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Exchange of Notes constituting an Agreement between the Government of New Zealand and the Government of Cook Islands Concerning the Visit of Contingents of the New Zealand Armed Forces to Cook Islands for Exercises Tropic Medic 88 and Tropic Sunset 88 [1988] PITSE 5 (11 August 1988)

EXCHANGE OF NOTES CONSITITUTING AN AGREEMENT BETWEEN THE GOVERNMENT OF NEW ZEALAND AND THE GOVERNMENT OF COOK ISLANDS CONCERNING THE VISIT OF CONTINGENTS OF THE NEW ZEALAND ARMED FORCES TO COOK ISLANDS FOR EXERCISES TROPIC MEDIC AND TROPIC SUNSET 88

(Rarotonga, 11 and 12 August 1988)

ENTRY INTO FORCE: 12 AUGUST 1988

No. 1

Mr ADRIAN SIMCOCK
New Zealand Representative Rarotonga

to

The Honourable Mr NORMAN GEORGE
Minister of Foreign Affairs Rarotonga

Office of the New Zealand Representative
Rarotonga

11 August 1988

Dear Minister,

I have the honour to refer to the talks held between officials from New Zealand and the Cook Islands in May 1988 concerning the visit of contingents of the New Zealand Armed Forces to the Cook Islands for exercise Tropic Medic 88 to be held between 20 July and 2 August 1988 and for Exercise Tropic Sunset 88 to be held between 1 and 18 October 1988. The purpose of both exercises is to give New Zealand Service personnel experience in operations in the South Pacific and to undertake civic assistance tasks requested by the Government of the Cook Islands.

I now propose on behalf of the Government of New Zealand that an agreement be reached between our two governments relating to these exercises on the following terms:

1. The Government of New Zealand will send a contingent of 26 Army, Navy and Air Force personnel to the Cook Islands between 20 July and 2 August 1988 to take part in Exercise Tropic Medic 88, and a contingent of 144 members of the New Zealand Army to the Cook Islands between 1 and 18 October 1988 to take part in Exercise Tropic Sunset 88.

2. For the purposes of this Agreement and unless the context other-wise requires the terms set out below shall have the following meanings:

''New Zealand contingents'' means those groups of New Zealand servicemen who will be visiting the Cook Islands for the purpose of taking part in Exercises Tropic Medic 88 and Tropic Sunset 88 in the Cook Islands.

''New Zealand servicemen'' means individual members of the contingents of the New Zealand Armed Forces who will be visiting the Cook Islands for the purpose of taking part in Exercises Tropic Medic 88 and Tropic Sunset 88.

''New Zealand Service authorities'' means the authorities empowered by the law of New Zealand to exercise command or jurisdiction over members of the New Zealand contingents while they are participating in Exercises Tropic Medic 88 and Tropic Sunset 88.
3. The New Zealand contingent taking part in Exercise Tropic Medic 88, which will be conducted on Mangaia, will be permitted to use accommodation facilities at Mangaia's Pineapple Factory and to use electricity, water supply and cooking facilities provided by the Mangaia Island Council of Chiefs.
4. The New Zealand contingent taking part in Exercise Tropic Sunset 88, which will be conducted on Aitutaki, will be permitted to rent a house adjacent to the Aitutaki airfield for use as the base headquarters, to establish a base camp at the airfield, and in the event of illness of members of the contingent to use the Aitutaki hospital facilities. An officer will be stationed in Rarotonga to provide liaison with officials of the Cook Islands Government during the exercise.

5. A small advance party comprising five personnel from the Tropic Sunset contingent will arrive in Aitutaki on 26 September to finalise arrangements for the exercise.

6. The Government of the Cook Islands will not levy landing charges against the Government of New Zealand for the use of airport facilities in Rarotonga, Mangaia and Aitutaki, in connection with Exercises Tropic Medic 88 and Tropic Sunset 88, and will arrange for officials to provide the necessary agriculture clearances upon the arrival of the New Zealand contingent which will deploy directly to Aitutaki from Auckland.

7. (a) The Government of the Cook Islands will facilitate the admission of the New Zealand contingents for the purpose of taking part in Exercises Tropic Medic 88 and Tropic Sunset 88.
   

(b) The following documents will be required to be in the possession of members of the New Zealand contingents for entry into the Cook Islands for purposes of taking part in Exercises Tropic Medic 88 and Tropic Sunset 88:

(1) a personal identity card issued by the appropriate authority of the Government of New Zealand showing the full name, date of birth, rank and number, Service and photograph of the holder;

(2) an individual or collective movement order issued by an appropriate authority and certifying to the status of the individual or group as a member of a New Zealand contingent.

