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Cook Islands Constitution

Quotes

Cook Islands website seemingly discussing the constitution:

  • Article 2 of the Constitution states that "Her Majesty the Queen in right of New Zealand shall be the Head of State of the Cook Islands"...Her Majesty Queen Elizabeth II, by virtue of being Head of State of Her entire Realm of New Zealand as described in the Letters Patent, is also Head of State of that part of Her Realm of New Zealand referred to in the Letters Patent as "the self-governing state of the Cook Islands"...Oaths of office taken by the Queen's Representative, Members of Parliament and Judges of the High Court and prescribed in the Constitution require allegiance to be sworn to the reigning Sovereign..."as the Head of State of the Cook Islands"...Her Majesty the Queen was represented in the Cook Islands' part of the Realm of New Zealand by the "High Commissioner of the Cook Islands" (Article 3). The High Commissioner was both representative of the Head of State as well as representative of the New Zealand Government in the Cook Islands...By previous agreement between the Governments of the Cook Islands and New Zealand, when there was a High Commissioner of the Cook Islands, the appointment was made by the New Zealand Governor-General after consultation with the Government of the Cook Islands in keeping with the then quasi-diplomatic role of the High Commissioner. By convention, the appointment of the Queen's Representative is made by Her Majesty upon the recommendation of the Prime Minister of the Cook Islands.
  • The relationship between New Zealand and the Cook Islands was defined by New Zealand in August 1965 to the United Nations as follows:-
"The Cook Islands people...have determined to exercise their right of self-government or self-rule or independence -- call it what you will -- but not at this time as a separate, sovereign State...and here is the special feature -- they may at any time in future, if they so desire, move into full independence, or any other status that may become practicable, by a unilateral act, that is, one which New Zealand has denied itself power to countermand. The right is spelled out in the provisions of article 41 of the Constitution...This new status is not sovereign independence in the juridical sense, for the Cook Islanders wish to remain New Zealand citizens and in the meantime they wish New Zealand to discharge the responsibilities in the field of external affairs and defence in consultation with them; but it means that the Cook Islanders have a continuing right to self-determination. Henceforth the legal links between the Cook Islands and New Zealand rests on consent; this is what we understand by 'free association' "...For so long as the Cook Islands chooses to be associated with New Zealand, rather than to become a sovereign State, New Zealand cannot repudiate an ultimate responsibility for questions of external affairs and defence...Section 5 simply reflects one of the inherent characteristics of 'free association': the Cook Islands can do as it chooses but as long as it chooses not to be internationally responsible for its own affairs it thereby recognises New Zealand's continuing responsibility for the matters mentioned in Section 5...Some legal purists may find this arrangement untidy. Complete sovereign independence or complete dependence are clear and simple concepts and this is neither one thing nor the other."

UN Law of the sea information circular where the Cook Islands and Niue are signatories with the footnote "Non-member state of the United Nations"

Official Cook Islands history:

  • The day after Sir Leon's invitation, the Legislative Assembly unanimously adopted a resolution choosing self-government while at the same time asking New Zealand to preserve for the people their status as New Zealand citizens...The elections were held on 20 April 1965, with resounding support for the proposed Constitution and self-government. On 26 July the New Zealand passed the Cook Islands Constitution Amendment Act and the Cook Islands became a State in free association with New Zealand...
    • The Cook Islands Government has full executive powers.
    • The Cook Islands can make its own laws and New Zealand cannot make laws for the country unless authorised by government.
    • Cook Islanders keep New Zealand citizenship
    • The Cook Islands remains part of the Realm of New Zealand and Queen Elizabeth II is Head of State of the Cook Islands.
  • In the early 1990s the Cook Islands and New Zealand agreed that given the evolution of their free association relationship since 1965 to one based on international law and conventional diplomatic practice, it was appropriate to place military exercises on a more formal basis. This resulted in another Exchange of Letters constituting an agreement between the governments on arrangements for visits by the New Zealand Armed Forces...This and other earlier agreements clearly reflected the fact that control over both external affairs and defence rests entirely with the Cook Islands government
  • In early 1972 the newly-formed South Pacific Forum established by treaty the South Pacific Bureau for Economic Cooperation (SPEC). The SPEC Agreement, signed by Australia, the Cook Islands, Fiji, Nauru, New Zealand, Tonga and Western Samoan in 1973, was the first treaty in which the Cook Islands and New Zealand participated as separate but equal parties...the Cook Islands began its first direct involvement in international affairs...New Zealand prime minister Norman Kirk and Cook Islands premier Albert Henry undertook an Exchange of Letters...Kirk's letter pointed out that the New Zealand government had a statutory responsibility for the external affairs and defence of the Cook Islands. "It is, however, also intended that the Cook Islands be free to pursue their own policies and interests," he wrote. Kirk said "the heart of the matter" was his point that, "the bond of citizenship does entail a degree of involvement [of New Zealand] in Cook Islands affairs. This is reflected in the scale of New Zealand's response to the Cook Islands' material needs; but it also creates an expectation that the Cook Islands will uphold, in their laws and policies, a standard of values generally acceptable to New Zealanders. The special relationship between the Cook Islands and New Zealand is on both sides a voluntary arrangement which depends on shared interests and shared sympathies. In particular it calls for understanding on New Zealand's part of the Cook Islands' natural desire to lead a life of their own and for equal understanding on the Cook Islands' part of New Zealand's determination to safeguard the values on which its citizenship is based."...The next decade saw a major expansion of the Cook Islands involvement in international affairs, including broader participation in international organisations and treaties in its own right. Government's first diplomatic and consular posts were established aboard and New Zealand upgraded its mission in Rarotonga...The Cook Islands is a member of the Food and Agriculture Organisation, the Asian Development Bank, the International Civil Aviation Organisation, the World Health Organisation and the United Nations Educational, Scientific and Cultural Organisation. It is an Associate Member of both the Commonwealth and the United Nations Economic and Social Commission for Asia and the Pacific Islands Forum (http://www.forumsec.org.fj/)...The country has established diplomatic relations with 19 countries.

Book with more on the exchange of letters (page 260 onwards):

  • "[quoting from letters] In the view of the New Zealand Government, there are no legal fetters of any kind upon freedom of the Cook Islands...that also is the view of the United Nations...by their own express wish, the people of the Cook Islands remain New Zealand citizens...In this way, the Cook Islands people retain the right to regard New Zealand as their own country...the bond of citizenship does entail a degree of New Zealand involvement in Cook Islands affairs"...the Cook Islands seems to have been recognized as a "fully sovereign independent state".
  • "[quote from NZ high court] It is necessary that I start by referring to the status of the Cook Islands as a sovereign State...The Cook Islands also has international capacity...in short, the Cook Islands is a sovereign state with full internal government."

Commonwealth website on the Cook Islands (has copy of letter exchange and joint declaration):

  • Status: Self-governing in free association with New Zealand.
  • Under the 1965 constitution, Cook Islands is a sovereign state with Queen Elizabeth II as head of state and a unicameral legislature, which has exhaustive and (since 1981) exclusive legislative powers (including constitutional reform); the New Zealand House of Representatives cannot legislate under any circumstances in respect of the Cook Islands.

Cook Islands government publication:

  • The status of self-government in free association is distinct from integration...and independence from the metropolitan state...the Cook Islands remains part of the Realm of New Zealand (albeit a separate part), and the Queen in right of New Zealand remains the Head of State of the Cook Islands. Cook Islanders retain New Zealand citizenship (and do not have additional Cook Islands citizenship).
  • In the conduct of its foreign affairs, the Cook Islands interacts with the international community as a sovereign and independent state.
  • Official relations between the signatories [the Cook Islands and New Zealand] are based on the 1961 Vienna Convention on Diplomatic Relations and the 1968 Vienna Convention on Consular Relations.

