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6.1. CUSTOmS AND CUSTOmARy LAw
Many indigenous and tribal peoples have their own customs and practices, which form their customary
law. This has evolved through the years, helping to maintain a harmonious society.
Often, in order to apply these customs and practices, indigenous peoples have their own
institutional structures such as judicial and administrative bodies or councils. These bodies
have rules and regulations to make sure customary laws are followed. Failure to do so is often punished,
and individual lapses often have their own speciic punishment.
An effective implementation of internationally recognized indigenous peoples’ rights - including
land and resource rights, and cultural, social and economic rights - requires that customs, customary
law and legal systems of indigenous peoples are recognized and acknowledged, in particular
in relation to collective rights of fundamental importance to indigenous peoples.
Convention No. 169 recognises the right of indigenous peoples to their own customs and
customary law. It states that when applying national laws, these customs and customary laws should be
taken into account.
Convention No. 169, Article 8 1.
In applying national laws and regulations to the peoples concerned, due regard shall be
had to their customs or customary laws. 2.
These peoples shall have the right to retain their own customs and institutions, where
these are not incompatible with fundamental rights deined by the national legal system and
with internationally recognised human rights. Procedures shall be established, whenever
necessary, to resolve conlicts which may arise in the application of this principle.
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According to Article 82 of the Convention, only those customs and institutions that are incompatible
with fundamental rights deined by the national legal system and with internationally recognized
human rights are exempt from the principle enshrined in Article 81. This provision establishes
cumulative exemption criteria: the customs must be incompatible with both a national legislation
as well as b international human rights provisions. Thus, national legal provisions that are incompatible
with rights recognized under international human rights law cannot be used to justify ignorance of
indigenous peoples’ customs in the application of national legislation. On the other hand,
indigenous customs cannot be justiied if these are in
violation of fundamental human rights. This is, for example, the case with female genital mutilation,
1
which is performed in some indigenous communities as a customary practice, or the ritual of burying
disabled children or children of unwed mothers alive, prescribed by cultural norms.
2
Article 34 of the UN Declaration on the Rights of Indigenous Peoples reafirms the principle
contained in Article 82 of the Convention, that it is international human rights law which establishes
standards to determine which customs are unacceptable; international human rights law
establishes minimum universal standards for human rights and freedoms – derived from the inherent
dignity of the human person. Article 34 of the Declaration states that indigenous peoples have
the right to promote, develop and maintain their institutional structures and their distinctive customs,
spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or
customs, in accordance with international human rights standards. Moreover, Article 35 of the
Declaration states that indigenous peoples have the right to determine the responsibilities of individuals
of their communities. This provision is closely linked to the issues of customary law, as such laws are
important sources for the description of the rights and responsibilities of indigenous individuals residing
in indigenous communities Henriksen 2008.
1 Commonly practiced by some indigenous peoples, for instance in Kenya and Tanzania.
2 a Hugo Marques 2008 The Indian Child who was Buried Alive http:www.lifesitenews.comldn2008feb08022604.html;
b O’Brien, Elisabeth 2007 Anthropology Professor says Tribal Killings of Disabled Babies should be Respected http:www.lifesitenews.com
ldn2007jul07070403.html
United Nation’s Declaration on the Rights of Indigenous Peoples
Article 34 Indigenous peoples have the right to promote,
develop and maintain their institutional structures and their distinctive customs,
spirituality, traditions, procedures, practices and, in the cases where they exist, juridical
systems or customs, in accordance with international human rights standards.
Article 35 Indigenous peoples have the right to
determine the responsibilities of individuals to their communities.
Constitutional recognition of indigenous peoples’ legal customs and systems is an important
measure for the development of a legal regime, which effectively accommodates indigenous
customary law and practices and enables them to co-exist with the national legal system. Whether
customs and customary laws are recognized and taken into account by national authorities in policy
decisions and in the application of national laws and regulations seems to depends on two main factors:
1.
The level of general acceptance of legal pluralism within the national juridical system;
2.
The issue which the custom or customary law is sought to be made applicable for.
The general tendency is that indigenous customs and customary law are more accepted when they
are applied in relation to individuals within indigenous communities. This applies to customary personal
law, and various religious, cultural or social customs and rituals within communities. In contrast, the
collective aspects of indigenous customary law often seem to be regarded as a “threat” to national legal
systems rather than as an additional and valuable contribution to the development of legal pluralism
– which is a prerequisite for multi-culturalism. Indigenous customs and customary laws are more
reluctantly, if at all, taken into account in relation to matters which affect economic interests of the
state or third parties, especially when concerning customary rights over lands, territories and
resources Roy 2004: pp. 305-312.
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Still, the level of acceptance of legal pluralism, through state acceptance and application of
indigenous peoples’ customs and customary law appears selective and pragmatic, and largely
determined by the economic interests of the majority population or certain sectors of the national
community Henriksen 2008.
6.2. OffENCES AND PENAL SySTEmS