former Law Librarian at the University of the South Pacific, as particularly useful for gaining a fuller understanding of the historical and socio-cultural contexts of law in the South Pacific:

Occasional series, working papers, annual reports, conference papers, yearbooks and workshop proceedings are also rich sources of material and should not be overlooked. The journal “The Contemporary Pacific” includes excellent annual political reviews for each of the countries in the region.

3. Primary Materials

The PacLII website is the most complete repository of Pacific primary materials on the Internet. PacLII contains collections of legislation and judgments from around the Pacific. It is also the home of the Journal of South Pacific Law,detailed historical and constitutional notes discussing sources of law for the region, and provides access to the hardcopy law collection of the Emalus Campus Library. PacLII has also developed specialized collections in the areas of Intellectual property and Maritime law.

PacLII also developed a directory ofInternational Treaties & Agreements, etc. in the South Pacific; see Pacific Islands Treaty Series. However, this directory was last updated in 2009 due to resource constraints.

The largest physical repository of primary materials for the South Pacific is the Emalus Campus Library of the University of the South Pacific, located in Port Vila, Vanuatu. Requests for copies of materials can be made via the Emalus Library website.

The University of the South Pacific’s Laucala Campus Library Pacific Collection, located in Suva, Fiji, also has a significant hardcopy collection of Pacific primary legal materials and associated historical documentation. The Western Pacific Archives, located in Auckland University Library (New Zealand), are also a rich source of primary historical materials relating to the administration of the Western Pacific from 1877-1978.

The following materials curated by Peter Murgatroyd and archived on the Internet Archive are also of interest:

3.1. Legislation

Many of the countries in the Pacific Islands region have published consolidations of their statutes.

3.2. Case Law

The following South Pacific law reports series have been published. It should be noted that publication of the various reports is often sporadic. Although the publication of the various reports is continuing, there can be lengthy gaps between volumes. Indices to these volumes can be browsed from PacLII (follow the links below)

Also of note are:

4. Secondary Materials

4.1. Reference Materials

4.2. Periodicals (Legal)

The Pacific Law Journal Index consolidates article references identified in Jacqui Elliot's 'Pacific Law Bibliography' 2ed., “Wilsons Index to Legal Periodicals Online,” the University of Hawaii's 'Pacific Journals Index' and 'Agis Plus Text online' into one database. The database is organized by tabs, each tab for a particular jurisdiction. The Pacific Law Journal Index can be browsed by topic, year and country and was last updated in 2006. It is uncertain as to whether the index will continue to be available from the University in future as regrettably all support for maintenance of the resource has been withdrawn.

The foremost periodicals examining legal issues in the south pacific are the Journal of South Pacific Law, published by the School of the Law of the University of the South Pacific, and the Melanesian Law Journal published by the University of Papua New Guinea. Both periodicals are available online via PacLII.

Other journals that give particularly good coverage of Pacific legal issues include:

4.3. Periodicals (General)

Journals of particular interest include the following:

Of particular note in Contemporary Pacific are the regional legal / political summaries that are included yearly.

4.4. Pacific Law Texts

4.5. Internet Resources

PacLII: The Pacific Islands Legal Information Institute (PacLII) provides free internet access to legislation and case law for jurisdictions in the South Pacific. Islands covered by the service include American Samoa, the Cook Islands, Fiji, Guam, Kiribati, the Marshall Islands, Micronesia, Nauru, Niue, the Northern Mariana Islands, Palau, Papua New Guinea, Pitcairn, Samoa, the Solomon Islands, Tokelau, Tonga, Tuvalu, and Vanuatu. A site search form allows specific database selection and query with Boolean functionality. The service includes links to other legal materials for the South Pacific jurisdictions, including treaties and conventions, journals, and legal associations. PacLII is an initiative developed by the University of the South Pacific School of Law in cooperation with the Australasian Legal Information Institute (AustLII).

The PacLII databases contain primary materials – legislation, case law, and treaties – obtained from countries in the South Pacific by PacLII. Editing and preparation of most material for publication is done by PacLII staff. Further mark-up processing, database structure, search engine facilities, and some other aspects of technical infrastructure are provided by AustLII. The South Pacific parts of the WorldLII index are jointly prepared by PacLII and AustLII. The overall PacLII facility is managed jointly by USP School of Law.

Pacific Islands Treaty Series: The Pacific Islands Treaty Series, otherwise known as "PITS," was originally developed to be a comprehensive treaty database for the Pacific Islands region, publishing bilateral and multilateral treaties which Pacific Island states have entered into amongst themselves, as well as with nations and organizations external to the region.

In addition, some treaties are included in the PITS database if they are relevant to the Pacific Island states and territories which are the focus of the PITS site, even if they do not have any Pacific Island state parties. The PITS database focuses on 20 countries and territories in the Pacific. Unfortunately due to resource constraints the PITS database has not been updated since 2009

The Pacific Legal Gateway: The Pacific Legal Gateway is a PacLII project designed to be a portal for Pacific legal research. The objective of this Gateway is to provide access to legal content and research resources for Pacific Island jurisdictions. The Pacific Legal Gateway assembles many pertinent Pacific regional legal information resources.

5. Legal Education

The University of the South Pacific School of Law offers both undergraduate and postgraduate qualifications in law. The USP law programme is taught from the Emalus Campus of the University of the South Pacific and is available in face-to-face mode as well as via online distance delivery.

The University Of Papua New Guinea School Of Law offers both undergraduate and postgraduate qualifications in law.

6. Law Libraries

The Emalus Campus Library of the University of the South Pacific is the largest repository of pacific legal materials in the region, and provides a document delivery service for materials from its extensive collection.

7. Booksellers

Pacific law texts may be available from the University of the South Pacific Book Centre

8. References