The Customary Laws of the Coast and Sea Research Group formed in 2020 as a means to bring together One Ocean Hub researchers interested in customary laws* within an ocean governance context. The Group includes researchers working across multiple Hub research programmes and country-specific programmes who are based in Barbados, Fiji, Ghana, Namibia, Scotland, Solomon Islands, and South Africa. Their disciplinary backgrounds include anthropology, education, environmental and geographical science, history, law, political economy, and sociology.

A number of themes have emerged from discussions within this group, particularly:

• legal pluralism and the status of customary laws within national, regional, and international legal systems;
• the ongoing legacies of attempts to codify, manipulate, or construct customary laws within non-customary legal structures;
• the problems and opportunities of recognition;
• the disconnect between customary laws on the ground and on the books;
• the relationality of customary laws; and
• the challenges and opportunities of researcher-community partnerships focused on customary law issues.

This blog post is the first of a series of on these themes. We invite comments and additional opinion pieces from within and outside of One Ocean Hub.

* Customary laws refer here to the laws and customs of Indigenous Peoples and local communities, which regulate and inform their community and individual practices, and which are managed and adjudicated through customary structures and authorities. Customary laws exist and are performed in many different forms, including oral traditions, performative practice, and art as well as written codes and principles. Customary legal systems are not usually the dominant system of law within the nation-states where they are practiced.

Digital Events

So far, the group has focused on coordinating digital events that explore diverse perspectives of customary law. This includes different disciplinary approaches, methods, and examinations of customary laws as well as the exploration of customary laws across distinctive geographical and judicial contexts. In particular, these sessions seek to explore case studies surrounding the integration of customary laws within ocean governance across multiple scales, including at community, national, regional, and international levels. There is then opportunity for discussion and Q&A with the attending audience.

This year, the Customary Laws of the Coast and Sea Research Group organised two webinars. These webinars were open to all and were attended by participants from a range of different backgrounds including academic researchers, NGOs, and policymakers. Webinars were recorded and can be viewed by clicking the links below:

• Customary Laws of the Sea and the Legacy of Colonisation (UN World Oceans Week, 11 June 2020)
• Domestic Customary Law & Ocean Governance: An Introduction to Different Perspectives and Approaches (Nippon Fellow Session, 28 September 2020)

This blog post reflects on some of the main points of discussion from across these events.

Information of First Two Webinars

Customary Laws of the Sea and the Legacy of Colonisation

The interplay between law and the customs, fishing practices and collective rights of Indigenous peoples has shaped and continues to shape national and international approaches to the conservation and sustainable use of the ocean.

Each speaker pre-recorded a paper for discussion, focused on three case studies across Australia, the Pacific Northwest (the US), and South Africa, examining the impacts and legacies of colonisation and decolonisation on the customs and rights of coastal communities, and the role that the law plays in the development and dismantling of colonial institutions that continue to have an impact on ocean governance. The webinar then spoke to the parallel questions raised across these pre-recorded papers

Speakers:

1. Dr Joshua L. Reid, John Calhoun Smith Memorial Endowed Associate Professor in History & American Indian Studies, Director of the Center for the Study of the Pacific Northwest, University of Washington
2. Dr Jackie Sunde, One Ocean Hub Research Team, Department of Environmental and Geographical Science, University of Cape Town
3. Dr Saskia Vermeylen, Chancellor’s Fellow, Law School, University of Strathclyde

Pre-recorded papers:

1. Dr Joshua L. Reid – From “Fishing Together” to “To Fish in Common With”
2. Dr Jackie Sunde – Decolonizing Marine Governance and Law
3. Dr Saskia Vermeylen – The Saltwater Collection and Sea Rights

Domestic Customary Law & Ocean Governance: An Introduction to Different Perspectives and Approaches

The webinar focuses on an introduction to domestic customary laws of the coast and sea within the context of ocean governance. Eight speakers will provide short 5-minute presentations on customary laws within an ocean governance context across distinctive disciplinary (including law, political ecology, anthropology, and history) and regional (including Ghana, South Africa, the Caribbean, and Fiji) contexts. The session includes a mixture of One Ocean Hub researchers and Nippon Fellow Alumni. After presentations, the session then focuses on reflection, questions, and discussion surrounding the status, importance, and integration of customary law within national and international ocean governance.

