Sue Farran

Is Legal Pluralism an Obstacle to Human Rights? Considerations from the South Pacific

Abstract The island countries of the Pacific region offer a number of contemporary examples of legal pluralism. This article focuses on two such countries, Tuvalu and Vanuatu. As many countries of the region Tuvalu and Vanuatu came under the influence of colonial authorities. They also had and today retain, customary law. Post-independence, as developing countries they aspire to take their place in the international arena. Their constitutions reflect their history and their goals. Included among these are the recognition and observance of human rights. With reference to examples of case-law from both countries this article suggests that the continuing legal pluralism of their legal systems may itself be an obstacle to human rights and considers various reasons for this. Underpinning the plurality of laws is a plurality of values. The availability of different legal processes in a plural legal system may undermine the fundamental notion of equality before the law. The burden of proof and rules of evidence for establishing custom are not as rigorous as those applied in cases involving introduced law. The applicability of human rights provisions, if limited to vertical effect, may be doubtful in cases where it is uncertain whether traditional leaders involved in rule making, law enforcement, and dispute resolution are acting in a public capacity. Finally, custom is by definition retrospective, whereas the fundamental rights provisions in the Constitutions and international instruments are prospective, and the evidence suggests that custom will not necessarily decline and provide fewer answers as Pacific island countries develop.

Law, land, development and narrative: a case-study from the South Pacific*

This article explores a primary source of legal studies, case-law, as a form of narrative in the context of indigenous land rights, and considers how this narrative negotiates pre-colonial land claims in a postcolonial context. Its case-study is the South Pacific island country of Vanuatu, a small-island, leastdeveloped, nation-state, where laws introduced under Anglo–French colonial administration are still retained and sit uneasily alongside the customary forms of land tenure which govern ninety percent of all land in the islands. The article looks at the traditional and changing role of narrative presented as evidence by claimants and their witnesses against a context of rapid social and economic change, and asks whether the metamorphosis of narrative signals the future survival or imminent demise of customary indigenous land rights and what that might mean for these island people faced by the pressures of development.

Criminal law and Fa'afafine and Fakaleiti in the South Pacific

In recent decades legal systems throughout the Commonwealth have had to adapt to changing perceptions of gender and sexuality. Such change may take the form of modifications to family law, social security or welfare law, employment law or criminal law. In some systems reform may be liberal and widespread, elsewhere is may be more conservative and restricted. Issues concerning personal relations, sexual identity or gender orientation provoke debate from many angles. Despite the advocacy of the universality of human rights manifested in international human rights instruments and the signatories thereto, one solution does not fit all. This article looks at the particular circumstances of a small group of people in the South Pacific region and some of the issues raised in a rapidly changing world. Specifically the article looks at the legal response to these groups, focusing particularly on the faafafme of Samoa with some comparative references to the fakalehi of Tonga and the provisions of the criminal law in each country, and considers some of the legal and social ambiguities which emerge and the difficulties that these pose both for individuals identifying with these groups and for law makers and enforcers.

Children of the Pacific: Giving effect to Article 3 UNCRC in small island states

While children are universal, recognising and giving practical effect to their rights is not. Compliance with international obligations under the UNCRC imposes considerable demands on small developing nations, such as those found in the south Pacific region, where children make up over a third of the total population of many island states. Focussing on criminal and family law this paper considers how the local courts are engaging with the Convention and the challenges which arise in plural legal systems characterised by lack of legal reform and lack of resources, in which the contemporary experience of traditional social ordering may value children but not necessarily see them as right holders.

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.

PALM TREE JUSTICE? THE ROLE OF COMPARATIVE LAW IN THE SOUTH PACIFIC

Emerging from a colonial past, Pacific island states have legal systems which are patchy and often incoherent. This article examines the role of judges in the field of family law and how, through creative use of comparative legal thinking, they contribute to the development of the law in countries where the state is slow to reform outdated and often inadequate legislation.

Navigating between Traditional Land Tenure and Introduced Land Laws in Pacific Island States

As in other parts of the world, islands in the south Pacific region experienced British colonial administration accompanied by the introduction of non-customary land laws and policies. In some cases colonial administrators took land which they deemed to be uncultivated or lying ‘waste and idle’ and claimed it for the Crown or later, the state. In other cases they reshaped customary institutions and structures in efforts to acknowledge local indigenous polities but at the same time understand them on their own terms. On independence, and in the years just prior to and after independence in many countries, land that had been alienated to foreigners was restored to indigenous people, but the slate could not be wiped entirely clean of the colonial legacy. Indeed few countries rejected the colonial systems of laws and courts, so that even today, introduced laws and dispute resolution forums remain relevant and influential. Alongside shifts from rural residency to urbanisation, from subsistence agriculture to cash-cropping and waged labour, there are other pressures both internal and external, to commercialise and capitalize land and its resources. There are demands for registration and demarcation of customary land interests, for the simplification of complex kinship rules which determine land rights, for greater individualization of land rather than communal access and multiple rights, and for the establishment of certainty through final court decisions rather than negotiated settlements which may be revisited and renegotiated. For some, both from within and without Pacific island countries, customary land tenure is seen as an obstacle to economic development, for others it is seen as essential for maintaining social stability and security and for ensuring the equitable distribution of resources in states where governance is weak and public provision virtually non-existent. Drawing on legal and anthropological research, and focussing on the island countries of Melanesia, this paper looks at contemporary examples of how governments and individuals are negotiating the space between the two systems of customary land tenure and introduced land law highlighting how plural systems offer scope for developing coping strategies and the development of hybrid legal approaches.

The "Age of Empire" again?

Law and ways of thinking about law have historically been integral to processes of colonialisation and extension of empire. Contemporary forms of colonialism in a globalising legal environment may be less obvious, more nuances or even subconscious. However, the emergence of higher education as a trade commodity, the shift to fee-paying students as consumers and the market competition for international students among universities raise questions about the export and import of various forms of legal education, especially in the context of plural and mixed legal systems, debates about legal transplants, and concerns about legal imperialism. This article examines these issues and considers the place of comparative legal education in the contemporary environment facing university law schools.

Regulating the environment for blue-green economy in plural legal states: a view from the Pacific

ABSTRACT The environments of small island states are particularly vulnerable to environmental degradation and risk, whether natural or man-made. As a result of international initiatives and growing awareness of the need to address environmental concerns, such states are being encouraged to enact legislation to protect the environment and promote sustainable futures. In the Pacific region this future is increasingly linked to the “blue-green” economy: development that builds on the terrestrial and marine resources of Pacific island states. At the same time, internationally, there is an emerging acknowledgment of the value of traditional, indigenous and localised management of these resources. In the Pacific customary law is just one source of law in plural legal systems. The challenge then is how to develop environmental law which capitalises on the strength of plural approaches, promotes a “blue-green economy” and meets the international and regional expectations of commitment to environmental protection? While a regional model law has not yet been proposed this article undertakes a doctrinal examination of existing legislation across the region in order to identify different legislative provisions which might be used to develop a holistic, normatively plural approach to future efforts to provide a legal framework for translating blue-green policy into law.