Is Legal Pluralism an Obstacle to Human Rights? Considerations from the South Pacific

Abstract

The island countries of the Pacific region offer a number of contemporary examples of legal pluralism. This article focuses on two such countries, Tuvalu and Vanuatu. As many countries of the region Tuvalu and Vanuatu came under the influence of colonial authorities. They also had and today retain, customary law. Post-independence, as developing countries they aspire to take their place in the international arena. Their constitutions reflect their history and their goals. Included among these are the recognition and observance of human rights. With reference to examples of case-law from both countries this article suggests that the continuing legal pluralism of their legal systems may itself be an obstacle to human rights and considers various reasons for this. Underpinning the plurality of laws is a plurality of values. The availability of different legal processes in a plural legal system may undermine the fundamental notion of equality before the law. The burden of proof and rules of evidence for establishing custom are not as rigorous as those applied in cases involving introduced law. The applicability of human rights provisions, if limited to vertical effect, may be doubtful in cases where it is uncertain whether traditional leaders involved in rule making, law enforcement, and dispute resolution are acting in a public capacity. Finally, custom is by definition retrospective, whereas the fundamental rights provisions in the Constitutions and international instruments are prospective, and the evidence suggests that custom will not necessarily decline and provide fewer answers as Pacific island countries develop.

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