A Digest of Case Law on the Human Rights of Women - Asia Pacific ...

John Noel (as representative <strong>of</strong> the descendants <strong>of</strong> Crero Toto deceased)) v Obed Toto (Pacific Islands: Vanuatu)
The Court held that the applicant was entitled to an account <strong>of</strong> the pr<strong>of</strong>its from the
land since the case in 1985. The Court, however, did not consider it appropriate that
it should lay down any plans for the management <strong>of</strong> the property. The parties should
consult with each other to decide how to properly manage the property.
Commentary
This was the first case in Vanuatu that referred to international human rights
conventions to support a finding in favour <strong>of</strong> the rights <strong>of</strong> women. For Ni-Vanuatu
women this means that they can refer to this decision when negotiating land and
other rights including greater speaking rights in customary courts. This decision can
also be used in the formal courts as a precedent to overturn discriminatory common
law decisions, and to bring test cases against other discriminatory customary laws.
This case also gave formal recognition to the children <strong>of</strong> de facto relationships
by granting ex-nuptial children rights to their father’s land. This precedent could
indirectly assist Ni-Vanuatu women in de facto relationships to claim rights, if not
for themselves, then for their children.
This decision established the principle that in Vanuatu the equality provisions <strong>of</strong>
the Constitution take precedence over customary law, if the two systems are in
conflict. Custom that discriminates against women cannot be enforced. The equal
rights provision <strong>of</strong> Article 5 <strong>of</strong> the Constitution was held to have precedence over
the custom that women lose their inherited land rights on marriage even although the
Constitution also protects customary law. This case therefore provides an important
recognition <strong>of</strong> the equality provision giving it a status above other provisions in the
Constitution.
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