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The 2018 UN Declaration on the Rights of Peasants and Other People Working in Rural Areas recognises the need for States to take measures to provide legal recognition for customary land tenure rights not currently protected by law, ‘recognizing the existence of different models and systems’. This Declaration explicitly applies to small-scale fishers and arguably protects tenure rights in fishing grounds in marine territorial waters.[2] 

Notwithstanding the recognition of customary law in international law instruments, significant difficulties exist in ensuring that customary law is not only formally recognised but also respected in practice and applied to the management of fisheries activities and resources. In many countries, customary laws are not formally recognised as a source of law, and evenin countries where the two systems co-exist (i.e. formal and customary laws) the resulting legal pluralism is, in practice, often characterised by a hierarchy which prioritises formal laws over customary laws. The interactions between the multiple laws, values and norms which underpin customary law and formal legal systems can often give rise to conflicts in the management of fisheries resources. The existence of community claims for the recognition and protection of customary rights is associated with factors such as the usurpation by States and private entities of communities’ lands (which may include fishing grounds and cultural identities related to fishing activities) for the development of large-scale projects, causing the affected communities to be forcibly evicted from their lands, lose their tenure and property rights, cultural identity and customary practices. Even in countries where customary laws are recognised as part of a plural legal system, challenges persist in ensuring the full integration of customary law in fisheries resource management, leaving holders of customary fishing rights without adequate access to justice and legal redress.[3] The following examples are brief accounts of the experiences of how customary law plays out in the context of small-scale fisheries in South Africa and Ghana and the challenges its recognition faces. 

South Africa: subsistence and small-scale fisheries are often deeply intertwined with cultural heritage, tradition, customary practices, well-being, livelihood and identity. Fishing is a way of life alongside a means to survive or feed one’s family, and the ocean is imperative for spiritual, cultural, indigenous, relational and experiential practices and connections.[4] Customary law is recognised in the South African Constitution as an independent source of law, as long as it does not interfere with people’s constitutional rights. However, despite formal recognition, in practice the continued failure of fisheries management, conservation practices and processes to respect, protect and operationalise these ‘pre-existing customary systems of governance’ has led to the slow erosion of these systems. It has also led to arrests, fines and criminalisation of customary and cultural fishing practices.[5] In-depth research on five communities living in areas adjacent to marine protected areas found that changes in tenure, loss of access to resources and fisheries practices ‘have impacted customary practices, cultural heritage and sense of place of local communities’.[6] However, small-scale fishers have recently been able to file successful legal action (injunction) to stop oil and gas extraction activities on the grounds that there was no meaningful consultation with relevant stakeholders as required by law.[7] Communities were able to assert their customary rights to fishing, as well as the cultural and spiritual importance of the ocean and fishing practices.[8] These cases are still ongoing. In addition to these cases, the corporation at issue has recently applied again to conduct a seismic off the West Coast of South Africa.[9] Wilmien Wicomb from the Legal Resources Centre in South Africa also emphasised that there needs to be a paradigm shift in ocean and coastal governance processes where rights to culture, customary law and tradition of fishing practices are recognised fully and that such recognition involve more than weak consultation requirements.[10] Policies on fisheries development, conservation or economic development overall need to acknowledge, respect and meaningfully engage with the ways in which fisheries in South Africa forms part of cultural heritage and customary rights. 

Ghana: fisheries in Ghana is central to the lives, identities, culture, and customs of the small-scale fishing communities that reside along the over five-hundred-kilometre coastline.[11] A constitutional recognition of customary law as a source of law to co-exist with other state laws in a plural legal system has, in the case of fisheries, resulted in the two sets of laws interacting in complex and sometimes conflicting ways influenced by historical realities and contemporary approaches to fisheries governance. The undermining of traditional authorities and customary law began during the colonial era. At that time, judges operating within the formal court system would decide on the validity of customary laws and would make pronouncements thereon which would override or contradict decisions of local chiefs.  This phenomenon continues to persist today.[12] Further, small-scale fishers and the traditional authorities that represent them have been largely excluded from the centralised fisheries governance framework in Ghana. Yet, the development and resilience of fisheries in Ghana rests largely on the contributions of small-scale fishing communities, whose customs and traditions guide their activities and help promote the sustainable utilisation of fish stocks. In 2020, a ‘Co-Management Plan for the Fisheries Sector’ was adopted.[13] The policy aims at decentralising fisheries management through the devolution of responsibilities and authority to resource users and other stakeholders at community level. In this regard, the policy recognises the role of traditional fisheries authorities in the co-management process. The policy notes that ‘the process of empowerment of traditional authorities must be accompanied by careful integration of conventional co-management approaches with traditional beliefs and practices’. The recognition of traditional authorities in the Co-Management Policy is an important first step towards strengthening the recognition and application in practice of customary law in Ghana’s fisheries. However, the policy must be supported by comprehensive legal reform underpinned by participatory processes which ensure that the voices of local communities, small-scale fishers, women and youth are included.    

