1991, 13) have conferred on biography a completely different use and perspective. From now on, it is not so much a matter of finding new sources as of reading differently – and better, we hope – the available ones.

Fundamentally and globally, the way Ahutoru, Tupai'a and Mai approach Europeans and behave towards them is a matter of "ceremonial friendship" or "honorary companionship", according to the approximate translations that can be made of the "taio" ties studied by Vanessa Smith. It is the first Tahitian language word that newcomers hear and remember. The effective force of the bond thus created is manifested by the two parties involved exchanging names, which explains why Ahutoru called himself "Poutavéry" (a French transcription of Bougainville's surname, pronounced Tahitian style) once he had become Bougainville's "taio".

A serious misunderstanding characterizes this practice of "taio". Viewed as a mere alliance from a European perspective, for the Polynesians it was a case of integrating the newcomer into a system of exchanges, involving much stronger and more binding solidarity obligations. Doubts were expressed by European travellers as to the sincerity of this friendship, whose emotional and intimate dimension challenged them as much as it baffled them, while they assumed it was based on calculation. Significantly, this word disappeared from the vocabulary and the practice was no longer documented from the early 19th century onwards (Smith, 2010, ?). Should this be seen as a defeat of what could be an early formalization, identified by the Europeans, of the "Pacific Way"?

Similarly the encounter with Europeans had a tragic outcome for the three major Contact actors mentioned above, supporting the idea of a "fatal impact" (Moorehead, 1990). After following the long voyage back to France of Bougainville's expedition and spending a year in Paris, Ahutoru died of smallpox off the coast of Madagascar, on his way back to Tahiti (November 1771). Tupai'a never reached Great Britain, towards which he had embarked on the Endeavour, the ship of Cook's first voyage in the Pacific, because he died of fevers in Batavia (December 1770). Finally, Mai was repatriated on Cook's 3rd voyage after spending two years in Great Britain following Cook's 2nd voyage to the Pacific but did not survive more than 24 months after settling in Huahine, which definitely was not a success. This can certainly nurture an unhappy conscience on the European side, but today it no longer stops the work of historians.
While misfortune struck the three most prominent Contact figures, their experience was not unique, and they were not the only ones to reach out to the Europeans and follow them. The valuable inventory provided by Rhys Richards and Robert Langdon establishes that, between 1806 and 1825, approximately 185 Polynesians embarked on European ships. Some might have been counted twice, which implies, at least, that they probably survived a first voyage (Richards-Langdon, 2008, XXI-XXIV). Further investigation of sources shows, in even more detail and more convincingly, that others had experienced what Ahutoru, Tupai'a, and Mai may have experienced. Witness in particular Hitihiti's or Puhoro's itineraries, which David A. Chappell traced in 1997 (Chappell, 1997, ?). Not only was the experience of these two men more diversified, but it also proved to be more fruitful: for them, it was a return to country but also an opportunity of sharing what they had seen and acquired in terms of "knowledge" with the Europeans.

Hitihiti (or Hedeedee, also called Mahine), born into the Society Islands' aristocracy, joined (as did Mai) Cook's second voyage to the Pacific, which reached Antarctica in January 1774. With a better and faster command of the English language, he served as an interpreter to establish contact in Rapa Nui/Easter Island and in the Fenua Enata/ Marquise Islands, particularly in Tahuata. He refused to continue the journey to Great Britain, but he resolutely stood by the British during the Bounty mutineers' stay in Tahiti and their involvement in the factional conflict that was taking place there, particularly because of the dexterity in handling firearms that he had acquired. What is most remarkable is that the knowledge of a number of islands the taata tahiti had not yet sailed to, but which Hitihiti had been able to "discover" with Cook's expedition, was – as has actually been established – aggregated with the traditional geographical knowledge transmitted orally in the Society Islands (Salmond, 2009, 281-308).

Puhoro, a high-ranking navigator from Makatea, boarded the Aguila, which had just set up a Spanish mission in Tautira in 1774. The missionaries and their bodyguard-interpreter Maximo Rodriguez were repatriated to Lima after one year. On that occasion that Puhoro was brought back to Tahiti. Puhoro was strengthened by this "European experience". Clearly, he did not consider himself in any way at the service of the "foreigners" who had just left the island and would never return. In any case, he was there, in a good place, when Cook returned to Tahiti and stopped there in 1777
during his third voyage. Mai, who was soon after installed by the British in Huahine, made his grand return to his people on this occasion. Puhoro apparently was among the first to indicate that he had to lower his claims. In 1789, the British navigator George Mortimer, who sailed to Matavai Bay in the Mercury, mentioned his presence, praising his command of the Spanish language. He was "very imbued with the Spaniards" – in his opinion much superior to the British, he also points out – "and he would recount over and over again the great reception he had received in Lima" (Mortimer, [1791] 1975, 46).

This angle of analysis can probably be linked with the revision of perspective that Kate Fullagar proposed about Bennelong (Woollarawarre Bennelong of the Eora Nation), the first Aborigine to write in English who went to Great Britain and played a key intermediary role between governor Phillip and the British in the Port-Jackson region, in New South Wales (c.1764-1813). He contrasts with the figure of Pemulwuy, who belonged to the Bidjidal clan, the leader of an anti-British aboriginal guerrilla war in the region (Fullagar, 2009, 31-51- Fullagar, n.d).

At present, a key concept seems to impose itself: "agency", which allegedly characterized Oceanians at the time of Contact (Fullagar-McDonnell, 2009, empl. 184, 360). This concept sums up the latter's ability to neither be surpassed nor "down" (even if this ultimately cost them their lives) in these circumstances. It is worth stressing their active situation and their dynamism in the face of what surrounded them in such a disconcerting way and also in the face of what happened to them at the time, and from which they were able to benefit. This notion is tested in particular by Nicholas Thomas' biographical study of Kualelo, the young Hawaiian of about fifteen years of age, who stayed in Georgian England between 1790 and 1791, travelling on board various British ships in different parts of the world (Thomas, 2020, 65). The elaboration of Tupai'a's map, whose process has recently been highlighted by Lars Eckstein and Anja Schwarz, could be considered as embodying "agency" (Eckstein-Schwarz, 2018, 5), as much as Tupai'a's drawings could be considered as another example (Brunt, 2018, 300).

The way in which Ahutoru, Tupai'a and Mai interacted with the Europeans shows that none of these three men considered themselves as inferiors to Europeans. They did not cease to behave as Polynesians and according to Polynesian logic, far from adopting
in a blissful admiration all that the Europeans brought. In this perspective, we can say that it is in line with a "Pacific Way" – that is to say in accordance with purely Oceanian principles – that they were able to live and define their "activity" among the Europeans. Anne Salmond explained how on Bougainville's ship, where he had imposed his presence, and during his stay in Paris, Ahutoru had remained an arioi (Salmond, 2009, 110-123), in all his deeds and accomplishments. It is also by taking the initiative of his embarkation, against James Cook's wishes, that Tupai'a joined the *Experimental Gentlemen* of Joseph Banks' entourage on board the *Endeavour*. He intended to have the king of England as interlocutor, no less. His goal was to find, thanks to the king – given the material means he had at his disposal and which would necessarily benefit the Tupai'a camp in a decisive way – the ways and means to reverse the unfavourable balance of power that had been established in Tahiti to his detriment (Driessen, 2005, 75-76). It is according to his relatively modest status as a *raatira* in Tahitian society and with a view to rising out of it that Mai sought, from the British, that increase in prestige and power his compatriots eventually refused to recognize him (McCormick, 1977, 72).

The tenuous nature of the available information – as Antoine Lilti recently pointed out in connection with Ahutoru (Lilti, 2020, 179-193) – should warrant a degree of caution. Regarding Tupai'a, up to what point can we trace, throughout his journey on board the *Endeavour*, what could be an individuation process, according to what Jungian psychoanalysis has formalized? (Agniel, 1997, ?). In other words, to what extent can one discern a personal evolution in the face of what Aotearoa/New Zealand gave him to grasp? Conditioned by his "Tahitian" culture, the discovery of the Maori reality which, despite its relative proximity, was not his own, definitely came as a shock to him. So, to what extent did he react as a Tahitian or, in a distinctive way, as an "individual"?

Joseph Banks reports that Tupai'a clashed with Maoris who wanted to prevent the *Endeavour* from continuing its journey. He then launched into a diatribe in which he defended freedom of movement on the seas. Who is speaking? And "from where"? Is this a form of the long-denounced "ventriloquism" (Cook, 2001, 37-41), whereby Europeans speak "instead of" Polynesians, uttering "on their behalf" words that are, in fact, their own? Is Banks projecting onto Tupai'a a concern, if not a claim, of his European contemporaries in the second half of the 18th century? Or is Tupai'a
expressing something obvious to the *Tahitian taata* (from Raiatea) that he is? Or is he
expressing his own opinion?

Joan Druett (Druett, 2010), well versed in these historical sources, has done this by
taking the detour of fiction – a path legitimately inaccessible to the historian – to
rediscover Tupai’a’s “Polynesian” sensitivity. Thinking of Svetlana Alexievitch’s work, the
2015 Nobel Prize winner for literature, the evocative power of this detour is indisputably
powerful. Emilie Dotte-Sarout’s analysis of Joan Druett’s book clearly gauges its interest
and limitations (Dotte-Sarrout, 2016, 312-3).

Now, if there was indeed a “Polynesian” moment of effective agency, it was short-
lived. Insofar as such agency was compromised by the “imperial” imposition by Europe
on the Pacific and its inhabitants – colonization being one of its avatars – it changed
the deal.

The return of Mai's stool to the collections of the Tahiti Museum in 1986 was a significant
event that heralded a reversal of the situation and a restitution process, both material
and moral, so to speak (Les Collections..., 2001, 95- Tabouret... n.d). The historiographic
revision of Contact and its actors, which is on the agenda in the academic world, goes
hand in hand with a change in the relationship to history and the past for the general
public and in public opinion. The two are inevitably linked.

RNZ, the New Zealand channel broadcast a report showing the protest demonstration
taking place in Gisborne on the east coast of the South Island on October 5, 2019, at
the arrival of a replica of the *Endeavour*, exactly 250 years after the ship and expedition
commanded by James Cook anchored there. The conventional forms of expressing
discontent are indeed there: gathering of a crowd, display of banners asserting
grievances, and demands articulated in the form of slogans shouted by participants.
This is not to say that this conventional demonstration was not accompanied by the
performance of a *Karakia*, a Maori ceremony that is performed to purify the homes of
the recently deceased after their burial. The commentary mentions this was meant to
commemorate the death of two Maoris killed by the British shortly after they landed.
However, the protest had a wider spectrum, according to one of the protesters
interviewed who spoke of denouncing the perverse consequences of the arrival of
Europeans, whose absolute negativity could neither justify nor give rise to any festivities
(*Nouvelle-Zélande*..., n.d).
Although this demonstration was conducted according to the principles of non-violence it was nonetheless downright hostile. The 250th anniversary is clearly a reactionary phenomenon. A comparison can certainly be made with what was triggered in 1992 by the fifth centenary of the first crossing of the Atlantic by Christopher Columbus (Covo-Maurice, 1992, 6-9 – Gade, 1992). While on the other side of the Atlantic the rejection of the celebration was the most obvious reaction, in the Pacific it is the transmutation of the object of the commemoration that is most striking. More precisely, it is a symmetrical reversal that took place to the benefit of the Oceanian side, promoted and heightened for the occasion.

The visibility acquired by Tupai'a's figure is a vivid demonstration of this. More than James Cook, he is presented as the "hero" of the event. This is probably consistent with historical truth. In 1769, the Maoris saw the *Endeavour* as Tupai'a's ship, who understood them and knew how to make himself understood by them, just as they acknowledged his illustrious origin and high dignity (Salmond, 2009, 203-35). Nevertheless, placing Tupai'a in the front row responds equally to the sensitivity of 21st century contemporaries (Tapsell, 2009, 92-111). The cover of the comic book "*The Adventures of Tupai'a*", which shows Tupai'a in the foreground pointing the way to Cook in the background, reflects this inversion of the balance of power and the substitution of Tupai'a for Cook (Meredith, 2019).

The use of the Maori word “tuia” – which means “to weave” or “to link” – rather than the “European” word “contact” in the title of the TUIA 250 event program marking the year 2019 in Aotearoa/New Zealand is as significant as the three axes given to the different events it comprises: “Encounters”, “Learn”, “Legacy”. It is another way of minimizing the part of the British and European in what happened 250 years earlier (Tuia Encounters...2019). It is also a clear display of inclusiveness with an obvious “unifying” perspective. A parallel could be made – if it has not already been made – with the commemoration of the French Bicentenary of the Revolution, in 1989, a divisive event, if ever there is one, in the long term and in depth in the country, from the socio-cultural and political points of view (Garcia, 2000, 61-75). Undoubtedly, the size of the financial investment and the quality of the conception and organization deployed in France to satisfy what was so dear to President Mitterrand’s heart must be compared to what was mobilized in Aotearoa, in 2019, with the cohesion and even the existence of a
New Zealand "Nation" then being at stake, all origins combined. In both cases, in France in 1989 and in Aotearoa/New Zealand in 2019, what must be saluted is first and foremost a major success in terms of communication.

Still, the Tuia 250 cannot be limited to that. It gave rise to the arrival and participation in the "high profile" events of an important Tahitian delegation, led by Edouard Fritch, the President of the Country, and also included Gaston Tong Sang, President of the Territorial Assembly of French Polynesia (Des Tahitiens... 2019). The commemoration of Tupai'a's journey – rather than Cook's – was an opportunity to concretely demonstrate and spectacularly reaffirm a Polynesian solidarity and unity beyond today's borders. This was done in particular through the celebration of Polynesian nautical culture, whose effectiveness was at the origin of the settlement of the eastern part of the Pacific, before Contact. The participation of the crew members and the ship Fa'afaite, which experimented with typical Oceanic navigation techniques (Thompson, 2019, 274-295- Tuia 250..., 2019), was a high-point of the event.

One cannot help but notice the contrast between the Tahitian delegation's numerical magnitude at the Tuia and the media echo it generated, with the discretion or rather the confidentiality in 2018 of the commemoration in Tahiti of Bougainville's voyage (Une expo..., 2018). How can one not have in mind the inauguration ceremony of Bougainville's bust on the waterfront in Papeete in 1909 an image of which can be found in a photograph by Max Bopp du Pont (Bopp du Pont, 1909). This ceremony took place just 10 years after the end of the Leeward Islands War waged against the tightening of French grip, in front of a crowd largely dominated by French military uniforms. Bougainville is thereby closely associated, symbolically and concretely, with the establishment or, more precisely, the consolidation of French colonization at the beginning of the 20th century. Bougainville's voyage gave some kind of historical legitimacy to this colonizing process.

Therefore, while such enthusiastic Tahitian participation in the Tuia obviously carries a large-scale significance by showing, in a positive way, adherence and belonging to a trans-Pacific Polynesian community, should it not also be assigned an "internal use" significance in a negative sense? In French Polynesia, in the space that was that of the French Establishment in Oceania, not to commemorate Bougainville's arrival is, undoubtedly, an implicit way of not to celebrating a colonial past. The problem
is that it also means discounting Ahutoru who, before Tupai'a, was the first in Europe
to reveal Polynesian knowledge and know-how, particularly in the field of navigation
by the stars. He was not fortunate enough to benefit from the editorial power of the
English language, which gave an inescapable historiographical importance to the
sources constituted by the journal of Cook's first voyage and that of Banks, served by
John Cawte Beaglehole's admirable critical editing work. He did not have the chance
to meet, as did Mai, with Joshua Reynolds, a portraitist able to show the fascinating
"strangeness / foreignness" that he could have for a European and that he still keeps
today. He had the misfortune finally to be swallowed up in the shadow that shrouds a
part of French Polynesia's history.

Conclusion

I am not sure I have answered the question. What recent historiography demonstrates
is that "European" sources, however partial and insufficient they may be, can be valid
not only to approach but to grasp the Oceanic reality of Contact.

What also surfaces clearly, beyond Ahutoru's case, is that not only the history, but more
broadly, the past of the Pacific remains, in spite of everything, still to be reconquered.
This can only be done in a multilateral and integral way. I am firmly convinced that this
as feasible as it is acutely necessary.

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I propose here to move away from commentaries on the Pacific Way in political, legal and institutional terms, and to consider some of the cultural aspects specific to the Pacific renaissances which, from the 1970s onwards, closely accompanied the affirmation of a Pacific Way. This will be done in the specific context of the Leeward Islands of French Polynesia, where traditional knowledge and practices have long been "forgotten", but have recently been "rediscovered" through various stages. This affirmation of the end of oblivion is expressed, among other things, in the process of making the Taputapuātea marae (on the island of Raiatea) a UNESCO World Heritage Site. We will come back to this in the final section, looking at the possibilities for different local players to take action and build new paths, new biographies and new destinies, in areas that remain problematic and conflictual.

Before doing so, I would like to mention the possible convergences between the Pacific Way and two elements: a) institutional cultural policies and b) the actions and visions of more or less well-known local figures who have contributed to the revaluation of the local memory and, at the same time, of the pan-Polynesian memory of these places. There is a third aspect that should also be mentioned, but there is not enough space to develop it here. These are the great voyages of rediscovery that, since the mid-1970s, have made a significant contribution to the revival of identity in Oceania (and more particularly in Polynesia and in Taputapuātea, Aria 2007: chap. 2-3). Let us recall that the large gathering of pirogues from Hawaii, the Cook Islands, Rapanui and New Zealand in 1995 on the marae of Taputapuātea<fnref n="1" /> was the basis of a complex process that led twenty years later to the recognition of Taputapuatea as world heritage and to the rediscovery of memories hitherto considered "lost".