UN organ repository of practice:

  • The question of whether the Cook Islands and Niue were “independent” entities, i.e.-

States, with full treaty making capacity was also considered. The Cook Islands and Niue maintained the status of self-governing territories in free association with New Zealand. In view of this special relationship with New Zealand, which discharged the external affairs and defense of the Cook Islands and Niue, neither the Cook Islands nor Niue could invoke the “all States” clause to participate in treaties deposited with the Secretary-General unless specifically invited to participate in a treaty. However, the responsibility of the Cook Islands and Niue to conduct their own international relations and particularly to conclude treaties has evolved substantially over the years: the Cook Islands became a member of WHO in 1984, of FAO in 1985, of UNESCO in 1985, and of ICAO in 1986; Niue became a member of UNESCO in 1993 and of the WHO in 1994;

  • In a Declaration dated 10 November 1988, New Zealand stated, by express provision and

with the consent of all parties concerned, that its future participation in international agreements would no longer extend to the Cook Islands or Niue; in 1991 the Cook Islands sought, and obtained, full participation in the United Nations Conference on Environment and Development (UNCED) Preparatory Committee and the Intergovernmental Negotiating Committee for a Framework Convention on Climate Change (INC), providing further evidence that the international community had accepted the Cook Islands as a “State” under international law. Consequently, and in light of their admission to the membership of specialized agencies without any specifications or limitations, the Secretariat recognized the full treaty-making capacity of the Cook Islands in 1992 and that of Niue in 1994.

[1] Associated Statehood in International Law By Masahiro Igarashi (2002)

  • Free association noted by NZ delegate to UN in 1964 as "the possession by a people of the unchallenged right to control their own future. It means in fact a kind of continuous self-determination." In 1965 "there is no legal barrier to their assumption of sovereign independence except the need for the assent of two-thirds of the members of the Cook Islands legislative assembly and two-thirds of the people as expressed by referendum."

Book discusses modern stuff later, can't see due to preview limit. Apparently, page 262 discusses a court ruling saying Court ruling, presumably one of the NZ ones, but can't see myself for context. "... the Cook Islands is a fully sovereign independent state ...",

[2] Climate Change, Forced Migration, and International Law By Jane McAdam (2012) pp154-155

  • "That there is no single concept of self-governance is borne out in the different approaches of Niue and the Cook Islands. The Cook Islands has continually stressed its independence. For example, the 2001 Joint Centenary Declaration of the Principles of the Relationship between the Cook Islands and New Zealand...emphasized the 'relationship of partnership and free association between the Cook Islands and New Zealand as equal states independent in the conduct of their own affairs...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...the government of the Cook Islands possesses the capacity to enter into treaties...in its own right.' "
  • "Niue has resisted being treated like an independent State...Nonetheless, both Niue and the Cook Islands are separate administrative entities within the Realm of New Zealand - their governments have full executive powers and their parliaments can make their own laws. New Zealand is not permitted to make laws for them unless authorized or invited by the legislature to do so. By agreement, Niueans and Cook Islanders hold New Zealand citizenship (and do not have additional Niuean or Cook Islands citizenship).
  • "Through acts of self-determination overseen by the UN, in 1965 and 1974 respectively, their populations chose to become self-governing territories in free association with New Zealand, which is 'a status distinct from full independence'.
  • pg 158-159 "International legal personality is not confined to states". Sidenote: "the Vatican City is a state, even though its position as such is 'peculiar' and 'the criteria for statehood in its case are only marginally (if at all) complied with'. Its recognition by other states is therefore of 'considerable importance'.

[3] SUMMARY OF PRACTICE OF THE SECRETARY-GENERAL AS DEPOSITARY OF MULTILATERAL TREATIES Prepared by the Treaty Section of the Office of Legal Affairs (1999) 2. Cook Islands

