The interface between custom and human rights has frequently been raised within New Zealand and in the wider Pacific. In particular, there have been calls for an in-depth study to enhance understanding of the interaction between traditional and cultural practices and human rights, and how the two can inform each other.[1] An understanding of how custom and human rights relate to Maori and Pacific communities in New Zealand requires a broader understanding of how these issues arise elsewhere in the Pacific and how they are affected by national laws and international conventions. This will in turn inform New Zealand's role in this area within the Pacific region.
In this context, the New Zealand Law Commission aims to contribute its legal expertise by articulating some of the issues arising from the interaction between custom and human rights in the Pacific, and exploring ways in which the two can work together. Ultimately, the Commission aims to make a New Zealand contribution to a regional understanding of human rights grounded in Pacific values. It hopes that its study paper will be of practical assistance to lawyers and judges applying existing laws, and to government policy makers and other agencies involved in the development of human rights mechanisms. However, it will be for individual Pacific Islands communities and states to decide for themselves how best to move forward.
The Commission produced a summary document setting out some preliminary ideas as to ways in which custom and human rights might be better harmonized in the Pacific. This document was circulated widely and was available on the Commission's website, and the Commission received a number of submissions on the ideas put forward in the document. The Commission held a regional workshop on custom and human rights in Fiji (May 2006), attended by people from a range of backgrounds from across the Pacific, and held two consultation workshops in Wellington and Auckland (June 2006). The Commission also established an External Reference Group of Pacific people and others with expertise in this area, and benefited greatly from their input.
The New Zealand Law Commission study paper Converging Currents: Custom and Human Rights in the Pacific deals with a perceived conflict that lies at the heart of Pacific legal systems. Custom is recognized as a source of law in most Pacific countries, and human rights are also protected in most Pacific constitutions as well as through ratification of international treaties by Pacific states.
This raises the question of whether custom and human rights can live comfortably together. It is often assumed that they cannot. Some see human rights, with their perceived individualist bias, as a threat to custom. Others see custom as undermining individual rights, particularly those of disadvantaged or vulnerable groups such as women and young people.
The central thesis of Converging Currents is that, despite apparent areas of tension and conflict, custom and human rights can be harmonized in many cases by looking at the underlying values of each.
The study paper provides an overview of issues arising from the interface between custom and human rights in the Pacific region, including the Pacific Island countries, New Zealand and Australia. This is an area of tremendous cultural diversity, but there are also significant commonalities across the region.
Not least among these commonalities is the important place of custom law in most Pacific societies. In many places, custom predominates in resolving disputes at the local level. Certain values are also common to Pacific cultures, and it is these values that form the basis of custom. Respect for the individual dignity of all persons is perhaps the primary value underlying Pacific custom. From this flow other values such as the demonstration of love and care for others, consensus-based decision-making, and the maintenance of balance in relationships.
Such values are generally consistent with the values underlying human rights, which are also based on respect for individual human dignity. However, customary practices - what people actually do- do not always reflect customary values, or underlying beliefs about what is right. The Commission believes that much of the apparent conflict between custom and human rights is due not to the underlying values but to customary practices, and to resistance to calls for change to such practices by those in power within Pacific societies.
Conflicts between customary practices and human rights are particularly apparent in relation to certain issues examined in the study paper: the rights of women, children and minorities, and freedom of religion, speech and movement. For example, custom plays a part in restricting women from taking on leadership roles, perpetuating violence and sexual offences against women, and denying women equality in marriage and other family law matters.
However, there are also traditions of respect for women in Pacific custom. Some customary practices need to change to accommodate human rights, and to bring practice more into line with underlying customary values, but this does not require the wholesale repudiation of custom. Indeed, by looking for common ground between custom and human rights, both may be enhanced. Human rights will be strengthened in the Pacific if they can be expressed in terms of local culture and customary values.
This approach is reinforced by the Commission's suggestion that courts in Pacific states should develop an indigenous common law or a "Pacific jurisprudence" rooted in the values underlying custom law and human rights, as well as in the legal traditions inherited through colonization.
When confronted with cases involving an apparent conflict between custom and human rights, judges are able to consider the values underlying the custom, and whether these are consistent with or could be made to align with human rights. Equally, they may consider how human rights or other general legal principles could be explained in terms of customary values. For example, a judge who finds that mismanagement of community or state funds is inconsistent with fiduciary obligations might go on to observe that this is also inconsistent with customary notions of stewardship of resources and the responsibilities of leaders to their communities.
The Commission sees an important role for both higher-level courts and community-level justice bodies such as village courts and councils in harmonizing custom and human rights. Courts and community justice bodies should work more closely together, as in many respects their roles are complementary.
Community justice bodies resolve the majority of disputes in most Pacific countries. They are accessible, and usually seek solutions aimed at restoring relationships disrupted by conflict. However, they are also frequently male-dominated, often depart from principles of natural justice, and may be unfair to women, young people and other vulnerable groups. They are generally familiar with local custom, but often require assistance with understanding and applying human rights.
On the other hand, judges and magistrates are likely to be more aware of human rights but often need assistance with understanding and accessing local custom law. The Commission therefore suggests that the development of custom law commentaries, rather than prescriptive codes, should be a priority for Pacific states. Such commentaries would assist judges, officials and others to understand local custom and to better integrate it both with human rights and with the state legal system.
Courts can help to harmonize custom and human rights by applying human rights in ways that take account of the local context. The Commission prefers an approach that looks for common ground between custom and human rights to one in which either human rights or custom "trumps" the other.
As a summary, the following are some of the suggestions offered by the Commission:
Issues of the interface between custom and human rights are likely to remain of concern in Pacific states for some time to come, and may have to be addressed at a regional level if there were to be any move towards a regional human rights mechanism. The Law Commission study paper does not attempt to provide definitive answers to the questions it raises, and the Commission hopes that the paper will stimulate further research and discussion on these issues by Pacific people.
For further information, please contact: Ewan Morris, The Law Commission, PO Box 2590, Wellington, New Zealand, ph (64-4-)914-4821; fax (64-4-)471-0959; e-mail: EMorris@lawcom.govt.nz. The report can be downloaded from the Law Commission website www.lawcom.govt.nz, or hard copies are available for NZ$20 from publications@lawcom.govt.nz
1. See for example the Concluding Statement and Recommendations from the Pacific Islands Human Rights Consultation (Suva, Fiji) June 2004 at para. 29.
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