<footnote n="1">1 On these events and processes of rediscovery see in particular Finney (2003).</footnote>
The categories of analysis that I am going to employ are the result of an interweaving
between certain suggestions from Pacific anthropological literature and contributions
linked to the Italian context and to certain authors rarely cited in Pacific Studies. I would
also like to point out that my reflections are based on a specific period of research that
took place between 1995 and 2010. I believe that these years represented an important
moment in the transition from oblivion to the end of oblivion, and that it is therefore
useful to revisit this period. It should be noted that "forgetting" can be seen not as a loss
but as a socially creative tactic of resistance. In this respect, I take up, among others,
the reinterpretations suggested in the 1980s by the work of Jean-François Baré (1987),
linking them to the perspectives of Michel de Certeau (1980). At the same time, in order
to understand the dynamics of reappropriation of the lost past, it seems to me useful to
use the concepts of "shared heritage-making process" (Aria and Favole 2011; Aria and
Crisofano and Maltese 2014; Paini and Aria 2014) and of "passeurs culturels" (cultural
couriers) putting them into dialogue with the notion of cultural intimacy proposed by
Michael Herzfeld (1997) and, more generally, with that of social practices "from below"
interwoven with processes of institutional valorisation.

Bénat-Tachot and Gruzinski (2001) first used the expression *passeurs culturels* to describe processes of métissage, mixing and pluriculturalism, and to designate the agents (active or passive) of these phenomena. These authors wanted to observe how passages from one complex set to another occur, especially in the Hispanic colonial world. As more recent studies have also pointed out (Pavanello and Aria, 2012; Aria and Favole, 2011; Ciarcia, 2011), *-passeurs culturels* are described as those who build bridges, sometimes explicit, sometimes furtive, between semiotic universes, putting cultures, histories, knowledge and their representations in communication, through their translations, conversions and transmissions, also characterised by silences, distortions, omissions and opportunely constructed misunderstandings.

## 2. The traditions of invention

As we know, violent upheavals, dramatic “fatal impacts” and profound forgetfulness
have long marked the history of Oceania, influencing the imagination and
representations of those who have studied it and who have often recounted it as a
“paradise found” and immediately “lost” (Spate 1993). However, just as strikingly, over
the last half-century its inhabitants have been the protagonists of innovative cultural phenomena and important processes of self-determination.

For their part, looking at these original rebirths and interpreting the late decolonisation of the Pacific, many anthropologists have highlighted particular politics of identity (Favole 2021; Maurer 2019; Gagné 2013; Salaün 2013; Wittersheim 1999), unprecedented and “surprising” (Clifford 2004) compared to the paths developed in previous decades in African, Caribbean and Asian contexts. According to these perspectives, most of the demands for Pacific independences in the 1970s and 1980s put forward concepts of sovereignty and nation that were more flexible than those traditionally promoted by Western states from the nineteenth century onwards, and capable of opening up new connections between local, regional or national, and global communities. The historical context in which the indigenous awakenings of the Pacific islands took place made the “afflictions of the nation-state” less central and enabled “the construction of a better future” (Clifford 2004: 82). The pressures of the late capitalist system have certainly led to the commodification of the politics of localism and culture (as Babadzan 1999 has emphatically pointed out); however, they have also left ample space for the creation of composite forms of national identity (Firth 2000) and political regimes centred on the reconstruction of regional networks, inter-island relations and a persistent, often conflictual and dialectical, relationship with continental metropolises (Favole 2021).

In this sense, the ideology of the Pacific Way, aimed at promoting interdependence between the different archipelagos of the Pacific region, has been read as one of the main examples of the capacity of islanders to elaborate their own values and traditions, reimagining their relationships with their ancestors, with the past and with colonial domination itself. In 1976, Crocombe’s contribution gave greater theoretical depth to this concept by linking it to a set of values stemming from a predominantly rural world and opposed to those of Western urban societies. It was a vision that underpinned a vast political and cultural movement, supported by artists, intellectuals and writers, which contributed to the birth of new identities – the Kanak, Ma’ohi and Ni-Vanuatu, to name but a few – which gave new meaning to elements from outside, such as colonialism, the market economy, Christianity, socialism or democracy, through the rediscovery of specific internal structural aspects. Practices and visions, such as Epeli Hau’ofa’s “sea of islands” or the “shared sovereignty” proposed by Jean Marie
Tjibaou, are concerned with designating mobile affiliations, combining past histories and modern situations, attachments to the land and the old and new traditions of "indigenous cosmopolitanism" (Clifford 2004).

In this respect, as Marshall Sahlins (1997: 180-181) and Epeli Hau'ofa (1993) have pointed out, and as theorists of the Pacific Way have argued, since the Second World War the peoples of the Pacific, contrary to Western stereotypes that emphasised the "small" size of their territories, have embarked on an unprecedented global expansion that has enabled them to spread, connect and circulate throughout the world without losing their intimate relationship to their land and their roots. In the 1960s and 1970s, it was precisely the relationships, exchanges and educational journeys undertaken in their respective colonial "homelands" that enabled certain young Pacific thinkers (such as Tjibaou himself, Henri Hiro, Duro Raapoto and many others) to become aware of their condition as colonised people and, at the same time, to incorporate and re-elaborate Western knowledge in order to give life to the political and identity projects sketched out so far. These figures, whom my colleague Adriano Favole and I have referred to as *passeurs culturels* or their ability to master multiple worlds and languages (Aria and Favole 2011), have in fact played a central role in the period of cultural awakening by undertaking original paths of rediscovery and re-semantisation of their traditions, according to a pattern that, although constantly evolving, continues even today to make the younger indigenous generations the driving force behind unprecedented changes and new rituals (Lee 2019; Gagné and Jérôme 2009).

A particular feature of the Pacific renaissance has been the strong push to make the rediscovered past spectacular through elaborate cultural performances. Since the 1970s, the flourishing of numerous cultural centres, arts festivals, original musical expressions and a wide range of actions aimed at staging identities long oppressed by colonisation, such as the great voyages of rediscovery undertaken by Hokule'a - Polynesian Voyaging Society<fnref n="2" /> founded in 1973, have given rise to an intense debate among anthropologists, ethnomusicologists and historians on the "invention of traditions". There have been many contributions over the years examining the way in which cultural rediscoveries and reappropriations were often deliberately created, or heavily shaped and transformed, to satisfy specific political and economic interests.

<footnote n="2">2 Cf. https://hokulea.com/about/</footnote>
From this perspective, the revival of the ancient arts of navigation, the return of practices such as tattooing, dancing, fire-walking and, more generally, the revaluation of custom (or kastom), have been interpreted as fundamentally artificial folkloric spectacles for the benefit of the formation of a nationalist state ideology; inventions, in fact, constructed by urban elites and by Pacific political administrative cadres on the essentialisation of cultural authenticity and to legitimise the hegemonic role of the nascent ruling class (Howard 1983; Babadzan 1999).

At the same time, during these same years, many ethnomusicologists, anthropologists and archaeologists became involved in the field and directly supported indigenous struggles and their valorisation of their past, of autochthony, traditional knowledge and local forms of dance, music and song, and contributed to create spaces for discussion and comparison with local performers. In this drive to become "organic intellectuals of the lower classes", to use Gramsci's famous expression, their interest often turned to the residual elements of local cultures that had survived the devastating effects of colonialism, leaving aside all those hybrid elements and "popular forms" that emerged in those years (such as reggae, commercial music, folk, hip-hop etc.) and which themselves represented expressions and symbols of vitality and emancipation (Aria and Gallo 2021).

In support of such "impure" and "inauthentic" spaces, researchers have attempted to overcome the dichotomies between resistance and subjugation, tradition and invention, devoting themselves to demonstrating the agency of local actors in the construction of history and the mechanisms of regeneration, and their capacity to be both rooted and constantly evolving. Their research has highlighted the processes of assimilation, transformation and reappropriation of the local and global elements on which indigenous claims are based, helping to shift attention from the familiar debate about the invention of tradition to the many "traditions of invention". By implementing a similar theoretical turn, authors such as Jolly (1992), Linnekin and Thomas (1992), Turner (1997), Clifford (1988; 2001; 2013), Wittersheim (1999) and Sahlins himself (1994), have highlighted the limits of these critiques of the previously mentioned positions, critiques aimed at revealing the economic/political reasons underlying cultural effervescence. In their view, reading cultural renaissance solely in terms of inventions and tools at the service of power risks failing to grasp the spontaneous and emotionally engaging dimensions that characterise them, and losing sight of the complexity of
the phenomena, which should be understood more broadly as indigenous tactics for
controlling and managing relations with dominant corporations (Turner 1997).

This tendency to give importance to connections, intersections and contaminations
has a number of similarities with the analyses proposed in the same years by the Cultural
Studies team on English and North American (sub)urban cultures. It is no coincidence
that, inspired by similar perspectives, James Clifford adopted Stuart Hall's concept of
"articulation" to understand the cultural-political scenarios underway in the Pacific,
and to highlight how the fields of the hegemonic and the subordinate, institutional
politics and movements from below, the colonisers and the colonised, need to be
thought of not as completely separate and opposed universes, but rather as constantly
interconnected, as are the identities they produce. The links with the work of Cultural
Studies mentioned here are also particularly relevant for interpreting and grasping the
centrality and particularities that new musical productions and, more generally, "neo-
traditional" and "popular" performances have taken on in the cultural awakenings
within the Pacific (Aria and Gallo 2021). As heritage capable of sustaining local
identities, or as veritable weapons through which messages of protest and revolt can
be transmitted, these phenomena have not only served as soundtracks to indigenous
struggles, but have also proved to be an effective means of making political claims,
reconstructing history, re-reading the past and thus reformulating relations between the
various Pacific archipelagos and with the colonial powers themselves. An arena, then,
in which the processes of institutionalisation, patrimonialisation, commercialisation,
commodification and folklorisation coexist with more or less unforeseen, improvised
and invasive actions, coming from below and aimed at disseminating and cementing
the local knowledge at the root of indigenous awareness-raising and revaluation.

3. Ma'ohi renaissance

After this reminder, we can return to the specific context described at the beginning.
Oblivion is a key term in French Polynesia or, to be more precise, in the Society Islands,
where I carried out most of my investigations. These islands have long been described
and celebrated by Victor Segalen as the "immemorial" islands, the place of fatal
impact par excellence. This type of narrative was consolidated first with the conversion
to Christianity in the early nineteenth century, and then with colonial domination,
which decreed the irreversible loss of the practices and knowledge (from tattooing to love practices, from ritual giving to marae ceremonies) that had fascinated the "philosophers-explorers" of the late eighteenth century, as well as artists and writers and various scholars between the nineteenth and twentieth centuries. However, as we have known since the late 1970s, total oblivion has given way to a particularly vigorous cultural revival movement, strongly linked to the struggle for independence and the re-establishment of a direct and "authentic" relationship with the pre-colonial past, its practices and its spiritual entities.

This spectacular rediscovery of Ma'ohi culture developed precisely in the urban contexts of Tahiti, where the loss of land and memory had been more radical. At the same time, the return to the sacred was accompanied by the definition of a new space for political action. Deprived of their own religion, their own chiefs, their own knowledge and their own lands, and subjected to the yoke of French colonialism, Segalen's famous "Immémoriaux" unexpectedly "patrimonialized" (made part of the local heritage) the lost past as part of a vast movement to assert their identity and win independence from France (Saura, 2008). The reappropriation of Ma'ohi history and traditions developed in parallel with the major transformations that took place following the installation of the French nuclear testing centre in 1963 and the development of international tourism. During the years in which these major changes were taking place, a number of archaeologists from the Bernice Bishop Museum in Honolulu and the CNRS began restoring the ruins of several marae, enabling these ancient places of worship, symbols of a past that had once been rejected, to become monuments to be proudly displayed, as was the case, for example, at the great gathering of pirogues (1995) in the recently restored marae of Taputapūtea. The arrival of the bomb, tourists and archaeologists has encouraged a major revival of Polynesian traditions. This "Ma'ohi renaissance" was rapidly institutionalised and spread through the most modern transmission channels and within specific cultural policies often promoted by the French state.

The protagonists of the Ma'ohi renaissance were certain individuals who, having left their islands for a certain period of time and come face to face with other realities, equipped themselves with these visions and indispensable instruments of remembrance, so that they could return and revive the memory of those who had remained. These passeurs
culturels, experts in the interpretation of languages, cultural codes and multiple value systems, have come to the attention of public opinion, sometimes as part of a political revival of traditions (Babadzan, 2009), sometimes in more expressly folkloric and tourist contexts. In all cases, they have been the bearers of innovative ways of recovering a memory that was thought to have been lost, embodying the aspirations of whole sections of the local population. Their journeys often include epiphanies during which the ancestors manifest themselves. Such moments of transformation have become indelible signs of the authenticity of their rediscoveries and the authority accorded to their knowledge, especially on islands such as Tahiti, where the severing of links with the past and with the land is perceived as more profound, and where the strength of oral tradition has weakened further.

The many possibilities offered by this form of research have enabled each of them to reappropriate traditions: through new ways of working symbolically on the body (by reviving the ancient practices of tattooing, dancing and fire-walking, with Tavana Salmon or Raymond Graffe), on the sacred places of yore (by restoring a direct relationship with the marae, the tapu and the ancestors) (Alevêque 2023), on language and on myths. Conversely, the limitations imposed by the loss of memory forced them to assert their own charisma and legitimise their political authority. To do this, they had to claim direct descent from the royal lineages of the Ari'i, disavowing the practices of their “rival” opponents in the same camp, defending themselves from attacks by the elders and confronting the political, religious and cultural authorities. In other cases, the personal trajectories of these transmitters of fragments of cultures and memories have been marked by the need to reappropriate lost lands, precisely by re-establishing the relationship with the ancestors. This reappropriation is closely linked to tapu, a cardinal element in policies and practices linked to history and genealogical narratives. Genealogical narratives, in turn, are essential for those claiming land rights long denied by French colonisation.

It is useful now to shift the focus from the 1970s and 80s to the following decades in Tahiti and the Leeward Islands. At least until 2007-2008, there was a conviction that oral traditions and traditional knowledge had been lost, and that those who were bringing them back into action were doing so through specific strategies of “inventing traditions” (what I called “searching in the void” - Aria 2007). At the time – the early 2000s
– anthropologists in French Polynesia were not generally conducting ethnographic surveys of living oral traditions, and there was no awareness of the continuity of the transmission of knowledge. Then, it seems to me, between 2008 and 2019-2020 there was a radical change, where this vision of a “void” disappeared from memory and traditions suddenly came back to life, or rather, where it was now asserted that they had never been lost.

Among the many phenomena that can highlight such transformations, one obviously thinks of the 2017 transformation of the *marae* of Taputapuātea into a World Heritage Site – we’ll come back to this – which was accompanied by the production of many different documents characterised by repeated statements about the continuity of oral traditions “passed down from generation to generation from time immemorial”. The texts produced in recent years in support of the site’s application have established a sudden and unprecedented vitality and persistence of ancestral knowledge. In this process of revaluation, the same oblivion that, until a few years ago and for a long time, had constituted the established narrative about these sacred places, has in turn been relegated to oblivion.

Similarly, in recent years, research on the ancient practice of rāhui (Tamatoa Bambridge et al., 2019; Tamatoa Bambridge, Alexander Mawyer, et al., 2021), is illustrating how traditional knowledge is once again active; Frederic Torrente’s (2012) studies on the Tuamotu Islands and many others I cannot mention here are also moving in similar directions. This seems to me to be an important turning point because, until the beginning of the new century, it was unthinkable to do an ethnography on the knowledge and traditions of contemporary Mā’ohi, so much so that the research of anthropologists was almost always oriented towards ethnohistory (but we must put aside the works of Bruno Saura<fnref n="3" />).

Insisting on these fluctuations allows us to think of oblivion not as a sign of subjugation, of violent colonial expansion or – as Robert Nicole (2001) has written – of the “colonisation of the mind”, but as an action on the past. The well-known loss of memory can be read – as Eric Conte (1996) or Bertrand Gérard (1996) and Jean-François Baré (1987) have suggested – as a conscious choice and not just as violence suffered. Amnesia appeared to be a state duty to facilitate, for example, the assertion of the Pomare

<footnote n="3">³ See in particular Saura (2008).</footnote>
monarchy at the beginning of the 19th century. Thus, it could be said that the Mā'ohi resorted to precise tactics of silence and concealment in order to make the most of the modernisation processes underway. They did so by following a mechanism well established in their history aimed at protecting their ancestors not only from missionaries but also from the so-called fury of the victors in search of the mana and lands of the vanquished ancestors.

In attempting to account for oblivion as a tactic of resistance, a creative social practice and a shared process, another aspect needs to be taken into account. Historically, the ruins and images of the past were buried or adequately hidden to prevent them falling into the hands of opponents or outsiders. This was also necessary to ensure that they would not threaten the living. The partial amputation of memory through the tapu on speech, on genealogies and on the places of ancestors was implemented as a defence against the possible and dangerous "awakening of the dead". As Vigneron puts it: "The living protect their dead, the dead protect the living." (1985: 210). Thus, according to a well-structured pattern in Mā'ohi culture, the defeated – and therefore ineffective – deities seem to have undergone a process of censure rather than denial (Aria 2014).

## 4. Taputapuatea: from oblivion to the end of oblivion

Finally, let us take a closer look at the specific case of the Taputapuātea marae on the island of Raiatea. The patrimonialization, in the sense of a French property, of this *marae known as the* "Source from which all the marae came" (de Bovis 1855: 16), the "cradle of knowledge, religion and worship" (Henry 1968 [1928]: 126)<fnref n="4" />, represents an illustrative case of how vestiges of the past can take on contradictory meanings. Although invoked to promote universal ideals, the ceremonial complex of Taputapuātea is also the basis for the affirmation of a diverse constellation of identity politics and feelings of belonging among local, national and pan-Polynesian populations.

