Comparative Reflections on Customary Laws of the Coast and Sea in Africa
The distinctive histories and legal trajectories of Ghana, Namibia and South Africa provide important reflections for understanding the current obstructions and opportunities surrounding the recognition and protection of the customary laws of Indigenous peoples and small-scale fishing communities along the coast and sea across diverse contexts in Africa. Hub researchers have identified the need for comparative reflections on the current status of customary laws in ocean governance, after having shared progress of research conducted to date and, most importantly, provided a space for cross-country learning while identifying synergies and opportunities for integration.
On 1-2 February 2023, an internal workshop was held at the University of Namibia by the One Ocean Hub’s Customary Laws of the Coast and Sea Research Network to bring together research teams who have been exploring the role of customary laws in ocean governance in Ghana, Namibia, and South Africa for two days of cross-country learning and dialogue. This follows two public webinars that the Network organized in 2022 (see here and here).
As we shared emerging insights from the case studies and preliminary findings of ongoing research, a number of key themes were raised, including:
- The centrality of customary laws to the coherent protection of multiple human rights of Indigenous Peoples and small-scale fishers, including their political, social, cultural and economic rights, as well as the human rights of women, children, and persons with disabilities in these communities;
- The differing recognition of and respect for customary law across legal frameworks;
- The role of customary law in shaping sustainable practices;
- The importance of arts-based approaches in engaging communities and sharing their perspectives (see here, here and here);
- The barriers to the protection of the cultural rights as a result of historic and ongoing exclusion, marginalisation, and dispossession, including from blue economy initiatives (as we have shared with the UN Special Rapporteur on Cultural Rights);
- The close entanglement of customary law, intangible and tangible cultural heritage, and spiritual connections to the ocean.
We then focused on exploration of key synergies and findings, mapping out future outputs to bring these together and explore what these suggest in a comparative context, and how these can shape future directions for ocean governance that centres customary laws of the coast and sea. Some of the key reflections shared in this discussion were:
- Excitement around the potential of transgressive and transformative research through arts-based approaches;
- The challenges in defining customary law, especially when these are required to meet arbitrary tests that are set by and tried in non-customary legal forums;
- The role of science in creating and embedding knowledge hierarchies, which neglected and inhibited customary laws and practices;
- How local contexts are vital to understanding the different (dis)connections between customary law, authorities, and policy;
- The importance of understanding how place-based histories and the construction of unequal legal hierarchies in shaping what is known as customary law and the lived realities of customary laws;
- The ways in which mainstream legal training establishes a certain idea of law that then necessitates methods of unlearning in order to meaningfully perceive and understand customary laws.
The One Ocean Hub’s Customary Laws of the Coast and Sea Research Network, and the Hub’s Early-Career Researchers’ Network, are developing these ideas into a series of academic publications that will be released later in 2023, as well as in key policy messages that will be integrated in the Hub’s submissions to relevant UN processes.
