Customary International Law

In early society, two types of systems were used to classify the members of the community – ‘primitive’ and ‘civilised’, segregating the two from each other to change and reproduce an entirely new social organisation and establish different social or cultural fields as a means of eradicating pluralism. Although, Western colonisers at the time may not have applied these terms with pejorative intent, they do involve evolutionary expectations. This essay will address the negative ramifications forced upon Indigenous communities by sticking to an Australian context and establishing the importance of allowing them to revitalise and restore their cultural practises. I will seek to place the creation of ‘customary law’ in a clearer hypothetical outline which will enable me to explain its amplification. I will draw examples from my fieldwork at the Melbourne Museum to cement the links of the implications concerning the general conception of such laws. As a result of this discussion, I will form the contention that Western-centric laws cannot be completely inserted and re-applied to another culture’s lifestyle without the notice of prejudicial undertones.

Continuous damage to the environment will threaten the ecological relationships indigenous communities have practised for thousands of years. Eighty percent of all biodiversity in this world is dependent on the twenty-two percent of worldwide terrains that is considered home to indigenous peoples (United Nations Development Programme 2011, p. 54). Similar forces that jeopardise biodiversity also jeopardise the ancient relationships indigenous people have with their homelands and the health and security of their societies (Corntassel and Bryce, 2012). Such colonial encroachment onto their homelands means that being indigenous in contemporary society requires an encounter in fights to retrieve and restore one’s interpersonal, place-based reality by rebelling against the continuous, harmful powers of colonisation (Corntassel, 2003).

Following from Corntassel’s (2003) observations, my fieldwork at the Melbourne Museum further enhances his position. As one enters into the Indigenous memorandum section of the museum, they are instantly immersed into a dark-lit room, creating an intimate atmosphere. In a much more bolded and larger font, Wominjeka is written across a wall, and the English translation of welcome is placed under it in a smaller font. This stresses the importance of Aboriginal history and the need for Australians to value and understand the customs and ways of life that has existed in the pre-colonial era. The juxtaposition of the size pinpoints the neglect of these lifestyles during recent times, and the dehumanisation of Aboriginal people.

According to a scholar, Taiaiake Alfred (2009), “colonialism is best conceptualised as an irresistible outcome of a multigenerational and multifaceted process of forced dispossession and attempted acculturation – a disconnection from land, culture, and community – that has resulted in political chaos and social discord within First Nations communities and the collective dependency of First Nations upon the state” (p. 52). These influences of detachment separate indigenous peoples from their spiritual, cultural, and physical affiliations with the natural world and aid in obliterating the self-assurance and comfort of indigenous peoples.

From this, there are also many references made throughout the museum to “spirits” talking which emphasises the significance of elders and connotes the idea of land being a spiritual place. Prominence has also been placed upon familial lineage and transferring teachings across generations. This is labelled as “culture for the future,” placing significance on the renewal of culture. Many historical monuments cased throughout the Museum, such as a cloak, symbolises the country and the Indigenous people as well as the life given to them. Here, the cloak left behind is claimed to be “still talking to [them]”, signifying the remembrance of ancestors and maintaining the connection to them.

When addressing modern day colonialism and cultural harm, it is critical to understand that the Indigenous rights discourse has restrictions and can only grapple with fight for land repossession and fairness thus far. Indigenous freedom is premised on their autonomy being recognised by the state, which will in turn entail unrestricted mobilisation to live one’s relational, place-based life, and practise their relationships and compensate for the cultural loss and harms. A political theorist, Glen Coulthard (2007) echoes this by claiming that “the politics of recognition [for indigenous peoples] in its contemporary form promises to reproduce the very configurations of colonial power that Indigenous peoples’ demands for recognition have historically sought to transcend” (pp. 1-29). It follows that freedom for indigenous people is a privilege that is declared and accomplished, not a right that is assigned or bargained by the state.