On 22 February 2016, French President François Hollande, on an official visit to French Polynesia, travelled to Raiatea to declare the full support of the Head of State and Government for the application of the Taputapuātea marae for UNESCO World

<footnote n="4">4 Bruno Saura (2021) has recently pursued an analysis of transpacific myths to deconstruct the cosmogonic narrative of Ra'iātea as Havaiki (the mythical place said to be the origin of all Polynesians) and Taputapuātea as the supposed cradle of Mā'ohi civilisation.</footnote>
Heritage status. The event, celebrated with traditional Ma'ohi scenography and rituals, symbolised the culmination of a long period of work undertaken since 2006 by the Nā Papa e Va'u<fnref n="5" /> association in Opoa (the district where the marae is located) with the institutions of French Polynesia, and sealed Paris's commitment to promoting overseas France as a world heritage site for the first time. To quote a few words from the President's speech: "This marae brings together the remains of a founding site of what you are... the first populated island of Polynesia... this is where it all began... it will be, I hope, at least that's the meaning of my visit today, the first cultural site in overseas France to be designated a World Heritage Site"<fnref n="6" />. This operation is part of a well-established strategy, I would say assimilationist, aimed at reaffirming the indissolubility of the Republic in the face of autonomist or independentist aspirations, recognising however, in the words of François Hollande during the same speech, "that the Republic can only be itself if it accepts diversity, if it recognises the histories of the peoples that make it up".

A section of the Opoa community – already active in the 1990s in defending their land against expropriation by large popa's (i.e. non-Maohi) or “demi” landowners and against the exploitation of local natural resources by certain mining and bitumen production companies (Aria 2007) – is joining forces to seek recognition by UNESCO and to claim exclusive rights over what they consider to be their own marae. In 2006, Matorai Pani made this position clear to me during our frequent meetings at the ancient ruins, just as the idea of promoting the sacred site with UNESCO was taking shape. A descendant of the royal Tamatoa lineage of Taputapuātea, a tireless fisherman and vice-president of Nā Papa e Va'u, Matorai felt that the archaeological site should not “end up in foreign hands and we are fighting to ensure that outsiders do not take possession of our marae, our history and our ancestors [...] it must be the people of Opoa [...] it belongs to us, not to those who come from Avera or Uturoa, let alone Tahiti”.

His words thus capture the way in which reference to UNESCO proves capable of activating a well-defined “us” constructed not so much in opposition to colonial power or multinationals, but in protecting and distinguishing itself from the other Mā'ohi of Raiatea and the Society Islands (also by virtue of belonging to the Opoa ruling dynasty).

<footnote n="5">5 Founded in May 2006, this heritage association made up almost exclusively of people from Opoa has played a leading role in promoting the project (https://patrimoine.pf/fr/taputapuatea/association-na-papa-e-vau)</footnote>

<footnote n="6">6 Access to the whole speech: https://whc.unesco.org/fr/list/1529/documents/ and https://www.youtube.com/watch?v=jP8jdXZcCnw (copy of the recording by Tahiti Nui TV).</footnote>
Adopting at the time a possessive and entrepreneurial attitude towards culture, similar to certain demands for the repatriation of cultural treasures by indigenous peoples (Handler 1985; Coombe 2011), Matorai was also convinced that universal heritage listing would prove particularly useful for the proper conservation and enhancement of the *marae*. He saw it as an opportunity "to charge a ticket to those who come to the *marae*" and "to have guardians to watch over it, day and night", but it would also have allowed the famous *maro ura* belt (a symbol of the chiefs' divine power) and many other archaeological artefacts preserved in London and Hawaii to return to Taputapuātea ("here at home") and find a home in a museum of Ma'ohi civilisation to be built specifically to house them.

Another cultural association is Tuihana<fnref n="7" />, also founded in 2006 with the aim of carrying out excavation campaigns and in-depth ethno-archaeological studies to discover the significance of the many stone structures that had escaped the investigation of Western archaeologists, and to share the knowledge gained with the local population as a whole. Unlike Matorai's view, the members of this Tuihana association wanted to promote instead an idea of a wider heritage community, arguing that Taputapuātea belongs not so much to the descendants of the Opoa royal family or a lineage from Raiatea (nor to the Tahitian government), but rather to all Polynesians. This vision of a generalised "we" is based not only on knowledge of the historical depth of the inter-island social networks, but also on realizing that since the end of the 19th century the land on which the *marae* stands has become the property of the State or of certain families of European origin, and that genealogical memory has since been irreversibly lost, so that no one can consider themselves to be the privileged holder of traditions or specific land rights. They therefore think it would be a good idea to get together with "the Maoris, the Hawaiians [...] and together ask not for the Taputapuātea *marae* in Opoa to be inscribed on the World Heritage List, but for the 'Taputapuātea Concept', which is also present in Hawaii, New Zealand and the Cook Islands" and which, in pre-colonial times, linked Ma'ohi, Māori, Rarotongians and Hawaiians. They believe that this shared heritage should become a candidate as a transnational value and not as a French asset.

By focusing on links with other Polynesian peoples, this group, led by archaeologist Paul

<footnote n="7">7 Cf. https://www.teoranaho-fape.org/associations/tuihana</footnote>
Niva, a native of Raiatea, is doing more than refuting the other association's exclusive property claims to the marae and its history, and more than denouncing a "neo-colonial" attitude on the part of France - because, in their view, the French state's takeover of the UNESCO bid is illegitimately appropriating something that does not belong to it. This group is also committed to rediscovering practices and knowledge that run counter to Western hegemony. The proposal to identify another conceptualisation of the space inscribed in the stones breaks with the discursive authority of archaeological science, which has long "denied the Ma'ohi the right to speak, to repossess the marae and to reconstruct them according to visions and needs that are far removed from both cartesian rationality and the spectacle and interests of tourism" (Aria 2007: 218). Like many other small associations in the Society Islands, the Tuihana association is working to enhance the value of its valleys by restoring "family marae" where ceremonies can be held, with the aim of rediscovering ancestral values and sometimes reviving ancestral polytheistic beliefs, while distancing itself from the more institutional heritage practices that base their recognition on UNESCO classification.

In fact, according to the members of this association, turning to UNESCO is tantamount to admitting defeat, as "it is tantamount to demonstrating to the whole world that we are incapable of looking after our marae and that we are obliged to ask others to do so". According to them, the UNESCO project means bringing the marae "into a system of standardisation where rules from outside must be respected" and into the game of institutional equity policies, moving radically away from the bottom-up path started from Tuihana "by all those who are looking for their roots"<fnref n="8" />. It is a new submission to Western cultural domination, made possible by the obvious gaps in oral memory.

An even more radical criticism comes from those who, like the late Malona Teura from the neighbouring island of Tahaa (Aria 2007), have instead maintained strong links with oral memory, with history and with their family marae. In such contexts, where it is not even necessary to organise cultural associations or seek the support of archaeologists and political authorities, the decision to seek UNESCO recognition is seen as the most obvious sign of the final desacralisation and loss of mana of the site that was once that of the god Oro. Only where the relationship with the land, genealogies, ancestors and prohibitions has disappeared, is it possible to bend the stone remains to Western

<footnote n="8">⁸ I quote from a personal discussion held in September 2009 with Teamio Tuarau, one of the founders of Tuihana.</footnote>
cultural domination, its heritage institutions and its tourist interests. On the contrary, as long as the *marae* are “alive”, because they are filled with *tapu*, they cannot be talked about, nor can they be considered simply as an object of contemplation, in other words only a heritage. This can only happen when they are “dead”, when, deprived of their *tapu*, they have become *noa* (neutral, not dangerous) or more precisely *marae pohe* (dead *marae*) (Aria, 2014).

In the face of these visions, however, we cannot fail to emphasise the “alchemical” capacity, if I may say, of this UNESCO classification affair, which has helped to put an end to the long period of oblivion that has characterised Taputapuātea’s representations. For a long time, the enigmatic lithic structures of the Opoa valley represented one of the emblematic places of Segalen’s *Immémoriaux*, who, as a result of the dramatic upheavals caused first by conversion to Christianity and then by French colonisation, had become “a race that is forever silent before it has been able to fix its own words” (Segalen 2001: 109). From the early years of the twentieth century, the *marae* was imagined by artist-travellers and scholars as a monumental void in which to shed tears, a past that could not return, a place to atone for the sins of having brought about such a catastrophe. This narrative has long been the dominant paradigm, so much so that until the early 2000s, no one on Raiatea seemed able to remember the names and genealogies of the *marae*, their stories and those of their ancestors, or to show that a close relationship had been maintained with them.

With the activation of UNESCO's practices, in the discourse of the official institutions involved in presenting the bid, the idea of searching in the void to rediscover one's past seems to be giving way to emphasising the vitality of oral traditions and of these communities in the Polynesian triangle that have preserved or rediscovered their historical and cultural links. The committee of experts responsible for drawing up the nomination emphasised the international character of the ceremonial complex precisely because "it continues to be experienced as a meeting place" and imagined as the "homeland of the peoples of the Polynesian triangle". In the documentation drawn up in 2010 and revised in 2014, it is described as "an outstanding example of Polynesia's sacred cultural landscape, where each natural element had its own symbolic meaning". In order to give historical depth and legitimacy to these statements, use is made of UNESCO and the traditional art of oratory "handed down from generation to generation since time immemorial", through which the intrinsic
unity between the *marae* and the surrounding nature is claimed.

In conclusion we can see, from a longer-term perspective, that the *marae* of Taputapūtea has on several occasions been at the centre of an interweaving of Ma'ohi and European representations and practices capable of determining first their abandonment, then their rediscovery and finally their transformation. British missionaries and the nascent Pomare monarchy contributed to the banning of these practices between 1819 and 1821. In the darkest years of colonisation, American and French archaeologists in turn set about recovering them from the depths of memory, mapping and classifying them, then restoring them and bringing them back to life in the 1960s and 1970s. In so doing, they enabled these ruins of a lost time to become an essential part of the revival of traditions, also promoted by rediscovery voyages (and large gatherings of pirogues) in consonance with the cultural claims of the Pacific way. After a long silence, the Ma'ohi have recently reappropriated the vestiges of their past by re-proposing, re-signifying and, in some cases, challenging the language and visions of Western scholars.

Reading the case presented here in these terms (as a shared heritage-making process) does not mean ignoring rigid oppositions, closed identities and ongoing aspirations.

I think that this notion enables us to reflect on those heritage-making processes, (like the end of oblivion) that, besides provoking conflicts and oppositional identities, also make possible a creative reinterpretation of colonial relations in the frame of a mutually shaped view of the past that encourages reciprocal recognition. The word 'shared' should not evoke false charity or a naïve sense of doing good. It should rather stress the idea of a heritage both literally and figuratively 'built' together by a variety of diverse actors (Unesco, French political institutions, archeologists, local actors and associations). All of this allows us to highlight dynamics not devoid of tensions and resistance in which the so-called subalterns show the capacity to act on the present "from below" (Aria and Cristofano and Maltese 2014).

To return finally to one of the intentions announced at the beginning of this essay, I believe that the notion of shared heritage-making process, crediting not only a dynamic but also a creative vision of heritage, can help to put the suggestions coming from Oceania (about the Pacific Way and all that has been evoked in the previous parts of this chapter) in close dialogue with the recent reflections that have developed
within Italian studies on folklore (Clemente and Mugnaini 2001), on popular culture (Dei 2002;), on museography (Clemente and Rossi; Pavilion 2008) and, of course, with critical and deconstructivist approaches to heritage itself (Palumbo 2003, 2011; Ciarcia 2014).

## References

Alevêque, Guillaume, 2023. *Le lever des Pléiades. Sur le chemin des ancêtres à Tahiti*. Paris, Ed. Dépaysage.

Aria, Matteo, 2007. *Cercando nel vuoto. La memoria perduta e ritrovata in Polinesia Francese*. Pisa, Pacini.

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The Pacific Way and Oceanian civil identities on French soil
Being oneself within another

Sandrine Chaillé de Néré

Professor at the University of French Polynesia, GDI.

The Pacific Way, as conceived by Kamisese Mara, is above all a project or, more precisely, a vision of how the multicultural island societies of the Pacific could function. Founded on the practice of consensus, discussion and palaver, and on the habit of resolving collective difficulties through words rather than confrontation (Panoff, 1992-1993), it is based on the idea that these societies, which have experienced the phenomenon of colonisation and where culturally very different groups coexist in small territories, have sufficient human resources to forge communities of destiny. Such an ambition implicitly presupposed, firstly, restoring the dignity of the subjugated peoples and, secondly, overcoming profound inequalities. The independence of these territories was undoubtedly the ideal context. But the Pacific Way could also be a way forward for the territories of Oceania that remained in the bosom of Western metropolises. In a way, the Nouméa Accord expressed the same idea when, almost thirty years after the Kamisese Mara speech, it proclaimed in New Caledonia that "while the Kanak people's accession to responsibilities remains insufficient ... the other communities living in the territory have acquired, through their participation in the building of New Caledonia, a legitimacy to live there and to continue to contribute to its development". After a period of violence and contempt, "a new stage must be opened, marked by full recognition of the Kanak identity, which is a prerequisite for rebuilding a social contract between all the communities living in New Caledonia. ... The past was a time of colonisation. The present is a time for sharing, through rebalancing. The future must be a time of identity, in a common destiny"<fnref n="1" />. To speak of rebalancing and a common destiny was, in essence, none other than the societies

<footnote n="1">1 Nouméa Accord, Preamble Point 4.</footnote>
dreamt of by Kamisese Mara, where “populations that differ in race, opinion and culture can live and work together for the benefit of all”. Although closely linked to the process of decolonisation, the Pacific Way could therefore inspire other ways of thinking about the future of the Non-Self-Governing Territories of the Pacific.

As far as the French lands of Oceania are concerned, the vision of the Pacific Way has mainly been thought of in political terms, and therefore, from a legal point of view, in institutional terms. In this respect, it must be acknowledged that the idea of giving a specific place to the overseas populations, in order to take account of their singularities, has constantly been affirmed and, since the Second World War, there has been a succession of distinctive statutes applicable to these territories. But recognising the singularity of the overseas populations is an approach that, for the State, has always been fraught with ambiguity. Sometimes intended to curb indigenous aspirations while taking for granted an inequality that precludes imposing the same civil rules on these populations as on the population of metropolitan France<fnref n="2" />, and later devoted to satisfying a need for autonomy while proclaiming the civil equality of all citizens, the institutional provisions specific to the Overseas Territories are marked by ambiguity.

In this context, the question of the expression of overseas identities in private law has been blurred or even obscured. Yet it was an interesting perspective for the alternative social contract proposed by the Pacific Way. For a society to build peacefully, it is crucial that the civil rules it adopts reflect its perception of inter-individual relations (Lafargue, 2011). It was therefore important to look not only at institutions and political representation, but also at the nature of the civil rules applicable in territories where social relations are governed by deeply rooted customary rules. However, it is not certain that this issue has been sufficiently considered. The granting of a degree of institutional autonomy<fnref n="3" />, the proclamation of the principle of legislative speciality<fnref n="4" />

<footnote n="2">2 This was the original meaning of Article 75 of the Constitution of the Fifth Republic and, even more so before it, of Article 82 of the Constitution of the Fourth Republic, even though the second paragraph of this text set out the principle that personal status "may under no circumstances constitute grounds for denying or limiting the rights and freedoms attached to the status of French citizen".</footnote>

<footnote n="3">3 See Title XII and Title XIII of the French Constitution.</footnote>

<footnote n="4">4 The principle of legislative speciality, which governs the overseas territories, acquired constitutional status under article 72 paragraph 2 of the 1946 Constitution: "In the overseas territories, legislative power is vested in Parliament with regard to criminal legislation, the system of public liberties and political and administrative organisation. In all other matters, French law is applicable in the overseas territories only by express provision". The Constitution of 4 October 1958 does not repeat this principle expressis verbis, but it is still enshrined in the Constitution through Article 74. The Cour de cassation itself ensures compliance with this principle. See, for example, Cass. 3ème civ, 8 April 2012 (Bull., 2010, III, n°75).</footnote>
and the maintenance of special personal statutes<fnref n="5" /> seemed sufficient to satisfy the aspirations of the local populations. Or, perhaps more accurately, they were seen as the maximum that the State would agree to in order to make room for indigenous specificities.

Fifty years on, what is the state of civil law respect for Oceanian identities on French soil? Has the *Pacific Way* found legal expression in private law social relations?

Certain inter-individual relationships (family or economic) may be governed by rules other than those of Metropolitan France. Does this mean that the culture, social structures and ways of life of the indigenous populations of the Pacific can legally flourish? Has a balance been found in the French legal system that allows everyone to be themselves while sharing a common destiny? The answer is not easy, and it is certainly not unequivocal. While there is certainly room for the expression of Oceanian civil identities in the French legal system (I), this space is perhaps not as fertile as it might seem (II).

