A/HRC/27/65
indigenous justice systems, despite sharing certain characteristics, are highly diverse and
context-specific.
22.
The treaty bodies have highlighted some cases where differences may arise between
indigenous juridical systems and international human rights law. In its concluding
observations on Mexico, for example, the Committee on the Elimination of Discrimination
against Women noted its concern about “cultural practices within the indigenous legal
systems that are based on gender-stereotyped roles for men and women, such as the ‘bride
price’, and that perpetuate discrimination against indigenous women and girls”
(CEDAW/C/MEX/CO/7-8, para. 34). In the same vein, the Human Rights Committee
expressed concern at the use of corporal punishment in the community-based justice system
in the Plurinational State of Bolivia, and requested the State party to “conduct public
information campaigns in the native indigenous campesino and other jurisdictions in order
to raise awareness among the general public of the prohibition and harmful effects of
corporal punishment” (CCPR/C/BOL/CO/3, para. 16).
23.
There is a commonly held notion that indigenous juridical systems are static and
unchanging. Indigenous juridical systems are in fact highly dynamic, and examples show
that respect for both the legal autonomy of indigenous peoples and international human
rights law are by no means mutually exclusive. As Sieder and Sierra argue, “[t]he norms,
authorities and practices of indigenous justice systems reflect the changing relationships of
indigenous peoples with dominant society, but they also reflect changes and tensions within
indigenous communities and movements themselves”.16 The example of the alcaldía
indígena in Santa Cruz del Quiché, Guatemala is illustrative of how some indigenous
juridical systems are increasingly incorporating human rights norms and discourse. The
alcaldía, “a supracommunal coordination of indigenous communal authorities[,] … works
to mediate disputes and reduce the incidence of lynchings of suspected criminals, drawing
on discourses about Mayan identity but also paradigms of universal human rights and the
collective rights of indigenous peoples”.17 Gender discrimination issues are also being
addressed within the alcaldía, with an increasing number of women being selected as
alcaldes. This can be seen as a consequence of increasing participation of indigenous
women in Mayan social movements, “but also of demands within indigenous communities
that women’s dignity and physical integrity be respected”.18
24.
Another possible source of tension is the collective nature of the rights of indigenous
peoples, which could potentially conflict with the needs and rights of individuals within the
community. The Committee on the Rights of the Child states clearly that “[i]n the case of
children, the best interests of the child cannot be neglected or violated in preference for the
best interests of the group”.19
E.
Barriers and remedies
25.
The challenges faced by indigenous peoples in freely exercising their juridical rights
and pursuing juridical development within their societies are diverse and complex. In
situations where State law recognizes a high degree of autonomy, the major challenges are
in properly implementing these constitutionally recognized rights. In most cases, there is a
gap between what international and national frameworks proclaim and the situation on the
ground, as indigenous juridical systems continue to be subordinated despite legal
16
17
18
19
8
Sieder and Sierra, loc. cit. (see footnote 13 above), p. 4.
Sieder, loc. cit. (see footnote 5 above), p. 106.
Ibid.
Committee on the Rights of the Child, General Comment No. 11, para. 30.