A bundle of sticks in my garden

The English law of property is often described as a ‘bundle of sticks’ in which each ‘stick’ represents a particular right. Gardens challenge these rights and wreak havoc on the ‘bundle of sticks’. This paper looks at the twenty-first century manifestations of community engagement with ground and explores how ‘gardening’ is undermining concepts of ownership, possession and management of land and how the fence between what is private and what is public is being encroached and challenged by community and individual initiatives to cultivate. The garden in this paper is therefore a place of questioning and redefining traditional legal concepts, but it also reflects contemporary concerns which go beyond the confines of the garden and the boundaries of the law. At the same time however, the garden represents a continuum between past struggles and ideals and future hopes, and so the cultivators of today are located in a continuing evolution of law, land and people. By considering the various ways in which people are engaging with land outside of the usual private land/person context and their motives for doing so, this paper places present gardening in its historic context and analyses the challenges that various forms of gardening pose for established legal principles. In particular this paper asks if present gardening demands a re-examination of property law and a re-evaluation of what is understood as ‘property’ if the ‘bundle of sticks’ is unpacked

'That plant is my ancestor'. The significance of intellectual property on food security in developing countries

The global significance of intellectual property laws is familiar to most of those interested in this area of law. What might be less familiar is the impact of intellectual property on the issue of food security in developing countries. This paper considers the consequences of factors such as TRIPS plus compliance imposed on recent entrants to the World Trade Organisation, the role of UPOV and impact of protecting plant breeders' rights on food security in developing countries. In particular the paper focusses on examples drawn from the Pacific where island countries are not only considering WTO membership or have recently signed up to this and incurred consequent IP obligations, but where food security is increasingly under pressure due to climate change, environmental degradation, loss of biodiversity shifts in agricultural practice and knowledge transfer, changing socio-economic patterns and the consequences of the global economic crisis. This is also a region where Western models of IP, although prevalent as introduced and imposed concepts, fit uneasily with forms and practices of indigenous traditional knowledge and practice which may be better suited to ensuring sustainability of food crops than the present thrust of IP laws

Scots law: a system in search of a family?

Presented as a paper at the Irish Association of Comparative Law, this article looks at the classification of legal systems into families and examines where, among the many different models, Scots law fits in

Palm tree justice? The role of comparative law in the South Pacific

Emerging from a colonial past, Pacific island states have legal systems which are patchy and often incoherent. This article examines the role of judges in the field of family law and how, through creative use of comparative legal thinking, they contribute to the development of the law in countries where the state is slow to reform outdated and often inadequate legislation

The "Re-Colonising" of Pitcairn

The criminal trials of Pitcairn islanders on charges of rape and sexual assault have attracted considerable media notoriety and some academic comment in New Zealand and elsewhere. However question marks remain; not as regards the guilt or otherwise of the accused but in respect of the means whereby they were brought to trial. In particular the legal reasoning used to exercise imperial rule over Pitcairn and the embroilment of New Zealand in the "Pitcairn case" deserves scrutiny. This article critically considers how the courts, including the Privy Council, determined that Pitcairn Islanders were British subjects and therefore within the exercise of Her Majesty’s prerogative powers and which law was applicable to them, and the consequences of that process, both for Pitcairn as well as New Zealand

South Pacific Land Law: Some Regional Challenges, Cases and Developments

Land in the South Pacific is largely regulated by introduced English Common Law. However, the vast bulk of the land in the region is held under different forms of customary land tenure, and the perceptions of land and its use are distinctly regional. In this article, the author considers how the Common Law has been adapted in the region to accommodate and reflect customary law and practice. Selected cases from the region are used to highlight the difficulties that the courts face in blending Common Law principles with customary practice and accommodating changing uses of land that challenge traditional solutions

