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**THE UNIVERSITY OF PAPUA NEW GUINEA** **SCHOOL OF LAW** **5.10705 CUSTOMARY LAW** **Introduction** Previous to 1975, there were many workers who wrote about the colonial legal system and the traditional law in PNG. There were many bibliographies that dealt with the former but so many dealt with...

**THE UNIVERSITY OF PAPUA NEW GUINEA** **SCHOOL OF LAW** **5.10705 CUSTOMARY LAW** **Introduction** Previous to 1975, there were many workers who wrote about the colonial legal system and the traditional law in PNG. There were many bibliographies that dealt with the former but so many dealt with later. I have consulted them for references. In about 1970 we saw the first issue of a new journal, the Melanesian Law Journal established by the Law Faculty of the University of PNG. This journal was consulted for bibliographies dealt with traditional law and imported legislation, and with the problems involved in welding these several and diverse systems into an appropriate and administratively cohesive system of \"national\" law. This work presented during around 1970 published in the Melanesian Law Journal have implied by the title Tradition and Law in PNG. My research drew on any material considered informative on the above issues. I have used one continuous subject index, and have added various subjects which, in my opinion, refer to any aspects of life which relate to decisions on \"law\" - decisions derived from consensus and/or legislation. Due to my lack of language in other journals, for example, French, I was not able to pursue work in the non-English journals. However, the work published are produced in PNG, and include in the material discussions emanating from both inside and outside of PNG. My cut-off point is the end of 1970. I noted the work between the years 1970-1975 although the journals are consulted from their inception till the recent times. I used other worker's general framework in the viewing of published articles, although I listed the work to show the brief by the articles. Alfred No distribution for purposes other the author's authorized permission **The study of Customary law is very important for law particularly those studying in traditional Pacific societies like PNG due to the peculiarities of the study to home grown legal studies, adaptation and practice.** **Definition of Customary Law** The first authoritative pronouncement on the nature and status of customary law was made by the PNG Constitution. **Customary law was defined as follows;** "customary law is a system of law not being the common law of England and not being a law enacted by a competent legislature in PNG but which is enforceable and binding within PNG as between the parties' subject to its sway‟‟. From the various definitions therefore, the basic criteria or test of customary law are three: i. It must be the accepted custom that regulates the conduct of the people ii. The custom must be enforceable if violated. This is because, not all custom is enforceable. iii. It must be the custom of ancient usage from time immemorial which derives its source from the prescribed authority. **What is customary law? When is it law; For whom is it law?** As noted above, by one definition, customary laws comprise "customs that are accepted as legal requirements or obligatory rules of conduct; practices and beliefs that are so vital and intrinsic a part of a social and economic system that they are treated as if they were laws". Customary laws are also defined as consisting of "established patterns of behavior that can be objectively verified within a particular social setting. The modern codification of civil law developed out of the customs, or coutumes of the middle ages, expressions of law that developed in particular communities and slowly collected and written down by local jurists. Such customs acquired the force of law when they became the undisputed rule by which certain entitlements (rights) or obligations were regulated between members of a community." Another term used is "consuetudinary law" (from the Latin, consuetudo: custom), referring to law, the validity of which is established by custom (in contrast to specific legislation or statutory law). A recent workshop defined customary laws as "locally recognized principles, and more specific norms or rules, which are orally held and transmitted, and applied by community institutions to internally govern or guide all aspects of life." A decisive factor in determining whether certain customs have status as laws is whether they have been viewed by indigenous peoples and local communities as having binding effect, or whether they simply describe actual practices. A similar concept applies at the level of international law, where customary law that binds states develops from the consistent practice of states who both follow a customary pattern but in doing so also accept that it has a binding quality (known technically as opinion juris, or belief that it is a law). Court is required to apply (among other things) "international custom, as evidence of a general practice accepted as law." However, customary international law is only mentioned here by way of illustration; as discussed in the introduction, this study concerns the customary law of indigenous peoples and local communities, rather than international law as such. Alfred No distribution for purposes other the author's authorized permission **Lecture 1** **International and Indigenous Customary Law: The Nature of Peoples' Legal Regime** Indigenous people have long struggled for recognition of their rights to their lands, resources, culture and self-determination. Following centuries of marginalization, discrimination and of being ignored by international law in the recent times, there have been dramatic advances in the recognition of indigenous peoples' human rights. New international instruments, national legislative and constitutional measures, decisions of treaty bodies and the jurisprudence of human rights and national courts revolutionized the recognition and protection of indigenous rights. [^1^](#fn1){#fnref1.footnote-ref} An important but often over-looked aspect of this renaissance has been