A/HRC/24/50 A. International and State recognition of indigenous peoples’ justice systems 53. United Nations bodies, including human rights treaty bodies and special procedures, as well as regional mechanisms, have highlighted the need for recognition of indigenous peoples’ justice mechanisms in legal systems. A key priority in reports of the special procedures has been indigenous peoples’ right to practice their own legal systems.58 For example, issues of concern have included: limitations on the jurisdiction of indigenous judicial authorities; requirements that persons who administer traditional justice have formal legal training; certification of expert elders; subordination of indigenous justice systems to ordinary justice systems; and the failure to raise awareness among judicial officials about the rights of indigenous peoples to administer their own justice (A/HRC/17/30/Add.3, paras. 80–81). 54. State recognition of indigenous justice systems and their jurisdiction over criminal matters also varies. At the domestic level, some States formally recognize traditional justice systems.59 In Latin America, many national constitutional frameworks, including nearly all of the countries of the Andean region,60 recognize the jurisdiction of indigenous authorities and their authority to apply customary laws. The Canadian Human Rights Act requires that the Canadian Human Rights Commission and Tribunal and courts consider First Nations’ legal traditions and customary laws when applying the Act.61 55. Indigenous peoples often continue to struggle to have their institutions and systems, including legal systems, traditional laws and approaches to justice, recognized. In some cases, customary laws are recognized in legislation but often with limitations, subject to jurisdictional limitations or so-called repugnancy clauses, which provide that customary laws are recognized where they do not conflict with domestic laws. 62 Such provisions undermine and discriminate against indigenous peoples’ legal systems. However, there may be a growing recognition of the need for greater tribal authority over criminal matters, as evidenced, for example, by the 2013 re-enactment of the United States Violence against Women Act, which included landmark provisions reducing federal restrictions on tribal jurisdiction and empowering Native American tribal authorities to prosecute non-Native Americans for abuses committed on tribal lands. 56. In some cases, States themselves challenge indigenous judicial practices, often based on arguments that customary systems are discriminatory or inconsistent with domestic or international standards. It is important to note that the United Nations Declaration on the Rights of Indigenous Peoples requires compliance with international human rights standards but does not include a similar provision regarding national systems.63 58 59 60 61 62 63 See, for example, A/HRC/17/30/Add.3, as well as Committee on the Elimination of Racial Discrimination, concluding observations on Cameroon (CERD/C/CMR/CO/15-18), para. 17, and on Guatemala (CERD/C/GTM/CO/12-13), para. 8. See, for example, the submissions of the Bolivarian Republic of Venezuela and Peru. Colombia (1991), Peru (1993), Plurinational State of Bolivia (1994, 2009), Ecuador (1998, 2008) and Bolivarian Republic of Venezuela (1999). Submission: Canadian Human Rights Commission. Submission: Natural Justice: Lawyers for Communities and the Environment. Alexandra Xanthaki, “The UN Declaration on the Rights of Indigenous Peoples and collective rights: what’s the future for indigenous women?” in Stephen Allen and Alexandra Xanthaki, eds., Reflections on the UN Declaration on the Rights of Indigenous Peoples (Oxford, Hart Publishing, 2011), p. 413. See also Alexandra Xanthaki, “Multiculturalism and international law: discussing universal standards”, Human Rights Quarterly, vol. 32, No. 1 (2010), p. 40. 13