Reconciling human rights and customary law: legal pluralism in the governance of small-scale fisheries*^*

Abstract

The Voluntary Guidelines for Securing Sustainable Small-Scale Fisheries (SSF Guidelines) introduce a human rights framework for fisheries management and development, suggesting an inclusive approach that embraces a range of rights, regimes and interests. These reflect diverse systems of law, values and norms, straddling both customary and statutory systems of governance and tenure. The interface between these different systems poses questions about the extent to which they are reconcilable with a human rights-based approach. The latter originates in the domain of transnational law, which has been increasing in scope and importance in recent decades. How transnational law interacts with and affects various law systems is an empirical question, to which much scholarly attention has gone. The normative question that emerges, however, is how to balance the recognition of universal human rights with respect for historically-evolved and locally legitimate, customary law in case of conflicts between them. This paper investigates some of the tensions and opportunities that arise in the meeting of the SSF Guidelines and customary socio-legal systems, paying special attention to four important fields of overlap and possibly contention: tenure, gender, child labour and markets. Co-management platforms are suggested to be the ideal meeting ground for negotiating acceptable hybrids and designing so-called interlegalities.

Keywords:

• Small-scale fisheries
• SSF Guidelines
• customary law
• human rights
• legal pluralism
• co-management

Notes

1 We use the term “fishers” to apply both to men and to women and also to include those involved in shore-based activities.

2 Voluntary Guidelines on the responsible Governance of tenure of land, fisheries and forests in the Context of national food security’ (FAO 2012).