the recognition of indigenous peoples' rights to their own legal regimes and institutions. Customary law is seen as something less than a law but it is a dynamic and a vital part of the wider legal order. Before going on to examine the history, nature and current status of customary law and its role in the crystallization and protection of indigenous peoples 'rights, let me state the purpose of this section which is to provide a background on the issues of customary law. I commence with the definition of customs in both international and PNG contexts. **1.1.1 Customary International Law** Customary international law is a constantly evolving body of largely unwritten law (custom based) that together with written law (treaties) goes to make up the corpus of international law. It derives from the practice of states and is accepted by them as legally binding. Unlike treaties which are only binding upon states that have ratified them, customary international law may bind states without any formal acquiescence on their part, unless they have clearly and persistently objected to the emerging concept as it develops. In PNG section 117 of the Constitution provides for international law. [^2^](#fn2){#fnref2.footnote-ref} This provision creates a relationship binding at international law on PNG, whether embodied in a single instrument or in two or more related instruments and whatever may be its designation. The legislative approval or ratification of a treaty does not, without more, give it the status of municipal law for the purposes Subsection (7)... notwithstanding the consent of PNG to be bound as a party to the treaty unless it is given status of municipal law by or under a Constitutional law or an Act of Parliament. There are similarities that can be drawn between the processes for evolution and identification of customary international law and the customary legal regimes of Indigenous peoples; these are distinct, though at times interrelated branches of law. There is number of areas in which indigenous peoples' rights have, according to Anaya, have been crystallized in customary international law.[^3^](#fn3){#fnref3.footnote-ref} These include self-determination, land rights, and cultural heritage. Customary international law has been claimed to exist in relation to indigenous peoples' rights to their traditional lands and natural resources, language, sacred sites, and cultural artefacts, as well as to their justice systems[^4^](#fn4){#fnref4.footnote-ref}, which includes their customary laws and traditional decision-making authorities, a claim this study does not seek to substantiate. **1.1.2 Indigenous Peoples' Customary Law** Customary law, says Ian Hamnett[^5^](#fn5){#fnref5.footnote-ref}, emerges from what people do, or more accurately from what people believe they ought to do, rather than from what a class of legal specialists consider they should do or believe. Customary law is also playing a key role in the identification of indigenous peoples' rights to land and resources, re-defining their relationships with the state and third parties; scoping and informing their participation in decision-making processes; and guiding decisions on the approval or otherwise of projects for the exploitation of resources on or under their lands and of applications to access their resources and knowledge. In PNG for indigenous and tribal peoples' customary legal regimes are the predominant, if not the only, system of justice to which they have access. Customs of the people exist to date, and while customs are not practiced much in the urban towns, they are widespread among the rural population that makes up the majority of the people in PNG. Including PNG, national constitutions recognize in varying degrees indigenous peoples' rights to autonomy, to their customary legal regimes, traditional authorities, customary lands and resources, and cultures.[^6^](#fn6){#fnref6.footnote-ref} However, if the recognition does not exist, national laws and judicial bodies may still recognize rights based upon customary law. Undoubtedly, customary law has taken its place within the framework of international negotiations on the protection of traditional knowledge at the Convention on Biological Diversity and World Intellectual Property Organization in both forums. [^7^](#fn7){#fnref7.footnote-ref} In PNG, the indigenous peoples, through their representatives to the National Government, have argued that any system for the protection of their traditional knowledge must be based on their customary laws. Human rights which has been on the forefront of the process to secure recognition of customary law, has itself been transformed in the process. Changes have already been seen in shifts from a traditionally individualistic focus to one that embraces the notion of collective rights and recognize peoples as 'peoples' entitled to self-determination. [^8^](#fn8){#fnref8.footnote-ref} In the provinces of the New Guinea Islands (PNG) region people have voiced their stand to become autonomous and one province shall soon become an independent state. During this time on the island of Bougainville, customs rule as the majority of the people prepare for full autonomy from PNG. Alfred No distribution for purposes other the author's authorized permission **Lecture 2** 1. **What is Customary Law in PNG Context?