## I. A real space of expression for Oceanian civil identities

If we focus our analysis on Oceanian societies attached to the French Republic, we can see that the possibility of subjecting social relations to local customary norms is limited to two territories: New Caledonia and Wallis and Futuna<fnref n="6" />. In fact, only these two territories derive their special personal status from the Constitution. This is undoubtedly the most powerful legal means of guaranteeing that certain legal issues closely linked to culture (parentage, marriage, inheritance, etc.) are governed by indigenous norms. But recognition of a special civil status is not the only possible way of expressing indigenous identities. The link to the land is also an important element of identity, and one that is common to most Oceanian societies. However, the French legal system

<footnote n="5">5 Article 75 of the Constitution.</footnote>

<footnote n="6">6 Article 7 of Organic Law n°99-209 of 19 March 1999 relating to New Caledonia: "Persons whose personal status, within the meaning of Article 75 of the Constitution, is the Kanak customary civil status described by the present law are governed in matters of civil law by their customs" and Article 2 of Law n°61-814 of 29 July 1961 granting the Wallis and Futuna Islands the status of Overseas Territory: "The natives of the territory of the Wallis and Futuna Islands have French nationality. They shall enjoy the rights, prerogatives and freedoms attached to the status of French citizen and shall be subject to the same obligations. Those who do not have common law status retain their personal status until they expressly renounce it".</footnote>
also allows for normative expressions of this particular link to the land, independently of
the existence of a particular civil status, as can be seen in French Polynesia. Let us see
how the civil identities (A) and land identities of Oceania (B) are expressed in French
private law.

A/ Respect for civil identities

Respect for civil identities is guaranteed under French law by the recognition of special civil status for two population groups: the Wallisians-Futunians and the Kanaks of New Caledonia<fnref n="7" />. This is provided for in article 2 of the law of 29 July 1961 granting the Wallis and Futuna Islands the status of Overseas Territory and article 7 of the organic law of 19 March 1999 relating to New Caledonia. These texts allow the natives of these territories to submit family matters and matters relating to land<fnref n="8" />, or more broadly all matters of civil law<fnref n="9" />, to customary norms.

This means that the most deeply cultural aspects of social relations (marriage,
separation, filiation, inheritance, land use) are governed by indigenous norms, at
least as long as the people concerned have not renounced their special status.
As far as these two Oceanian territories are concerned, the application of custom
results in the implementation of unwritten rules whose legitimacy is based on habit
and repetition, which draw their sources from a conception of the world other than
that known in Europe, and whose new solutions, necessary for the social evolution of
these populations, are worked out in the intimacy of the clan councils. Custom is not
sclerotic, nor is it impervious to change, but it evolves differently from Western-style
written law. The secrecy of the palaver is the place where these transformations take
place<fnref n="10" />.

<footnote n="7">7 The same possibility exists for the Mahorais in Mayotte, but this special status is being phased out as a result of the island's departmentalisation process, which began in the early 2000s and has led to the prohibition of the practices most incompatible with civil law in mainland France: polygamy, repudiation and unequal inheritance. The special status of Mauritius therefore continues to exist officially, but it is being stripped of its content and only applies to people who had reached marriageable age by 1st January 2005 (Overseas Planning Act no. 2003-660 of 21 July 2003). Since 2010, polygamy and repudiation have been prohibited for the future without age conditions (article 9 of order no. 2010-590 of 3 June 2010). As part of a study on the Pacific Way, we will not dwell further on the special status of Mauritius.</footnote>

<footnote n="8">8 Article 5 of the law of 29 July 1961 conferring on the islands of Wallis and Futuna the status of Overseas Territory.</footnote>

<footnote n="9">9 Article 7 of the Organic Law of 19 March 1999 on New Caledonia.</footnote>

<footnote n="10">10 See, however, the New Caledonian law on customary successions, which abandons oral tradition to embrace the path of a written legislative procedure: loi du pays n°2018-4 du 28 mai 2018 relative aux successions des biens appartenant aux personnes de statut civil coutumier kanak.</footnote>
By recognising these special personal statuses and allowing custom to govern such important areas of social relations, the French legal system has established the legal status of custom (Cornut, 2010). It has made custom a norm in its own right in our legal corpus and has given it, in the matters it governs, a hierarchical position equivalent to that of state law. In other words, the application of custom is in no way subordinate to its conformity with civil law, and any supposed gaps cannot be filled by applying the rules of the Civil Code (Sana-Chaillé de Néré, Parisot, 2017). If a new question arises, or one for which custom does not seem to have specific solutions, it is within custom itself that the answers must be sought<fnref n="11" />. Custom is in fact - or should be - the opposite of an old frozen text: it is a living body, creating its own norms. Despite the difficulties this may entail for the French courts, this is the intellectual approach that state judges must take when dealing with cases subject to custom: custom and nothing but custom. And this is precisely what the Court of Cassation rightly requires of them (Sana-Chaillé de Néré, 2011 ; Parisot, 2011). Indeed, customary cases are brought before the State courts<fnref n="12" />, and are not relegated to customary courts. In this way, the State confirms the full integration of customary law into the French legal system.

Of course, it is not self-evident for a magistrate trained in metropolitan civil law to apply custom of which, most of the time, he or she knows nothing. This is why, in Wallis and Futuna and New Caledonia, there are courts with customary jurisdiction, specifically composed of a professional judge and customary assessors with deliberative powers. The role of these assessors is to express custom, or more precisely, to work out a solution to the dispute in accordance with custom. These courts are a unique instrument in the French judicial system, and one that deserves to be defended despite the practical difficulties it encounters. These customary State courts are in fact a meeting point between apparently contradictory requirements: the aspiration of these citizens to live their customary status and the affirmation that the State is not uninterested in their disputes. The assertion that it is indeed up to the State to dispense justice, for them as for all other French citizens, but that it does so in application of the customary norms to which they are subject. Customary courts are the bearers of this fundamental, yet often contested, idea.

<footnote n="11">11 For an illustration of the use of genetic tests to establish parentage, see S. Sana-Chaillé de Néré, "Miroir d'outre-mer : la famille, le droit civil et la coutume kanak", in Mél. J. Hauser, Dalloz, 2012, p. 655.</footnote>

<footnote n="12">12 Article 19 of Organic Law no. 99-209 of 19 March 1999 relating to New Caledonia: "The ordinary civil court has sole jurisdiction to hear disputes and applications relating to customary civil status or customary lands. It is then supplemented by customary assessors under the conditions laid down by law".</footnote>
By defending the existence of special civil statutes, giving a relatively large place to custom and affirming the State's jurisdiction to hear customary disputes, the French legal system shows itself to be rather open to respect for Oceanian civil identities. The question of land identity seems to confirm this impression.

## B/ Respect for land identities

It has been widely demonstrated that so-called indigenous societies, and in particular indigenous Oceanian societies, are characterised by a special bond with the land. This is particularly true of Kanak, Wallisian-Futunian and Polynesian societies, which share an attachment to the land of their ancestors<fnref n="13" />.

In New Caledonia, as in Wallis and Futuna, this specific relationship with land can be legally expressed by the submission of land issues to custom. More precisely, customary land and the property located on it belonging to persons with customary status are governed by custom. Here again, it is not the rules of the French Civil Code that apply, but the indigenous norms that reflect the specific way in which the relationship between people and land is experienced. For example, there is no question of private appropriation of the customary land on which the clans live. The clans see themselves as custodians of the land for which they are responsible, rather than owners. Nowhere in custom is there any question of a right equivalent to that of article 544 of the Civil Code, which confers on the owner of the land the right to enjoy and dispose of it in the most absolute manner. On the contrary, customary land is inalienable, non-transferable, unseizable and unchangeable. This rule, a pillar of Melanesian custom, is now enshrined in Article 18 of the Organic Law on New Caledonia<fnref n="14" />. This shows its importance. It should also be noted that this is the only substantial customary rule to appear in the Organic Law. In no other area is the content of custom spelt out in the Organic Law<fnref n="15" />. This undoubtedly shows the extent to which this rule is aimed above

<footnote n="13">13 In New Caledonia, this link is of such importance to the Kanak people that it is almost artificial to dissociate civil identities and land identities as we do here. For the Kanak people, their identity is intrinsically linked to their place in a lineage and to a mound that tells them where they come from.</footnote>

<footnote n="14">14 Law no. 99-209 of 19 March 1999.</footnote>

<footnote n="15">15 Moreover, custom is not spelt out in any other written normative instrument. It is by nature oral, which in no way detracts from its imperative nature. It should be noted, however, that the Kanak people have recently felt the need to write the Charter of the Kanak People, which substantially spells out the foundations and essential principles of custom (Charter of the Kanak People - Common foundation of values and fundamental principles of Kanak civilisation adopted on 12 April 2014). To our knowledge, this is the first written document to set out substantial customary rules. This text, however, is not a legal standard. It can only be used as</footnote>
all at the other communities of New Caledonia and in particular at the population
of European origin, which must therefore take note of it. The Kanak, in fact, have no
need to express this rule in writing, as they are all familiar with it.

In any event, whether on the basis of Article 18 or custom itself, the link to the land
is expressed legally: citizens with customary status can claim the application of their
norms to govern their use of the land or inheritance transfers. This legal expression of
the link to the land is also guaranteed by the state courts, since customary courts have
exclusive jurisdiction over land matters<fnref n="16" />.

The French legal system therefore allows for the expression of Melanesian land identities. Legal instruments have also been invented to ensure that land is managed in accordance with customary principles. The Groupements de droit particulier local (local special law groups) are corporate structures made up of people with customary status, who are responsible for the economic and cultural development of the land and its preservation<fnref n="17" />. They operate on the basis of customary practices, particularly palavers. They also reflect the State's respect for the special relationship that Kanak society has with its customary lands.

The situation in French Polynesia is more ambiguous on this issue. There is no specific
personal status in French Polynesia and land is governed primarily by the provisions of
the Civil Code. Land is therefore legally perceived as property and, as such, subject
to the right of ownership and other real rights. But the application of these rules comes
up against deeply rooted traditional practices, foremost among which is the practice
of keeping land in joint ownership<fnref n="18" />. This clash between French rules and Polynesian

<footnote>a reference document or as a source of interpretation for customary courts. Under no circumstances is it binding on them. But the very existence of this written document is certainly a sign of change. This development was confirmed by the adoption in 2018 of a local law on customary inheritance (local law no. 2018-4 of 28 May 2018 on inheritance of property belonging to persons with Kanak customary civil status). Here again, the Kanak community felt the need to write down, even if only partially, the substantive solutions to custom, which until then had taken no form other than that of customary usage and palaver. And, this time, it is indeed a law that imposes itself as such. Is this a sign of a need for legal certainty, a need to reaffirm customary solutions, or a sign of concern about the perpetuation of customary solutions? Is it, on the contrary, the path that has been chosen to impose changes, particularly in terms of equality between men and women, that part of the community still refuses to accept? It's difficult to say. But what is certain is that by writing down their customs, the Kanak are making a profound change in their normative approach. This change was not purely formal, but affected the very substance of custom.</footnote>

<footnote n="16">16 Article 19 of Organic Law no. 99-209 of 19 March 1999.</footnote>

<footnote n="17">17 The GDPL were institutionalised by referendum law no. 88-1028 of 9 November 1988 and then set up by decree no. 89-570 of 16 August 1989.</footnote>

<footnote n="18">18 While keeping land in joint ownership is of course a difficulty when rules such as those of the French Civil Code apply, where, on the contrary, joint ownership is perceived as a situation that is temporary in nature, other factors explain the insecurity of land tenure. This is true of confidence in Tomites (legal title deeds established in the nineteenth century solely on the basis of often unverified declarations), despite their unreliability and the continuing uncertainties surrounding subsequent transfers of ownership.</footnote>
customs has led to inextricable land ownership problems (Sana-Chaillé de Néré, 2022). Faced with this difficulty, there are two reactions.

The first is an effort to adapt State rules to the Polynesian situation. Thus, following a long legislative process carried out jointly by the State and Polynesia, a law has established an exception to the general law of succession by accepting the division of estates by family line<fnref n="19" />. This law of 26 July 2019²⁰ adapts the devolution of inheritances to Polynesian family structures, which are based on very old and very numerous lines. This law also adopts sharing techniques to overcome the lack of knowledge or absence of undivided heirs, a recurring source of blockage in land transfers. Finally, the State has decided to set up a land court, a unique jurisdiction in the French legal system, dedicated exclusively to Polynesian land disputes<fnref n="21" />. The role of this court is to resolve land disputes not only by the cold application of legal rules of metropolitan origin, but also by taking into account the specific land situation in Polynesia. Land issues in Polynesia are deeply linked to the territory's history, culture and the importance of genealogies<fnref n="22" />. It is for this reason that land assessors sit on the bench alongside professional magistrates. Their role is to provide knowledge of the historical and sociological context of land disputes. They take part in the deliberations and help to draft the judicial decision. In this way, they form a sort of bridge between the State justice system and Polynesian citizens, for whom land issues are of considerable importance but who do not always understand the decisions handed down against them.

In addition to efforts to adapt the law to the local context<fnref n="23" />, a second reaction to Polynesia's land problems is emerging. This is the promotion of more traditional land management, without abandoning joint ownership, which should not necessarily be seen as a curse. Admittedly, joint ownership of land does not correspond to the spirit of the Civil Code. But it reflects a Polynesian tradition of keeping land within the lineage,

<footnote>The difficulties are also due to the fact that the rules of the Civil Code are unsuited to Polynesian family structures, including the presence of fa'a'amu children who have no legal status under French law.</footnote>

<footnote n="19">19 This solution had been courageously initiated by the local courts, but was systematically rejected by the Court of Cassation, which did not accept that the specific nature of the Polynesian situation justified an exception to the prohibition on division by descent.</footnote>

<footnote n="20">20 Article 5 of Act no. 2019-786 of 26 July 2019 relating to French Polynesia.</footnote>

<footnote n="21">21 Decree no. 2017-1474 of 16 October 2017 on the organisation and operation of the Land Court of French Polynesia and Article L552-9-1 of the Code of Judicial Organisation.</footnote>

<footnote n="22">22 This raises issues as complex as those relating to name changes, the place of fa'a'amu children, donations without title, and respect for the word of the tupuna, i.e. the elders.</footnote>

<footnote n="23">23 We can also mention the law of the country n°2020-06 of 29 January 2020 aimed at organising the titling of certain lands located in Rurutu and Rimatara on the basis of an ex gratia procedure.</footnote>
without dividing it up. In this sense, it can be both a social and economic force if
the family group uses the land collectively, in good understanding. It should also be
remembered that undivided ownership has been, and undoubtedly continues to be, a
means of protection against the appropriation of land by outside populations, which is
still a major fear of the Polynesian population today<fnref n="24" />. Many family associations are now
advocating the principle of managing undivided land rather than leaving undivided
ownership (Tumahai, Raoulx, 2022). Corporate-type organisations are being set up to
facilitate the management of land assets. The division of land can then be avoided,
as can the resulting impoverishment of those who see themselves allocated plots of
land of little value or even inaccessible for any domestic or agricultural use.

These movements of the re-appropriation of a cultural relationship with the land are
undoubtedly a process of avoiding the solutions proposed by the State, which are
judged to fail to satisfy local aspirations, and perhaps above all judged to be too far
removed from the Polynesian cultural conception of the relationship with the land.
There is no doubt that the State and the Polynesian public authorities would benefit
by taking these considerations into account and giving them greater support. In so
doing, they would only be making progress along the path already begun of respect
for Oceanian land identities.

In terms of both civil and land identities, the State is open to the legal expression of
Oceanian cultural norms.

Has the possibility of drawing legal consequences from cultural practices made it
possible to restore wounded identities? More broadly, does the legal space granted
to Oceanian customs make it possible to form a society with other communities, or is
it a space of withdrawal, of confinement, a kind of 'legal reserve'? In other words, is it
a place of communal isolation rather than a meeting place? It is to be feared, in this
respect, that the legal place given to indigenous standards is a kind of trompe l'oeil.

<footnote n="24">24 See the emblematic case of the island of Maia'o and the local law passed unanimously by the Assembly of Polynesia on 26 April 2022 introducing a 1000% surcharge on deed of sale duties for buyers who have been resident in French Polynesia for less than 10 years. This local law was invalidated by the Conseil d'État, but it reveals the persistent fear of land dispossession.</footnote>
## II. A deceptive space of expression for Oceanian civil identities

It has been shown above that the French legal system creates a real place for Oceanian identities in the field of civil law, i.e. in the field of inter-individual relations. Custom governs all civil law relations in New Caledonia, family and land issues in Wallis and Futuna, and French Polynesia has legal provisions that take account of land traditions. For a country like France, where unity is a major element of the national story, this concession to legal pluralism is significant. There is therefore no denying the importance of recognising customary statutes and, above all, the extent of the jurisdiction of custom, as enshrined in the organic law relating to New Caledonia, or the existence of special courts to ensure compliance with customary norms. All these elements are unquestionably manifestations of legal respect for indigenous identities. At the same time, however, it should be noted that the legal space accorded to Oceanian identities remains a constrained space and that it is undoubtedly, and more seriously, a divisive space. In this sense, it is a deceptive space for expression in terms of the aspirations of the Pacific Way.

### A/ Constrained space

In New Caledonia, custom is accorded the widest legal scope, covering all areas of civil law: civil status, legal capacity, filiation, marriage, divorce, matrimonial property regimes, inheritance, as well as contracts, liability and property law. In Wallis and Futuna, only family relations and land issues are governed by custom, and in French Polynesia no personal status is recognised. But even in the case of New Caledonia, the confinement of custom to civil matters poses a number of difficulties. This is particularly true of the legal relationship with criminal law. Custom is excluded from criminal law. Everything to do with repressive law comes under the law of the State. Criminal law is, so to speak, an inviolable bastion of state law. However, there are issues of criminal law that can only be resolved by reference to civil law solutions, and this poses a problem when these issues are themselves subject to custom. For example, theft between spouses involves knowing whether the property allegedly stolen belongs to the husband or the wife. However, when the property is customary, only custom should be able to say which personal assets it belongs to, if, of course, the term "assets" has any meaning in Kanak custom. Similarly, the offence of abandonment of the family
as conceived in French criminal law is based on the French concept of the family and
the relationship between parents and children. Can the abandonment of a family
be punished in the customary world without taking into account customary family
concepts? The answer seems obvious, but it should be remembered that custom
cannot be invoked before the criminal courts and no customary assessor sits on the
bench (Parisot, 2011-2012 ; Malabat, 2011).