(c) Passports will not be required by members of a New Zealand contingent for entry into the Cook Islands for purposes of taking part in Exercises Tropic Medic 88 and Tropic Sunset 88.

8. All freight and exercise stores and equipment required by a New Zealand contingent for purposes of the exercise in which they are participating will be given entry free of all duties and taxes by the Government of the Cook Islands provided that a detailed list of New Zealand stores and equipment is forwarded to the Government of the Cook Islands. Each New Zealand contingent will also provide to the Government of the Cook Islands a list of weapons by type and serial number.

9. Each New Zealand contingent will be permitted to take with it upon departure all equipment brought by it into the Cook Islands for the purpose of Exercises Tropic Medic 88 and Tropic Sunset 88 free from export duties and related charges and restrictions.

10. New Zealand servicemen will be entitled to use New Zealand drivers licences.

11. The New Zealand contingents will provide their own 24 hour ration packs which will comply with the agricultural requirements of the Cook Islands.

12. For the purpose of the command and control of members of the New Zealand contingent participating in Tropic Sunset 88 the Government of the Cook Islands will allow the New Zealand contingent to use certain VHF frequencies inside the Cook Islands as may be agreed between the New Zealand contingent and the Government of the Cook Islands.

13. New Zealand servicemen may wear uniform in performing official duties in the Cook Islands.

14. New Zealand servicemen while in the Cook Islands for purposes of Exercise Tropic Sunset 88 may possess and carry arms on condition that they are authorised to do so by their orders and provided that arrangements regarding the carrying of arms outside areas and facilities in use by the visiting contingent have been made between the appropriate authorities of the two Governments. No live ammunition will be used during Exercise Tropic Sunset 88 and no arms or ammunition will be carried during Exercise Tropic Medic 88.

15. The Government of the Cook Islands will grant New Zealand servicemen participating in Exercises Tropic Medic 88 and Tropic Sunset 88 exemption from departure tax.

16. The rights of the two Governments with respect to criminal and disciplinary jurisdiction over the New Zealand contingents participating in Exercises Tropic Medic 88 and Tropic Sunset 88 will be as follows:

(a) The New Zealand Service authorities on behalf of the Government of New Zealand will have the right to exercise in the territory of the Cook Islands all criminal and disciplinary jurisdiction conferred on them by the law of New Zealand, over all New Zealand servicemen taking part in Exercises Tropic Medic 88 and Tropic Sunset 88.

(b) The Government of the Cook Islands will have jurisdiction over all New Zealand servicemen taking part in Exercises Tropic Medic 88 and Tropic Sunset 88 with respect to offences committed in the territory of the Cook Islands and punishable by the law of the Cook Islands.

(c) The New Zealand Service authorities will have the right to exercise exclusive jurisdiction over New Zealand servicemen with respect to offences punishable by the law of New Zealand but not by the law of the Cook Islands.

(d) The Government of the Cook Islands will have the right to exercise exclusive jurisdiction over all New Zealand servicemen taking part in Exercises Tropic Medic 88 and Tropic Sunset 88 with respect to offences punishable by the law of the Cook Islands but not by the law of New Zealand.

(e) In the cases where the right to exercise jurisdiction is concurrent the following rules will apply:

(1) the New Zealand Service authorities will have the primary right to exercise jurisdiction over New Zealand servicemen in relation to:

a offences solely against the property or security of New Zealand;

b offences solely against the person or property of a New Zealand serviceman or servicemen taking part in Exercises Tropic Medic 88 and Tropic Sunset 88;

c offences arising out of any act or omission done in the performance of official duty;

(2) In the case of any other offences the Government of the Cook Islands will have the primary right to exercise jurisdiction.

(3) If the Government having the primary right to exercise jurisdiction under the foregoing paragraphs decides not to exercise jurisdiction, it will notify the other Government as soon as practicable: the Government having primary jurisdiction in any such situation will give sympathetic consideration to a request from the other Government for waiver of jurisdiction.

(f) The foregoing paragraphs will not confer on the New Zealand Service authorities any right to exercise jurisdiction over persons who are ordinarily resident in the Cook Islands unless they are New Zealand servicemen taking part in Exercises Tropic Medic 88 and Tropic Sunset 88.

(g) The New Zealand Service authorities and the Government of the Cook Islands will assist each other in the arrest of New Zealand servicemen taking part in Exercises Tropic Medic 88 and Tropic Sunset 88 and, subject to paragraphs h and i of this clause, in handing them over to the Government which is to exercise jurisdiction in accordance with the above paragraphs.

