When Legal Worlds Overlap Human Rights, State and Non-State Law International Council on Human Rights Policy The International Council on Human Rights Policy was established in Geneva in 1998 to conduct applied research into current human rights issues. Its research is designed to be of practical relevance to policy-makers in international and regional organisations, in governments and inter-governmental agencies, and in voluntary organisations of all kinds. The Council is independent, international in its membership, and participatory in its approach. It is registered as a non- profit foundation under Swiss law. Cover illustration © The Trustees of the British Museum. Mud cloth (bogolanfini). Bamana peoples, mid-20th century. From Mali. When Legal Worlds Overlap: Human Rights, State and Non-State Law The International Council on Human Rights Policy wishes to thank the British Department for International Development (DFID), the German Federal Ministry for Economic Cooperation and Development (BMZ) and the German Agency for Technical Cooperation (GTZ), the Dutch Ministry of Foreign Affairs, the Norwegian Ministry of Foreign Affairs, the Swedish International Development Co-operation Agency (SIDA), the Swiss Agency for Development and Cooperation (SDC), the Ford Foundation (New York), the Catholic Agency for Overseas Development (CAFOD) (United Kingdom), and an anonymous donor, for their financial support. The contents of this report do not necessarily reflect the views or policies of the donors. When Legal Worlds Overlap: Human Rights, State and Non-State Law © 2009 International Council on Human Rights Policy © 2009 International Council on Human Rights Policy 48 chemin du Grand-Montfleury, 1290 Versoix, Switzerland. When Legal Worlds Overlap: Human Rights, State and Non-State Law, 2009. International Council on Human Rights Policy. Versoix, Switzerland. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording and/or otherwise without the prior permission of the publisher. The designation of geographical entities in this report, and the presentation of the material, do not imply the expression of any opinion by the International Council on Human Rights Policy concerning the legal status of any country, territory, or area, or of its authorities, or the delimitation of its frontiers or boundaries. The International Council on Human Rights Policy is a non-profit foundation registered in Switzerland. ISBN 2-940259-48-8 Cover illustration: © The Trustees of The British Museum. Mud cloth (bogolanfini). Bamana peoples, mid-20th century. From Mali, West Africa. Design and layout by Fairouz El Tom, Outreach & Publications Coordinator at the International Council on Human Rights Policy. Printed by ATAR Roto Press SA, Vernier, Switzerland. This report is available from: ICHRP 48 chemin du Grand-Montfleury 1290 Versoix Geneva, Switzerland Phone: +41 (0) 22 775 33 00 Fax: +41 (0) 22 775 33 03 [email protected] www.ichrp.org CONTENTS ACKNOWLEDGEMENTS i INTRODUCTION AND OVERVIEW III I. PLURAL LEGAL ORDERS: PREMISES, DEFINITION AND CONTEXTS 1 Premises: where we start 1 Plural legal orders: what are they? 2 Policies and contexts that give rise to plural legal orders 7 II. GOING BEYOND COMMON PRESUMPTIONS ABOUT LAW, CULTURE AND HUMAN RIGHTS 17 The limits and power of law 17 The relationship between cultural differences and law 18 Speaking about human rights and culture 22 III. HUMAN RIGHTS STANDARDS AND PLURAL LEGAL ORDERS 27 Legal plurality in human rights texts and mechanisms 27 Key issues arising from international standards on plural legal orders 31 IV. UNDERSTANDING NON-STATE LEGAL ORDERS 43 Characterising non-state legal orders 44 The complex relationship between the state and non-state legal orders 46 Challenges to presumptions about the demand for non-state legal orders 49 Unpacking non-state legal orders: revisiting popular generalisations 51 V. FAMILY LAWS – A CASE STUDY OF PLURAL LEGAL ORDERS 63 Weaknesses in standard-setting 64 The relevance of plural legal orders to family law 66 The impact of plural legal orders in family law matters 68 VI. HUMAN RIGHTS IMpaCTS OF PLURAL LEGAL ORDERS 73 Discrimination and inequality in law 73 Implications for freedom of religion and belief 74 Jurisdictional confusion, impunity and lack of accountability 75 Undermining access to justice and diluting due process 78 Obstacles to effective development of minority rights 80 Reinforcement of socio-economic inequalities 82 The political implications of legal plurality 84 VII. PLURALITY AND THE ROLE OF THE STATE 89 Recognition, incorporation and decentralisation: terms and meanings 89 Dilemmas and conceptual challenges 94 VIII. CULTURAL DIVERSITY, PLURAL LEGAL ORDERS AND