More generally, custom has no place, to date, in the determination of criminal offences
or in the nature of the penalties that may be imposed. Thus, the intentional and
malicious violation of a sacred space is not punishable in any way and cannot, on this
basis alone, trigger public prosecution. Similarly, the customary nature of a punishment
in no way detracts from its criminal nature if it contravenes rules of State law. Corporal
punishment such as astiquage, for example, is therefore punishable under criminal law
even though it is traditionally imposed as a customary sanction. Similarly, the burning
of huts is severely punished by state courts even though it was ordered by the highest
customary authorities and carried out by an individual who felt he was obeying a
legitimate order (Malabat, 2017).

This exclusion of custom from the field of criminal law may seem normal, and is in any
case consistent with a very widespread perception of the role and foundations of
criminal law in France. But we may well wonder about the relevance of such a rigid
confinement. Why should the most important customary rules not be protected and
sanctioned by State criminal law in exactly the same way as certain rules of State civil
law are? Why should customary excuses not be taken into account in the same way
as other justifying facts in criminal law? There is no question of advocating a relativism
of values that would lead to the toleration on the soil of the Republic of acts that
are unacceptable in terms of the fundamental rights that France has undertaken to
respect. But, as has been shown (Cornut, 2011), taking custom into account for a more
coherent application of State law in New Caledonia, including criminal law, could
undoubtedly be considered.

The confinement of the legal space for the expression of civil identities is even more
apparent in French Polynesia, where no personal status is recognised. No indigenous
rules can therefore be claimed to govern interpersonal relations. What is more, matters
of personal and family law, which, let us repeat, are the most significant of the culture
of a given society, are subject to the principle of legislative identity<fnref n="25" />: in these areas, metropolitan laws automatically apply<fnref n="26" />. In other words, while French Polynesia has normative autonomy in certain areas, it has none in personal and family matters. Thus, if French Polynesia wishes to adopt specific provisions on consumer protection, for example, or on insurance law, it can do so freely by means of the *lois de pays*<fnref n="27" />. But if it wished to introduce legislation on the civil status of fa'a'amu children, modify the conditions of full adoption or give civil effect to religious marriage, it could not do so. This is very clearly illustrated by the law on the division of land by stumps<fnref n="28" />, at the time of inheritance, which is a State law intended solely for Polynesian inheritances, but which French Polynesia did not have the power to enact itself.

Here, the space for expression of Oceanian identities is very narrowly confined. The State retains the upper hand in the highly symbolic areas of personal and family law: in this respect, Polynesia is deprived of its specificity. This does not mean, however, that its relationship with the State has been disrupted. It would be interesting to know whether the population feels uneasy or frustrated. As far as we are aware, there is no explicit demand for the re-establishment of a special personal status or even for the Assembly of Polynesia to have jurisdiction in matters of personal and family law<fnref n="29" />. The long period of application of the French Civil Code has undoubtedly had an assimilating effect. Nevertheless, the activity of the courts shows, in matters of fa'a'amu adoption for example (Sana-Chaillé de Néré, 2023), that the relationship between civil law and traditional practices is not always fluid.

If it exists, the space for expressing Oceanian identities on French soil remains a constrained one. But analysis shows that it is above all a divisive space, as we would like to explain here.

<footnote n="25">25 Article 7 4° of the Organic Law of 27 February 2004 on the autonomous status of French Polynesia.</footnote>

<footnote n="26">26 The law of 17 May 2013 on marriage for all, for example, which it is not certain Polynesia would have adopted if it had had the choice.</footnote>

<footnote n="27">27 Article 14 of the Organic Law of 27 February 2004.</footnote>

<footnote n="28">28 Act no. 2019-786 of 26 July 2019, supra.</footnote>

<footnote n="29">29 It seems that the question of land was a more important issue for the Polynesians in their quest for normative autonomy. The agreements signed with France at the time of annexation expressed the wish that land issues should be dealt with by the *Tohitu*, i.e. the councils of elders. And islands such as Maia'o and Rapa have a land tenure system that is totally indifferent to the Civil Code. Moreover, land issues are among those for which the 2004 Statute of Autonomy gives French Polynesia the power to adopt local laws.</footnote>
## B/ A divisive space

The Pacific Way was a project for an inclusive society, to use a fashionable word. It was about overcoming the structural inequalities created by colonisation, restoring the identities of the societies of origin and - this was undoubtedly the most ambitious stage - shaping "living together" between the different components of these territories. The success of this final stage can certainly be measured primarily by sociological analysis. But it can also be measured, it seems to us, from the angle of private law, by looking at whether the rules that enable the legal expression of Oceanian identities are a vehicle for 'living together'. It seems to us that the answer is negative. To take only the example of New Caledonia, where custom has the widest scope of application, we note that customary rules are intended only for relations between persons of the same community. Under article 9 of the Organic Law<fnref n="30" />, when civil law issues concern a person with Kanak customary status and a person with ordinary law status, ordinary law necessarily applies<fnref n="31" />. There is no place for custom in this type of situation. The presence of a person with common law status automatically brings the legal relationship under the rule of the civil law of the State. This means that, despite the asserted equal dignity of the two types of norms applicable in New Caledonia, the rule for distributing their respective jurisdiction remains profoundly unequal. This inequality may well be unfair. It is hard to understand why the mere fact that one of the parties concerned is attached to civil status should cause the legal relationship to be tipped over to the State norm, even though the relationship, whether family or contractual, may be fully immersed in a customary environment<fnref n="32" />. It is difficult to understand why harm caused by a person with civil status to a person with customary status would necessarily be apprehended under the rules of the Civil Code, even though the harm may be of a purely customary nature.

<footnote n="30">30 Organic law no. 99-209 of 19 March 1999 relating to New Caledonia.</footnote>

<footnote n="31">31 Even when the relationship involves two people with different special statuses (forexample, special Kanak status and Wallisian-Futunian customary status), ordinary law still applies unless the parties opt for one of the customary statuses involved (article 9 paragraph 2 of the Organic Law of 19 March 1999).</footnote>

<footnote n="32">32 This is the classic example of a marriage between a person of customary status and a person of ordinary law living in a tribe. Although their lives are fully integrated into the customary environment, the mere fact that one of the members of the couple is attached to the civil status means that the entire marriage is governed by common law, creating a very uncomfortable gap between the legal life and the social reality of these individuals. The same is true for questions of parentage, which, because one of the parents has civil status, are governed by ordinary law, whereas customary rules constitute the immediate normative environment for these families.</footnote>
These distribution rules, which confine custom to endogenous relations, are ultimately divisive because they give the impression that the Kanak are locked into their traditional rules, which must never be respected by non-Kanak who nevertheless maintain relations with them. Using the supposedly natural superiority of the dominant law as the sole criterion for application shows that there can never be any question of sharing different rules. It is only a question of one community respecting the rules of the other, the reverse never being true. Such a situation obviously implies no effort on the part of non-Kanak society to understand customary rules, since they are never required to respect them. So there is no sharing of norms; quite the contrary, only a divide that contributes nothing, to the common destiny.

However, we have shown elsewhere that other ways of doing things were possible (Sana-Chaillé de Néré, 2016-2018). Balanced distribution criteria could be adopted by law, allowing custom to be applied in relations between Kanak and members of other communities. The area of legal expression of custom would then no longer be a divisive area, or an area of isolation, but one of sharing. It does not seem to us to be utopian or blissfully angelic to advocate a new distribution of the areas of competence of custom and civil law. We are simply saying that it is possible to apply the constructive ambitions of the Pacific Way to private law.

## References :

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Bambridge T. : La terre dans l'archipel des Australes - Étude du pluralisme juridique et culturel en matière foncière, Éditions Au vent des îles, 2009

Bambridge T. : La terre en Polynésie - La propriété foncière à l'épreuve des liens de parenté, ed. S. Sana-Chaillé de Néré, Éditions Maison des Sciences de l'Homme - Pacifique, 2022, p. 273.
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Cornut E. : La juridicité de la coutume kanak, Droit et culture, 2010-2, no. 60, p. 151.

Cornut E. : La non codification de la coutume kanak, in L'intégration de la coutume kanak dans la norme environnementale, Colloque Nouméa 26-28 octobre 2009, Bruylant, 2012, p. 137

Cornut E. : «L'application de la coutume kanak par le juge judiciaire à l'épreuve des droits de l'homme», in Le droit constitutionnel calédonien, Politeia, no. 20, 2011, p. 241

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Malabat V. : La question du droit pénal coutumier en Nouvelle-Calédonie, in Actes du Colloque Le transfert à la Nouvelle-Calédonie de la compétence normative en droit civil et en droit commercial, dir. S. Sana-Chaillé de Néré, electronic publication, 2011

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# Regional Economic Integration and The Pacific Way

## Vincent DROPSY

University of French Polynesia & GDI research center

## Sylvain PETIT

Université Polytechnique Hauts de France & LARSH research center;
University of French Polynesia & GDI research center;
Université de Perpignan Via Domitia & CRESEM research center

International trade is an important driver of economic development for very small island economies. Their tiny domestic markets prevent them from benefitting from economies of scale, leading to very high costs of production. The geographical remoteness of Pacific small islands further increases their costs of trading with far-away large economies, thereby exacerbating the competitive disadvantage of their exports and raising the price of their imports. Regional trade integration could in theory alleviate these handicaps to a certain extent. A number of regional trade agreements (SPARTECA, PICTA, MGS-TA, PACER, PACER+) have been signed and implemented to achieve better economic integration in the Pacific.

The first of these regional agreements, which was signed in 1980 and entered into force in 1981, was the South Pacific Regional Trade and Economic Co-operation Agreement (SPARTECA). It was an interregional non-reciprocal and non-discriminatory agreement, where products exported from Forum Islands Countries (FICs) get duty-free unrestricted access to Australia and New Zealand. Signed in 2001 and entered into force in 2002, the Pacific Agreement on Closer Economic Relations (PACER) provided a larger framework for the future development of trade and economic cooperation, between the FICs and again Australia and New Zealand. An extended version, PACES Plus, was signed in 2017 (by Australia, Cook Islands, Kiribati, New Zealand, Niue, Samoa, Solomon Islands, Tonga, and Tuvalu) and entered into force in 2020. The European Union also
entered into Economic Partnership Agreements (EPAs) with Pacific Island Countries (Papua New Guinea, and later Fiji, Samoa and the Solomon Islands) to facilitate trade in goods between the two regions. The United Kingdom, following Brexit, replicated this agreement with its own UK-Pacific Interim Economic Partnership Agreement.

<figure><img src="image_13.png" /><figcaption>**Figure 16.1** Trade Agreements among Pacific Island Countries</figcaption></figure>

Sources: Compiled by IMF staff, with information from ministries of foreign affairs.
Note: EPA = Economic Partnership Agreement; EU = European Union; MSG = Melanesian Spearhead Group; PACER = Pacific Agreement on Closer Economic Relations; PATCRA = Papua New Guinea and Australia Trade and Commercial Relations Agreement; PICTA = Pacific Island Countries Trade Agreement; SPARTECA = South Pacific Regional Trade and Economic Cooperation Agreement.

<caption>**Figure 1:** Trade Agreements among Pacific Island Economies (PIEs)</caption>

Sources: "Resilience and Growth in the Small States of the Pacific" (International Monetary Fund, 2016)

Intraregional free trade agreements have also reduced barriers between PIEs: the Melanesian Spearhead Group Trade Agreement (MSG-TA) was signed by Papua New Guinea, Solomon Islands, and Vanuatu in 1993, and later by Fiji in 1998. But the most important intraregional agreement is the Pacific Island Countries Trade Agreement (PICTA), signed in 2001 by 14 countries and implemented in 2007 by the Cook Islands,
Fiji, Niue, Samoa, Solomon Islands, Tuvalu and Vanuatu. It gives preferential access to trade between these countries, with the exception of alcohol and tobacco products, as well as other dangerous goods.

Pacific Islands Forum leaders reaffirm in 2022 their commitment to deepen Pacific regionalism in the "2050 Strategy for the Blue Pacific Continent". Yet, the word "trade" only appears three times in the 34-page strategic document. Despite the aforementioned intraregional Pacific trade agreements, exports and imports among PIEs account for less than 10% of their total trade: "7 per cent of SIDS' goods exports had another SIDS as destination and almost 4 per cent of SIDS' imports came from another SIDS" ("Small Island Developing States", UNCTAD Development and Globalization: Facts and Figures 2021).

This chapter will present evidence and explanations for the low level of trade flows between the Pacific islands, and makes the case for an economic strategy based on open trade in goods and services, especially tourism, with the rest of the world, in order to benefit from economies of scale and improve competitiveness and economic development, despite significant structural challenges (e.g. the "3-Ds": density, distance, division). It also compares different economic models of development and makes recommendations, while taking into account the shared values and visions of the Pacific Islands for a Pacific Way.

# 1. Commercial flows between the Pacific Islands Economies (PIEs)

The role of international trade in the economic activities of Pacific small island economies is paradoxical, since the share of international trade in their GDP is very high, while their intraregional bilateral trade is very limited. Indeed, as Figure 2 shows, the weight of international trade (exports + imports) in goods and services is on average 56% of GDP at the global level, whereas it amounts to 102% of GDP for the PIEs. However, there is a great deal of heterogeneity among these economies. For example, international trade represents more than 100% of GDP for American Samoa, Fiji, Kiribati, Micronesia, Nauru, the Northern Mariana Islands, while it represents less than 80% for French Polynesia, New Caledonia, and Guam, which are more dependent on financial transfers (from France and the United States), and have much richer economies in terms of GDP per capita. It is also interesting to note that the level of economic development of these countries (measured by their standard of living) is not correlated with the weight of international trade in their GDP.
<figure><img src="image_14.png" /><figcaption>**Figure 2:** Trade (goods and services) as % of GDP</figcaption></figure>

Source: World Bank database, Trade (% GDP), series # NA.TRD.GNFS.ZS

However, while these islands, on average, have a very strong economic need to participate in international trade, they tend to trade relatively little with each other. Table 1 shows that Oceania is the region in the world with the lowest share of intraregional trade. While Europe is characterised by strong intraregional trade (favoured by the existence of a common market) which accounts for more than two thirds of the region's trade, this intraregional trade accounts for only 6% of their total world trade<fnref n="1" />. Table 2 allows us to complete this picture, as we can see that the PIEs trade more with large industrialised countries (e.g. USA, Japan, China) which are sometimes very distant (e.g. France) than with each other.

<footnote n="1">1 Note that this figure is even lower if New Zealand and Australia are removed from the data (about 3%).</footnote>
<table><caption>**Table 1:** Breakdown of world trade between intra-regional and extra-regional exports</caption><thead><tr><td>Region</td><td>Intra-regional exports</td><td>Extra-regional exports</td></tr></thead><tbody><tr><td>Africa</td><td>18%</td><td>82%</td></tr><tr><td>Northern America</td><td>30%</td><td>70%</td></tr><tr><td>Latin America and the Caribbean</td><td>14%</td><td>86%</td></tr><tr><td>Asia</td><td>58%</td><td>42%</td></tr><tr><td>Europe</td><td>68%</td><td>32%</td></tr><tr><td>Oceania</td><td>6%</td><td>94%</td></tr></tbody></table>

Source: UNCTAD HBS (2021)

<table><caption>**Table 2:** Main trade partners of the countries of Oceania.</caption><thead><tr><td>Country</td><td>Top 3 exports partners</td><td>Top 3 imports partners</td></tr></thead><tbody><tr><td>Australia</td><td>China, Japan, USA</td><td>China, USA, Japan</td></tr><tr><td>Fiji</td><td>USA, Australia, New Zealand</td><td>Singapore, Australia, China</td></tr><tr><td>French Polynesia</td><td>France, China, USA</td><td>France, USA, China</td></tr><tr><td>Kiribati</td><td>Japan, Malaysia, Japan</td><td>Fiji, Australia, Singapore</td></tr><tr><td>Micronesia</td><td>Guam, N. Mariana Islands, USA</td><td>USA, China, Guam</td></tr><tr><td>New Caledonia</td><td>China, South Korea, Japan</td><td>France, China, Singapore</td></tr><tr><td>New Zealand</td><td>China, Australia, USA</td><td>China, Australia, USA</td></tr><tr><td>Samoa</td><td>American Samoa, New Zealand, USA</td><td>New Zealand, Singapore, China</td></tr><tr><td>Tonga</td><td>New Zealand, China, USA</td><td>New Zealand, Singapore, USA</td></tr></tbody></table>

Source: UNCTAD (2022)

Trade flows between Pacific Island economies (PIEs) are still very small compared to their economic and financial ties with more powerful partners (Australia, France, New Zealand, USA, China, etc.). This chapter argues that economic and geostrategic forces explain these patterns, given their common characteristics and challenges, and despite their shared values and visions for a Pacific Way.

In fact, this low level of bilateral trade between the PIEs can be explained by the nature of their production. As Table 3 shows, the PIEs tend to produce relatively the same goods or services (tourism, fish, copra). In this case, as classical economic theory
(Ricardo, 1817) suggests, these countries do not find the trade opportunities that their neighbours have, nor the products that they need. If countries produce the same goods and services, then bilateral trade is possible in the form of intra-industry trade, provided that the goods and services are differentiable (for example, intra-industry trade explains a very large part of the trade between European countries). However, with the exception of tourism (which is a service that attracts high-income consumers, which is not the case for the PIEs as a whole), the goods produced are all in the primary sector. However, the diversification of varieties is not possible as it mainly concerns the industrial sector.

