Why Those Hoping to Design CIPs in the Pacific Are in For A Ride – Part 2


Due Process
With Michael Krakat

Legal Scholar Michael B. Krakat observes investment migration through the lens of international, constitutional, and administrative law.


See Part 1 of this series here.

The meaning of nationhood in the West

Nationhood demarks the legal status of being a nation but also includes the question of national identity and independence. Statehood, on the other hand, means the legal status of external recognition as an independent nation at the international law level. Nation- and statehood are to connect nations to a broader legal matrix, such as to the international community of states, as well as to create demarcations toward other nations. 

From the idea of the nation-state flows the concept of citizenship. Citizenship and nationality often conflated, the former demarking the municipal legal connection between a person and the state matrix, and the latter that relationships’ aspect in the international law forum. 

Nationhood in the South Pacific – and, consequently, citizenship – are contentious and contested paradigms. This is because some would argue that there is nothing much to discuss: Some of the demarking features of nationalism are drawn from sources that would perhaps not readily self-identify with the nation. 

Neither concept has a legal need to be inclusive of actual cultural values. Culture may or may not necessarily coincide with nationhood, nor automatically align or translate into nationhood, nationality or citizenship.

Why were nations created in the West?

One reason was the need to end the 30 years of war in the Peace of Westphalia. The need for state sovereignty emerged allowing for insulation from constant warfare between small estates and realms. A system of independent states and the concept of nationhood guaranteed the rise of the concept of sovereignty. It also incentivized those sovereignties to refrain from interfering in each other’s domestic affairs through an often fragile equilibrium of power and treaties purporting to respect non-intervention and invasion. This was doubly true for territories physically connected on the continent.

South Pacific Nation-building: An incomplete exercise?

In the South Pacific today, arguably, the nation-building process is an incomplete one. To understand the meaning of citizenship here, we must refer to a broader self-understanding that has roots much older than both independence and colonialization. If nationhood is developing, citizenship cannot be fully developed.  

Even if a nation officially exists on paper, there may be internal and external processes at work that still materially finalize the exercise of nation-building. For this reason, it can be difficult to view CBI laws in the region as finite and cohesive. 

Cultural status, identity, mores, or morals may be expressed through citizenship but are to a large extent found in other doctrinal paradigms, such as custom. If anything, the nation-state is an entity creating prerequisites for cultural identities, not replacing culture. Culture may supersede nationhood and, with it, nationality and citizenship in terms of importance and acceptance. 

It is not clear whether citizenship can develop to include culture or whether other concepts are better suited to manage a deeper understanding of belonging and acceptance. 

As we know, especially on the example of CBI, citizenship is a formal legal status. It is generic, technical, and transactional. It’s a mere legal container determining the bordered paradigm, which may hold some reference to culture. However, citizenship is itself, at least in the South Pacific islands when compared to the West, less cultural or comes with the same meaning as ancient identities and common ties. 

Assigned and developing meanings of the term nationhood or citizenship differ from a conventional understanding. The significance of custom (kastom) and related codifications of tradition for the formation of national identities cannot be overestimated. 

The picture of a relatively stable South Pacific on a journey toward general independence and nationhood was shattered in the late 1980s with the Fijian ‘coup-culture’, as well as with the prolonged conflict in Bougainville. These events showcased deep issues of acceptance of governing powers in parts of the community, after all, based on cultural differences. 

CBI, however, is beneficial for the survival of the very concept of the nation and is making a come-back in the region, incorporating the experience from the early proto-schemes.  

It is yet important for CBI sustainability that planners realize that, in essence, it is not clear whether the Western model of nation building has even fully arrived in the South Pacific environment. 

Counter-intuitively from the Western perspective, two narratives apply:

  • The narrative of forces and vectors toward nationalization
  • The narrative of idyllic places with tenuous and inchoate national cultures, emphasizing spheres of indigenous culture that are primarily local and not national.

Does nationhood necessarily even need to be the goal and destination of a journey toward self-identity of Pacific cultures? Where countries such as Vanuatu has at times been viewed as the world’s happiest nation, this may stem from factors such as well-being or the ecological footprint. The national element is not necessarily self-evident.

Nationhood, just as much as citizenship, as is the case in many places, appears subject to individual interpretation. Identity, moral, political, and other values are assigned to the term ‘nationhood’ and it has various meanings beyond the narrow legal strict sense of the terms.