** The term customary law in PNG derives its form from the legal norms of customs of the people: "It arises from the growth of repetitive acts of the people in their communities and the recognition of the repeated acts as they happen again and again[^9^](#fn9){#fnref9.footnote-ref} whenever the occasion presents itself and such acts become common practice in the communities. People accept and use the common practices as customary rules and precedents." While the diversity of the peoples' customs vitiates any attempt at harmonization, there is growing recognition that customary legal systems are developing, largely oral in nature, and tend to promote a return to community harmony rather than retribution. The primary sources of custom are the stories, songs and ceremonies of the indigenous or local communities. In PNG and the Pacific Island countries including Solomon's Islands, Vanuatu and Fiji customary law of the indigenous people has reached a stage where it can no longer be said to be merely stored up in the unexpressed consciousness of the people. It has long since found expression in external acts, at least upon all the most important topics which concern the practical lawyer, and a remarkable feature of this people's law is that notwithstanding the heterogeneous composition of the communities which have given it birth, there is very little divergence in the leading principles which underlie it. The international law, jurisprudence of international human rights bodies, state practice and *opinio juris*, as well as national law and jurisprudence of state courts, demonstrate the important role customary law plays at the international stage and in national legal governance, and in particular its fundamental role in securing indigenous peoples' rights. **1.1.3 Historic Treatment of Custom as a Source of Law** One of the highest profile debates on customary law has taken place within the framework of international negotiations on the protection of traditional knowledge at the Convention on Biological Diversity and World Intellectual Property Organization. In both forums Indigenous peoples have consistently argued that any system for the protection of their traditional knowledge must be based upon their customary laws.[^10^](#fn10){#fnref10.footnote-ref} The current study examines the laws and legality in the context of state practices and *opinio juris* in order to demonstrate the existence or otherwise of a right of indigenous peoples to regulate their affairs in accordance with their own laws and practices. The customary international law has indeed emerged in both areas and argues that the recognition of customary law and indigenous jurisdiction is vital to the achievements of a wide range of indigenous peoples' human rights, including those related to their land, resources, culture, traditional knowledge, and self-determination. **1. States to Recognize Customary Law** Human rights law, which has been at the forefront of the process to secure recognition of customary law, has itself been transformed in the process. Changes have already been seen in shifts from a traditionally individualistic focus to one that embraces the notion of collective rights and recognizes Indigenous peoples as 'peoples' entitled to self-determination. In the past issues of indigenous peoples\' human rights and responsibilities of states to respect and recognize their legal regimes would have been confined to the national jurisdiction in which the indigenous peoples reside. In my view it would have had little relevance for foreign states and little if any impact on proceedings in a foreign jurisdiction. That is no longer the case. Indigenous peoples' rights over their land, resources, cultural expressions, wherever they are found, require respect and recognition of their customary laws. Obligations requiring consultation in good faith, free prior informed consent, and or participation by Indigenous peoples in decision-making processes, have the ability to bring customary law of Indigenous peoples into courtrooms far beyond the national jurisdiction of the countries in which they reside.[^11^](#fn11){#fnref11.footnote-ref} Customary law may prove the preferred, if not the only, system of law to which the populace can turn in their search for justice. Securing the national recognition of the peoples' rights to their customary laws has been a lengthy process in PNG. However, after Independence in 1975, there has been a slow increase in the development of customs and customary law of PNG and, this has significantly raised the profile of the peoples' human rights at the community and national level. At national level advances have come through a mixture of policies' development, court decisions and increased number of complaints based on customs going through the courts in PNG. **1.1.4 Status of Customary Law and Common Law Theory of Custom** Custom had the force of law because all laws rested on the *tacitus consensus* of the people; this must apply to unwritten law as well. Customs are long lasting which was approved by agreement of those who are used to them. The people are themselves arbiters of customs. To date customs, dominate the legal landscape of PNG; it is the law in the rural areas although it is not superior to national law. [^12^](#fn12){#fnref12.footnote-ref} As custom assumed a predominant position during the middle ages in Europe, the need for a theory of customary law and the establishment of rules for its identification became more pressing. According to Ibbetson, the Digest of Julian and the Code of Constantine, the most influential of Roman law texts, provided the key elements upon which European medieval jurisprudence crafted its theories of customary law.[^13^](#fn13){#fnref13.footnote-ref} These were: 1. Long standing-ness of its practice, 2. Flowing from the tacit agreement of the people, 3. Unwritten, 4. It may or may not prevail over a contrary *lex*, 5. It must not be contrary to reason, ratio. [^14^](#fn14){#fnref14.footnote-ref} Under the English common law, continuity is a key requirement for enforceability of custom as any interruption may be taken as a cessation of the custom. [^15^](#fn15){#fnref15.footnote-ref} According to Blackstone, an interruption of the possession only, for 10 or 20 years, will not destroy the custom. [^16^](#fn16){#fnref16.footnote-ref} However, if continuity is broken by coercion or other such pressure, this may not serve to void the custom as law. [^17^](#fn17){#fnref17.footnote-ref} Requirements for continuity have been amongst the most controversial for Indigenous peoples in PNG seeking to secure recognition of land rights following dispossession by colonial powers and settler states. For example, on Manus Island, large hectares of land were taken during the colonial days for coconut plantation. The State (PNG) has taken over the land and the plantations and the local people are seeking courts to assist to return the land back to the original landowners who were displaced over 70 years ago because of the plantations. Alfred No distribution for any purposes other the author's