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Customs and Constitutions: State Recognition of Customary Law Around the World

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Customs and Constitutions: State Recognition of Customary Law Around the World Customs and Constitutions: State recognition of customary law around the world Katrina Cuskelly i Customs and Constitutions: State recognition of customary law around the world Katrina Cuskelly ii The designation of geographical entities in this book, and the presentation of the material, do not imply the expression of any opinion whatsoever on the part of IUCN concerning the legal status of any country, territory, or area, or of its authorities, or concerning the delimitation of its frontiers or boundaries. The views expressed in this publication do not necessarily reflect those of IUCN. Published by: IUCN, Asia Regional Office, Bangkok, Thailand Copyright: © 2011 IUCN, International Union for Conservation of Nature and Natural Resources Reproduction of this publication for educational or other non-commercial purposes is authorized without prior written permission from the copyright holder provided the source is fully acknowledged. Reproduction of this publication for resale or other commercial purposes is prohibited without prior written permission of the copyright holder. Citation: Cuskelly, Katrina. (2011). Customs and Constitutions: State recognition of customary law around the world. IUCN, Bangkok, Thailand. vi + 151 pp. ISBN: 978-2-8317-1429-5 Produced by: IUCN Regional Environmental Law Programme, Asia, Bangkok, Thailand Cover image: Wheel of Dharma, Jokhang Monastery, Tibet © iStockphoto LP Available from: IUCN Publications Services, www.iucn.org/publications iii Table of Contents Foreword ........................................................................................................................... v Acknowledgements .......................................................................................................... vi Introduction ....................................................................................................................... 1 International agreements .................................................................................................. 4 Constitutional provisions ................................................................................................... 6 1. Africa ......................................................................................................................................... 6 2. Meso and South America ....................................................................................................... 11 3. North America and the Caribbean .......................................................................................... 15 4. South and East Asia ............................................................................................................... 16 5. West Asia ................................................................................................................................ 17 6. Oceania .................................................................................................................................. 18 7. East Europe, North and Central Asia ..................................................................................... 21 8. West Europe ........................................................................................................................... 22 Conclusions and findings ................................................................................................ 24 Further research .............................................................................................................. 28 Annex A – Bibliography of constitutional provisions ........................................................ 30 Annex B – Bibliography of statutory provisions ............................................................... 95 Annex C – Bibliography of literature .............................................................................. 129 iv Foreword Since the Convention on Biological Diversity acknowledged the relevance of “traditional knowledge, innovations and practices of indigenous and local communities” for biodiversity conservation, the past two decades have witnessed a growing acknowledgement of the substantial role that customary law plays in regulating the use of natural resources in many countries. Indigenous peoples’ associations have become ever more effective advocates for recognition of customary rights to territory and resources and have increasing influence in international negotiations. The role of customary practices in biodiversity conservation is explicitly acknowledged in the Aichi Targets adopted at the 10th Conference of the Parties to the Convention on Biological Diversity in October 2010. Target 18 sets the goal that, by 2020, “the traditional knowledge, innovations and practices of indigenous and local communities, relevant for the conservation and sustainable use of biodiversity, and their customary use of biological resources, are respected, subject to national legislation and relevant international obligations, and fully integrated and reflected in the implementation of the Convention with the full and effective participation of indigenous and local communities, at all relevant levels.” IUCN’s Regional Environmental Law Programme, Asia, initiated this study – carried out entirely on a voluntary basis – in an attempt to better understand the degree to which customary practices and law that govern natural resources are recognized by individual nation States. The study found that more than 60% of the 190 constitutions reviewed provide at least some degree of recognition of customary law, and that only 20% specifically recognize customary law that governs land and natural resources. Some countries that do not provide constitutional recognition of customary law do so by statute. While constitutional recognition was the primary focus of this study, a preliminary compilation of information on statutory recognition of customary law was carried out and is provided as well. This effort benefitted from the input of members of IUCN’s Commission on Environmental Law and Commission on Environmental Economics and Social Policy. We gratefully acknowledge the author, Ms. Katrina Cuskelly, who began this study as a volunteer intern with the IUCN’s Regional Environmental Law Programme, Asia, and continued and completed the work over the course of more than one year. Without her dedication and commitment, this study would not have been possible. We hope that this study provides a basis for continuing research and, eventually, initiatives for constitutional and statutory reform, to appropriately recognize customary law governing natural resources, and to contribute to the security to the people whose lives it governs and who are dependent on the natural resources. Patricia Moore Dr. Alejandro Iza Head, Ecosystems and Livelihoods Group, Director, Environmental Law Centre Asia, and Regional Environmental Law Programme, Asia v Acknowledgements This paper would not have been possible without the help and hard work of many people. The assistance of my colleagues at IUCN has been invaluable. In particular, thank you to Patti Moore, Regional Environmental Law Programme Coordinator, for many hours spent offering advice, reviewing the paper and translating constitutions. Thanks also to Jane Gribble, Environmental Law Programme Officer, and Pimolwan Singhawong, Secretary to the Regional Environmental Law Programme and Regional Protected Areas Programme, for assistance in managing the peer review process and updating this paper. Many thanks to all of the people who made comments to help improve this paper, namely Sergey Matveytchuk, Carl Bruch, Richard W. Emory, Jr., Ever Luis María Martínez Fernández and Muhammed Tawfiq Ladan. Thanks also to Zuura Akmatova for identifying and translating relevant provisions of the Kyrgyzstan constitution and Mark Christensen for helping with the constitution of New Zealand. I would particularly like to acknowledge the significant contributions by Brendan Tobin, who put much time and effort into providing detailed and insightful comments and further information to improve this paper. vi Introduction There is no universally accepted definition of customary law. Black’s Law Dictionary defines customary law as “customs that are accepted as legal requirements or obligatory rules of conduct, practices and beliefs that are so vital and intrinsic a part of a social and economic system that they are treated as if they are laws.”1 Tobin and Taylor add to this the recognition that such legal regimes are “dynamic and constantly evolving and often incorporate legal concepts and measures drawn from other legal systems”.2 Swiderska et al provide a still broader definition of customary law, stating that: “Customary ‘laws’ include customary worldviews, principles or values, rules and codes of conduct, and established practices. They are enforced by community institutions, and can have sanctions attached. They are derived from natural resource use – some practices and beliefs acquire the force of law. They are locally recognised, orally held, adaptable and evolving.”3 Historically, the relative influence of each of natural law, customary law and positive laws has fluctuated throughout time and space.4 The strong emphasis on positive law in the field of international law during the 18th century led to a decline in the persuasion of natural law and customary law in the Western world. In particular, the doctrine of terra nullius served to reduce indigenous rights and delegitimize their customary law.5 Across much of the globe, there has
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