E/CN.4/2002/97
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Commission on indigenous issues in Africa.28 In this connection, the particularly sensitive
situation of indigenous girls is of paramount importance, inasmuch as they are often the most
vulnerable victims of discrimination, exclusion and marginalization. The literature on the
subject is still incomplete and fragmentary; consequently, the Special Rapporteur intends to give
this topic his particular attention in subsequent reports to the Commission.
4. Social organization, local government, customary law
72.
Cultural identities are sustained not only by a discrete list of “elements” that every
member of a cultural group “carries along” as he/she goes through life. In fact, these elements
may vary from individual to individual and they may, and frequently do, change over time. So it
is not the contents of a culture which defines any group’s identity. It is rather in the field of
social organization that identities are wrought and sustained. To the extent that a system of
social relations defines the identity of each individual member and his/her link to the group as a
whole, the social institutions and relationships characteristic of a given community are the
necessary frame of reference needed for any culture to thrive. Indigenous communities know
this well, because when they claim the right to maintain their social organization in the face of
pressure from the wider society, they are actually appealing for the preservation of their culture.
73.
Too often the larger society has taken the stance that indigenous social institutions are
contrary to the national interest or, worse, are morally reprehensible. This position was taken for
a long time by the dominant institutions in colonial empires. The question is frequently debated
whether adherence to indigenous communal institutions may lead under certain circumstances to
the violation of individual human rights (for example, the rights of women and girls).
74.
Local community organization is often upheld by adherence to a generally accepted
system of customs and mores, or customary law, which in numerous countries is not accorded
any formal legal recognition and may in fact be considered as competing with the formal State
legal system. Do community members who accept the norms of unwritten customary law stand
in violation of a country’s legal system? Does the application of customary law violate
nationwide legal norms? Yet what about situations in which the application of positive law
entails a violation of community norms and customs? Might that not constitute a violation of
human rights as well?
75.
These issues are dealt with in different ways by individual States (and by different
scholars) and the various solutions run from some form of accepted legal pluralism to the
absolute rejection by the official legal system of any kind of indigenous customary law, with a
number of possibilities in between. Under what circumstances might the application of
indigenous legal systems (customary law) threaten internationally accepted standards of
individual human rights? And conversely, under what circumstances could the limitation or
elimination of indigenous customary law violate the human rights of members of indigenous
communities? These are complex issues, on which there is much debate and little agreement and
which need to be addressed objectively and without bias, a task on which the Special Rapporteur
intends to report to the Commission in the future.
76.
Since time immemorial, local communities have evolved some form of local government
within the structure of a wider polity into which they have been integrated as a result of historical