authorized permission **Lecture 3** **1.1.5 Nature of Indigenous Peoples' Legal Regime and Customary Law** In many countries where indigenous peoples live, their customary laws and practices are given direct and indirect recognition, which range from formal constitutional recognition to tolerance of customary practices that on the face of it run counter to national laws. For some peoples, such as the uncontacted peoples of the highlands of PNG, the West Papua in Indonesia and the Amazon [^18^](#fn18){#fnref18.footnote-ref} and other indigenous peoples living in the remote areas outside the reach of national law, custom is the only law they know. Likewise in post-conflict countries [^19^](#fn19){#fnref19.footnote-ref}, failing states [^20^](#fn20){#fnref20.footnote-ref}, and states with no formal functioning government or judicial system [^21^](#fn21){#fnref21.footnote-ref}, customary law may prove the preferred, if not the only, system of law to which the populace can turn in their search for justice.[^22^](#fn22){#fnref22.footnote-ref} The indigenous peoples' world view or Cosmo-vision and their distinct epistemologies underlie systems of law, custom and tradition rooted in land, spirituality and culture. A study by the Australian Law Reform Commission of Western Australia on Recognition of Aboriginal Customary Law cites one Aboriginal respondent as saying that Aboriginal law connected people with their ancestral spirits, the land, the sea and the universe, and their responsibility to the maintenance of this order.[^23^](#fn23){#fnref23.footnote-ref} A group in Manus Province in PNG that consists of 32 villages are followers of the 'Makasol' (Manus Kansol) organization that was formed in the 1940. They still exist today and practice their custom and tradition which are rooted in land, spirituality and culture. [^24^](#fn24){#fnref24.footnote-ref} Like the Australian Aborigines the Makasol believe in the ancestral past, their land, sea and universe. The infusion of law with spirituality is a consequence of indigenous Cosmo-vision which sees the natural world as 'sacred'; it is in essence a divine legal tradition[^25^](#fn25){#fnref25.footnote-ref}. This sense of nature is captured graphically in the message to the West from Mamas, a consecrated group of the Kogi people of the Columbian Sierra Nevada, who in the 1990's broke their self-imposed seclusion from the outside world to send a warning of the dire consequences for humankind of continuing environmental destructions. In their words, referring to the sanctity of Mother Earth, they sent the message that: a son does not rape his mother. [^26^](#fn26){#fnref26.footnote-ref} **1. Characteristics of Customary Law and Sources of Customary Law** Customary law emerges from what people do, or more accurately from what people believe they ought to do, rather than from what a class of legal specialists consider they should do or believe.[^27^](#fn27){#fnref27.footnote-ref} For Bennett this characteristic of custom as a fact, i.e. what people would do and how it is transformed into a norm, that is, what people 'ought' to do, is an enigmatic process that has never been fully understood. [^28^](#fn28){#fnref28.footnote-ref} For Hamnett one of the principal characteristics of customary law is its focus not on '... what does this judge say?' but rather 'what do the participants in the law regard as the rights and duties that apply to them?[^29^](#fn29){#fnref29.footnote-ref} Hamnett stresses the distinction between customary law and practices, saying, 'people recognize in normative law a moral authority, a legitimacy, that they do not accord to practice or usage as a whole. I concur and say that while the diversity of indigenous peoples' legal regimes vitiates against any attempt at harmonisation or strict definition, there is a growing recognition that customary legal systems are dynamic, largely oral in nature and tend to promote a return to community harmony rather than retribution. Being informal and primarily oral customary law is not 'overly preoccupied with voluminous details' needing to be easily memorable. [^30^](#fn30){#fnref30.footnote-ref} I am contending on the basis that in PNG people in the rural villages remember well their customs and beliefs than the written laws and are bound to break the state laws. Customs and traditions are easily remembered because there is no reading or writing involved in memorising them. For Burrows the primary sources of custom are the stories, songs and ceremonies of indigenous peoples, and as he puts it, custom: "Originates in the political, economic, spiritual and social values expressed through the teachings and behaviour of knowledgeable and respected individuals and elders. These principles are enunciated in the rich stories, ceremonies, and traditions within First Nations. Stories express the law in Aboriginal communities, since they represent the accumulated wisdom and experience of First Nations resolution." [^31^](#fn31){#fnref31.footnote-ref} By way of example, Burrows recounts how the Navajo courts in Re Certified Question 11: Navajo Nation v McDonald, "Applied the story of the 'Twin Heroes' which, he says, embodied the 'Navajo traditional concept of fiduciary trust of a leader to ascertain whether their tribal chairman had a fiduciary obligation to the nation."[^32^](#fn32){#fnref32.footnote-ref} Bennett quotes from the court's judgement where it applied the story.[^33^](#fn33){#fnref33.footnote-ref} Based on its reading of customary law as encapsulated in the story of the Two Heroes, the Navajo court held that, "The Navajo Tribal Council can place a chairman or vice Chairman on administrative leave if they have reasonable grounds to believe that the official seriously breached his fiduciary trust to the Navajo people." [^34^](#fn34){#fnref34.footnote-ref} The law is found in the stories of indigenous peoples, and an ability to interpret their symbolism and imagery is crucial for the correct application of the law. In PNG for the purpose of maintaining continuity of the family, clan and tribe, young people are taught the traditional methods to live their lives in their local settings, they must learn the stories of their families, clan and how their tribe operates on land, rivers and they must provide security to the land boundaries, water and sea. The normative quality of the law rests in the principles it enshrines and not in any specific rules. This marks a contrast with positive law, which eschews the notion that law is anything other than fact based.