RIGHTS AIPP
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Colchester, Marcus and Fergus MacKay. 2004. “In Search of Middle Ground: Indigenous Peoples, Collective Representation and the Right to Free, Prior and Informed Con-
sent,” paper presented to the 10th Conference of the International Association for the Study of Common Property, Oaxaca, August 2004.
Committee on the Elimination of Racial Discrimination CERD. 1997. General Recom- mendation XXIII 51 concerning Indigenous Peoples adopted at the Committee’s
1235th meeting, 18 August 1997. UN Doc. CERDC51Misc.13Rev.4. Economic and Social Council. 2003a. Commentary of the Sub-Commission on the Pro-
motion and Protection of Human Rights on the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human
Rights. UN Doc. ECN.4Sub.2200338Rev.2.
________________________. 2003b. Report of the Special Rapporteur on the Situation of Hu- man Rights and Fundamental Freedoms of Indigenous People, Rodolfo Stavenha-
gen, submitted to the Commission on Human Rights in accordance with Commis- sion resolution 200165, item 58. UN Doc. ECN.4200390.
International Indian Treaty Council. 2008. “The UN Declaration on the Rights of In- digenous Peoples, Treaties and the Right to Free, Prior and Informed Consent: the
Framework for a New Mechanism for Reparations, Restitution and Redress,” Con- ference Room Paper submitted to the Seventh Session of the UN Permanent Forum
on Indigenous Issues, 9 March 2008.
International Labour Organization. 1989. Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries.
_______________________. 2009. Indigenous and Tribal Peoples’ Rights in Practice: A Guide To ILO Convention No. 169. Geneva: International Labour Office. Also at www.ilo.
orgpublns. Republic of the Philippines: Congress. 1997. Republic Act No. 8371, the Indigenous
Peoples’ Rights Act. Republic of the Philippines: Office of the President. 1998. Rules and Regulations Imple-
menting Republic Act No. 8371, otherwise known as the Indigenous Peoples’ Rights Act.
UN Development Group. 2008. Guidelines on Indigenous Peoples’ Issues. World Commission on Dams. 2000. Dams and Development: A New Framework for
Decision-Making. London: Earthscan.
OTHER REFERENCES Colchester, Marcus, Fergus MacKay et al. 2003. Extracting Promises: Indigenous Peo-
ples, Extractive Industries and the World Bank. UK: Forest Peoples Programme and Philippines: Tebtebba Foundation.
Tamang, Parshuram. 2005. “An Overview of the Principle of Free, Prior and Informed Consent and Indigenous Peoples in International and Domestic Law and Practices.”
Contribution by Asia Region Indigenous Expert to the Workshop on Free, Prior and Informed Consent, Permanent Forum on Indigenous Issues, 17-19 January 2005.
UN Doc. PFII2004WS.28.
Vienna Declaration and Programme of Action adopted by the World Conference on Hu- man Rights on 25 June 1993. UN Doc. ACONF.15723.
Module-2
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RIGHTS AIPP
AIPP Regional Capacity Building Program - Training Manual on the UNDRIP
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Customary Law
Prepared by Raja Devasish Roy Module 3
OBJECTIVES
1. To understand why indigenous peoples have the right to practice and strengthen their distinct systems of customary law.
2. To gain an overview of key issues related to indigenous or customary law. 3. To know the provisions of UNDRIP that address the indigenous peoples’ right to practice cus-
tomary law.
4. To assess the extent to which the indigenous peoples’ right to customary law is respected or restricted in our respective countries.
5. To learn about good examples of how indigenous peoples assert their right to customary law. 6. To gain a long-term perspective of how indigenous peoples can fully enjoy their right to cus-
tomary law, to identify the challenges in achieving this, and to define the best ways of addressing such challenges.
CONTENTS
I. INTRODUCTION A. Background
B. Definition of terms II. UNDRIP PROVISIONS
A. Core articles B. Related articles
III. REALITIES ON THE GROUND A. General situation
B. Laws and policies C. Challenges in implementation
IV. EXPERIENCES AND LESSONS LEARNED A. Advocacy and lobbying
B. Action and mobilization C. Actual exercise of the right
V. CHALLENGES A. Needs, capacities, strategies
B. Implementation C. Monitoring
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I. INTRODUCTION
A. Background
Throughout history, human societies have been regulated by internal institutions – so-
cial-political and cultural-religious structures and processes – which served to shape the life
of communities. These were at first informal
and flexible rules and functions passed from one generation to the next – in a word, customs – that people relied on to resolve questions and disputes involving community membership, kin-
ship, marriage, property rights, resource access, leadership, blood feuds and warfare.