  • 85. The question of whether the Cook Islands was an "independent" entity, i.e. a State, was also raised. For a period of time it was considered that, in view of the fact that the Cook Islands, though self-governing, had entered into a special relationship with New Zealand, which discharged the responsibility for the external affairs and defense of the Cook Islands, it followed that the status of the Cook Islands was not one of sovereign independence in the juridical sense. Moreover, the General Assembly, in its resolution 2064 (XX) of 16 December 1965 on the question of the Cook Islands, had reaffirmed the responsibility of the United Nations "to assist the people of the Cook Islands in the eventual achievement of full independence, if they so wish, at a future date". That resolution, which was adopted in view of a change in the status of the Cook Islands, further indicated that the latter had not yet attained full independence within the meaning of the term in United Nations usage. 52/ It followed that, unless specifically invited to participate in a treaty, the Cook Islands could not invoke the "all States" clause.
  • 86. However, in 1984, an application by the Cook Islands for membership in the World Health organization 53/ was approved by the World Health Assembly in accordance with its article 6, and the Cook Islands, in accordance with article 79, became a member upon deposit of an instrument of acceptance with the Secretary-General. In the circumstances, the Secretary-General felt that the question of the status, as a State, of the Cook Islands, had been duly decided in the affirmative by the World Health Assembly, whose membership was fully representative of the international community. The guidance the Secretary-General might have obtained from the General Assembly, had he requested it, would evidently have been substantially identical to the decision of the World Health Assembly. The same solution was adopted by the Secretary-General when Niue, in 1994, applied for membership in the World Health Organization. Moreover, on the basis of the Cook Islands, membership in the World Health Organization, and of its subsequent admittance to other specialized agencies (Food and Agriculture organization of the United Nations, United Nations Educational, Scientific and Cultural Organization and International Civil Aviation Organization) as a full member without any specifications or limitations, the Secretary-General considered that the Cook Islands could henceforth be included in the "all States" formula, were it to wish to participate in treaties deposited with the Secretary-General.
  • 279. Thus, for example, when New Zealand acceded on 20 December 1974 to the Customs Convention on Containers, 1972, 159/ it declared that the accession to the Convention would not extend to the Cook Islands, Niue and the Tokelau Islands. 160/ CMD (talk) 20:30, 7 August 2013 (UTC)

[4] Pacific constitutions (2009)

  • Niue is a sovereign state,11 it is a monarchy,12 and is a democracy run by a cabinet-style government.13
    • 11 As is evidenced by its act of self-determination for a status as a self-governing state in free

association with the State of New Zealand, its description as such in the Letters Patent, constituting the Governor-General of New Zealand (SR 1983/225), and its being a party in its own right to treaties with other states (eg the 1997 Boundary Delimitation Treaty with the USA).

    • 12 Article 1 of the Constitution.
    • 13 Articles 2-14 of the Constitution.
  • Niue is part of the Realm of New Zealand.14
    • 14 As a consequence of this, Niue is within the Commonwealth. It is an associate rather than an independent member of the Commonwealth.
  • The Realm is an entity which has no formal international status and which probably does not exist beyond the Letters Patent of 1983. It would seem to indicate something in the nature of a voluntary association of like-minded countries. There is New Zealand and its non-self-governing territory of Tokelau, and the Ross Dependency. Additionally, there are the two former colonies, now states in free association with New Zealand: the Cook Islands and Niue. All these countries share the Queen of New Zealand as their Head of State. The Realm is therefore reflected in the constitutional arrangement of Niue in that the Head of State of Niue is the Queen of the Realm of New Zealand. The critical thing for Niue is the relationship with New Zealand and not the relationship to the Realm. The functioning aspect and the principal internationally legally identifiable aspect of the Realm is the State of New Zealand.18 The citizenship is the citizenship of the State of New Zealand; it is not the citizenship of the Realm of New Zealand. Equally, advice to the sovereign about the Realm is given by an Executive Council under the Letters Patent, that Council is composed entirely of the Ministers of the State of New Zealand.19 Further, if there is a call for defence assistance or international relations support, that can only be forthcoming from the State of New Zealand. The Realm can call on no support other than that of the individual countries within the Realm.20
    • 18 Niue as such has no legal relationship with the other countries of the Realm. The Cook Islands is a state in free association with New Zealand, but otherwise unconnected with the other countries. The Ross Dependency is a dependency of the State of New Zealand whose international status is now substantially affected by the Antarctica Act 1960 (NZ). Tokelau is a territory of the State of New Zealand whose constitutional position is governed by the Tokelau Act 1948 (NZ).
    • 20 From the point of view of the State of New Zealand, it is interesting to note that the various statutes relating to defence matters are the law of the State of New Zealand. Therefore, in a strict sense the role of the New Zealand defence forces would be simply to defend the State of New Zealand.
  • The relationship with the State of New Zealand is hinted at in the Constitution. The key provisions are sections 2 to 8 of the Niue Constitution Act 1974. They indicate that the relationship between the two states is one of free association.21 This means that there are two separate states and that their relationship is a voluntary one. It is the legal right of Niue to choose to become independent and no longer freely associated with New Zealand, at any time and unilaterally. On the other hand, for New Zealand unilaterally to terminate the relationship would give rise to different considerations. The status of free association is one of the self-determination options spelled out in the United Nations General Assembly Resolutions,22 and implicit in that status is the notion that it would be a breach of the self-determination arrangement for the state offering the association to deny the relationship.
  • 3 The position in practice is that Niue as a state freely develops its own foreign relations policy and exercises its foreign relations powers. It has diplomatic representation abroad (Wellington and Brussels), it enters into treaties on its own behalf,24 and is an active participant in a number of