JUSTICE 101 Multiculturalism and the challenges of cultural diversity 101 Cultural diversity, group rights and individual rights 105 Regulating religious arbitration in family law matters 110 IX. AN ASSESSMENT OF JUSTICE SECTOR REFORM 115 Interests underlying the promotion of non-state legal orders 115 Inadequate research and analysis 117 Inconsistent adherence to human rights principles and standards 122 Lack of consultation and meaningful local participation 124 Planning, implementation, monitoring and evaluating legal reform projects 127 X. DEVELOPING A HUMAN RIGHTS APPROACH TO PLURAL LEGAL ORDERS 135 The scope for using existing human rights standards 135 The scope for further development of human rights standards 140 XI. A FRAMEWORK FOR HUMAN RIGHTS POLICY AND ADVOCACY 145 How to use the framework 148 The framework 149 BIBLIOGRAPHY 157 GLOSSARY Adat customary laws in Indonesia Aksakal elders with customary authority in Kyrgyzstan Barangay non-state justice mechanisms in parts of the Philippines Bii customary legal authorities in parts of pre-Soviet Central Asia Bulubulu ritual apology and recompense in Fiji Casa de Justicia legal service centres in Colombia Dhimmi non-Muslim minorities or majorities who, provided they paid a tax to the Muslim state or ruler and accepted certain legal disabilities, were granted state protection and permitted to continue to practice their religion and to be governed by separate personal laws Dina customary dispute and conflict resolution mechanism body in Madagascar Diya blood money and retribution payments derived from interpretations of Shari’ah Get a written consent to being divorced, required for the validity of a divorce in Halachic Jewish law which prohibits divorce against the will of the spouse Jirga or shura tribal council in parts of Afghanistan and Pakistan Kaikuli a customary payment from the husband to the wife which is held in trust by the husband (Sri Lanka) Kastom customary law in the Solomon Islands Kris Romani dispute resolution mechanism Lok adalat a quasi-judicial, alternative dispute resolution mechanism established by act of Parliament in India Mamzer illegitimate Jewish child who is forbidden to marry a Jew for ten generations Mehr dower Millet system the Ottoman Empire’s system of distinct personal laws for various religious communities Musalihat anjuman literally, ‘forum for problems’, an alternative dispute resolution mechanism established by law in Pakistan Nyaya panchayats village panchayats granted some judicial powers under 1950s legislation in India Panchayat customary decision-making forum in the Indian subcontinent Rido clan and interkin group conflicts among the Maranao and Maguindanao Muslims in the Philippines Riwaj customary law among the Pathan in Pakistan and Afghanistan Rondas campesinas neighbourhood or night watch peasant patrols with some adjudicative functions, found in some Latin American countries (especially Peru) Shalish informal adjudication of civil and criminal disputes by local notables in Bangladesh Talaq unilateral divorce initiated by a Muslim husband Xeer Somali customary law ACKNOWLEDGEMENTS The International Council on Human Rights Policy (ICHRP) is grateful to all those who made possible the successful completion of this project, in particular: Cassandra Balchin, Research Consultant, who also led the drafting of this report; Yüksel Sezgin and Kirsty Gover who authored Working Papers for the project; Matthew John, supported by Anuj Bhuwania, who prepared background research papers; and the Project Advisors: Prof. Anne Griffiths, Imrana Jalal, Dr. Celestine Nyamu-Musembi, Gita Sahgal and Prof. Franz von Benda-Beckmann. In addition, the ICHRP is very grateful to the following individuals who gave their valuable time to attend the First Expert Meeting and subsequent Research Workshops, comment on a draft of this report, discuss the project, or shared material or information with the Council: Abdullahi An-Na’im; Karima Bennoune; Judith Beyer; Chetan Bhatt; Julian Burger; Claude Cahn; Kamala Chandrakirana; Sylvia Chirawu; Mark Davidheiser; Marie-Benedicte Dembour; Christoph Eberhard; Sally Engle Merry; Raquel Y. Fajarado; Julio Faundez; Miranada Forsyth; Yash Ghai; Stephen Golub; Lisa Gormley; Kirsty Gover; Anne Griffiths; Pena Guzman; Manfred O. Hinz; Sara Hossain; Robert Husbands; Jean Jackson; Mathew John; Christina Jones-Pauly; Helene Maria Kyed; Leslie Lois; Hallie Ludsin; Vivek Maru; Ingrid Massage; Juliane Neuhaus; Enyinna Nwauche; Celestine Nyamu-Musembi; Chidi Odinkalu; Pragna Patel; Mireya Maritza Pena Guzman; Faustina Perreira; Bishnu Raj Upreti; Gita Sahgal; Yüksel Sezgin; Dina Siddiqi; Rachel Sieder; Shannon Speed; Rodolfo Stavenhagen; Gila Stopler;