Convergence or clash? The recognition of customary law and practice in sentencing decisions of the courts of the Pacific Island region

Source: (2001) Melbourne Journal of International Law 2 (June): 48-68.

In this article, Cain studies the place of “customaryâ€? law and practice in relation to “introducedâ€? law – especially sentencing in criminal law and procedure – in the Pacific Island region. In Pacific Island communities there is some evidence that indigenous people want to address wrongs through resort to customary law and practice, not criminal law and procedure as enacted in colonial periods and following. However, when matters are reported to the police, criminal law and procedure take over, with little reference to customary concerns. In this context, and specifically in relation to sentencing decisions of the courts, Cain examines written law to identify what provisions exist for recognition of customary law. She illustrates issues by considering some of the sentencing decisions of courts in the region. And she sketches law, policy, and procedure in other jurisdictions to compare with the situation in the Pacific Island region.