Abstract:
For millions of Indigenous peoples around the world their own customary laws (nonstate
laws they consider binding upon them) are their primary, if not their only source
of law. Long marginalized and where recognized considered to lie on the lowest level
of the legal hierarchy, the status of indigenous peoples¿ legal systems and most
importantly of their customary laws changed dramatically in the twenty years between
1990 and 2010. During this period advances in national and international law and
jurisprudence has clearly recognised the rights of Indigenous peoples to be governed
by their own legal regimes and the obligation of states to respect and recognise their
laws and institutions and the ancestral rights they uphold.
The thesis that this study proposes is that states are legally obliged to give due respect
and recognition to the customary laws of Indigenous peoples in order to secure the
full and effective realization of their human rights, and that these obligations and the
concurrent right of Indigenous peoples to be governed by their own laws, customs and
traditions are recognised principles of customary international law. In order to prove
this thesis attention is given to the historic status of customary law, its role in
regulating and securing the rights of Indigenous peoples to their lands, territories,
resources, traditional knowledge, cultural heritage, and self- determination.
Examination is made of a wide range of customary law experiences ranging from the
national to the local level and addressing key issues such as: the nature, status and
characteristics of customary law; proof of customary law; its role in failing states;
application to conflicts with private sector actors; place in tribal adjudication systems;
role in the regulation and enforcement of contractual arrangements; and its influence
on dominant legal regimes. The sty shows that customary law, far from being an
archaic and quaint system of law existing on the margins and of little interest and less
importance to the mainstream legal system, is a vibrant and dynamic body of ¿living
law¿ which is vital for the realisation of Indigenous peoples¿ human rights and a
crucial element of any system of good global governance
The study concludes that the body of international instruments, jurisprudence of the
courts and treaty bodies, state practice and opinio juris examined supports a finding
that the thesis has been proved.