<table><caption>**Table 3:** Main goods or services exported by the PIEs</caption><thead><tr><td>Country</td><td>First good or service</td><td>Second good or service</td></tr></thead><tbody><tr><td>Fiji</td><td>Tourism</td><td>Sugar</td></tr><tr><td>French Polynesia</td><td>Tourism</td><td>Pearls</td></tr><tr><td>Kiribati</td><td>Fish</td><td>Copra</td></tr><tr><td>Marshall Islands</td><td>Fish</td><td>Copra</td></tr><tr><td>Micronesia</td><td>Fish</td><td>Copra</td></tr><tr><td>New Caledonia</td><td>Nickel</td><td>Tourism</td></tr><tr><td>Palau</td><td>Tourism</td><td>Fish</td></tr><tr><td>Samoa</td><td>Tourism</td><td>Copra</td></tr><tr><td>Solomon Islands</td><td>Log</td><td>Gold</td></tr><tr><td>Tonga</td><td>Agriculture (squash)</td><td>Tourism</td></tr><tr><td>Tuvalu</td><td>Fish</td><td>Copra</td></tr></tbody></table>

Source: “Resilience and Growth in the Small States of the Pacific” (International Monetary Fund, 2016)

Consequently, the “small island paradox” of the PIEs can be explained quite easily by the nature of the goods and services produced by these countries. It is therefore impossible for an intraregional trade market to develop between the PIEs. However, as mentioned above, these countries are dependent on international trade. Beyond the nature of the goods and services produced, it is therefore appropriate to examine the reasons, specific to these countries that may explain the obstacles to the development of trade between them.
## 2. The obstacles to the development of trade between the PIEs

International trade flows are largely explained by a set of economic and non-economic forces that can be summarised by the gravity model. This empirical model was developed by Anderson (1979) and Bergstrand (1985, 1989) and it allows us to synthesize the main results of the new literature on international trade (see Krugman, 1979; Krugman and Helpman, 1985; Krugman, 1991). This literature has been developed within a framework of imperfect competition, and more precisely of monopolistic competition, which allows this theoretical framework to capture the consequences of globalisation. This gravity model is inspired by Newton's theories, in that trade flows depend positively on the (economic) mass of the countries concerned and negatively on the distance between them.

The first economic variable that determines the scale of international trade flows is therefore the economic mass of the countries concerned (exporter and importer), which can generally be measured by GDP. From the point of view of the exporting country, a higher GDP means a greater production capacity, which allows for the development of economies of scale, i.e., production with decreasing marginal costs. Consequently, countries with a higher GDP tend to be mechanically more competitive and to export more than others. Moreover, a higher GDP also means a greater ability to diversify production. From the perspective of the importing country, higher GDP means higher national income and higher consumption. This first and probably most important stylised fact of international trade makes it easy to understand why, from a global perspective, the PIEs are and will remain small players in international trade: they are simply too small countries to be important players in international trade. Moreover, these countries, which cannot be major exporters, will tend to import goods and services from countries with significant economic mass; this explains why the PIES tend to trade with the United States, Japan, China, Australia, etc.

The second determinant variable of the gravity model is geographical distance and, more specifically, transport costs. Contrary to what one might think, this element is not in favour of trade between the PIEs. Indeed, they are all, to some extent, geographically isolated from the rest of the world, which mechanically leads to relatively higher transport costs than other countries. Moreover, the PIEs are the island countries that are relatively furthest from the rest of the world, and as shown in Figure 3 from "Resilience and Growth in the Small States of the Pacific" (International Monetary Funds, 2016),
the transportation costs of the PIEs are the highest of all island countries. Therefore, even though they are geographically located in the same area, their geographic isolation (i.e. high relative distance to the rest of the world) hampers their trade, even among themselves, as it reduces their trade competitiveness. A country such as the United States, which is further away from the PIEs, will tend to be able to export more because it is less isolated (and has a higher GDP), resulting in relatively lower transport costs.

<figure><img src="image_15.png" /><figcaption>**Figure 3:** Distance to the Closest Continent (in kilometres) – Small Island States</figcaption></figure>

Source: "Resilience and Growth in the Small States of the Pacific" (International Monetary Fund, 2016)

In addition, the PIEs tend to have protectionist policies (see Table 4), which worsen the competitiveness of these countries and their transport costs.
<table><caption>Table 4: Tariff rate, weighted mean, all products (%) - Pacific island small states</caption><thead><tr><td></td><td>Tariff rate</td></tr></thead><tbody><tr><td>Fiji</td><td>24.0% (2019)</td></tr><tr><td>French Polynesia</td><td>4.6% (2019)</td></tr><tr><td>Nauru</td><td>15.6% (2019)</td></tr><tr><td>Palau</td><td>118.2% (2019)</td></tr><tr><td>Papua New Guinea</td><td>7.8% (2017)</td></tr><tr><td>Samoa</td><td>10.2% (2018)</td></tr><tr><td>Solomon Islands</td><td>17.5% (2019)</td></tr><tr><td>Tonga</td><td>5.5% (2017)</td></tr><tr><td>Tuvalu</td><td>2.4% (2017)</td></tr><tr><td>Vanuatu</td><td>8.3% (2017)</td></tr><tr><td>World (mean)</td><td>2.6% (2017)</td></tr></tbody></table>

Source: World Bank

The academic literature has shown that, in addition to GDP and distance, other variables are important in explaining the magnitude of international trade flows. These variables include the real exchange rate, and cultural or linguistic proximity between trading partners. Again, these variables are detrimental to the development of trade between the PIEs. Indeed, in addition to their relatively lower standard of living, these countries tend to trade with Western countries because of their linguistic proximity (English or French) and past colonial ties.

All of these obstacles and barriers can be summarised by the “3-D challenge” highlighted by the World Bank (2009). These 3-Ds correspond to density, distance and division. The PIEs suffer from low economic density, which does not facilitate the development of economies of scale and increases production costs. Moreover, their relatively low standard of living exacerbates this low economic density. Distance and geographical isolation from the rest of the world is also a variable that helps to understand their low potential for commercial competitiveness. Finally, division, i.e., factors that aggravate the previous two Ds (notably cultural or institutional isolation and protectionist behaviour), is also a very present feature of the PIEs.
### 3. The different economic models of development

Because of the specific challenges faced by small islands, such as the PIEs, various economic models of development have been created to reflect their stages of evolution, as in Figure 4.

<figure><img src="image_16.png" /><figcaption>**Figure 4:** Models of economic development for small islands</figcaption></figure>

Source: G. Baldacchino and G. Bertram, « The Beak of the Finch: Insights into the Economic Development of Small Economies », *The Round Table*, 98 (401), 2009.

The MiRAB (Migration, Remittances, Aid and Bureaucracy) model was first developed by Bertram and Watters (1985)<fnref n="2" /> and later improved by Bertram (1999) to fit some

<footnote n="2">² Bertram, G. and Watters, R. F. « The MiRAB economy in South Pacific microstate », *Pacific Viewpoint*, n° 26(3), 1985, p. 497-519
Bertram, G. « The MiRAB Model Twelve Years On », *The Contemporary Pacific*, vol. 11(1), 1999, p. 105-138</footnote>
PIEs, such as Kiribati, the Marshall Islands, Micronesia, Samoa, Tokelau, Tonga, Tuvalu, Wallis & Futuna, where a large part of the population emigrated to Australia and New Zealand in order to take advantage of better job opportunities, and send remittances to the family members who stayed on their native islands and also receive significant financial aid from nearby donors (Australia and New Zealand, as well as France), while being protected by a safety net made of generous public employment wages.

The SITE (Small Island Tourist Economies) model was later introduced by McElroy (2006)<fnref n="3" />, to reflect island economies specialised in tourism, such as Cook Islands, Hawaii, Guam, Palau.

The PROFIT (People, Resources, Overseas Management, Finance, Transport) model, presented by Baldacchino (2006)<fnref n="4" />, emphasises the political dimension rather than the economic dimension, such as in American Samoa. In this model, tourism remains an important asset in terms of reputation, in order to attract investors to a tax or diplomatic haven, which has not been acceptable as a mode of development for some years now, but is still present.

As suggested in Figure 3, some PIEs tend to be characterised by a combination of two models, such as Fiji, Vanuatu (SITE/PROFIT), Nauru, New Caledonia (MiRAB/PROFIT), French Polynesia (MiRAB/SITE). In particular, this last economy suffers from the perverse effects of the “Dutch disease”, according to Poirine (2011)<fnref n="5" />, who describes the French Polynesian economy as characterized by “high prices, high costs and wages, with low productivity, kept viable because artificially isolated from external prices by distance and protectionism, which limit competition from world prices”. These high prices maintain the competitiveness of high-cost, low-productivity production thanks to subsidies from mainland France (“défiscalisation”), protectionism and overpaid civil servants, who make overall demand artificially solvent despite the high prices for consumers. The consequences, according to the Dutch disease theory, are deterioration in the competitiveness of the sector exposed to international competition (exports, tourism), due to a much higher cost of living in French Polynesia, a slowdown in growth, a reduction in tax revenues, an increase in unemployment and inequalities.

<footnote>Bertram, G. « Introduction: The MiRAB model in the twenty-first century », Asia Pacific Viewpoint, n° 47(1), 2006, p. 1-13 x</footnote>

<footnote n="3">3 McElroy, J. « Small Island Tourist Economies across the Life Cycle », Asia-Pacific Viewpoint, n° 47(1), 2006, p. 61-77</footnote>

<footnote n="4">4 Baldacchino, G. « Managing the hinterland beyond: two, ideal-type strategies of economic development for small island territories », Asia-Pacific Viewpoint, 47(1), 2006, pp. 45-60.</footnote>

<footnote n="5">5 Poirine, B. « Tahiti : une économie sous serre », L'Harmattan, 2011, Paris.</footnote>
However, Baldacchino and Bertram (2009) criticize the paradigm of the vulnerability of small island economies, which focuses on their weaknesses, and advocate a strategic flexibility that highlights their strengths in order to prosper, as does Dehoorne (2014), who believes that development trajectories depend on crises to evolve from one model to another (see figure 5 below).

<figure><img src="image_17.png" /><figcaption>**Figure 5:** Island development trajectories</figcaption></figure>

Source: Dehoorne, O. « Les petits territoires insulaires : positionnement et stratégies de développement », *Etudes Caribéennes*, (Mondes insulaires : espaces, temporalités, ressources), n° 27-28, Avril-Août 2014.
Bertram and Poirine (2018)<fnref n="6" /> classify 74 small islands, defined by three characteristics (isolation, small size and economic openness), and also advocate strategic flexibility regarding their specialization and speciation among these models. They conclude that "these islands face a dilemma when choosing a development strategy: with their small domestic market, import substitution is not an option, and competitiveness can only be gained by opening up to trade, that is, by exporting goods or services to the global market in order to gain economies of scale. However, because they are small and isolated, the gains from trade are eaten up by transport costs and the lack of economies of agglomeration - which are benefits that accrue when firms and people bunch together, as in cities and industrial clusters - reducing value added per worker compared to less remote countries". They favour flexible specialisation and adaptability.

**4. Conclusion**

The first of the ten leaders' commitment to the "2050 Strategy for the Blue Pacific Continent" is to "nurture collective political will and deepen regionalism and solidarity". However, the word "trade" is almost entirely absent from the strategy document, despite a number of regional trade agreements (PACER, SPARTECA, PICTA, MGS-TA, PACER+) having been signed and entered into force over the last four decades. Trade integration among the Pacific Islands Economies (PIEs), through intraregional agreements, and with other economies outside Oceania, via interregional agreements, has long been recognised as important for economic development, as the small size of their domestic markets (density), their geographical remoteness (distance), and their protectionist tendencies (division), significantly increase their production and transport costs, leading to higher living costs, reduced competitiveness, weakened exports and growth, and lower living standards. Despite this, interregional trade between PIEs accounts for less 10% of total trade for Pacific islands. This "small island paradox" is actually well explained by the theory of comparative advantage: since the nature of the goods and services produced by these PIEs is similar, with little possibilities for diversification, it is not profitable to trade these homogeneous products between very

<footnote n="6">6 Bertram, G. and Poirine, B. « Economics and development », in *The Routledge International Handbook of Island Studies*, edited by Baldacchino, G., Routledge, 2018.</footnote>
small island economies. However, the PIEs tend to be highly dependent on international trade.

Indeed, their trade flows are well explained by a “gravity model”, positively by the (economic) mass of the two trading economies under consideration and negatively by the distance between them. The first determinant tends to strengthen trade links with economic powerhouses (the United States, Asia, Europe), while the second tends to reduce the competitiveness of PIEs’ exports of goods and services to distant customers. Other factors of division, the third “D” (e.g. cultural or institutional divisions, and protectionist policies), also constitute a barrier to trade and economic development.

Different economic development models can reflect the specificities and policy choices of PIEs: the MiRAB (Migration, Remittances, Aid and Bureaucracy) model, for Kiribati, the Marshall Islands, Micronesia, Samoa, Tokelau, Tonga, Tuvalu, Wallis & Futuna; the SITE (Small Island Tourist Economies) model, for Cook Islands, Hawaii, Guam, Palau; the PROFIT (People, Resources, Overseas Management, Finance, Transport) model, for American Samoa; or a combination of the above models, for Fiji, Vanuatu (SITE/ PROFIT), Nauru, New Caledonia (MiRAB/PROFIT), French Polynesia (MiRAB/SITE).

A degree of strategic flexibility regarding the specialisation and speciation of PIEs among these models is recommended. In any case, openness and export-oriented policies are necessary to obtain economies of scale, improve competitiveness and create the conditions for a sustained and sustainable economic development. The temptation to adopt import substitution policies to protect a small domestic market subject to high production and transport costs is a recipe for failure, as many economies have experienced in past decades. At the same time, PIEs should follow the 2050 Strategy for the Blue Pacific Continent, guided by their shared values and visions of regional cooperation, and focus on sustainability and overcoming challenges in their own Pacific Way. Intraregional exchanges should focus on non-commercial products, such as education (human capital) and shared heritage (culture).
# THE COMPATIBILITY OF ANTITRUST LAW WITH THE "PACIFIC WAY"

## Christian MONTET,

GDI, Emeritus Professor of Economics, University of French Polynesia

## Véronique SELINSKY,

Honorary Lawyer at the Montpellier Bar<fnref n="1" />

1. The concept of the "Pacific way" originates from the historical grace period in the 1960s associated with a "successful" decolonization in the Oceanian region, accomplished without significant upheavals. "The formula notably reflects attachment to a consensual approach in internal affairs and the willingness to address regional issues by remaining among themselves in the face of possible interventions by non-Oceanian powers" (Panoff, 1991). The two pillars of the Pacific Way are solidarity among Pacific peoples and negotiation rather than confrontation. Another definition refers to "allegiance to multi-century-old Oceanian customs and fidelity to the Christian heritage imported during the 19th century".<fnref n="2" /> Several decades later, within a context of troubled international relations - disputes over the role of China in the Pacific region, not to mention the resurgence of war in Europe - can the Pacific Way be anything other than a vanished dream, a complacent illusion?<fnref n="3" /> On the contrary, can it appear as a viable political project to accompany the modernization of economic structures and the improvement of entrepreneurs behaviours for the benefit of the entire community?

2. In terms of economic regulation, the Pacific Way can refer both to substantive rules (organizing economic exchanges through the market, the notion of competition) and procedural provisions (incentive or punitive implementation rules, for example).

<footnote n="1">1. Christian Montet served as interim president of the Polynesian Competition Authority from August 2020 to July 2021. Véronique Sélinsky served as general rapporteur of the Polynesian Competition Authority from January 2019 to February 2022. The views expressed in this chapter are our own, and do not necessarily reflect the views of the Polynesian Competition Authority.</footnote>

<footnote n="2">2. The term « Pacific Way » was used before the Assembly of United Nations when Fiji was admitted in 1970.</footnote>

<footnote n="3">3. Ibid.</footnote>
The importation of rules aimed at enabling free competition in the Pacific is relatively recent, and it draws inspiration - due to obvious pre-existing influences - from different models: the Anglo-Saxon model features a procedural and jurisprudential mode of development (system of precedent), continental models, despite significant divergences between Germanic and Mediterranean laws, grant essential importance to doctrine as source of law, with the role of customary law significantly reduced (Conseil d'Etat, 2001). In these conditions, antitrust law, born in the United States to limit the market power of large firms, underwent significant transformations upon its introduction in Europe, where the focus was more on building a single large market than on opposing "champions" still relatively weak at the international level. Despite convergences in recent times, these laws still bear the traces of their disparate origins. Therefore, the transposition of antitrust regulations in small island states and territories of the Pacific (PICs) still requires additional adaptations to prevent rejection.

3 - For rules to be respected, they must first be understood and accepted. However, competition laws that bring about economic challenges initially appear to be somewhat incompatible with the belief that social harmony should prioritize the status quo. Furthermore, these laws are uniformly applicable (unlike personal status, which may accommodate customary law<fnref n="4" />), which can hardly garner the support of populations uninformed about these issues and of economic actors whose strategies may be hindered.

4 - A preliminary assessment reveals a conflict between the Pacific Way and competition law conceived to include what are commonly referred to as the "three pillars": prohibition of anticompetitive agreements, abuse of dominant positions, and preventive control of mergers over a certain threshold (I), prompting an exploration of means to adopt effective rules allowing competition to play a positive role in the Pacific (II).

# I - THE PACIFIC WAY IN CONFLICT WITH COMPETITION LAW

5 - Despite the relatively recent introduction of competition laws in Pacific islands countries, an initial assessment can be made. The very concept of competition seems

<footnote n="4">4 As it is the case for example in New Caledonia.</footnote>
out of sync with pre-existing social norms (1). The prohibition of anti-competitive
practices interferes effectively with the behaviours to which economic actors are
accustomed due to the Pacific Way (2). This helps to understand a resistance to
implementing antitrust laws in the region (3).

