A/HRC/42/37
and individual rights of indigenous peoples. In the present report she presents observations
and recommendations to State institutions (executive, judicial and legislative), indigenous
peoples, international institutions and agencies, and civil society.
9.
Without accessible courts or other legal mechanisms through which they can protect
their rights recognized under national and international normative instruments, indigenous
peoples become vulnerable to actions that threaten their lands, natural resources, cultures,
sacred sites and livelihoods. At the same time, recognition of their own justice systems is
important to respond to their rights and needs with respect to justice, self-governance and
culture. Effective access to justice implies access to both the State legal system and their
own systems of justice.1
Methodology
10.
In the present report, the Special Rapporteur examines international standards
regarding indigenous customary justice, relevant domestic legislation and judicial
decisions, observations and recommendations made by international human rights bodies,
including those of the Expert Mechanism on the Rights of Indigenous Peoples (see
A/HRC/24/50 and Corr.1 and A/HRC/27/65). Information received first-hand during
country visits and communications sent by the mandate on alleged violations 2 have also
informed the report.
11.
In response to a public call for inputs and solicitation for contribution from States,
the Special Rapporteur received contributions from 11 countries3 and several indigenous
and civil society organizations.4 The report also draws on a review of reports and
observations issued by civil society and academic articles related to the subject.
12.
The Special Rapporteur participated in an expert consultation organized by the
International Commission of Jurists in Bangkok in December 2018 on the issue of
“indigenous and other traditional or customary justice systems in the Asia-Pacific region”.
The consultation provided a space for dialogue and exchanges of experience and expertise
between participants in both State and indigenous justice systems from across the AsiaPacific region.5
B.
Normative standards: right to indigenous justice, access to justice and
right to a fair trial
Right to indigenous justice
13.
The ability of indigenous peoples to continue and strengthen their own systems of
administration of justice is an integral component of their rights to self-governance, selfdetermination and access to justice under international human rights instruments.
14.
Article 4 of the United Nations Declaration on the Rights of Indigenous Peoples
states that in exercising the right to self-determination, indigenous peoples “have the right
to autonomy or self-government in matters relating to their internal and local affairs, as well
as ways and means for financing their autonomous functions”. Article 5 asserts the right of
indigenous peoples to maintain and strengthen their political, legal, economic, social and
cultural institutions and article 34 the right to promote, develop and maintain their
1
2
3
4
5
4
See “Human rights, indigenous jurisdiction and access to justice: towards intercultural dialogue and
respect”, presentation by the Special Rapporteur at the international seminar on investigative
techniques and indigenous issues, Colombia, 24 February 2016, available from
http://unsr.vtaulicorpuz.org/site/index.php/en/statements/116-indigenous-jurisdiction.
Available from https://spcommreports.ohchr.org/.
Australia, Bolivia (Plurinational State of), Canada, Colombia, Denmark, Ecuador, Finland,
Guatemala, Mexico, Norway and Ukraine.
The contributions will be available on the webpage of the Special Rapporteur at
www.ohchr.org/EN/Issues/IPeoples/SRIndigenousPeoples/Pages/SRIPeoplesIndex.aspx.
See “Indigenous and other traditional or customary justice systems in the Asia-Pacific region”, report
of the 2018 Geneva Forum of Judges and Lawyers (June 2019).