[^35^](#fn35){#fnref35.footnote-ref} One view then of customary law would be of a body of principles amenable to interpretation according to the contemporaneous moral, ethical and equity based standards of the relevant society. These principles may be applied and modified by Indigenous peoples over time. Principles taken from stories and other sources of customary law may be applied in any specific case without changing the principle, preserving flexibility while maintaining continuity over time. Young people especially the male person should exercise the role to be a family elder. The notion of custom as principle-based is a legal concept easily recognisable by PNG law. i. **In search of Customary Law** There are two central issues that dominate the issue of recognition of custom. First of these is how to identify customary law from mere habitual customs and the second is the conformity of customary law with the notion of natural justice and moral values of the dominant regime, the so-called 'repugnancy rule'. Turning to the former issue, Zorn and Corrin Care outline two diametrically opposed views. [^36^](#fn36){#fnref36.footnote-ref} "The first requires parties to prove customary law as any other matter of fact by calling evidence, which may, they say, be a costly affair, involving complicated rules of evidence and adversarial processes foreign to indigenous peoples. The opposing view is that custom is a question of law, and therefore can be found by the court without requiring the production of evidence as to its existence." [^37^](#fn37){#fnref37.footnote-ref} The Privy Council in Angu v Attah[^38^](#fn38){#fnref38.footnote-ref} set down the relationship between these two forms of proof, where the court states, "As is the case with all customary law, it has to be proved in the first instance by calling witnesses acquainted with the native customs until the particular customs have by frequent proof in the courts become so notorious that the courts will take judicial notice of them." [^39^](#fn39){#fnref39.footnote-ref} ii. **Repugnancy Rule** Determinations on the issue of repugnancy posed a constant dilemma for the judiciary who have to strike a nice balance between what is reasonably tolerable and what is essentially below the minimum standard of civilized values in the contemporary world. Elias[^40^](#fn40){#fnref40.footnote-ref} viewed the application of the repugnancy rule and the public policy rule as: "Reflecting an inherent failure of the British legal system, its incapacity to look both ways in order to provide an equitable balance between custom and colonial law." [^41^](#fn41){#fnref41.footnote-ref} The scope and focus of the repugnancy rule is discernible in a number of judgements chosen by Leslie from cases in what was Rhodesia.[^42^](#fn42){#fnref42.footnote-ref} Sheleff [^43^](#fn43){#fnref43.footnote-ref} finds much favor in the work of Leslie who drew analogies between the 'widely accepted legal principle of public policy' and 'repugnancy rule'. "From this perspective a court could 'depart from a rule of customary law, not because the rule itself is repugnant to natural justice or morality, but because its enforcement in the particular circumstances of the case then before it would have results considered by the court to be repugnant to natural justice or morality." [^44^](#fn44){#fnref44.footnote-ref} Following decolonization, the notion of repugnancy was considered incompatible with respect for customary law. Rejection of the common law notion of 'repugnancy' does not, however, equate with acceptance of customary law *in toto*. In place of 'repugnancy' there are now a wide range of measures by which custom may be held inapplicable. [^45^](#fn45){#fnref45.footnote-ref},[^46^](#fn46){#fnref46.footnote-ref} In PNG, at the national level customs' applicability has been made conditional upon compatibility with constitutional law, and written national law. There are few customary practices which have crystallized in judicial decisions of the Supreme Court and the National Court.[^47^](#fn47){#fnref47.footnote-ref} iii. **Codifications of Customs** Once custom is codified or settled by judicial decisions, it's binding on the people. In other words, in cases where custom is alleged, a duty is also imposed upon the Court to endeavor to ascertain the existence and the nature of that custom. [^48^](#fn48){#fnref48.footnote-ref} That particular piece of custom, once declared and or applied by the Court, becomes law[^49^](#fn49){#fnref49.footnote-ref} and is no longer custom. Sinha warns that codification would amount to stopping growth of customs and customary rights of future generations. [^50^](#fn50){#fnref50.footnote-ref} In addition, courts may also arrive at different interpretations of the customary rights once they are codified, by following strict rules of construction or functional interpretation'. For example, in PNG the quasi-judicial Land Titles Commission has jurisdiction to determine ownership of land by native custom. The commission dealt with the land belonging to the traditional land owners of Tatana people, a Motuan community in the National Capital District. The land was not a waste and vacant land but was occupied, cultivated, used and owned by the natives of Tatana village; hence the occupation by the State or respondent was unlawful. Following determination on appeal the Court ordered damages or compensation for the Plaintiff or appellant for against the respondent for wrongful occupation and trespass on the island since 1889. [^51^](#fn51){#fnref51.footnote-ref} My express view to both parties, particularly the plaintiff is that any documentation of customary law will need to be approached with care, avoiding the establishment of rules that impose an inflexible stricture on the 'living law' of indigenous peoples. It will also need to avoid presenting a target for governmental extinguishment. As