When a people reaches a certain level of political development, the informal customs evolve into customary law, which are interpreted and modified, applied to specific cases, and enforced
through the action of the entire community, or by institutions or groups of indigenous political- religious, military or juridical leaders that gradually assume the role of an incipient state.
The persistent practice and broad scope of customary law are strong indications of the in- digenous character of a people. At the same time, in the modern era of nation-states, custom-
ary law comes into conflict with state-imposed legal-juridical systems, and often loses out. The result is that indigenous systems of customary law and leadership are often reduced to token
and harmless rituals, except in countries where the indigenous legal-juridical system is formally recognised.
On the other hand, the rise of the indigenous peoples’ movement has created new political space for indigenous communities to assert their customary laws, especially those that they can
wield as weapons to protect their cultural identities and group social values; to defend their ter- ritories, lands and resources; to cement local intra-community and inter-community alliances;
and to begin asserting, to some degree, a measure of self-rule.
1. Definition of terms
A legal scholar has defined customary law as an established system of immemorial rules which had evolved from the way of life
and natural wants of the people, the general context of which was a matter of com- mon knowledge, coupled with precedents applying to special cases, which were re-
tained in the memories of the chief and his counselors, their sons and their sons’ sons, until forgotten, or until they became part of the immemorial rules Bekker 1989:11.
Social research has shown customary law to be continually evolving. In studying legal plural- ism in the Northern Luzon Cordillera, an anthropologist has observed customary law to be “both
structure and process” [Wiber 1993:13], and one of our own colleagues has found it to be: a system which people evolved, transformed or innovated on over time, in the course of
their coming to terms with changing realities [Gimenez 1996: 14].
Customary law is a coherent body of laws, but it is not rigid like state law. Input the following.
Suggested Method
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Customary laws are formulated in an inclu- sive and consensual manner, in unstructured
ways and over time, unlike state laws which are passed in the formal sitting of a legislative body
in only one or several sessions.
Customary laws are generally transmitted through oral tradition and practice, unlike state
law which is formally written down.
Three kinds of laws are of particular impor- tance to most indigenous peoples. They are:
• laws governing family and kinship: these include matters pertaining to marriage, di-
vorce, child custody, maintenance, inheri- tance, etc.;
• laws governing territory and the own- ership or use of, or access to land and re-
sources; • laws governing feuds or violent conflict
among individuals or kinship groups with- in the community, or between communities
that observe common principles of conflict resolution.
The customary laws of indigenous peoples are closely linked to the economic, political,
spiritual or religious and other cultural and social traditions. Therefore, they cannot be
seen in isolation as pure “law”, as in the case of non-indigenous or mainstream societies.
In fact, customary law may serve as the very basis of an indigenous people’s identity and integrity; it may be the crucial criterion that sets
them apart from other peoples and that constitutes an integral part of their indigeneity. In Indo- nesia, the indigenous peoples are known – in Bahasa Indonesia – as masyarakat adat, meaning
people [who live by] customary law.
REFERENCES Bekker, J.C. 1989. Seymour’s Customary Law in Southern Africa 5th ed. Cape Town:
Juta and Co. Ltd. Gimenez, Lulu A. 1996. On the Basis of Custom and History: Land Resource Ownership
and Access Rights Among the Igorot of the Itogon Mining Area. Baguio: Mining Com- munities Development Center.
Wiber, Melanie. 1993. Politics, Property and Law in the Philippine Uplands. Ontario: Wilfrid Laurier University Press.
At this point, divide the participants into groups and have them discuss then do
some role-playing about customary law versus state law, pinpointing the advan-
tages and disadvantages of:
• Simply having principles of law vs. having detailed provisions of law;
• Flexibility vs. rigidity; • Consensus vs. convention;
• Community legislation vs. state im- position;
• Community adjudication vs. state judges’ control;
• Arbitration of disputes aimed at a win-win resolution vs. arbitration
which tends to result in a win-lose situation.
Have the participants present the results of their group work, and synthesize, then
continue with the input.
Suggested Method
At this point, ask the participants what they know of their customary laws in the
three categories given above and discuss their knowledge with them. Then continue
with the input.
Suggested Method Module-3