# 1. Social norms less conducive to competition

## a. Competition deemed less appealing than coordination or mediation

6 - Competition is generally seen as "a stimulus that encourages companies to excel, promotes innovation, diversity of offerings, and translates into attractive prices for consumers".<fnref n="5" /> It is a dynamic process of constant challenge that disrupts established practices in "creative destruction" movement, according to Schumpeter's famous words. Job displacement, among other things, is intrinsic to disruptive innovations.

7 - The traditional cultures of the "Polynesian Triangle" (bounded by Hawaii to the north, Easter Island to the southeast and New Zealand to the southwest), built in a context of vulnerability (due to various handicaps of these small islands, such as small size, remoteness, and even isolation) are more conducive to solidarity than competition. These small insular economies are largely based on strong family and interpersonal ties reinforced by a culture of silence.<fnref n="6" /> In return, these specificities have shaped the societal characteristics commonly attributed to them, such as cultural homogeneity, sociability, propensity for collective action, etc (Angeon and Saffache, 2008). In a globalized economy, these islands now possess advantages but fear having to abandon what is supposed to define their DNA.

## b. Cultural mistrust toward private initiative threatening social cohesion

8 - The social organization of the Pacific small islands was built on clan structures, segmenting society around families claiming a common ancestor, real or imaginary (Taimai, 2013). Relationships are based on kinship that justifies the rights and duties of members. There is no other legitimate authority, even if a rule of law (often inherited from colonization) is present and appears as a centralized regulation. Primarily,

<footnote n="5">⁵ Definition proposed by the French Competition Authority (Adlc) on its website section "Competition and you".</footnote>

<footnote n="6">⁶ As Dr. Mahendra Reddy, former head of the Fiji Competition Authority and Dr. Billy Manoka, former commissioner and CEO of the Independent Consumer and Competition Commission (ICCC) of Papua New-Guinea have repeatedly said in several conferences on antitrust issues.</footnote>
individuals adhere to the values of their clan, where solidarity with group members takes precedence. Most clans or tribes (clan associations) adhere to chieftaincy regimes, which, under a leader's authority with the group's consent, perform essential functions for the preservation of society. This social organization can compete with the political authority of the state (Gourdin, 2023). The complexity of the social organization encourages interference of these clans in political life.

9 – In the small island territories of the Pacific, the indigenous populations, having gained independence, often prioritized reaffirming their social and cultural identity (Agnel, 2008). Questions arise regarding the compatibility between an Oceanian practice of political power centralization within the elected leader's clan (as in the example of wantok in Vanuatu) and the general interest aimed by competition rules to allow the entire community to benefit from competition. In the former case, this centralization is intended to rotate among the clans; in the latter, competition rules apply to everyone outside of any political social contract.

10 - This social organization system invites not to question, during his tenure, the governance of the leader, who, in exchange for the votes of those who brought him to power, must serve his clan<fnref n="7" />. In such a context, individual initiative is necessarily seen as selfish and almost inevitably contrary to the collective interest of the group. Collectivist and culturally constructed for the benefit of a group, the traditional universe from this perspective leaves little room for personal dynamism that leads to distancing oneself from the community.<fnref n="8" /> De Deckker (2002) noted twenty years ago: "the community spirit is seen as a security guarantee and prevents the development of a capitalist economy that inherently requires individualistic behaviors". Mentalities may have evolved since then, but perhaps unevenly across society.

c. Tendency not to challenge acquired situations

11 - The above leads to a strong tendency not to challenge acquired situations, especially since local resources are limited. While Papua New Guinea and New Caledonia have the largest territories and the most significant natural resources in the region, other entities have much fewer (if any) exploitable resources (except

<footnote n="7">7 On this topic, see for example, in French Polynesia, the case of public policy management in the municipality of Moorea: Audras et al., 2016.</footnote>

<footnote n="8">8 We know that the forms of social organization called "ramage" (Firth, 1964) also leave room for individual initiative by the promotion of experts (tohunga, tahu'a, kahuna).</footnote>
for tourism, which is experiencing increasing development). Despite historical and economic contrasts that may exist, the consensus-driven approach characteristic of the Pacific Way naturally leads to favouring tested modes of organization and distribution that are accepted by the entire population. The weight of history reinforces this approach: the former colonizers remain predominant in trade flows, and bilateral relations dominate between the metropolises and their former colonies, as do external aids.<fnref n="9" /> Even after becoming independent or “autonomous”, these territories remain dependent on financial transfers that primarily benefit a redistributive administration that itself does not tend to question the status quo. For those countries that have faced a reduction in external aid and heavily rely on borrowing, economic governance remains traditionally and predominantly semi-authoritarian and interventionist (Ellero, 2017). Individual challenges to acquired positions are seen as contrary to the general interest.

**2. Behaviours intended to follow the Pacific Way clash with antitrust norms**

12 – Local actors are not always convinced that the entire community, particularly consumers, can benefit from the violence of the competitive process, even though the benefits of an appropriate competition policy are certainly significant in small markets (Gal, 2003).

13 - Collective strategies of agreements, precisely favoured by Pacific businesses because they correspond to a deeply ingrained mindset, are considered by antitrust authorities as anticompetitive practices (ACP) to be prohibited and repressed. Agreements between competitors are thus preferred over competition because they are seen as a means of retaining customers by organizing their distribution among suppliers or maintaining prices at a high level allowing all actors to survive, whereas competition would make those who are not, or are no longer, adapted to the new economic conditions resulting from increased international trade disappear. The temptation of businesses operating in the same market to avoid intense competition is found in all countries worldwide. However, the fear of the destabilizing effects of competition is naturally stronger in the fragile context of the small islands of the Pacific. Individual dynamism is poorly perceived given the strong conviction that maintaining

<footnote n="9">⁹ In 2002, one could observe that the Pacific Islands linked to France and to the United States of America had the highest rate of external aid per capita in the World.</footnote>
achievements in the island environment of small, distant territories is preferable to
economic struggle. In such a context, agreements are not necessarily well hidden, but
that does not mean they can be easily convicted. In any case, systems for revealing
what are considered unjustifiable cartels face reluctance to denounce members of
the closely linked group, which complicates leniency mechanisms.

14 - Regarding the prohibition of abuse of dominance by antitrust laws, the situation is more ambiguous: indeed, the cultural heritage of clanism leads to the belief that having a leader providing protection and redistribution is natural. However, the attraction to the status quo arouses suspicion against anything that could disrupt established and accepted hierarchies. This results in two types of consequences. The first concerns the concept of dominance – usually not per se prohibited – and the other concerns the qualification of abusive behaviours. Firstly, there is a tendency to consider a leader as dominant, even in the presence of serious competitors, which does not correspond to the criteria of dominance in competition law inasmuch as the leader does not have the ability to adopt independent behaviours in the market. The pre-eminence of such a leader is tolerated if it does not seek further development. As for the strategies of the most powerful company, they are seen as legitimate only if they allow everyone the possibility to remain in the race, even on a small scale, which is considered “fair”. In such a context, the desire of a powerful, even if not strictly dominant, company to expand or its commercial strategies of conquest, will be perceived more negatively if they give the impression, true or false, of threatening social harmony. Competition based merits, the cornerstone of antitrust laws that generates incessant questioning is perceived as dangerous and explains the tendency to see “abuses” of dominance where antitrust law admits that it is lawful for a company, even dominant, to seek further development or diversification inasmuch as it offers counterbalances in terms of innovation, prices, diversity of offerings, etc.

3. The Pacific Way as an explanation for the resistance to the establishment of antitrust laws in the region?

15 - Since the beginning of the 1990s, there has been a vast movement towards adopting rules aimed at promoting competition and establishing independent administrative authorities to ensure their enforcement across the world, largely under the influence of international organizations like the OECD and the WTO. The number
of countries that have adopted competition laws increased from around 30 in 1990 to nearly 100 in 2000 and over 120 today.

16 - However, the small Pacific islands territories have largely remained outside this proliferation of antitrust laws. The reasons for this regional resistance are likely multiple, and the situation might not necessarily be worse than having competition laws in texts ("de jure") accompanied by deficient enforcement ("de facto"). Yet the Pacific Islands' limited enthusiasm for antitrust law could probably be attributed to the influence of local social norms: the Pacific Way could thus hinder its adoption.

## a. The very slow implementation of antitrust laws in Pacific Island Countries (PICs)

17 - It has been observed that Fiji and Papua New Guinea were pioneers among the PICs in establishing competition laws and consumer protection laws as early as 1998 for the former and 2002 for the latter. These laws were subsequently revised several times (2010, 2018 for Fiji for example). From the outset, they included the three pillars of competition law: prohibition of anticompetitive agreements, prohibition of abuse of a dominant position, and merger control, accompanied by the creation of an independent authority from the government to ensure compliance.

18 - The example set by Fiji and Papua New Guinea certainly inspired the member countries of the Pacific Forum. During the meeting of the economic ministers of these countries held in 2008 in Port Vila, Vanuatu, it was decided to authorize the Forum Secretariat to develop a suitable framework for competition policy and regulation in the region. The design and implementation of this program were entrusted to the law firm and consultants Minter Ellison, based in Melbourne. This resulted in a Report titled "A Model Regulatory and Policy Framework for Forum Island Countries", published on June 28, 2010, outlining the vision of the competition policy to be implemented and the roadmap for implementation in various countries (Montet and Venayre, 2012).

19 - Subsequently, however, there has not been a real follow-up to the recommendations of the Minter Ellison report. A preliminary assessment (Montet and Venayre, 2014) revealed that there had been little actual change in most of the countries concerned. Only Fiji and Papua New Guinea had a law and an independent authority. Moreover,
even in these two countries, a first assessment four years after the publication of the Minter Ellison report indicated that the activities of the authorities were mainly focused on price control and consumer protection, which is not normally the core business of a competition authority (even though protecting the consumer is important). One could argue, however, that the implementation of such legislation takes a long time, and in 2014 it was still too early to conclude it was a failure.

20 - However, to date, the situation does not seem to have significantly evolved.<fnref n="10" /> The Minter Ellison firm apparently was not mandated to monitor its recommendations during the 2010s. In recent years, external assistance for the establishment of antitrust laws and competition authorities in the PICs has reverted to the Pacific Private Sector Development Initiative (PSDI), a private organization co-financed by the Asian Development Bank (ADB) and the Australian (via Australian Aid) and New Zealand (via New Zealand Foreign Affairs and Trade Aid Programme) governments. The PSDI website reveals in its latest report for 2019-2020 that the organization has started preparing the new competition laws for Fiji, PNG, Solomon Islands and Vanuatu. Regarding Fiji, the report mentions an obsolete competition law and quotes the current Minister of Industry, Trade and Tourism calling for "a robust competition framework and legislation that incorporates international best practices". The PSDI report also mentions its collaboration in designing new laws for competition and telecommunications regulation laws in the Cook Islands, as well as in establishing a multisectoral regulator for competition and network industries (the law creating a competition and regulation authority was passed by the Cook Islands parliament in December 2019, but apparently, its implementation is pending).

The current situation of antitrust law in the PICs can be summarized in the following table.

<footnote n="10">¹⁰ On November 2023, the competition agencies of Australia, Cook Islands, Fiji, French Polynesia, Kiribati, New Caledonia, New Zealand, Papua New Guinea, Samoa, Solomon Islands, Tonga, and Vanuatu created a network called the Pacific Island Network of Competition Consumer and Economic Regulators (PINCCER) to promote competition in the Pacific region. At the time this chapter was written, it was too early to assess any impact of PINCCER on the evolution of antitrust laws and of their enforcement in the different Pacific Island countries.</footnote>
<table><thead><tr><td>Country</td><td>Competition law</td><td>Ongoing actions</td></tr></thead><tbody><tr><td>Fiji<br>Papua New Guinea</td><td>Comprehensive antitrust law<br>Independent agency</td><td>Modernization of the law in progress<br>Recommendation to improve the organizational training of the staff</td></tr><tr><td>Cook Islands<br>Samoa<br>Vanuatu</td><td>Incomplete antitrust law passed<br>Implementation in progress</td><td>Cook Islands: mainly regulation of the telecommunication sector<br>Samoa: law passed in 2016, slow progress under PSDI supervision<br>Vanuatu: action underway to put in place a competition law</td></tr><tr><td>Kiribati<br>Salomon Islands<br>Tonga</td><td>Plans to introduce competition laws</td><td>Kiribati: diagnosis underway to determine the best model to put in place<br>Salomon: audit undertaken in 2015, policy choice validated in 2018, PSDI working on a law<br>Tonga: audit undertaken in 2015; planned multisectoral regulation project; waiting for a new commitment from the government</td></tr><tr><td>Federated States of Micronesia<br>Marshall Islands<br>Nauru<br>Palau<br>Tuvalu</td><td>No competition law</td><td></td></tr></tbody></table>

b. Limited implementation in territories that initially adopted antitrust laws
21 - The best legislation is futile if it does not significantly influence the behaviours of actors across different markets. To ensure companies abide by the law, the enforcement of rules needs to be effective, correcting deviations either through persuasion or sanctions.

22 - However, in the two countries that first established comprehensive legislation and independent authorities to oversee it - Fiji and Papua New Guinea - the annual activity reports primarily reveal actions not strictly related to competition law. For instance, Fiji Competition and Consumer Commission (FCCC) 2016-2017 Annual Report (p. 22) shows, out of 395 files cases, 175 instances of prices exceeding the ceilings set by the regulator, 161 cases of price display faults, 26 cases of expiration date display faults, 8 cases of illicit advertising and 5 cases of billing errors. Thus, the agency's activity revolves around matters of price regulation and consumer protection (the latter being certainly more useful than the former).

23 - Over a span of about twenty years, authorities in Fiji and PNG have only dealt with an extremely low number of cases related to the three pillars of antitrust law: merger control, penalizing agreements, and penalizing abuse of dominant position. Few merger control cases are reviewed each year, notably in PNG (an average of 2 to 3 cases per year). Concerning anticompetitive practices, actions mainly target dominant positions in network industries, such as the Independent Consumer and Competition Commission's (ICCC) action in PNG against abusive dominance in port management or FCCC's action in online bus tickets sales (in 2013). However, there are no real cases of penalizing an illicit agreement.

24 - Even regarding the grievance of abuse of a dominant position, there is a notably different application compared to what we are accustomed to in American and European law. For instance, during the OECD's 2021 Global Forum on Competition, a team from Fiji presented a case on "Economic Analysis and Evidence in Abuse Cases". The session addressed topics clearly related to abuse of dominant position, yet the intervention from Fiji's competition authority focused on potentially excessive price increases of certain health products (masks, hand sanitizers, etc.) during the early months of the Covid-19 pandemic without linking it to a dominance situation causing such behaviour.

25 - The Fijian speakers lament the lack of elements in Fiji's law to clearly penalize exploitation abuses, unlike European law. Enforcing the relevant article (Article 102
TFEU) in Europe demands (i) unambiguous qualification of dominant position, and (ii) characterizing abuse by deeply analysing the economic effects of the practice in question. Hence, FCCC has resorted to the notion of “unconscionable” behaviour contained in the Fijian competition law to target the policy of excessively raising prices (“price-gouging”) by thirty producers or importers of masks and hand sanitizers. Clearly this case diverges from the issues of empirical economic analysis of abuse of dominant positions, the focus of the Forum’s session.

26 – Apart from enforcement issues, the danger of competition policy distortion often lies in the law’s wording itself. For example, in Samoa’s competition bill, it is stated that a company in a dominant position should not engage in behaviour causing one or more of its competitors to exit the market. Without further specifications, such phrasing risks prohibiting merit-based competition by a company holding significant market power.<fnref n="11" />

### c. The case of the French Pacific territories

27 – Firstly, in New Caledonia and then in French Polynesia, local legislators have also adopted competition rules to accelerate the modernization of these island markets. Independent administrative authorities enforce antitrust laws, and all three pillars of this law are in place. However, alongside these, there are additional provisions not specific to antitrust, potentially clouding the situation. A preliminary indicator lies in evaluating the performance of the New Caledonian and Polynesian competition authorities tasked with implementing the new rules. Yet, the results remain modest concerning anticompetitive practices (ACP).<fnref n="12" /> While the former can boast of greater productivity, at least superficially, primarily due to New Caledonian (like French law concerning overseas territories) outright banning import exclusivities<fnref n="13" />, which the Polynesian legislator finally has not adopted in accordance with economic theory (see on this issue: Montet, 2018). Ultimately, in the realm of actual ACP, the New

<footnote n="11">11 On this issue of subtleties in writing the rule of law see for instance the comments of the Global Antitrust Institute of Georges Mason University on the modification of competition law in Viet-Nam (Global Antitrust Institute, 2017).</footnote>

<footnote n="12">12 The cases cited below are those known at the time of writing this chapter. Other cases of ACP may have been handled recently by the New Caledonia authority or by the Polynesia authority.</footnote>

<footnote n="13">13 Art. Lp. 421-2-1 of the Neo-Caledonian competition law, see the decisions: n° 2019-PAC-04, n° 2019-PAC-05, Decision n° 2020-PAC-02 Decision n° 2020-PAC-03, Decision n° 2022-PAC-06.</footnote>
Caledonian Competition Authority can cite sanctioning a price agreement<fnref n="14" /> and two cases of abuse of a dominant position in the funeral sector<fnref n="15" />, whereas the Polynesian Competition Authority has, to date, only made decisions on commitment regarding the telecommunications historical incumbent and, more recently, the sanctioning of an agreement in the funeral sector.<fnref n="16" />

28 – This relatively limited assessment suggests potential obstacles in understanding what antitrust law entails. The analyst is left to make assumptions. One possible explanation could lie in the overly ambitious scope of the legislator in attempting to graft numerous rules, perhaps insufficiently adapted, onto an economic fabric that might not have been ready, encompassing issues beyond competition.<fnref n="17" /> Another explanation could be the specific challenges hindering their implementation in the context of small island territories.

