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Under Article 91, States are obliged to respect indigenous peoples’ customary methods for dealing
with criminal and other offences, to the extent such methods are compatible with the national
legal system and international human rights law. Customary punishment methods that violate
individual human rights are thus not legitimized under this provision. The other criterion in Article
91 – compatibility with the national legal system – is not limited to the question of substantive
legal compatibility, as it is also a question about whether this is compatible with the overall system of
administration of justice in the country concerned. Many indigenous peoples still practice their
traditional methods for dealing with minor offences committed by their members, without state
interference – whereas more serious offences normally are dealt with under the applicable national
legal procedures. However, also in cases where general legal procedures are applied in response to
offences committed by indigenous individuals, the customs of the indigenous people concerned shall
be taken into account by authorities and courts dealing with such issues Article 9 2; cf. Henriksen
2008.
Members of indigenous peoples are often overrepresented among prisoners and among
deaths in custody. In Australia, between 1980 and 1997, at least 220 Aborigines died in
custody. While Aborigines represent only 1.4 of the adult population, they accounted for
more than 25 of all custodial deaths due, for example, to poor prison conditions, health
problems and suicide. This highlights the need for efforts by judges, courts and national
administrators to ind alternative forms of punishment when dealing with indigenous or
tribal offenders.
3
3 ILO Convention No. 169: A Manual, ILO, 2003.
6.3. ACCESS TO jUSTICE
Indigenous peoples’ marginalized position is often relected in their limited access to justice. Not only
do they have a special risk of becoming victims of corruption, sexual and economic exploitation,
violations of fundamental labour rights, violence etc. but they also have limited possibilities for seeking
redress. In many cases, indigenous peoples are not familiar with national laws or the national legal
system and do not have the educational background or the economic means to ensure their access to
justice. Often, they do not speak or read the oficial language used in legal proceedings, and they may
ind courts, hearings or tribunals confusing. To address this situation, Article 12 of the Convention
stipulates that indigenous peoples should have access to using the legal system to ensure the
applicability of their guaranteed rights and that, where necessary, indigenous peoples should have
interpretation in courts and other legal proceedings. This is to make sure that they can understand what
is going on, and also, that they can be understood themselves.
ILO Convention No. 169: Article 12
The peoples concerned shall be safeguarded against the abuse of their rights and shall
be able to take legal proceedings, either individually or through their representative
bodies, for the effective protection of these rights. Measures shall be taken to ensure that
members of these peoples can understand and be understood in legal proceedings,
where necessary through the provision of interpretation or by other effective means.
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V I . C U S T O m A Ry L Aw, P E N A L S y S T E m S A N D A C C E S S T O j U S T I C E
An operational approach to improving access to justice
The UNDP deines “access to justice” as: “The ability of people to seek and obtain a remedy
through formal or informal institutions of justice, and in conformity with human rights standards”.
In linking access to justice to the broader human rights and development framework, the
UNDP focuses on people’s capacity to demand accountability in two ways: by using human rights
to deine the minimum scope of legitimate claims; and by enhancing the accountability mechanisms
and processes through which they protect these claims. Such accountability mechanisms comprise
not only the formal and customary justice systems, but also a range of other mechanisms, including the
media, parliamentary commissions etc. Access to justice is thus understood as a process, which must
be contextualized to the speciic circumstances and which requires capacity-building of all actors. The
UNDP identiies the following key elements in this regard:
Legal protection recognition of rights within •
the justice systems, thus giving entitlement to remedies either through formal or traditional
mechanisms. Legal awareness people’s knowledge of the
• possibility of seeking redress through the
formal or traditional justice systems. Legal aid and counsel access to the
• expertise needed to initiate and pursue justice
procedures. - Adjudication the process of determining
• the most adequate type of redress or
compensation, either regulated by formal law as in the case of courts or by traditional legal
systems. Enforcement the implementation of orders,
• decisions, and settlements emerging from
formal or traditional adjudication. Civil society and parliamentary oversight
• watchdog and monitoring functions with
regards to the justice systems.
4
4 UNDP: Programming for Justice - Access for All. A Practitioner’s Guide to a Human-Rights –Based Approach to
Access to Justice, 2005.
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6.4. PRACTICAL APPLICATION: CUSTOmARy LAw