(h) The Government of the Cook Islands will notify promptly the New Zealand Service authorities of the arrest of any New Zealand serviceman taking part in Exercises Tropic Medic 88 and Tropic Sunset 88.

(i) Where the Government of the Cook Islands has arrested a New Zealand serviceman taking part in Exercises Tropic Medic 88 or Tropic Sunset 88 the Government of the Cook Islands will if so requested release him to the custody of the New Zealand Service authorities in the Cook Islands pending completion of trial proceedings provided that he will, on request, be made available to the Government of the Cook Islands.

(j) The New Zealand Service authorities and the Government of the Cook Islands will in all cases, including those giving rise to concurrent jurisdiction, assist each other in the carrying out of all necessary investigations into offences and in the collection and production of evidence, including the seizure of and, in appropriate cases, the handing over of objects in connection with an offence. The handing over of such objects, however, may be made subject to their return within any reasonable time specified by the Government delivering them.

(k) The New Zealand Service authorities and the Government of the Cook Islands will notify each other of the disposal of all cases in which there are concurrent rights to exercise criminal jurisdiction.

(I) Where an accused has been tried in accordance with the preceding paragraphs by the New Zealand Service authorities or by the Government of the Cook Islands, and has been convicted or acquitted (which expressions will include any other final disposal of a charge) he may not be tried again for the same or substantially the same offence by either Government: this paragraph will not prevent the New Zealand Service authorities from trying a New Zealand serviceman for any violation of rules of discipline arising from an act or omission which constituted an offence for which he was tried by the Government of the Cook Islands.

(m) In addition to the provision of any agreement entered into between New Zealand and the Cook Islands concerning the return of prisoners from one country to the other, where a New Zealand serviceman taking part in Exercises Tropic Medic 88 or Tropic Sunset 88 has been sentenced under the law of the Cook Islands to a term of imprisonment and he makes a request, which is supported by the Government of New Zealand, that his term of imprisonment be served in New Zealand, his request will be given sympathetic consideration by the Government of the Cook Islands.

17. (a) The two Governments will consult on the settlement of claims by one against the other arising from the loss of or damage to property owned or being used by one of them and caused by an act or omission of a member of the armed forces of the other in the performance of official duty where such damage or loss has occurred in the course of Exercises Tropic Medic 88 or Tropic Sunset 88, due regard being had in the settlement of such claims and in the determination of appropriate compensation payable to the criteria set out in paragraph b for the settlement of claims against the Government of New Zealand by third parties.
    

(b) The Government of New Zealand will pay just and reasonable compensation in accordance with the law of the Cook Islands for meritorious claims by third parties in respect of loss of life or injury to such third parties or loss of property or damage to property belonging to such third parties where such damage or loss is caused by the act or omission (done in the performance of official duty) of a New Zealand serviceman or servicemen while in the Cook Islands for purposes of Exercises Tropic Medic 88 and Tropic Sunset 88 and where the Government of the Cook Islands, after investigation, certify the claims.

(1) as having been submitted in good faith, within three months of the act of omission,

(2) as being reasonable in nature, and

(3) where they relate to property damage, as seeking sums which reflect accurately the current market prices for returning the damaged property to the condition it was in before such damage, and

(4) where they relate to loss of property, as seeking sums which reflect accurately the value of such property immediately prior to such loss.

18. The Government of New Zealand will take measures to ensure that members of their visiting contingents are aware of their duty and observe the laws and regulations of the Cook Islands.

19. This agreement shall not extend to Niue or Tokelau.

20. This Exchange of Notes is concluded without prejudice to the rights of either the Cook Islands or New Zealand under international law with respect to jurisdiction over visiting military forces.

If the foregoing is acceptable to the Government of the Cook Islands, I have the honour to propose that this Note, together with your reply to that effect, shall constitute an agreement between our two Governments which shall enter into effect on the date of your reply.

Yours sincerely

A. G. SIMCOCK
New Zealand Representative

No. 2

The Honourable Mr NORMAN GEORGE
Minister of Foreign Affairs Rarotonga

to

Mr ADRIAN SIMCOCK
New Zealand Representative Rarotonga

Minister of Foreign Affairs,
Rarotonga

12 August 1988

Dear Adrian,

I acknowledge receipt of your Note of 11 August 1988 which states as follows:

[As in No. 1]

I confirm that the foregoing is acceptable to my Government and that your Note and this confirmatory Note in reply constitute an agreement between our two Governments which shall enter into force from the date of this reply.

Yours sincerely,

Hon. NORMAN GEORGE
Minister of Foreign Affairs.