Speakers:

1. Mr Godwin Dzah, the University of British Columbia, Canada
2. Dr Bolanle Erinosho, the University of Cape Coast, Ghana
3. Dr Jacqueline Espenilla, the Department of Justice of the Philippines & the University of the Philippines College of Law, the Philippines
4. Dr Senia Febrica, the University of Strathclyde, UK
5. Dr Joytishna Jit, CRC CARE, Australia
6. Dr Alana Lancaster, University of the West Indies at Cave Hill, Barbados
7. Dr Philile Mbatha, the University of Cape Town, South Africa
8. Ms Dysi Polite Dyspriani, the Indonesian Ministry of Maritime Affairs and Fisheries, Indonesia
9. Dr David Wilson, the University of Strathclyde, UK

Key Points of Discussion

What is the status of customary law within national legal systems and what challenges does this produce?

Both sessions highlighted the stark legal boundaries within national legal frameworks in which “dominant” systems of state law – particularly the civil and common law – project more authority and influence over national governance systems than the customary laws of Indigenous Peoples and local communities that are also practiced within national borders.

While both customary and non-customary sources of law hold authority on the ground, it is the customary laws of Indigenous Peoples and local communities that are required to be translated and codified to fit within the framework of non-customary legal structures at a national level. It is only by doing so that these can then become part of the “official” and “recognised” customary law of the state. This creates a situation where customary law is beholden to national governmental frameworks that dictate the extent of the jurisdictional authority and recognition of customary practices, rather than being beholden to the peoples who practice or are regulated through these practices. This is true even where customary and non-customary legal systems are recognised as being equal sources of law within national constitutions.

Both sessions discussed various contexts in which attempts to situate customary law within the boundaries of non-customary national legal frameworks has produced a series of tensions and challenges. These have then obstructed the practice and preservation of customary laws. This was a central focus of our first webinar, which examined how the construction of customary law within non-customary legal structures is an ongoing legacy of the violent imposition of colonial legal structures.

Another of the key issues discussed was that attempts to translate and codify customary law within national non-customary legal structures had resulted in the misrepresentation, invention, or freezing of customary concepts. Speaking on customary and traditional authorities in South Africa, Philile Mbatha outlined that traditional authority is predominantly invested in the power of chiefs and headmen. However, this authority often stems from the intensification of chief systems over community entities during the colonial era, often a new vestige of power and not a smooth continuation of ‘traditional’ practice as colonial authorities assumed. Although community entities continue to hold customary authority on the ground, this is not recognised within decision-making processes at the state level.

Jackie Sunde also spoke on this issue, outlining that distorted notions of the power of chiefs have been enshrined in national statutes, which has further decreased the ability of communities to hold chiefs accountable. Across other presentations, there were also questions of language and mistranslation of customary legal concepts, particularly the inability or unwillingness of non-customary practitioners to engage with the intangible and relational nature of many customary practices.

What issues have impacted on the formal recognition and practice of customary laws?

Godwin Dzah, speaking on the situation in Ghana, discussed that under the British colonial regime, customary law had to go through specific tests in order to be recognised within colonial law. This meant that recognition was not based on the legitimacy of these practices as held by communities, but instead was based on the judgements of colonial administrators of the acceptability of these laws. Although customary law is recognised as a source of law within Ghana’s contemporary constitution, these same tests were modified and incorporated following independence, meaning that laws practiced on the ground may not be recognised as part of the official laws of the state.

In Western Washington (U.S.), Joshua Reid discussed that the treaties signed between tribal nations and the United States federal government in the nineteenth century recognised the rights of Native peoples to fish and hunt in the “usual and accustomed places”, but that federal attempts to delineate these places failed to account for their variable nature. These were not fixed boundaries but depended on, for example, the changing cycles of fish coming and going over time. There were also overlapping claims by different tribal nations, which further defied the simplification of federal delineations.

In another case, Joytishna Jit discussed that in Fiji land ownership is held according to Fijian custom on a communal stewardship basis, including a complex system of ownership of coastal waters. However, while land ownership is recognised to be held under customary ownership, the state claims the title to foreshore and seabed areas. Yet, there is also recognition of customary fishing rights (qoliqoli) within national fisheries law.

Across these and other examples, the formal recognition of customary law within national legal systems was shown to be limited in its capacity to meaningfully engage with and incorporate the full meaning of customary laws when these cannot be simplified to sit easily alongside or within dominant national legal systems.

