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What Is Customary Laws?

The ideas of the customary law have no definitive and uniformly accepted definition, as different researchers and scholars have defined it in multiple ways. The customs tend to vary globally, between the countries and states. The law can be generally defined as the rule of ethical conduct, which is widely accepted in governing a group of individuals. The custom can be defined as the norms or guidelines of action, and rules of ethical conduct, which are accepted and adhered to by the society and practiced by the individuals and groups in the society. Custom can also be defined as the laws and rules set by the individuals which they comply with for governing their actions. Customary law can be stated partially or specifically regarding certain situations in the locality or throughout the country. Customary law is not only limited to general rights and obligations but also facilitates being a dispute resolver. Customary law allows solving disputes without the assistance of the judicial system, being addressed by the seniors and elderlies in the society. Customs for the society is the same as law to the states. The customary law includes a code of conduct, customary worldview, principles, and established practices that are locally organized and recognized, adaptable, and continuously evolving.  

What Is Customary Laws?

Role of Customary Law in Protecting Traditional Knowledge

The role of the customary law is to:

  • The fundamental law for the indigenous individuals and communities’ rights over Traditional Knowledge (TK) and Traditional Cultural Expression (TCE)
  • A vital factor in establishing communities and their individuals’ collective rights over the TK and TCEs.
  • A mean of determining the procedures needed to be addressed for securing the rights of the individual and the community before gathering informed consent.
  • A form of assessment for analyzing the spiritual or cultural damages or offenses caused by the inappropriate use of the TK and TCEs.
  • A form of assessment or guide for understanding how the benefits from the utilization of the TK and TCEs can be equally shared among the whole community.
  • An approach for determining significant types of remedies, restitution, or sanctions if a breach of rights might be over TK and TCEs.
  • A form of resolution for the disputes over the custodianship or ownership of the TK and TCEs.
  • A form of guidance to the transmission of the basic rights over the TK and TCEs from one generation to another.

Role of Customary Law in Protecting Traditional Knowledge

Customary Law and the Character of Traditional Knowledge

Traditional knowledge can be termed as the knowledge, skills, know-how, and practices that are sustained, developed, and passed from one generation to another within a community formed of a group of individuals forming spiritual and cultural identities. The knowledge is termed to be traditional because the fact it was developed, regulated, regulated, and disseminated over an intergenerational and customary context. Customary law can be defined as the potential factor of the approach that includes customer and indigenous rights, guidelines, and protocols that protects the traditional knowledge. The main reason for utilizing the customary law comes from the fact that it offers protection to the traditional knowledge through various regulations against the misappropriation and misuse of the knowledge. The definition of the character of Traditional Knowledge is not just limited to being protected or governed by the customers, rather customs should be a vital indicator for identifying traditional cultural expressions and traditional knowledge. The laws should help in guiding the legal relationship of the individual or community with the traditional knowledge and traditional cultural expression.     

The Integration of Customary Law into the Australian Legal System

The integration of the customary laws in the Australian legal system would help with strengthening and reinforcing the operations of the Indigenous customary regulations inside communities. There might be some barriers and challenges to integrating customary law into the legal system. The first challenge originates inside the indigenous communities, where the urgent requirement lies in proactively educating the Australian society on the customs and norms reclaiming the debate that customary law is necessary for the development of the community. The only way the system of law would be accepted by the community is by generating interest and empowering the indigenous individuals and groups, following a wide ideological framework. The second challenge tends to be similar to the first, where the barrier lies in educating all the indigenous Australians significantly on the Australian legal system and human rights standards. The people must be well aware of both the customary law infrastructure and the framework of legal justice.

The Scope of Recognition of Customary Law and Practices

The customary law can help in governing the various aspects of community lives from resolving major disputes, land tenure, family law, inheritance, and social and political relations. The customary laws are often defined as part of the holistic view of the indigenous individuals and communities. The customary law can be properly understood and appropriately applied only within the community itself. It is difficult to imagine how a community's entire collection of customary laws and practices might be brought to apply internally to third parties outside of that community and the conventional scope of the customary jurisdiction. Additionally, there might be restrictions on how individuals from outside the communities can recognize or acknowledge and respond to the complicated social, cultural, political, and spiritual environment that influences and defines the rules and customs of the communal group.

Customary Law and the Exercise of Collective Rights over Tk and Tces

The customary law is effective in understanding the roles and responsibilities of the communities to determine how their traditional stories and images can be utilized.
  • According to Aboriginal law, traditional owners who are also the custodians of the pictures, have the right to make artworks that tell creation and dreaming stories and to use existing designs and clan totems.
  • According to the Aboriginal law, the traditional custodian of the pictures and images of the totems and pre-existing designs in the clan. The subject matter of the work would decide if the pre-existing design can be remade.
The customary law aims to ensure that the traditional images are utilized in a proper way translating the responsibilities of the custodian, responding to safeguard the cultural traditions and beliefs.
  

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