Citizenship and nationality are, at law, none of these things, but they can be. While Pacific peoples may thus employ the term of ‘nation’ in reference and in contrast to other nations’ peoples, this may be so without assigning assumptions of loyalty, allegiance, self-identity, or civic consciousness to the idea of the nation as has usually been the case in the West. This cultural attitude then necessarily also translates into how citizenship is handled in the region, and it is what makes the region unique in many fascinating ways.  

Beyond Nationhood: The Pacific region and culture

In the South Pacific region, there seems to be little justification to run things by the state concept and, in consequence, to utilize citizenship as a derivative ordering principle.

An interesting question emerges:

If independence from colonial power had never been attached to the concept of nationhood, would the South Pacific realms have made a move to nationhood to rely on the state concept? Or would they, instead, have returned to their established pre-colonial ways of localized, decentralized power relations?

We may never have the answer to this question.

We might hypothesize that the South Pacific region seems lost in translation and that the state may not mean as much as it does in the West. If this is indeed the case, the matter of CBI in the region is a fragile one and may come with tensions that must be understood on their very own specific terms. 

Some Pacific Island nations – such as Samoa and Tonga – have relatively coherent experiences with the concept of nationhood. The Kingdom of Tonga displays some traditional euro-centric criteria for nationhood together with political, ethnic, and linguistic spheres coinciding. But this is not the same for every other place in the Pacific, and certainly not coherently so.

Even the categories of Mela-, Poly-, and Micronesia are not necessarily helpful to describe or delineate the region. They are artificial at best and suggest completely different categories of peoples. They are what Australian archaeologist and anthropologist Matthew Spriggs calls an anthropological illusion.

Due to isolation, island culture cannot be explained by diffusion with externalities evidenced in a need for nationhood status but primarily from internal developments: The engine of island evolution is not adaptation to environmental variation in any direct sense but is internal status rivalry, somewhat insulated from the outside world. 

The perspective of the small island in the South Pacific, except for those adjacent to any mainland, is indeed unique and insular. The region, with the notable exception of Tonga, was not one of conquest. There was trade and exchange of culture and knowledge, for example in regards to plants (such as the paper Mulberry plant). 

Are there any meaningful external common denominators in the region? Yes. Evidence of regional common identity vectors was unearthed from a single source of some joint South Pacific culture: The one found in the Lapita site on New Caledonia’s Grande Terre. Its pottery findings represent a common cultural denominator of cultural connection and interaction. Austronesian common heritage may originally have been derived from the ancient indigenous peoples of Taiwan.

Nationhood and the ‘people’

The concept of nation is here to stay. The question becomes how the concept is to be informed and read. Which complementary ordering paradigm could inform holistic CBI planning vis-à-vis the concept of nation, if any?

Can such an ordering paradigm assist in a more wholesome understanding of ‘nation’? Unlike nationals or citizens, individuals can also be conceptualized as the ‘people’. Who are the ‘people’ of a place? This could be explained subject to certain denominators and effective bonds (a question different and beyond the 1955 International Court of Justice’s limited circumstantial application of Nottebohm with its terminology of a ‘genuine connection’): In the Western Sahara case before the International Court of Justice, the Spanish counsel described the Sahwari of the Western Sahara as follows (1975: at 1402): 

A Saharan people, with its own well-defined character, made up of autonomous tribes, independent of any external authority […] this people lived in a fairly well-defined area and had developed an organization and a system of life in common, on the basis of collective self-awareness and mutual solidarity […] There was thus, according to Spain, a Sahwari people at the time of colonization, coherent and distinct. 

Again, this definition is not about nationality or citizenship, and also not one of naturalization. Nor are citizenship and naturalization needed for any description of real-life connections and existing people. How does this lens now assist in CBI assumed naturalizations? Arguably, focus for CBI planning is to be less on the perceived ordering power of the nation but could perhaps be one with a stronger focus directly on the people. This may then contribute to a deeper understanding of CBI programs.  

More from Due Process

Michael Krakat argues that the solution RCBI-skepticism is to tie the investor directly and visibly to particular - and commendable - projects.
Australia has made it a criminal offense for its citizens to return if they've recently been in India. Michael Krakat questions the legality of this move.
In the South Pacific's small island states, the notion of citizenship doesn't have the same meaning as in the cultures whence it came.
 

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Michael B. Krakat AuthorSubscriber

Michael B. Krakat is a lecturer and coordinator for comparative Public law – International, Constitutional and Administrative Law – at the University of the South Pacific at Vanuatu and Fiji campuses. Michael is also a researcher at Bond University – Queensland – and Solicitor at the Queensland Supreme- and the High Court of Australia. He also is an academic member of the Investment Migration Council. He can be contacted at michael.krakat@usp.ac.fj.