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Balancing Rights or Building Rights?

Balancing Rights or Building Rights?

In 2007, after more than 20 years of exhaustive negotiations, drafts and re-drafts between indigenous groups and member states, the United Nations (“UN”) finally adopted the Declaration on the Rights of Indigenous Peoples (“Declaration”) by an overwhelming majority. The UN thereby recognized the right of indigenous peoples “to promote, develop and maintain 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.” This right will hereafter be expressed as the right to use customary systems of law (“CSLs”).

Although merely one of a number of rights enshrined in the Declaration, this is a right whose importance is belied by the small space it occupies in the text of the Declaration. The right to use CSLs is a core expression not only of indigenous identity but also of indigenous sovereignty, an attempt mto retain autonomy in the face of a monolithic state seeking to exercise its authority over a diverse geographical space through formal state laws, among other things. In many senses the conflict between formal, state systems of justice and informal CSLs is one of the most visible and enduring tensions between the Westphalian nation-state system and the multiplicity of autonomous ethnic groupings that have been subsumed within it. However, although CSLs are well-adapted to comprehending and appropriately addressing the specific problems in the communities in which they are applied, where there are jurisdictional conflicts between the two systems they are invariably resolved in the state courts by applying formal, state laws. In short, under international law, indigenous sovereignty must yield to state sovereignty.

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