Open AccessA Customary Right to Fish when Fish are Sparse: Managing Conflicting Claims between Customary Rights and Environmental Rights
Author(s) -
Loretta Feris
Publication year - 2014
Publication title -
per
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.204
H-Index - 6
ISSN - 1727-3781
DOI - 10.4314/pelj.v16i5.13
Subject(s) - indigenous , customary land , marine conservation , law , customary international law , indigenous rights , resource (disambiguation) , political science , state (computer science) , fishing , fishery , law and economics , environmental resource management , international law , human rights , sociology , ecology , economics , biology , public international law , land tenure , computer network , algorithm , computer science , agriculture
This contribution considers the potential conflicts that may arise between customary rights and environmental rights in the face of dwindling marine resources. It sets the scene by reflecting on some of the common themes present in indigenous claims to marine resource by communities who were subjected to colonisation. In doing so it analyses the South African judgment, S v Gongqose Case No. E382/10 (unreported), which alluded to the existence of a customary right to fishing, a concept that has until now remained unexplored in South African law. This discussion is followed by a brief overview of the rapidly declining state of marine resources, worldwide and in South Africa. The note then considers the relationship between customary law and marine resources and some of the challenges in meeting rights-based customary claims to marine resources against the need to conserve a dwindling resource. It concludes by offering possibilities for reconciliation