Vanuatu : lands in a sea of islands

This collection of eight single-authored papers published between 2008 and 2012, provides detailed and critical insight into land issues in the Pacific island country of the Republic of Vanuatu. Developed largely from conference papers delivered to international audiences, these publications make a novel and significant contribution to the prior knowledge base in a number of ways. Firstly, the research behind these papers has combined physical proximity to the subject matter – through being based in Vanuatu for several years, with access to a range of legal and other materials as well as personal insights, with a broader intellectual expertise in the law of property and trusts as introduced into the region. A combination of doctrinal and empirical research has made it possible to give a specifically focussed law in context and law in practice perspective, while not losing sight of the inter-relationship of law and society. In this way the existing knowledge base founded on anthropological and ethnological studies has been given a further and contemporary, legal dimension. Secondly, the desire to reach a wider audience than the regional or local, has meant that these publications have engaged Vanuatu as a case-study with broader themes, sometimes starting from the local and exploring outwards and sometimes starting from the global and narrowing in on Vanuatu as a concluding focus. While recognising all that makes Vanuatu unique, the contribution that this collection makes is to bring this island study from the particular to the general, in from the margins or as part of a removed and rather isolated area of study, towards the mainstream. Thirdly, these publications articulate land developments at a crucial moment. The first decade of the twenty-first century, has been a time of increased public awareness of land issues in Vanuatu and in the Pacific region more generally, and a time of increased donor intervention in land and law related activities. That this research and the related research that informs it, is integral to this process has been evidenced by cross referencing to some of the work and other indicators of esteem by aid donors, inter-state agencies and other academics. Land remains a site of contestation in Vanuatu. The critical analysis of present issues, against the historical context of colonial rule and its subsequent influence; the introduction of foreign laws and institutions and the continuing importance of unwritten customary law, exposes many of the challenges that are encountered in trying to frame a way forward and engages with controversies surrounding land policy, land law and the management of this most fundamental resource

Family Law and French Law in Vanuatu: An Opportunity Missed?

This article outlines the need for the courts in Vanuatu to adopt a more robust approach in developing a relevant regional jurisprudence by considering certain aspects of French family law which remain potentially applicable under the Constitution of Vanuatu as law existing at independence. With reference to selected areas of family law, it explains how a more vigorous comparative approach using French law may be useful for filling gaps which presently exist in national legislation and also illustrates how certain dimensions of French family law may be particularly suited to the contemporary Vanuatu context

Is marine protection compatible with the right to economic development in Pacific Island States?

The international community is keen to engage all states in the global agenda to protect and preserve marine habitat and ocean eco-systems. Building on the strategic goals of the Convention on Biological Diversity, Aichi Target 11 is for 17% of terrestrial and inland water and 10 percent of coastal and marine areas to be protected by 2020. The UN Sustainable Development Goal 14 is to conserve oceans, seas and marine resources and in 2016 the International Union for the Conservation of Nature advocated for 30% of the world’s oceans to be protected while the Nature Needs Half Movement is advocating 50%. At the same time, it is recognised that indigenous peoples have a right to development and a right to determine their own form and pace of development. For Pacific island people that increasingly means developing a blue-green economy in which terrestrial and marine resources are utilised to advance the wealth and health of island people. Building on research looking at the declaration of Marine Protected Areas around non-sovereign island states and the impact of these on the rights and lives of indigenous people more broadly, this paper looks at the initiatives adopted by Pacific islands to create marine protected areas (MPAs) and locally managed marine areas (LMMAs). In particular, this paper considers the motivation behind the creation of MPAs and LMMAs, the stakeholders involved, the management structures adopted and the benefits and/or disadvantages - not only to the environment but also to the lives of Pacific islanders - flowing from categorising marine resources in this way

Age of Empire. Again?

One of the tools and consequences of colonialism was the export of law and the subsequent legacy of legal pluralism. In many countries that legal pluralism persists, so that their legal systems are complex multi-source systems. The importance of legal education and the training of lawyers is integral to the characteristics and functioning of legal systems and one of the dimensions that comparative legal scholars consider when looking at legal systems. This paper considers a new form of legal export which might be seen by some as a new tool of legal imperialism: legal education either through multi-modal distance learning for foreign students, or through the recruitment of foreign students to UK institutions, or the establishment of a UK university presence in a foreign country. Analysing data drawn from university websites, this paper explores the potential significance of undergraduate legal education as a foreign transplant or as received by foreign students, and the role that comparative scholars might play in the context of contemporary trends in student recruitment, programme design and academic engagement with diversity in laws