Indigenous Knowledge and Custom for Climate: A Melanesian Perspective

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By Ilan Kiloe, Acting Director General of the MSG Secretariat, and Brittien Yosef, Legal officer and Acting Program Manager for Politics, Security and Legal Affairs

Customary law is generally defined as a set of custom, practices, and beliefs of Indigenous local communities that are widely accepted as binding rules of conduct. These practices and beliefs are not written. They are passed on from generations to generations. They are highly flexible and can adapt to address changing circumstances and challenges.

Broad considerations on the nexus between Melanesian cultures and climate change

Melanesian cultures and traditions are useful tools for developing integrated policy responses to address climate change. In order to develop such policies, it is vital to understand key considerations relating to Melanesian cultures and climate responses.

First, the peoples of Melanesia are inseparable from their environments. The environment provides the people their identity. The Melanesian people are called “placepersons,” meaning they are the places, the landscapes, the waters, the soils, the stones, the flora, the fauna, the weather, the seasons, and the spirits of their ancestral territories. The term placepersons indicates the deep connections between people and their environment, such that it is hard to distinguish persons from the environment and vice versa. Protection of the environment from the impacts of climate change is therefore synonymous to protection of the Melanesian peoples and their right to exist.

Second, Melanesian cultures and traditions govern community subsistence essential for the survival and welfare of the people. Climate-induced changes to weather patterns, for instance, have caused confusion in the custom calendar. The custom calendar governs subsistence farming in rural communities. It revolves around reading the patterns of the sun and the moon to determine when to plant certain root crops, farming of animals, and the initiation of ceremonial custom activities that sustain life.

Third, Melanesian cultures and traditions are essential for promoting peace and unity in Melanesian communities. There are specific cultural practices that are used to maintain social order. As noted by Hilary Fioru, a fisherman in Solomon Islands in his statement submitted as part of the Melanesian Spearhead Group’s (MSG) written statement to the International Court of Justice (ICJ), “the cultural communal fishing practice called the Eʻre maintains unity, peace and harmony in communities where the tradition is practiced.” There are similar practices across Melanesia. Cultural practices, such as the E’re, are more than customary activities, they are the cornerstone of how the community is organized to ensure peace and unity are maintained in society. Loss of this practice therefore can lead to disunity and eventually conflicts in communities.

In a broader contest, Melanesian cultures help maintain peaceful state relations. Culture plays a vital role in nurturing stronger interstate relations between members of the MSG and, where differences arise, in resolving disputes. Cultures and traditions act as glue that holds the MSG together. And as the MSG region moves towards an ever more complex security future, there is a distinct possibility Melanesian cultures and traditions will come to assume greater prominence in unifying, strengthening, and guiding the diplomacy of the MSG and its members.

Finally, Melanesian cultures and traditions offer some of the best local solutions to mitigate the impacts of climate change. These are evident in Indigenous Traditional Knowledge owned and practiced to preserve the environment, such as the taboo. Taboo can be described as the prohibition of certain actions and behaviors, over objects or a relationship, which normally consists of closures of certain areas or taboos (bans) on harvesting various species to allow reproduction. Taboo is considered sacred and believed to be enforced by ancestral spirits. Violation of a taboo may lead to severe, often extreme, consequences, including sickness. It is therefore a successful environmental management tool that combines both moral and social force. A recent study revealed that this method is highly effective for marine conservation as a ban on harvesting endangered species such as trochus, lobster, octopus, bêche-de-mer (sea cucumber), green snail, various clams and crabs, various types of reef fishes, and/or marine resources in general.

Efforts to integrate cultural practices into legislations

Melanesian cultures and traditions are held in such high regard that the Constitutions of all Melanesian countries accord legal recognition to them. Generally referred to as “customary law,” cultures and traditions are accorded legal recognition in the legal systems of MSG member States.

In Vanuatu, customary law is recognized under article 95(3) of the Vanuatu Constitution. Specific legislations were enacted to enable customary law to address issues relating to land ownership, sustainable resource management, and conservation. The concept of taboo, for instance, was explicitly recognized in the Environmental Protection and Conservation Act as a tool for environmental protection, resource management, and community-based conservation. It covers a wide range of measures, including use of land and protection of special and endangered species and sacred areas.