pressures to codify customary law increase, indigenous peoples will need to be increasingly judicious about what (if anything) to codify. Alfred No distribution for any purposes other the author's authorized permission **Lecture 4 (...continues from Lecture 3)** **1.1.6 International Recognition of Customary Law** The rights of the indigenous peoples to their customary law have been recognized under the international law as having both an internal and external aspect. On the one hand, states are obliged to recognize indigenous peoples' rights to govern their own affairs in accordance with their own laws. While at the national level states are obliged to consult with Indigenous peoples regarding the development of laws, policies and programs which affect them. [^52^](#fn52){#fnref52.footnote-ref} These rights have been clearly set out in ILO Convention 169 which recognizes indigenous and tribal peoples' rights to the full measure of human rights and fundamental freedoms without hindrance or discrimination.[^53^](#fn53){#fnref53.footnote-ref} The convention also requires that in applying national laws and regulations to indigenous peoples' rights to their own customs and institutions. [^54^](#fn54){#fnref54.footnote-ref} Indigenous peoples' rights to their own customs and institutions are specifically limited under the convention where they are 'incompatible with fundamental rights defined in national laws or internationally recognized human rights. The binding nature of the obligations under the Convention means that countries party to it will need to ensure that national laws are developed with due regard to the customs and customary laws of relevant indigenous and tribal peoples. [^55^](#fn55){#fnref55.footnote-ref} Further the United Nations Declaration on the Rights of Indigenous Peoples gives specific recognition to indigenous peoples' rights to self-determination,[^56^](#fn56){#fnref56.footnote-ref} including rights of autonomy or self-government in matters of economic, social and cultural development. [^57^](#fn57){#fnref57.footnote-ref} It requires states to give legal recognition and protection to indigenous people's rights over their traditional lands, territories and resources. [^58^](#fn58){#fnref58.footnote-ref} This is to be done with due respect for their customs, traditions and land tenure systems. [^59^](#fn59){#fnref59.footnote-ref} **1.1.7 Constitutional Recognition of Customary Law** In a comprehensive study of national constitutions from 185 countries, Katrina Cuskelly found that in 112 countries they have provisions relevant to recognition of customary law.[^60^](#fn60){#fnref60.footnote-ref} Forms of recognition include definition of the customary law; establishment of procedures for proof of customary law; recognition of customary law as forming part of the national law; recognition of traditional authorities and traditional practices for their establishment and or election. Recognition of customary law is frequently qualified by provisions limiting its applicability where it conflicts with the constitution[^61^](#fn61){#fnref61.footnote-ref}, national law[^62^](#fn62){#fnref62.footnote-ref} and regulations[^63^](#fn63){#fnref63.footnote-ref}, human rights[^64^](#fn64){#fnref64.footnote-ref}, in particular women's rights[^65^](#fn65){#fnref65.footnote-ref}, public order and morals[^66^](#fn66){#fnref66.footnote-ref}, fundamental rights of the persons or where repugnant to natural justice. A number of the constitutions limit recognition of customary law to those customs and or usages, which have the 'force of law' in their respective territories. The question as to whether a custom has the 'force of law' may be variously interpreted depending upon whether it is the community, the courts or the legislature, which has the power to identify when a custom becomes law. Determining just when a custom acquires the 'force of law' is of much importance for its wider recognition and application. [^67^](#fn67){#fnref67.footnote-ref} This in turn is linked to the question of proof of customary law. **1. What is Customary Law today?** Article 3 of the United Nations Declaration on the Rights of Indigenous Peoples recognizes their right of self-determination confirming what other commentators had already surmised, that indigenous peoples' right of self-determination had already become a principle of customary international law. [^68^](#fn68){#fnref68.footnote-ref} Although not legally binding of itself the Declaration's long period of gestation, the numerous statements of states regarding their understanding of indigenous peoples' rights and the almost global acceptance of its provisions, means that it is widely seen as reflecting the status of customary international law. [^69^](#fn69){#fnref69.footnote-ref} It has already been relied upon by international treaty bodies[^70^](#fn70){#fnref70.footnote-ref}, as well as by national courts and regional human rights organizations. i. **Sovereignty and Self-Governance** Relevant to self-determination are international customary norms of indigenous land rights and cultural integrity. The existence of such customary international norms suggests the existence of complimentary customary international law norms recognizing the rights of indigenous people to their customary laws and institutions, and requiring states to recognize and respect indigenous peoples' customary laws in order to secure their human rights. Although the indigenous peoples' rights to self-determination are affirmed, the question that arises is, just what does this right entail? In 1975 the autochthonous Constitution of the country declared the adoption, application and enforcement of the customs of the indigenes as part of the 'underlying law'. The term, first used in the Constitution, refers to the rules and principles latent in customs which the courts, especially the Supreme Court and the National Court, have to elicit from custom, declare and apply where there is no rule of law applicable to the matter then before the courts. Such rules and principles derived from custom constitute the underlying law and is recognized by the Constitution as one of the country's laws. However, there are two significant restrictions, the custom must be consistent with the constitution and other written law of the state and not be repugnant to the general principles of humanity. ::: {.section.footnotes} ------------------------------------------------------------------------ 1. ::: {#fn1} Smelcer JD. Using International Law More Effectively to Secure and Advance Indigenous Peoples Rights': Towards Enforcement in US and Australian Domestic Courts. *Pacific Rim Law & Policy Journal* 15(1) (2006) -- 330 at 304[↩](#fnref1){.footnote-back} ::: 2. ::: {#fn2} Constitution, section 117, GovPNG (1975).