Miranda Forsyth

A Typology of Relationships between State and Non-State Justice Systems

Abstract The literature on non-state justice in more than 20 states is surveyed to provide an analysis of the range of possible relationships between state and non-state justice systems. The following models are considered with respect to their advantages and disadvantages, and the circumstances in which they should be considered: Repression of a non-state justice system by the state system. Formal independence between the systems but tacit acceptance by the state of a non-state justice system. No formal recognition but active encouragement of a non-state justice system by the state. Limited formal recognition by the state of the exercise of jurisdiction by a non-state justice system. Formal recognition of exclusive jurisdiction in a defined area. Formal recognition and the giving of state coercive powers to a non-state justice system. Complete incorporation of the non-state justice system by the state. It is concluded that in the majority of instances surveyed relationships between state and non-state justice systems are not mutually supportive, and that even the more ‘successful’ examples have problems. These findings suggest that for many jurisdictions what is required is reform of the relationship between the state and non-state justice system(s) to maximise the chances of the systems cooperating with each other, performing the tasks for which they are best suited to their fullest potential, and covering each others’ weaknesses with their own strengths.

Lifting the Lid on 'The Community': Who Has the Right to Control Access to Traditional Knowledge and Expressions of Culture?

This paper explores some key considerations around determining who should have the right to control access to, and benefit from, traditional knowledge and intangible cultural heritage. It highlights the complexities involved in these considerations by examining in detail the different claims to control by different segments of the population in regard to two case studies: Samoan tattooing and the Vanuatu land dive. It uses insights from this analysis to problematize the assumptions about the use of concepts such as “community” in legislation designed to protect traditional knowledge and expressions of culture, and also reflects on what effect such legislative developments may have on promotion of cultural industries and the implementation of the Convention on Intangible Cultural Heritage.

The traditional knowledge movement in the Pacific Island countries: the challenge of localism

This paper explores the challenge of respecting the local nature of traditional knowledge in two Pacific Islands’ regional initiatives. It argues that the embedded nature of traditional knowledge within the social fabric of Pacific Island communities necessitates an approach to regulation that respects existing customary laws and institutions, and contrasts this with the prevailing state-centred approaches. It also unpacks the different agendas behind the ambiguous term ‘protection’ and demonstrates the potential for misunderstanding among different stakeholders involved in this field. The paper finally identifies a number of negative consequences that could eventuate if a homogenised, state-based approach is adopted in this area, arguing that care must be taken to ensure that the regulatory framework chosen does not destroy more than it protects.

Sorcery and the Criminal Law in Vanuatu

This paper examines the problems of incorporating norms of customary law into the substantive criminal laws of a Melanesian state system. It focuses on the particular crime of sorcery in Vanuatu. It explores the historical and sociological contexts to the belief in sorcery in society today, and also how behavior generated by the belief (allegations of sorcery and sorcerer-related attacks) is dealt with by the non-state customary legal system. It then investigates how the state has treated the issue of sorcery, discussing both legislative initiatives and also a number of cases brought before the courts in recent years. The paper argues that merely transplanting substantive norms from the customary system into the state system without consideration of the procedural and institutional framework those norms were developed within, or the ramifications the law may have on other aspects of the legal system, is doomed to failure. Finally, it highlights a number of issues that must be considered in order to successfully initiate a more fruitful process of legal pluralism.

The false friends problem for foreign norm transplantation in developing countries

AbstractThis article investigates the difficulties in transplanting global legal norms into developing countries, specifically the problem of ’false friends.’ This is a linguistics concept describing the situation where there is a striking resemblance between two words in two different languages, leading speakers of each language to assume, incorrectly, that they understand the word’s meaning in the other language. Even more problematically, the misunderstanding is hidden by the assumption of understanding. We argue that similar problems can occur when there is a superficial similarity (but a fundamental mismatch) between particular global and local norms. We illustrate this through the example of global intellectual property regimes and their reception in Vanuatu and Mexico, showing how reforms are sometimes welcomed into developing countries on the basis of false assumptions that their aims are congruent with existing understandings. Finally, the paper develops some policy implications for avoiding the ‘false friends’ problem in a transnational legal context.

Weaving Intellectual Property Policy in Small Island Developing States

This book considers the challenges of creating appropriate intellectual property frameworks in developing economies. It focuses on the small island states of the Pacific region to explore and illustrate the many dilemmas, drawing together considerations of policy, theories of development and law, and empirical studies to suggest solutions and possible strategies.

Intellectual Property and Food Security in Least Developed Countries

Abstract This paper analyses the impact of intellectual property laws on food security in Least Developed Countries (LDCs), taking the Pacific Islands countries as an example. It argues that ip laws are increasingly impacting upon food security, but are not being adequately taken into account in national policy development. Consequently, national ip regimes are developing in ways that undermine, rather than promote, food security. The paper argues that the particular context of LDCs, including a lack of technological development and reliance upon traditional agricultural systems, requires an approach to intellectual property that is substantially different from the ‘one size fits all’ approach mandated by the Agreement on Trade-Related Aspects of Intellectual Property Rights.

People, Plants, Place, and Rules: The Nagoya Protocol in Pacific Island Countries

This paper considers the rules informing the use of plants and associated knowledges in the Pacific, particularly Vanuatu, in the context of the introduction into the Pacific region of the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity. The Nagoya Protocol, which entered into force in October 2014, brings both new international regulatory dimensions and new recognition and re-framing of local and customary levels of regulation over genetic resources and traditional knowledge. Whilst generally seen as a positive step to protect genetic resources and traditional knowledge from misappropriation, at an implementation level the Nagoya Protocol gives rise to a range of issues. These issues go to the heart of questions about power, agency, and resource allocation, the bounded nature of communities and their relationship with land or sea; the fluidity and dynamism of customary law; challenges stemming from multiples sites of agency and the potentials of pluralism in many respects. We explore these issues with specific reference to some examples in Vanuatu, the Cook Islands and Samoa.

Using the concept of hybridity to guide social change through legal means

Abstract This paper discusses the potential of the concept of hybridity to be used to guide or inform law reform or regulatory reform in legally plural contexts. It argues such an approach starts with the conception of multiple fluid legal orders that spill over into each other and at any one time have the potential to go in multiple different directions. Taking this understanding as a starting point leads to potentially useful ways to consider difficult issues of social regulation through law, and this is explored through an exploration of gender-based violence in Vanuatu and Papua New Guinea. The paper sets out five design principles when considering a law reform project based on the insights of hybridity.

Spinning a Conflict Management Web in Vanuatu: Creating and Strengthening Links between State and Non-State Legal Institutions

This article argues that increasing the quality of conflict management in legally plural countries requires creating and strengthening linkages between state and non-state justice systems. Given that the resources relevant to conflict management are currently held by both state and non-state actors and institutions, this will facilitate a more efficient and effective sharing of these resources. It will also help to eliminate the problems involved with forum shopping, and promote the development of more endogenous and legitimate conflict management institutions as each legal system learns from and adapts to the other. The article discusses a number of initiatives that have taken place in Vanuatu, a country in the South Pacific, that have forged such linkages, and draws out lessons from them about how to better create and strengthen such linkages. The final section of the article proposes a new conceptual framework to help to centralise the analysis of links in conflict management reform. The conflict management web framework presented here approaches reform in a holistic way, taking account of all the actors and institutions involved in this field in a given jurisdiction. It emphasises the need to develop and strengthen the links between institutions and actors whose actions directly or indirectly affect one another in order to help them to work together better. This means both between state, non-state and hybrid actors and institutions, and also between international donors, academics and NGOs.