Coulthard’s (2007) view regarding the politics of recognition makes it clear that the rights discourse has undeniable restraints in relation to the hardships that indigenous people must face in order to attain individuality. The state has formed these rights that do not reflect previous indigenous accountabilities and duties to their homeland. Instead, these rights are conditional terms enacted by the state and can be withdrawn at any time or even be enforced by way of granting self-determination as if it was a licensed opportunity. Subsequently, colonial discourse is highlighted through the distinction between phrases spoken during the walk around the museum, such as “our people” and “your people” when speaking. The impact of colonisation is evident when they believe “our women are alone, they’re not safe anymore” due to the settlers taking their most valuable assets as their concubines.

The settlers are also portrayed to have “built their economies on our country”, illustrating the changed dynamics in family life and the chaos that was caused by removing aspects that were considered crucial to the everyday lives of Aboriginal people. Generations that came after this period have also partaken in the mourning process if their ancestors and expressed that “they (the colonisers) took part of my life and family…I am a product of them”, conveying their disgust at the unjust treatment of their history. Nowadays, many of their missions involve continuing to provide voice to their ancestors’ exposure to the “violent frontier” and culture and ensuring that they will not “disappear from the landscape.”

In a similar vein, the rights discourse categorises indigenous freedom through dividing questions of societal security and governance from homelands and connections to the natural world. Consequently, indigenous recovery is about relinking with homelands, cultural practises, and communities, centring on repossessing, reinstating and reinforcing homeland connections, thereby a process of decolonisation (Silva, 2011). This procedure involves the shift of indigenous hardships relating to their freedom from acting to daily local practise (Silva, 2011). To achieve this, it necessitates moving away from the enactment of a rights discourse tailored toward state approval of the right to exist accustomed by place-based cultural practises. Indigenous peoples usually attempt to find tactics as a means to sustain their connection to their families, societies and homelands.

In a comprehensive United Nations examination of indigenous peoples and their rights to the natural environment, it was discovered that “the indigenous ownership of the resources is associated with the most important and fundamental of human rights: the rights to life, food, shelter, the right to self-determination, and the right to exist as a people” (Daes 2004, p. 30). For indigenous peoples, everyday survival comprises of day-to-day spiritual, social, and cultural relations founded on mutual connections that is able to maintain the community for generations to come. The Declaration justifying the rights of indigenous people envelopes fear amongst colonisers, especially regarding potential changes to their laws; however, it does not reflect customary international law as it is substantiated in commonly supported ideologies of freedom. The politics of recognition highlight the difficulties and hindrances involved when attempting to attain rights for indigenous people who aim to restore their relationship with the natural world.

For indigenous people, it is crucial to maintain and honour a continuous and mutual relationship with the natural world through transmitting their knowledge and daily cultural practises they know to future generations (Corntassel and Bryce 2012, p. 156). On the other hand, this notion of sustainability is also upheld when one gives back more than they take. In general, the 2011 Human Development Report (HDR) defines “sustainable human development” as “the expansion of the substantive freedoms of people today while making reasonable efforts to avoid seriously compromising those of future generations” (p. 18). This implies that this goal requires effort from both individuals and communities, “thus enabling the transmission of these traditions and practises to future generations” (HDR 2011, p. 119). This places emphasis on the importance of cultural continuity for indigenous peoples.

The current state of the food system for Aboriginal people has been impacted by pollution, cultural oppression and is a result of colonial encroachment, which has led to a loss in culture as well as the disruption of responsibilities and roles within their communities. Due to colonial development, gender roles relating to traditional management of land have been destroyed and will take generations of people working collectively to restore their cultural food systems (Corntassel and Bryce, 2012). To regenerate their culture, protecting the land and reinforcing their traditional roles is classified to be a beneficial start.

This imposes the need for these acts to not be outlawed or oppressed within the country that is attempting to promote acceptance, change and act as a supportive network between these cultures. However, this can be difficult to achieve as the cultural practises that indigenous people want to perform on their original homelands are now considered as either public spaces or private properties (Corntassel and Bryce, 2012). This type of ignorance coupled with threats of physical force tends to be the consequences that many indigenous people are faced with when they request such freedom from their colonisers. Due to this, it features the vital aspect of raising awareness and creating support of like-minded people as a way to deal with people’s unwillingness to understand (Corntassel and Bryce, 2012). Ultimately, direct actions to guard these consecrated connections is based on a community’s ability to prolong their cultural practises.

