Paper short abstract:

This paper discusses the different historical mechanisms that have been developed for recording customary law – codifications, restatements and case law systems – as well as the innovative approach of self-recording customary law undertaken by the Uukwambi Traditional Authority in northern Namibia.

Paper long abstract:

A recurrent theme in governments' attempts to navigate the plural legal orders found within their borders is their unease with the unwritten nature of customary law and the quest for some kind of formalization or recording of customary law. This same problem is haunting legal reform practitioners who have recently discovered the importance of customary legal systems for the poor majority's access to justice and legal empowerment. This paper starts with a discussion of the different historical mechanisms that have been developed for recording customary law: codifications, restatements and case law systems. Their most important weaknesses are the loss of adaptive capacity as well as the resulting gap between the recorded version and the living customary law. This paper then discusses the innovative approach to recording customary law that can be witnessed in certain areas through self-recording by customary groups or their traditional leaders. It will focus on the case of Uukwambi Traditional Authority in northern Namibia. This paper discusses how it was the complementarity of efforts at national, regional (Owambo Traditional Authorities) and local level, that led to a process of self-recording of Uukwambi customary laws, in alignment with Namibia's Constitution. This paper will analyze the process, the timing and the main change agents behind this transformation of customary law as well as the impact of the self-recording on the functioning of the Uukwambi justice system.

Paper short abstract:

State-recognition of local and religious laws offers a flexible normative frame that may contribute to ‘harmonizing society’. How could the ‘space’ in which normative perceptions overlap be institutionally shaped and what effects does the de jure legal pluralism have on the normative orders?

Paper long abstract:

State-recognition or incorporation of local and religious legal orders into an overarching state judicial structure may be described as challenging processes of conflict and accommodation between 'state identity' and self-regulation claims of social groups. A state-recognized legal pluralism offers a normative frame that may contribute to 'harmonizing' society through participation and continuous negotiations of the involved social actors. The question arises how the 'space' in which religious, local and state normative perceptions overlap could be institutionally shaped.

The paper examines how the pluralistic legal realities of Ethiopia and South Sudan are translated into constitutional frameworks, in particular in pluralistic judicial bodies. How does the state acknowledge diverse local legal institutions and represents itself ideologically and organizationally in relation to them? What effects do the de jure legal pluralist arrangements have on the normative orders?

It will be shown that a constitutional recognition of religious and local law may grant space and forum for continuous negotiation processes between various actors. However, ambitions of state actors to maintain "national unity" or internal cohesion merely by formal recognition of legal plurality appear to be misleading. Who and how the 'spaces' are utilized depends essentially on existing power relations. In order to identify mutual values in light of and respect for the different moral beliefs, the various actors need to make not only situational concessions as precondition.

Paper short abstract:

Based on a case study of the communal land claim on “Kafferskraal” and 16 surrounding farms in Limpopo, this paper investigates how the state conceptually and practically processes the paradox of having to navigate plural legal orders in order to ultimately implement its own law.

Paper long abstract:

South African land restitution redresses past race-based land dispossessions, which went hand in hand with massive relocations of Africans to so-called "homelands" under the codified "customary rule" of state-recognised "tribal authorities". While current restitution law clearly emphasises individual rights of citizens even in communal land claims, in which the restored land must be held by a democratically constituted legal body, those state officials tasked with the actual implementation of these regulations face great problems. In many rural areas, these "bush-level bureaucrats" are confronted with powerful structures of "customary law" and chiefly rule that persist as complex assemblages of older apartheid-codified "customary law", the "living customary law" and new attempts at constitutional and statutory regulations regarding "customs" and chiefs. Especially recent statutory trends towards a re-empowerment of traditional leaders further complicate the task of bush-level bureaucrats to implement seemingly straightforward court orders/settlement agreements in land restitution that get increasingly ambiguous when travelling to their target places. Based on a case study of the communal land claim on "Kafferskraal" and 16 surrounding farms in Limpopo, this paper thus investigates how the state conceptually and practically processes the paradox of having to navigate plural legal orders in order to ultimately implement its own.

Paper short abstract:

In the following paper, I examine six case studies to build a theory that explains when and how states choose to interact with non-state legal systems. I argue that varying levels of institutionalization and the outcomes of bargaining processes account for differences in state policy.

Paper long abstract:

When do states permit ethnic and religious groups to have their own courts and legal systems? Theoretically, we expect that states should seek to monopolize their coercive power and thus oppose potentially sovereignty-challenging devolutions of authority where state functions are delegated to sometimes-oppositional minority groups. Yet several states in Latin America have recently granted indigenous groups full control over their own courts, various African countries are considering the idea of giving traditional authorities the power of community adjudication, and European countries are debating whether and when Sharia law may govern family law matters in their Muslim communities. Are states experimenting with new ways to manage ethnic conflict, or have the civil societies in these states gained sufficient strength to successfully make these demands of the state?

In the following paper, I examine six case studies to build a theory that explains when and how states choose to interact with non-state legal systems. I argue that where non-state adjudication mechanisms are particularly embedded and institutionalized, the state is more likely to recognize their authority and perhaps even enforce their decisions. Additionally, varying levels of recognition are the result of bargaining processes between political elites within ethnic and religious groups and the state, in which elites exchange support for parties or political coalitions in return for certain measures of group autonomy, such as the right to adjudicate their own disputes.

Paper short abstract:

International law requires recognition of indigenous peoples customary law in traditional knowledge governance. This paper examines the challenges and opportunities for securing such recognition and the role intellectual property may play in promoting compliance and indigenous self-determination.

Paper long abstract:

The Nagoya Protocol adopted in 2010 requires states to ensure that access to and use of traditional knowledge of indigenous peoples (ILCs) is subject to their prior informed consent (PIC). It also obliges states to give recognition to their customary laws and protocols. However it lacks a compliance mechanism. The result is weak implementation and continuing opportunities for biopiracy. This paper examines how draft EU legislation to implement the Protocol sidesteps obligations regarding PIC and customary law, legitimizing biopiracy and the denial of Indigenous peoples human rights. It goes on to discuss a European Parliament resolution of January 2013 that calls for early implementation of the Protocol in a manner that fully secures indigenous rights. It explores the challenges arising for recognition of customary law and the manner in which it may work together with intellectual property to provide a culturally appropriate and legally robust system for governance of indigenous traditional knowledge rights. It argues that all major commercial/research activities, with a potential to impact on indigenous rights, will in the future need to ensure compliance with relevant customary laws. It finds state reluctance to adopt measures to facilitate monitoring of compliance with customary law shortsighted and likely to lead to increased litigation and challenges before human rights bodies. In conclusion, it argues that good global governance must rest on a body of intercultural legal pluralism and draws attention to going negotiations on genetic resources and traditional knowledge at WIPO as the best opportunity to close the Nagoya compliance gap.