Pulea, Mere (1993) An Overview of constitutional and legal provisions relevant to customary marine tenure and management systems in the South Pacific. Forum Fisheries Agency, Honiara.
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The effects of marine resource development, aggravated by the rise of population in some Pacific countries, are disturbing those elements on which life depends. Modern technology is making it possible for distant water fishing nations (DWFNs) to fish the Pacific Ocean and sometimes within the exclusive economic zones of Pacific Island countries. The coastal zones, the breeding grounds for marine life, are under pressure from overfishing, coastal run-offs and wastes dumped in the ocean. Efforts to secure sustainable development, conservation and management of the marine resources take place, firstly against a 'background of complex international, national and customary laws, and secondly against a background of plural legal systems where laws passed by a country's legislature, laws "received" during the colonial era, and customary law, all co-exist. The plural legal systems in all Pacific countries rank constitutions, statutes, and the "received laws" (with some exceptions), supreme over customary law. The two key problems of customary law are its unwritten nature and its diversity. Any law in conflict with the constitution is void and of no effect. This is the very essence of constitutional law. Similarly, if unwritten customary law is in conflict with statutes, the statutes prevail. A dual system of law (ie. statutes and unwritten customary law) has little in its favour. It is uncertain and often perplexing for indigenous communities whose unwritten laws can easily be overridden by statutes. Decisive steps therefore had to be taken in constitutions of newly independent nations to develop principles that granted protection to customary rights and rules. In some areas, however, statutory law has been cautious in expanding the frontiers of customary law. Under the constitutions of most countries, Parliament has the responsibility to provide for the proof and pleading of customary law and regulate the manner in which customary law is to be applied. Customary rules that are incorporated in statutes and by-laws are not custom but law. The courts act as a forum to translate customary rules into law. The protection of customary rights and customary practices and usages are essentially dependent upon these two forums. The ell.1ent to which customary law becomes an integral part of the legal system has broad implications for the exercise of customary tenure rights and the continuing exercise of customary conservation and management practices. Customary marine management tools need to be further investigated as the safeguarding of the resources will become more and more important as years go by. Conservation and management provisions in statute law by themselves are not enough. The body of unwritten customary conservation and management laws within communities could play an important role in the action needed to effectively protect the marine environment.
| Item Type: | Documents |
|---|---|
| Class Number: | 500.OVE017 |
| Keywords: | Customary Tenure, Traditional Management Systems, Conflicts, Pacific Islands |
| Subjects: | Right to Resources |
| Depositing User: | Chitti Babu ICSF |
| Date Deposited: | 14 Jul 2022 07:32 |
| Last Modified: | 14 Jul 2022 07:32 |
| URI: | http://icsfarchives.net/id/eprint/15124 |
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