Legal pluralism and diversity of interpretation of fundamental rights (common law, customary law, reservation related to indigenous right)

On 4 Mai 2018, Christine BIDAUD-GARON, Associate Professor at the University of New Caledonia, is attending the Symposium on The Influence of International Human Right’s Bodies on National Family Law at the European Court of Human Rights. She focuses on studying Legal pluralism and diversity of interpretation of fundamental rights (common law, customary law, reservation related to indigenous right).

Legal pluralism exists at different levels in New Caledonia. First, at the level of civil law which is applicable and which may be different from the one in force in metropolitan France. Secondly, it is on the territory of New Caledonia that legal pluralism exists because of the coexistence of two personal statutes. Each one is governed by its own legal corpus: the common status by civil law and the customary status by Kanak custom.

At first sight, all these legal corpuses belong to French positive law and they must therefore all respect the fundamental rights guaranteed by the European Convention on Human Rights. In reality, it is more complex than that. For the civil law voted by the Caledonian legislator this does not cause any great difficulty. Country law are drafted according to the same hierarchy of values as the national civil law. The only thing is that the Caledonian legislator, like the national legislator, must take care to preserve the equality of the civil and the customary statutes and not to cause discrimination between the two statutes. It is above all in this sense that the question of human rights in the French overseas territories has been considered. The other difficulty and perhaps the main difficulty is related to the question of the respect of the rights guaranteed by the European Convention on Human Rights by the Kanak custom. The values of the Kanak culture are quite different from those of occidental society. Kanak custom is above all based on a collective vision of rights. Consequently, problems of compatibility between Kanak custom and the European Convention on Human Rights may exist. The reservation in article 56.3 of the Convention makes possible to resolve them, but it is not certain that it will resolve all the difficulties.

Download the programme here: CEDH Program Human rights and Family Law