Another common theme of discussion was that such recognition, problematic though it is, is also heavily fragmented and sectoral. Dysi Polite Dyspriani, for example, discussed that while there has been some recognition of the customary practices of Indigenous communities in Indonesia, there is no institution focused on recognising, protecting, and supporting these rights. This means that there has been only a patchwork of recognition of the customary laws of certain communities.

As Bola Erinosho discussed, fragmented recognition combined with a centralised national legal model based on a top-down approach often leads to an exclusion of the voices of communities who are most closely impacted by legislation passed at a national level. This then creates significant challenges in the implementation and enforcement of such laws, particularly where these are unequally implemented across and amongst different communities.

Although many of the speakers agreed that recognition is not enough to secure and support customary rights, there was clear sentiment that attaining such recognition was often a hard-fought victory by Indigenous Peoples and local communities and that formal recognition has provided opportunity to challenge subsequent national decisions that infringe on customary practices. Alana Lancaster provided insight into one such case surrounding Indigenous property rights in Belize after the government attempted to grant oil and logging concessions over Maya lands. While Indigenous property rights are not formally recognised in Belize, these were framed as fundamental rights and freedoms referenced in the constitution, particularly the ‘right to property’. Following appeal to the regional Caribbean Court of Justice, the existing property rights of the Maya people – both collective and individual tenure – were recognised. Asking if this judgement could have an impact on marine spaces too, Alana’s presentation demonstrated that even where there is no national recognition of customary rights, there is the possibility to utilise interstate forums which do recognise customary rights to contest the violations of national decisions.

As Senia Febrica reflected, it is not just a lack of recognition that harms Indigenous Peoples and local communities but also misrecognition.

Can the tensions between customary and non-customary laws inform alternative options for ocean governance?

One of the key points of discussion were the problems of non-customary entities being able and willing to meaningfully engage with customary law. In particular, there were many examples of how customary law is often enmeshed in nature and tied to ancestral relations as well as an interconnected perception of land and sea spaces.

As Saskia Vermeylen discussed, trying to convey this relationality that ties humans to nonhumans and more-than-humans – such as nature, animals, geological formations, plants, as well as spiritual links to place such as ancestors, deities, and gods – creates conflicts and tensions with dominant national systems of law that are based on disconnected and often inflexible constructions of space. For example, tensions around sea spaces can arise when, on the one hand, customary laws situate the land and sea as part of an interconnected space whereas, on the other hand, national laws construct the land and sea as two separate spaces that require distinctive governance regimes and regulatory bodies. Within rigid legal structures, even where there has been recognition of customary laws, the dynamic forms of interconnectedness that these laws represent are silenced.

Yet, as Godwin Dzah outlined, there is a global move towards recognition of different constructions of sea space that more closely recognise the rights of nature, in which the sea or specific marine ecosystems hold legal subjecthood in their own right rather than being a void in which law is simply projected from land or in which law is primarily extended to human subjects traversing the oceans and extracting marine resources. This is a concept that already exists within certain belief systems and is practiced within certain local communities, meaning that this social reconstruction of the sea is not particularly unique or new. Instead, calls for a socio-legal reengineering towards a different relationship with ocean use resonates with existing socio-legal constructions of the sea within certain customary legal systems.

Both webinars highlighted that we can learn more from the tensions between these customary and non-customary systems of law than we can from neglecting or attempting to mitigate these tensions. To do so, we need to better engage with customary laws within their own contexts rather than within the contexts of non-customary legal structures. This can only be achieved through learning from communities about customary laws as they exist and are transformed in practice (to the extent that this is permissible and appropriate to communities), viewing customary laws from the community perspective rather than through a lens of national law, and building the capacity of customary practitioners / knowledge holders to ensure that communities can project, attain, and sustain the same legal influence at a national level as the practitioners and knowledge holders of non-customary legal systems.

Interrogating the tensions between these two systems offers the opportunity to explore alternative options surrounding ocean governance and our relationship to the ocean that customary legal practices and concepts represent, while also supporting and securing the rights of Indigenous Peoples and local communities. This relates closely to the need for mutual capacity building across community and non-community groups, which is explored in part two of this series.

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Look out for Customary Laws of the Coast and Sea Research Group – The Story So Far (Part Two) in the next One Ocean Hub newsletter and for future digital sessions throughout 2021.

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