Why Customary Law Matters: The Role of Customary Law in the Protection of Indigenous Peoples' Human Rights
Tobin, Brendan Michael
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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.
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