A/HRC/27/65
own forms of dispute resolution in their communities has increased.5 In Guatemala, for
example, measures are being taken by the Public Ministry and the Supreme Court to
improve coordination with indigenous juridical systems, and indigenous conflict resolution
mechanisms are increasingly being respected.6
15.
In Asia, the situation of indigenous juridical systems varies. In Thailand, for
example, customary law is not recognized by the Government. Indigenous peoples’
customary law is only applied at the village level. In Nepal, indigenous legal systems were
suppressed by the national legal system, and efforts to revitalize them have been hindered
by the fact that they are not documented. Communities are in varying situations with
respect to the implementation and recognition of their legal systems from the State and
within the communities themselves. In Bangladesh, traditional institutions such as the
Three Circle Chiefs in the Chittagong Hill Tracts are recognized by the State and have the
authority to adjudicate disputes, but their powers are limited. In Malaysia, native courts are
legally recognized in Sabah and Sarawak, but several problems exist, notably unclear
jurisdictions with Syariah courts and the lack of full recognition of customary laws in the
Constitution.7
16.
The continued use and support of customary law systems alongside Western justice
systems is a characteristic of the legal systems of the Pacific. The level of support of
customary law systems or kastom is recognized in many constitutions, including those of
Papua New Guinea, the Solomon Islands and Vanuatu,8 and continues to be a feature of
everyday life, especially in relation to certain areas of conflict, including traditional lands.9
Explanations for this level of legal pluralism include the limited influence of Western law
in some areas along with the continued operation of kastom. Postcolonial independence is a
feature of many Pacific societies and there are examples of these societies (like the
highlands of Papua New Guinea) reverting to older, familiar justice systems after
independence. In Australia and New Zealand, formal systems of law are more dominant,
although there are many examples in New Zealand of the incorporation of tikanga Māori
(Māori law) into justice processes.10
17.
In general, the laws of the Russian Federation do not refer to indigenous customary
law as such, but allow for indigenous legal practices to be taken into account when concrete
cases with indigenous peoples are considered. Nonetheless, the Federal Law regarding the
general principles of organization of indigenous communities allows the resolution of
“local issues” by applying customary law. However, in practice these provisions are rarely
used by judges and lawyers due to a lack of specialized courses in law faculties and in the
occupational training system. Judicial officials often ignore indigenous legislation, leading
to its incorrect interpretation and enforcement, without considering the cultural specificities
of indigenous peoples of the north.11
5
6
7
8
9
10
11
6
Rachel Sieder, “The challenge of indigenous legal systems: beyond paradigms of recognition”,
Brown Journal of World Affairs, vol. XVIII, No. 11 (Spring/Summer 2012).
Submission: Guatemala.
Asia Indigenous Peoples Pact, “Asia indigenous peoples’ perspectives on development” (2011).
Available from http://www.aippnet.org/images/stories/ID-Report-web-20101130150441.pdf.
Sinclair Dinnen, “Restorative justice in the Pacific Islands,” in A Kind of Mending: Restorative
Justice in the Pacific Islands, Sinclair Dinnen, Anita Jowitt and Tess Newton Cain, eds. (Canberra,
Pandanus Books, 2003).
Jennifer Corrin and Don Paterson, Introduction to South Pacific Law, 2nd ed. (London, RoutledgeCavendish, 2007).
For example, the observance of local protocol during Waitangi Tribunal hearings.
Vladimir Kryazhkov “Development of Russian legislation on northern indigenous peoples”, Arctic
Review on Law and Politics, vol. 4, No. 2 (2013).