[↩](#fnref2){.footnote-back} ::: 3. ::: {#fn3} Anaya James. Indigenous Peoples in International Law (Second edn. New York: Oxford University Press, 2004), at 61[↩](#fnref3){.footnote-back} ::: 4. ::: {#fn4} Perry Robin (2011). Balancing Rights or Building Rights? Reconciling the Right to Use Customary Systems of Law with Competing Human Rights in Pursuit of Indigenous Sovereignty, *Harvard Human Rights Journal*, 24.[↩](#fnref4){.footnote-back} ::: 5. ::: {#fn5} Ian Hamnett (1975). Chieftainship and Legitimacy (London: Routledge & Kegan Paul)[↩](#fnref5){.footnote-back} ::: 6. ::: {#fn6} Katrina Cuskelly. Customs and Constitutions: State Recognition of Customary Law Around the World (Gland: IUCN, 2012)[↩](#fnref6){.footnote-back} ::: 7. ::: {#fn7} *AIPPI Conference, Rio de Janiero, Brazil, May 28, 1998. This conference was the 37th World Congress of the International Association for the Protection of Industrial Property.*[↩](#fnref7){.footnote-back} ::: 8. ::: {#fn8} Owen Jessep. The Elusive Role of Custom in the Underlying Law of Papua New Guinea (1981). *MLJ* 1: (1998-99) 26 MLJ 1 (1January 1998)[↩](#fnref8){.footnote-back} ::: 9. ::: {#fn9} Ibid, see notes 760 supra.[↩](#fnref9){.footnote-back} ::: 10. ::: {#fn10} Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity, (thereafter Nagoya Protocol. Article 12 (1)) Nagoya Protocol, October 2010.[↩](#fnref10){.footnote-back} ::: 11. ::: {#fn11} There are estimated 8 million people in PNG and the majority are indigenous peoples with around 800 different languages. In most areas of PNG particularly where indigenous peoples reside their customary laws and practices are given direct or indirect recognition which may range from formal constitutional recognition to tolerance of customary practices that on the face of it run counter to national law. In some pockets of the population in PNG, people are living outside the reach of national law, customs are the only law they know.[↩](#fnref11){.footnote-back} ::: 12. ::: {#fn12} Minei, A. P., Arafia, R. A., Roldan, R. R. J., and Kaipu, S. O. 2019. The Landscape of the Legal Aspects of Informed Consent for Medical Treatment in Papua New Guinea. *Journal of Health Science* 7: 337-49. doi:10.17265/2328-7136/2019.06.002.[↩](#fnref12){.footnote-back} ::: 13. ::: {#fn13} David Ibbetson. (2007). Custom in Medieval Law, in Amanda Perreau-Saussine and James Bernard Murphy (eds). The Nature of Customary Law: Legal, Historical and Philosophical Perspectives, (Cambridge: Cambridge University Press), 151-74, at 152[↩](#fnref13){.footnote-back} ::: 14. ::: {#fn14} Ibid, see notes 13 supra.[↩](#fnref14){.footnote-back} ::: 15. ::: {#fn15} Ibid, see notes 13 supra.[↩](#fnref15){.footnote-back} ::: 16. ::: {#fn16} Blackstone William, Commentaries on the Laws of England, 4 vols. (Original printing Clarendon Press, Oxford, 1759) Vol 1, at 67.[↩](#fnref16){.footnote-back} ::: 17. ::: {#fn17} Callies David (2005). 'How Custom Becomes Law in England', in Orebech et al. (eds), The Role of Customary Law in Sustainable Development.[↩](#fnref17){.footnote-back} ::: 18. ::: {#fn18} An estimated one hundred uncontacted peoples are believed to exist in the Amazonian region, many in danger of extinction. UNEP/Convention on Biological Diversity/WG8J/3/JNF/1, at 38[↩](#fnref18){.footnote-back} ::: 19. ::: {#fn19} See, ICHRP. When Legal Worlds Overlap: Human Rights, State and Non-State Law, (Versoix, Switzerland, International Council on Human Rights Policy: 2009).[↩](#fnref19){.footnote-back} ::: 20. ::: {#fn20} Martin Chanock. Customary Law, Sustainable Development and the Failing State, in Orebech et al. (eds.). The Role of Customary Law in Sustainable Develoment, 338-83.[↩](#fnref20){.footnote-back} ::: 21. ::: {#fn21} Michael van Notten. The Law of the Somalis: A Stable Foundation for Economic Development in the Horn of Africa, edited by Spencer Health MacCullum, (Asmara, Eritrea: The Red Sea Press, 2005).[↩](#fnref21){.footnote-back} ::: 22. ::: {#fn22} See generally Janine Ubink and Benjamin van Rooij. Towards Customary Legal Empowerment: An Introduction, in Janine Ubink (ed.) Customary Justice: Perspectives on Legal Empowerment, (Rome, International Development Law Organization (IDLO), 2011)[↩](#fnref22){.footnote-back} ::: 23. ::: {#fn23} Law Reform Commission of Western Australia. 'Aboriginal Customary Laws: Final Report: The Interaction of Western Australian Law with Aboriginal Law and Culture'. (Law Reform Commission of Western Australia, 2006) at 64, citing LRCWA, Project No. 94. Thematic Summaries of Consultations -- Manguri (4 November 2002), at 3[↩](#fnref23){.footnote-back} ::: 24. ::: {#fn24} *Personal communication* with the Chief Late Lucas Gabriel Kuwoh of the Makasol Group in Lorengau, Manus PNG. 10 February 2019.[↩](#fnref24){.footnote-back} ::: 25. ::: {#fn25} Glen H Patrick (2000). Legal Traditions of the World (Oxford: Oxford University Press).[↩](#fnref25){.footnote-back} ::: 26. ::: {#fn26} Yazzie, The Hon. Robert (1994). 'Life comes from It': Navajo Justice Concepts', New Mexico Law Review, 24, at 175[↩](#fnref26){.footnote-back} ::: 27. ::: {#fn27} Ian Hamnett, Chieftainship and Legitimacy (London: Routledge & Kegan Paul, 1975).[↩](#fnref27){.footnote-back} ::: 28. ::: {#fn28} Bennett TW. A Sourcebook of African Customary Law for Southern Africa (Cape Town, Wetton, Johannesburg: Juta & Co, Ltd 1991), at 6.[↩](#fnref28){.footnote-back} ::: 29. ::: {#fn29} Ian Hamnett, Chieftainship and Legitimacy (London: Routledge & Kegan Paul, 1975).