* Obstacles to the success of competition law resulting from legislation extending to issues of commercial law not related to antitrust (control of retail development projects and law of commercial practices and transparency)

29 – **The issue of controlling retail developments.** In both New Caledonia and French Polynesia, lawmakers have entrusted competition authorities (rather than commercial planning commissions, which would be more logical<fnref n="18" />) with the task of prior control over retail trade sector development projects. These authorities can oppose them or subject them to prior commitments. This preventive control limits entrepreneurial freedom and the freedom of trade and industry, fundamental freedoms with constitutional value, which can only be restricted for reasons of public interest and must respect strict proportionality regarding lawful objectives pursued.<fnref n="19" /> While these organic growth projects have little to do with impairments to the market's proper functioning, New Caledonian and Polynesian competition laws have asked the New Caledonian Competition Authority (ACNC) and the Polynesian Competition Authority

<footnote n="14">14 Decision n° 2022-PAC-01 of January 22, 2022, relative to practices implemented in the distribution of agricultural equipment and materials in New Caledonia.</footnote>

<footnote n="15">15 Decision n° 2022-PAC-03 and Decision n° 2022-PAC-02.</footnote>

<footnote n="16">16 Decision n° 2021-PAC-01 of December 8, 2021 relative to a request for interim measures in the telecommunication industry and Decision n°2022-PAC-01 of September 5, 2022, relative to practices in the funeral industry.</footnote>

<footnote n="17">17 However, both Neo-Caledonian and Polynesian lawmakers rightly perceived the need to take full account of the narrowness of their territories in defining the thresholds of merger control.</footnote>

<footnote n="18">18 The French Antitrust Authority can nevertheless be consulted for advice by the commissions of urban commerce planning in the overseas territories (other than New Caledonia and French Polynesia).</footnote>

<footnote n="19">19 Conseil Constitutionnel (French Constitutional Council), Decision n° 89-254 DC, July 4, 1989.</footnote>
(APC) to assess them in terms of supposed risks they might pose to competition.<fnref n="20" /> Out of caution, the texts refer to “excessive” lessening of competition, particularly through the creation or the reinforcement of a dominant position.

30 - The bewildering allocation of this competence to independent antitrust authorities might be explained by specificities of small island territories, such as issues related to land control and fears of corruption of political decision-makers. However, activities encouraging commercial dynamics, monitoring land use or vacant lots, rental amounts, urban logistics, road construction, measuring created and lost employment, do not fall under a competitive assessment. The legal framework rather reveals a Malthusian vision of retail trade sector regulation.

31 - From a competition perspective, organic growth operations are not typically restrictive since, as the French Competition Authority (Adlc) noted<fnref n="21" /> regarding an overseas project, they occur through enduring investment, benefiting consumers through new services, and exerting additional competitive pressure on competing stores. Rather sceptical about implementing “ex ante” control of organic business growth<fnref n="22" />, which could disastrously “curtail the expansion of the most efficient companies”, it recommended utmost caution in applying such rules.<fnref n="23" />

32 - Forced to conduct controls that are not genuinely their concern, these young Pacific authorities had to develop analysis tools and were tempted to reason by analogy with merger control, even though the situation envisaged is opposite as it assesses the arrival of a new competitor by referring to a set of rules intended to consider the possible risks linked to reduced supply. Such a contradiction, likely to create insoluble difficulties, harbours numerous dangers for the future. In any case, it does not promote understanding of competition law among the affected populations.

33 – **The issue of transparency and restrictive practices control.** Regarding this issue, only the ACNC is involved since its competence (unlike that of the APC) extends to practices whose impact on the market does not need to be established or concerns obligations aimed at informing customers about transaction conditions. Similar rules

<footnote n="20">20 The Polynesian competition code adds another assessment criterion related to urban planning, an area about which the APC has no competence.</footnote>

<footnote n="21">21 Consulted by a commercial planning commission in a French overseas department. See Avis 13-A-20 of November 7, 2013, on a project for supermarket expansion in Saint-Barthélemy.</footnote>

<footnote n="22">22 Avis n° 07- A-12 of October 11, 2007, on the regulation of commercial developments, see §97.</footnote>

<footnote n="23">23 Avis 13-A-20 of November 7, 2013.</footnote>
exist in France but fall under the jurisdiction of the judicial court.<fnref n="24" /> These transparency and commercial loyalty rules are not strictly part of competition law, which, aiming for the autonomy of every economic operator, requires ongoing uncertainty about competitors' strategies.<fnref n="25" /> Horizontal competition, therefore, urges each supplier, spurred by doubt about their competitors' strategic action plans, to formulate the best proposal to win over customers. However, the French lawmaker deemed transparency rules essential regarding vertical relationships, such as between suppliers and distributors.

34 – In summary, the horizontal level embodies the legal imperative of opacity, while the vertical level of contracts between companies must abide by a rule of transparency, although entrepreneurs are often tempted to do the opposite (Idot, 2015). Associating restrictive practices law with antitrust law can create confusion or generate misunderstandings, as economic actors struggle to distinguish between competitive processes and loyalty in commercial relationships. When a single institution applies both sets of rules, as is the case with the New Caledonia Authority, it becomes even more challenging to differentiate practices prohibited due to their negative impact on the market and those that only affect co-contractors.

## • Obstacles to the success of competition law resulting from specific implementation difficulties in the context of small island territories where competition law is recent

35 At the implementation stage, the recent introduction of competition law in small island territories is an obstacle to penalizing anti-competitive practices. Detecting agreements is specially made difficult by the belief among economic actors that it is a normal way of organizing activities according to the Pacific Way. While subsidiaries of large international companies are aware otherwise, one cannot rely on their cooperation to reveal their potential unlawful participation. As for the victims of agreements, they are unaware of their illegality and do not approach the prosecuting authority. The authority is therefore constrained to stimulate these approaches by

<footnote n="24">24 French Commercial Law organizes commercial relations by imposing transparency in Title IV of Book IV of the Commercial Code ("On freedom of prices and competition"); the Commercial Code of New Caledonia has taken up these rules, even in the wording of the titles.</footnote>

<footnote n="25">25 The French Competition Authority (Adlc) explains in a very pedagogical way: "Agreements and concerted practices between competitors that consist in directly or indirectly fixing prices or other transaction conditions are expressly targeted as restricting competition (...). Such behaviors contravene the principle of autonomy which companies must demonstrate when they compete on a market. Each company must indeed strictly refrain from participating in direct or indirect contact with its competitors with a view to discussing commercial policies and in particular the prices of the goods and services it plans to offer on the market": Adlc, 11-D-17 of December 8, 2011 relating to practices implemented in the detergent sector, § 447 et seq.</footnote>
continuing sustained efforts in information dissemination and education. Furthermore, the leniency mechanism has not yielded results thus far. Abuse of dominant position might be easier to detect, especially in network industries. However, in such cases, the success of procedures is hindered by difficulties of qualifying and assessing commercial strategies. Once again, concrete implementation requires time to disseminate the spirit of competition.

## II - HOW TO ADOPT EFFECTIVE COMPETITION LAW IN PACIFIC ISLAND COUNTRIES

1. Theoretical and experimental studies advocate for a step-by-step application of antitrust laws

36 - The global spread of competition laws, particularly under the auspices of the WTO and the OECD, faces challenges due to national socio-cultural differences (as seen above). As noted by Pape (1999, p. 443), even the term “competition” does not entirely hold the same meaning across different countries. Significant nuances even exist between culturally and economically close countries like Germany, Great Britain or France.

37 - Nevertheless, numerous studies have shown that difficulties arise less from the substantive law and more from its application. Indeed, since its inception with the Sherman Antitrust Act (1890), antitrust law has been formulated in a way that could garner broad support from public and private decision-makers within market economies. As noted by Professor Lesguillons in 1995 (quoted by Pape, 1999, note 2, p. 438): "In competition law, the world needs less new substantive rules and more effective application of existing rules."

38 - Radically eliminating national differences in implementing antitrust law is certainly an illusory perspective (and perhaps not desirable, at least initially, as divergences and competition in applying legal rules can stimulate regulators and generate positive effects).

39 - Differences in the application of antitrust law are striking between the United States and Europe. A long convergence process has been observed over the last thirty years, evidenced by Europe's less structural and rigid economic approach to abuse of
dominant position. However, the number and magnitude of qualified and sanctioned abuses of dominant position are higher in Europe than in the United States, without a readily justifiable reason for this difference in one way or another.

40 - Differences in the implementation of competition law are even more obvious for Japan, Korea, or China compared to the Western approach. As noted by Pape (1999, p. 451): "This divergence is particularly clear for Westerners who rely on [...] legal texts, formally very similar to the texts they are familiar with in their countries, but then feel deceived when the actual enforcement and practice is quite different because of fundamentally differing attitudes. To bridge such dualism Asians, like the Chinese, often soften legal texts very pragmatically, by calling them 'preliminary,' 'provisional' or, as in Japan, by using extra-legal measures of coercion and persuasion such as 'administrative guidance' (gyosei shido), thus introducing flexibility to adapt non-native systems to cultural particularities of their own."

41 - These studies in legal sociology led to the following conclusion (Pape, 1999, p. 460): "[...] a premature introduction of more or less purely American-style competition rules could lead to an enduring backlash against any move towards internationalization in this field."

42 - This type of analysis corroborates the more political observations made during the 2000s regarding the difficulties of applying American-style antitrust laws worldwide. Empirical analysis conducted by Nicholson (2008) shows that while competition laws have multiplied worldwide, the reality of their application is much less apparent. Quantitative analysis shows that the strictest laws do not necessarily correspond to the most effective competition policies. The study's results reveal the gap between official legislation (de jure) and effective application (de facto).

43 - These findings align perfectly with the work of economists based on game theory. Acemoglu and Jackson (2017) demonstrate that social norms can hinder the effectiveness of laws but are simultaneously influenced and modified by the laws themselves. This bidirectional interaction is the origin of the possibility of multiple equilibria, with the crucial result being that an excessively severe and abrupt introduction of new laws can have the opposite effect of what is expected. Conversely, the gradual imposition of moderately severe laws can prove effective by altering social norms and consequently fostering the progressive acceptance of new rules.
44 – Drawing on game theory application as well, Dixit (2021) shows that respect for institutions responsible for enforcing the law cannot solely rely on the state's monopoly on coercion and violence. Beyond formal rules, there must be an endogenous legitimacy within the set of social norms. As reminded by United States Supreme Court judge Elena Kagan<fnref n="26" /> "The only way to see people respecting the rules that we defend is if these people respect us and recognize the fairness of our decisions". Economic and social actors tend to be more wary of formally imposed institutions from above than informal institutions closely related to their daily life and social settings. As shown by Nobel laureate Elinor Ostrom (1990), such problems are found in the management of common resources, i.e., situations where the market is unable to prevent overexploitation of the resource. Ostrom demonstrated that attempts to manage this risk of the "tragedy of the commons" through state regulation were often less effective than solutions resulting from the repetition, in a less formal framework, of the same non-cooperative game at the level of the concerned communities, whose actors share a common understanding of the issues and conflicts to be resolved.

45 - The formal imposed institution of public authority from the top is generally more distant and runs the risk of suffering from distrust towards central governments. If a formal institution in charge of enforcing the law aims to build trust among citizens and gain acceptance for the rules, it must make special efforts to get closer to those affected, implement clear and transparent procedures, and accept discussion about its decisions.

46 - In the specific case of competition law, decentralized solutions at the local community level do not seem plausible. It is therefore important that the grafting of legal rules brought from outside be done while paying maximum attention to the risks of rejection.

## 2. Need for a comprehensive antitrust law, but clear and flexible implementation

### a) Necessity of the three pillars

47 - There is no need to dwell on the necessity of the three main pillars of competition law: merger control, prohibition of anticompetitive agreements, and prohibition

<footnote n="26">26 During an appearance at a women's conference at her "alma mater", Princeton University, in 2018.</footnote>
of abuses of dominant positions. This issue has already been widely debated and practically addressed in the implementation of new antitrust laws worldwide.

48 - However, behind the same words, significantly different things can be conceived. Nuances can be substantial within each of the three pillars which have consequences for the enforcement of the law in each specific situation and particularly in the small island territories of the Pacific.

49 - First, it is not certain whether merger control is essential in very small territories. For instance, Luxembourg's antitrust law does not include this preventive aspect because concentration problems are addressed by neighbouring European countries and European law. More generally, in very small territories business mergers and joint ventures are likely to be factors of efficiency while the risks to competition may be moderate, especially if the market is largely open to the outside (tourism, export industries, etc.). If this aspect of antitrust law is adopted it can be nuanced in many cases to avoid unnecessary bureaucratic control of operations that are already known in advance not to have anticompetitive effects. For example, operations that involve replacing a business owner with another who previously had no activity in the territory, indicating that the structure of competition cannot be affected.

50 - Regarding abuse of a dominant position, there is a significant risk in a very small economy where many sectors are dominated by a single company, at least based on market share alone, of seeing numerous cases of abuse if one sticks to a structural approach as opposed to the modern approach of economic effects. In fact, this debate on the evolution of antitrust in the most advanced economies traverses the opposition between a bureaucratic or even populist vision of abuse of dominance and a Schumpeterian view of competition. The consequences can be substantial in small territories. Certainly, much of this problem depends on the flexibility and intelligence in the application of the law, but the way the law is written can mitigate some of the difficulty by clearly framing the behaviours of competition authorities.<fnref n="27" />

51 - From all these works of legal experts and economists arise some lessons on the adoption of new and complex laws, such as competition law, in territories like the Pacific Islands where social standards are initially less receptive to new rules. At least three objectives emerge: (i) favour a gradual adaptation of legal rules; (ii) promote

<footnote n="27">²⁷ See the comments of the Global Antitrust Institute of GMU on the competition law of Viet-Nam, op. cit. note 9 above.</footnote>
the adoption of new law through integration into local modes of problem and conflict
resolution; (iii) choose flexible methods (soft law, negotiated procedures, etc.) that
must be implemented judiciously.

b. Clarity of the mission

52 - If one wishes to facilitate the adoption of new competition laws and the institutions intended to enforce them, one prerequisite is that these innovations be clearly identified and understood by the economic agents concerned. The objective can be more easily achieved if the mission entrusted to the competition authority is perfectly understandable to the public.

53 - Authorities responsible for competition often find themselves entrusted with other missions, such as ensuring consumer rights, controlling prices of numerous products, or even regulating network industries. However, assigning multiple tasks to the competition authority not only sends the wrong signals to the citizens (i) but also weakens the mission of the authority's agents themselves (ii)

54 - (i) We have seen that the authorities of Fiji and PNG devote a significant portion of their resources to overseeing price controls that have nothing to do with competition logic. As mentioned earlier (see above § 33-34), the rights related to commercial relationships between suppliers and distributors and other regulations encompassed in what is called in France the "small law" (or "false law") of competition, as well as administrative authorizations for opening or expanding businesses hinder the understanding of competition law in its strict sense by the citizens due to the multiplicity of controls they imply and especially the logical inconsistencies they generate.

55 - (ii) In his work on independent authorities, Nobel laureate Jean Tirole (2023) rightly emphasizes the sense of mission that control agencies must develop. According to him, multifunctional authorities (conglomerates, to use an antitrust term) fail in this regard. He writes: "Well-managed independent authorities must resist the pressure of being given new tasks". A specialized institution, in antitrust or in the regulation of certain technical sectors, should necessarily benefit from recruiting staff specialized in the field, endowed with a developed sense of their mission and great responsibility towards the citizens. To give just one example, steering the regulation of a network industry such as energy or telecommunications requires technical skills that exceed the strict knowledge of legal experts or economists specializing in competition.
56 - In the small Pacific islands, one of the reasons for consolidating functions within the same agency stems from the lack of financial means and human resources available in the territory. A compromise seems necessary between this funding argument and the advantages of specialization mentioned earlier. In any case, if local resources do not allow for enough competent personnel, it is better to resort to specialized agencies with reduced staff who will seek external advice for resolving the most complex issues.

### c. Search for solutions adapted to territories (specific thresholds, negotiated procedures, exemptions, etc.)

57 - The three pillars of antitrust law are now universal, but as mentioned earlier, details in drafting the law allow for initial adaptation to local conditions. Thresholds for controlling mergers are logically defined according to the characteristics of the economy being considered. The law can also provide for simplified procedures for clearly delimited cases. However, it is mainly at the level of procedures and the practical implementation of the law that the possibilities of adapting it to local conditions can contribute to its understanding and compliance.

58- Like the Competition Council of Luxembourg (CCL), one can consider that the authority's mission (as stated on the CCL website) should, at least initially, be more oriented towards preventing anticompetitive practices than towards their repression. Such an orientation undoubtedly offers the opportunity to gradually familiarize citizens with the new law. It seems particularly suitable for small states and island territories in the Pacific due to its compatibility with the cultural and social norms of the Pacific Way.

59 - Some misunderstandings could also be resolved by accepting, depending on the territories, exemptions to competition rules in certain sectors facing strong international competition. This is the case, for example, as suggested by some commentators (Selinsky, 2018), for sectors almost entirely focused on exports: Tahitian black pearls, hospitality, etc. Companies operating in these sectors are fundamentally concerned with international markets corresponding to the economic concept of "monopolistic competition", meaning dealing with differentiated products but with low entry barriers to the market. These exemptions would have no negative consequences since, without an artificial scarcity of supply (via public regulation, for example), it is almost impossible to benefit from sustainable monopolistic rents in such markets. Obviously, these exemptions must remain very limited in number: there is no question of exempting