international organisations. Equally, it is clear that in the exercise by Niue of its international status, New Zealand will provide facilities and will assist as best it can, at the request of Niue. There may additionally be some areas where Niue is not currently represented but the State of New Zealand is. In such cases, it is appropriate that New Zealand is seen as having a duty to represent the interests of Niue. One such example might be within the United Nations.

  • The citizenship law for Niue is the New Zealand Citizenship Act 1977. As a matter of legality, that Act in slightly different form is also a Niue law. For all practical purposes, the only relevant law is the law of New Zealand because the citizenship is that of the State of New Zealand and that citizenship is controlled by the government of the State of New Zealand both through its control of the Citizenship Act 1977 and also by the operation of the Immigration Act 1987 of New Zealand and the Passports Act 1992 of New Zealand.27 The free association relationship therefore

extends to Niue the privilege for its people to hold the passport of another state. There is nothing constitutional which precludes the establishment of a Niuean citizenship; but whether the government of New Zealand would recognise such a citizenship, or for what purposes it might recognise it, is unclear. There is no necessary conflict between the possession of such a citizenship and the free association relationship with New Zealand. In fact, a Niuean citizenship law might do little more (other than by way of nomenclature) than the current permanent residency permit of Niue, or than an identity card of the kind that is sometimes used at an administrative level in the Pacific by Pacific islanders for inter-island cross-border travel.

  • The Niue Constitution diverges markedly from that of the Cook Islands in relation to consultation.34 Section 8 of the Niue Constitution Act 1974 indicates that there should be regular consultation between the two governments and that there is a right of consultation at the head of government level. Apart from the fact that the head of government of Niue is a Premier and the head of government of New Zealand is a Prime Minister, the provision clearly sees the relationship between the states as one of partnership and equal respect.
  • The Head of State for Niue is Queen Elizabeth II, Queen of New Zealand. The identification of the New Zealand sovereign is established by the Act of Settlement of 1700.36 That Act is not an entrenched part of the law in Niue; it is therefore possible for Niue, alone and by a simple majority vote in the Niue Assembly, to change the line of succession to the monarchy. However, that would be incompatible with the free association arrangements and, indirectly, also with article 1 of the Niue Constitution (which is heavily entrenched) which identifies the Head of State as "Her Majesty the Queen in right of New Zealand".
  • Increasingly, Niue has accepted the

responsibility of legislating for itself and, where New Zealand legislation is to be used in the same terms in Niue, the more recent pattern is for the Niue Assembly to pass a law which indicates that the law of New Zealand (or any other country for that matter) for the time being is the law of Niue. A prime example of this is in respect of the intellectual property legislation of Niue which is the New Zealand intellectual property legislation for the time being in force in New Zealand.74

  • The Cook Islands had a provision similar to article 36 in its Constitution of 1964, but repealed it in 1980. Whether Niue should also repeal the article in order to better reflect its autonomy is a moot question. There is no current debate on that matter in Niue. This may reflect the fact that Niue has a very different relationship with the State of New Zealand from that of the Cook Islands. Niue may therefore be content that this provision remain in its Constitution. A second reason is that to change the law would require a constitutional amendment, which in Niue is a much more daunting process than in the Cook Islands; and third, in a limited number of areas this facility is probably the best way to ensure the continuation and coordination of the relationship between the states of New Zealand and Niue.75

[5]

[6]

[7]

[8]

[9]

UN General Assembly Resolution Sixty-fourth plenary meeting, 14 December 1946 Transmission of Information under Article 73e of the Charter "New Zealand concerning conditions in the Cook Islands (without prejudice to any interpretation of the expression "Non-Self-Governing Territories" in view of the fact that the Cook Islands are an integral part of New Zealand)" as opposed to Tokelau, which is listed later [10]

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