It is important to note that amendment transpires with slight growths. Bryce (2009) demonstrates this by affirming that “measurable change on levels beyond the individual will emanate from the start made by physical and psychological transformations in people generated through direct, guided experiences in small, personal groups and, one-on-one mentoring” (p. 56). Passing this empirical knowledge onto future generations aids in the survival of Aboriginal societies. However, it involves education, and this needs people to recognise the history and current hardships faced by Aboriginal people. One can only comprehend the ways in which meaningful and fundamental change can occur for these communities when they are able to value the interlinked processes of retrieval and renewal. This paves the way for younger generations to forge their own paths in reclaiming and recovering the cultural practises.

Moreover, customary law comprises of three distinct theories. Lloyd Fallers (1969) suggested that it is “folk law in the process of reception… not so much a kind of law as a kind of legal situation…in which dominant legal systems recognise and support the local law of politically subordinate communities” (p. 3; p. 201). This view denotes customary law to be different, isolated structures of specific ethnic groups and its acknowledgement by the state indicates the amalgamation of these arrangements and within their greater social and cultural contexts. Another belief directs focus to the foundations of customary law and insinuates an evaluation of the various influences that has formed it.

Chanock (1979, p. 80) claims customary law to be a conservative ideology deriving from the efforts of some organisations as a means of converting their values into legal forms and reimbursing for a lack of power. The final view clarifies that commonly held labels stipulated a foundation for customary law which “was described as resting on tradition and presumably derived its legitimacy from immemorial custom. The degree to which it was a reflection of the contemporary situation and the joint creation of colonial officials and leaders, more especially of those holding political office, was unlikely to be recognised” (Colson 1971, p. 197). Thus, this position elucidates that a main consequence of colonialism was the progress by the courts in identifying customary by recognising and dismissing traditional laws related to land. Unlike the other two views, this one examines the modifications made to legal background against presuppositions of conventional law.

Furthermore, customary law allows people to grasp the role of law during recent shifts to capitalism in underdeveloped nations. Even though it has been conventionally mistaken as a manifestation of permanence between the precolonial history and the present moment of capitalism, ‘customary law’ is reasonably recent in origin and is particular in ancient situations (Snyder, 1980). It was an ideology that usually supplemented and shaped colonial control. Shifts in social relations related to the changes of pre-capitalist modes of production created today’s general conception and official laws (Snyder, 1980). It is generally a conflicting relationship when laws coexist among each other. Based on the observations I have gathered from the museum; Aboriginal people of Australia refer to their territories as countries. They have their own laws to showcase discipline and order within their societies – this encompasses the way they treat others, the ways in which they are connected to nature.

Acts and laws encountered by Aboriginal people govern them, and the intersection of colonial law with their customary law makes their perception on appropriate and inappropriate problematic. It was only recently that many writers paralleled ‘customary law’ with pre-colonial laws and the altered forms of them which were prevalent during and after colonial rule (Hooker, 1975). These laws were predominantly oral rather than written in form. They mainly stemmed from social relations and sources of authority instead of those who are involved in the colonial state. It was reasoned that ‘customary’ rules “trace back to the habits, customs and practises of the people, which engender and support the norms expressly formulated from time to time for the decision of disputes” (Alott 1960, p. 62). Represented through a communal prominence on historical stability, many writers have supported Elias’ assertion that “the law of a given community is the body of rules which are recognised as obligatory by its members” (Elias 1955, p. 55). They have contended that essentially customary law was purely indigenous (Snyder 1980).

For this reason, division amongst members of society poses questions regarding whether it is fair for one to beg for public validation, especially when the traditional practises they hold close to heart deviate from the norm established by a colonial state. The need for their customary law to be respected and accepted is the next step for contemporary society to transform the prejudicial presumptions that have been generated from the colonial period. It is also important to address the relegation of Indigenous social formations and the implications it has had on their larger cultural and social networks.