Converging Currents: Custom and Human Rights in the Pacific

Abstract

Pacific leaders frequently refer to two significant objectives – maintaining local values and custom and implementing universal, human rights. This study is about achieving both objectives. Both custom and specific human rights are embedded in many Pacific constitutions or statutes, yet the two concepts are often perceived as conflicting. From one perspective, human rights are seen as a threat to custom and the Pacific way of life, while from another perspective custom is seen as a threat to individual freedom and justice. Constitutions and court judgments can contribute to this polarisation by proposing that custom should trump human rights or, alternatively, that human rights should trump custom. The focus of our study is the practical operation of justice mechanisms, including both the courts and the wide range of community justice bodies found in the Pacific. We also consider the relationship between custom and the state. How the legislature and courts approach custom is critical in view of their role in determining how custom and human rights are applied. Custom and state-made law coexist within the state, but the state may modify the customary legal system by statute within any limits imposed by the constitution.An underlying but nevertheless critical aspect of our work is that development of a Pacific jurisprudence will only occur as Pacific nations find ways to better integrate these two sources of law. The rule of law can only be effective in each country to the extent that the law is owned by the people. Ownership is difficult to achieve if the legacy of colonial legal systems, whether British, American, French or international legal norms, are seen as alien to custom and customary sources of law.The legal systems of each Pacific Island nation are complex and under strain from a range of political, social and economic problems. The resources for addressing the problems are very limited. Our study convinces us that supporting and building on the legal infrastructures is vital, with implications for the future that go beyond this study of human rights and custom.Custom provides Pacific nations with much of their sense of identity and with vital governance and dispute-resolution mechanisms. Human rights provide Pacific people (especially the most vulnerable) with protection and support for realising their aspirations. A harmonising approach will strengthen legal systems and the development of jurisprudence unique to Pacific states.