Similarly, in Fiji, the Environment Management Act recognizes traditional practices and rights in environmental management. In Solomon Islands, customary law is given legal recognition as a law of general application, which depends on prevailing cultural practices in communities and is extended to govern rights to and use of land, marine, and forest resources.

Customary law in Papua New Guinea (PNG) governs much of the environment through traditional, community-based rules and obligations related to land, resources, and sustainability. In New Caledonia, customary law governs environmental activities through a hybrid legal system that combines ancestral Indigenous Kanak traditions with modern French legislation. There is a crucial need to resolve the hybrid legal system in New Caledonia to ensure Indigenous culture and tradition are accorded greater recognition in environmental protection.

Generally, the position of customary law in MSG countries is geared towards preserving the environment and maintaining sustainable use of resources. At the MSG sub-regional level, the Framework Treaty on the Protection of Tradition Knowledge and Expressions of Culture, signed by MSG leaders in 2013, calls for greater protection of Melanesian cultures and traditions. The treaty creates legal rights to Traditional Knowledge and expressions of culture and demands their legal protection through the enactment of new legislations.

In the same way, the bilateral Tirvau Agreement 2024 between two MSG members, Vanuatu and Solomon Islands, enables border cultural exchanges and the establishment of a cross-border conservation area to protect and preserve the maritime environment and indigenous fauna and flora in and around the vicinity of the border areas.

Implications of the ICJ Advisory Opinion for Indigenous Peoples of Melanesia

In the Advisory Opinion proceedings before the ICJ, the MSG advocated for greater recognition of Indigenous rights and their protection against the impacts of climate change. It urged the Court to affirm that States have obligations under international law to respect and promote Indigenous rights, including the rights of Indigenous Peoples to own and manage their natural resources and to freely pursue cultural expressions.  The ICJ confirmed that States’ climate obligations are grounded in the broad body of international law. These sources include, among others, the UN Charter, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the law of the sea, and the customary law duties of due diligence and to prevent transboundary environmental harm.

The ICJ’s affirmation of State obligations is a direct validation of the MSG’s position. The MSG has long linked climate harm to the rights, survival, and sovereignty of States in Melanesia. More importantly, the ICJ affirmed that Indigenous Peoples’ rights apply in the context of climate change. In a separation opinion, Judge Hilary Charlesworth highlighted the arguments raised by the MSG and emphasized the prospect of climate change wiping out the cultural identity of the Melanesian peoples by destroying sacred sites, spiritual beliefs, language, and tradition. For Indigenous Peoples, Judge Charlesworth explained, the crisis is not only about survival but also about their right to remain who they are as peoples.

The ICJ Advisory Opinion provides the much-needed basis upon which the MSG can undertake further concrete actions to address the impacts of climate change in Melanesia.

The Advisory Opinion will strengthen ongoing efforts by the MSG to mainstream the protection of Melanesian cultures and traditions – and the Indigenous rights of the peoples of Melanesia more generally – in key legislative and policy reforms.

It should be noted that, in Melanesia, the “interests of the State” often conflict with Indigenous rights, particularly in relation to land and resource ownership. This conflict regularly leads to violence and civil unrest. The legal clarity provided by the ICJ is therefore crucial. It will help governments enact new legislations to ensure greater protection of cultural rights. Where legislations already exist, review can be undertaken to enhance cultural rights’ protection.

At sub-regional level, the Advisory Opinion provides clarity to guide implementation of key commitments under bilateral and multilateral treaties between MSG members on the protection of cultures and traditions, particularly the 2013 MSG Framework Treaty on the Protection of Traditional Knowledge and Expressions of Culture and the 2024 Tirvau Agreement. For this reason, the MSG is better positioned to leverage these legal regimes to champion Indigenous-led conservation of both marine and natural resources.

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This Guest Article is based on the MSG’s contribution to the ICJ Advisory Opinion.

This Guest Article is part of a project that seeks to raise awareness and build momentum and knowledge around the ICJ advisory opinion on obligations of States in respect of climate change and to promote a better understanding of the implications of the advisory opinion among sustainable development decision makers.