[↩](#fnref29){.footnote-back} ::: 30. ::: {#fn30} Patrick H G. Legal Traditions of the World (Oxford: Oxford University Press, 2000), at 58[↩](#fnref30){.footnote-back} ::: 31. ::: {#fn31} Burrows John. Recovering Canada: The Resurgence of Indigenous Law (Toroto: University of Toroto Press, 2002), at 13[↩](#fnref31){.footnote-back} ::: 32. ::: {#fn32} Ibid, see notes 787 supra.[↩](#fnref32){.footnote-back} ::: 33. ::: {#fn33} In Re Certified Question II: Navajo Nation v McDonald 16 ILR 6086 (1989), cited in John Burrows, Recovering Canada: *The Resurgence of Indigenous Law*, at 13-14.[↩](#fnref33){.footnote-back} ::: 34. ::: {#fn34} Navajo Nation v McDonald 16 ILR 6086. (1989).[↩](#fnref34){.footnote-back} ::: 35. ::: {#fn35} See in Re Certified Question II: Navajo Nation v McDonald 16 ILR 6086 (1989), notes 789 supra.[↩](#fnref35){.footnote-back} ::: 36. ::: {#fn36} Jen Zorn, and Jennifer Corrin Care. 'Barava Tru -- Judicial Approaches to the Pleading and Proof of Custom in the South Pacific. *International Comparative Law Quarterly* 51/3 (2002), 611-39.[↩](#fnref36){.footnote-back} ::: 37. ::: {#fn37} See Jen Zorn, and Jennifer Corrin Care. (2002). *International Comparative Law Quarterly* 51/3 (2002), 611-39.[↩](#fnref37){.footnote-back} ::: 38. ::: {#fn38} Angu v Attah (1916) (Privy Council) Reports, 1874-1928, 43[↩](#fnref38){.footnote-back} ::: 39. ::: {#fn39} Ibid, at 44 cited in Hannigan. Native Custom: Its Similarity to English Conventional Custom and Its Mode of Proof, at 101.[↩](#fnref39){.footnote-back} ::: 40. ::: {#fn40} Taslim Olawale Elias. British Colonial Law: A Comparative Study of the Interaction between English and Local Laws in British Dependencies, at 104 in: Tobin, BM. Why Customary Law Matters: The Role of Customary Law in the Protection of Indigenous Peoples' Human Rights'. National University of Ireland, 2011.[↩](#fnref40){.footnote-back} ::: 41. ::: {#fn41} Taslim Olawale Elias. (2011), see notes 807 supra.[↩](#fnref41){.footnote-back} ::: 42. ::: {#fn42} Robert Leslie. The Repugnancy Rule in African Law and the Public Policy Rule in Conflict of Laws, *Acta Juridica*, (1977)[↩](#fnref42){.footnote-back} ::: 43. ::: {#fn43} Sheleff Leon (1999). The Future of Tradition: Customary Law, Common Law and Legal Pluralism (London and New York: Routledge).[↩](#fnref43){.footnote-back} ::: 44. ::: {#fn44} Robert Leslie (1977), see notes 801 supra.[↩](#fnref44){.footnote-back} ::: 45. ::: {#fn45} Constitution of Rwanda 2003, Article 149[↩](#fnref45){.footnote-back} ::: 46. ::: {#fn46} Constitution of Namibia 1990 Art 66, Solomon Islands 1978, sch.3 S.3 (1) and (2), and regulations and human rights, public order and morals, fundamental rights of the person, and natural justice (see Constitution of Swaziland 2005, Section 252[↩](#fnref46){.footnote-back} ::: 47. ::: {#fn47} Resena, Gaigo and Oala v The State (1991) PNGLR 174 at 178[↩](#fnref47){.footnote-back} ::: 48. ::: {#fn48} Alfred P. Minei; Sam O. Kaipu. The Duty of States to Give Sufficient Recognition to the Right to Health. *Psychology Research*, October 2021, Vol. 11, No. 10, 429-440 doi:10.17265/2159-5542/2021.10.002[↩](#fnref48){.footnote-back} ::: 49. ::: {#fn49} Minei AP. 2022. Indigenous Customary Law in Context. *US-China Law Review*, January 2022, Vol. 19, No. 1, 1-23 doi:10.17265/1548-6605/2022.01.001.[↩](#fnref49){.footnote-back} ::: 50. ::: {#fn50} N Sinha. Is Codification of Customary Law Desirable? In Tobin B. Why Customary Law Matters: The Role of Customary Law in the Protection of Indigenous Peoples' Human Rights. National University of Ireland, September 2011[↩](#fnref50){.footnote-back} ::: 51. ::: {#fn51} Resena, Gaigo and Oala v The State (1991) PNGLR 174 at 178[↩](#fnref51){.footnote-back} ::: 52. ::: {#fn52} Alfred P. Minei; Sam O. Kaipu. (2021), see notes 49 supra.[↩](#fnref52){.footnote-back} ::: 53. ::: {#fn53} ILO Convention 169, Article 3[↩](#fnref53){.footnote-back} ::: 54. ::: {#fn54} Ibid. Article 4[↩](#fnref54){.footnote-back} ::: 55. ::: {#fn55} Minei AP. 2022. Indigenous Customary Law in Context. *US-China Law Review*, January 2022, Vol. 19, No. 1, 1-23 doi:10.17265/1548-6605/2022.01.001.[↩](#fnref55){.footnote-back} ::: 56. ::: {#fn56} Ibid. Article 6[↩](#fnref56){.footnote-back} ::: 57. ::: {#fn57} Ibid. Article 7[↩](#fnref57){.footnote-back} ::: 58. ::: {#fn58} See Article 8, supra notes[↩](#fnref58){.footnote-back} ::: 59. ::: {#fn59} Ibid.[↩](#fnref59){.footnote-back} ::: 60. ::: {#fn60} Katrina Cuskelly. Customs and Constitutions: State Recognition of customary law around the world: In Tobin Bredan Michael. Why Customary Law Matters: The Role of Customary Law in the Protection of Indigenous Peoples' Human Rights'. PhD Thesis. National University of Ireland Galway.[↩](#fnref60){.footnote-back} ::: 61. ::: {#fn61} Constitution of Malawi 1994, section 200; Uganda 1995, Art 2(2); Bolivia 2009[↩](#fnref61){.footnote-back} ::: 62. ::: {#fn62} Constitution of Namibia 1990, Art 66; Solomon Islands 1978, Schedule 3 Section 3 (1) & (2); Columbia 1991, Article 246[↩](#fnref62){.footnote-back} ::: 63. ::: {#fn63} See Constitution of Rwanda 2003, Article 201[↩](#fnref63){.footnote-back} ::: 64. ::: {#fn64} Ibid.[↩](#fnref64){.footnote-back} ::: 65. ::: {#fn65} See Constitution of Ethiopia 1994, Article 35 (4) which provides that Customs and practices that oppress or cause harm to women are prohited and Malawi 1994, Section 24 (2) which provides that legislation shall be passed to eliminate customs and practices against women[↩](#fnref65){.footnote-back} ::: 66. ::: {#fn66} Ibid.[↩](#fnref66){.footnote-back} ::: 67. ::: {#fn67} Alfred P. Minei; Sam O. Kaipu. The Duty of States to Give Sufficient Recognition to the Right to Health. *Psychology Research*, October 2021, Vol. 11, No. 10, 429-440 doi:10.17265/2159-5542/2021.10.002[↩](#fnref67){.footnote-back} ::: 68. ::: {#fn68} Anaya James. 2004. Indigenous Peoples in International Law, 2^nd^ edn; New York: Oxford University Press, at 112.[↩](#fnref68){.footnote-back} ::: 69. ::: {#fn69} Elsa Stamatopoulou. Taking Cultural Rights Seriously, in Steven Allen and Alexander Xanthaki (eds)., Reflections on the UN Declaration on the Rights of Indiegnous Peoples (Studies in International Law; Oxford: Hart Publishing Ltd, 2010), 387-412.[↩](#fnref69){.footnote-back} ::: 70. ::: {#fn70} Ibid, see notes 70 supra.[↩](#fnref70){.footnote-back} ::: :::