Core Aricles UNDRIP PROVISIONS RELATED TO CUSTOMARY LAW

57 RIGHTS AIPP AIPP Regional Capacity Building Program - Training Modules on the UNDRIP cases where they exist, juridical systems or customs, in accordance with international human rights standards. Article 40 Indigenous peoples have the right to have access to and prompt decision through just and fair procedures for the resolution of conflicts and disputes with States or other parties, as well as to effective remedies for all infringements of their individual and collective rights. Such a decision shall give due consideration to the customs, traditions, rules and legal systems of the indigenous peoples concerned and international human rights.

B. Related Aricles

Article 13 1. Indigenous peoples have the right to revitalize, use, develop and transmit to future gen- erations their histories, languages, oral traditions, philosophies, writing systems and literatures, and to designate and retain their own names for communities, places and persons. 2. States shall take effective measures to ensure this right is protected and also to ensure that indigenous peoples can understand and be understood in political, legal and administrative proceedings, where necessary through the provision of interpretation or by other appropriate means. Article 19 States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may af- fect them. Article 20 1.Indigenous peoples have the right to maintain and develop their political, economic and social systems or institutions, to be secure in the enjoyment of their own means of subsistence and development, and to engage freely in all their traditional and other economic activities.

III. REALITIES ON THE GROUND

A. General Situaion

The continued survival of indigenous peoples is accompanied by the persistence of deeply rooted customary law and by its un- avoidable conflict with bodies of law grafted by post-colonial states onto Asian societies from Anglo-Saxon and Roman legal traditions. The conflict between customary law and state law has produced different situations in the various countries and among the various indigenous peoples of Asia. They include the following: • The main body of customary law is recognized and respected by the pre-existing state, and institutional mechanisms are created to reconcile or minimize conflicts between customary law, on one hand, and state legislation and jurisprudence, on the other hand. Input the following but involve partici- pants in a discussion of the particular situ- ation in their area or country. Suggested Method Module-3 RIGHTS AIPP AIPP Regional Capacity Building Program - Training Manual on the UNDRIP • The main body of customary law is sup- pressed or supplanted by state law. While parts of it may be selectively assimilated by state law, the rest gradually atrophies, marginalized by suppression or disuse. • The main body of customary law de- velops into its own expanded set of state laws, usually in the context of a new state created through a revolutionary process. Meanwhile, customary laws as prac- tised by specific indigenous peoples con- tinue to evolve in their own right, as they try to adapt to various internal pressures including the impact of the market econ- omy, state operations, and diffusion of for- eign lifeways into the indigenous. The direction of change may be in the form of written in lieu of traditional oral forms; adoption of general standards if not outright codification; substantial or procedural adjustments in order to adapt to changing community norms, or to conform with specific national or international laws; or, on the other hand, revival of a dead or dying customary law because it answers a new need.

B. Laws and Policies Related to the Recogniion of the Right

The following are provided as examples of positive laws that recognize, in varying degrees, the existence and practice of customary law among indigenous peoples in specific countries and areas. EXAMPLES OF POSITIVE STATE LAWS ON RESPECT FOR CUSTOMARY LAW INDIA • Constitutional provisions regarding Nagaland article 371a, Manipur 371c, Mizoram 371g • 6th Schedule Autonomous District and Regional Councils • India’s Federal Law “Panchayati Raj Extension to Scheduled Areas Act” of 1996 • State-level laws in India such as Chotanagpur Tenancy Act 1908, Santal Parganas Tenancy Supplementary Provision Act 1949 MALAYSIA • Constitutional provisions in Malaysia: articles 151, 1532, 161a, 161b, 161e • Constitution of Sabah: article 41 In various countries of Asia, there are laws and policies that positively recognize customary rights, for example, over forest resources, subsurface resources, water sources, family law, etc. In some cases, the positive law may not be an independent and separate law particularly high- lighting customary rights. Instead, the recognition could be a small section or even a single but important provision of a general law on land, or resources, or some other subject. In the case of 58 Module-3 Ofering tokens of peace, resoluion of Basao-Tonglayan dispute in 2006 Cordillera, Philippines. Photo by Mar- lon Gomarcho