More information: The collaboration of FAO with One Ocean Hub and the Office of the UN High Commissioner on Human Rights has been advancing the protection of small-scale fishers’ human rights, including their customary rights. See more here.  

Julia Nakamura (FAO), Bolanle Erinosho (University of Cape Coast, Ghana)

and Mia Strand (Nelson Mandela University, South Africa) 

[1] Definition endorsed in the Akwé: Kon Guidelines (Secretariat of the Convention on Biological Diversity, 2004) and contained in the Black’s Law Dictionary (7th edition), 2000. 

[2] For a comparative legal analysis of the UNDROP with the SSF Guidelines, see E Morgera and J Nakamura, ‘Shedding a Light on the Human Rights of Small-Scale Fishers: Complementarities and Contrasts between the UNDROP and the Small-Scale Fisheries Guidelines’ in Alabrese M and others, The United Nations’ Declaration on Peasants’ Rights (Routledge 2022). 

[3] P Mabatha, ‘Unravelling the perpetuated marginalisation of customary livelihoods on the coast by plural and multi-level conservation governance systems’ (2022) 143 Marine Policy 105143; S Jentoft and M Bavinck, ‘Reconciling human rights and customary law: legal pluralism in the governance of small-scale fisheries’ (2019) 51 The Journal of Legal Pluralism and Unofficial Law 271. 

[4] M Strand, N Rivers and B Snow, ‘Re-imagining Ocean Stewardship: Arts-based methods to ‘hear’ and ‘see’ Indigenous and local knowledge in ocean management’ (2022) Frontiers in Marine Science, 886632. 

[5] M Sowman and J Sunde, ‘Social impacts of marine protected areas in South Africa on coastal fishing communities’ (2018) Ocean & Coastal Management, 157. 

[6] Ibid. 

[7] O Ngcuka, ‘Fishers and civic organisations take legal action against West Coast seismic surveying’ (Daily Maverick, published 21 January 2022), <https://www.dailymaverick.co.za/article/2022-01-21-fishers-and-civic-organisations-take-legal-action-against-west-coast-seismic-surveying/>  accessed 18 July 2022. 

[8] Wilmien Wicomb from the Legal Resources Centre in D Wilson, ‘Customary law, tangible & intangible heritage, and ocean governance workshops’ (One Ocean Hub, published 27 June 2022), <https://oneoceanhub.org/customary-law-tangible-intangible-heritage-and-ocean-governance-workshops/> accessed 18 July 2022. 

[9] L Omarjee, ‘Searcher is back with a second attempt at seismic survey off the West Coast’ (News24, published 14 July 2022) <https://www.news24.com/fin24/companies/searcher-is-back-with-a-second-attempt-at-seismic-survey-off-the-west-coast-20220714> accessed 18 July 2022. 

[10] Wilson (n 8). 

[11] E Akyeampong, ‘Indigenous knowledge and maritime fishing in West Africa: The case of Ghana’ (2007) Tribes and Tribals, Special (Volume1), 173-182. 

[12] A Christoffels-DuPlessis and others, ‘Navigating a Sea of Laws: Small Scale Fishing Communities and Customary Rights in Ghana and South Africa in Boswell’ in DR O’Kane and J Hills (eds) The Palgrave Handbook of Blue Heritage (Springer, 2022), at 337. 

[13] Ghana Ministry of Fisheries and Aquaculture Development, ‘Co-Management Policy for the Fisheries Sector’ <https://www.crc.uri.edu/download/GH2014_POL112_MOFAD_FIN508.pdf> accessed 18 July 2022.