This highly original work demonstrates the fundamental role of customary law for the realization of Indigenous peoples’ human rights and for sound national and international legal governance. The book reviews the legal status of customary law and its relationship with positive and natural law from the time of Plato up to the present. It examines its growing recognition in constitutional and international law and its dependence on and at times strained relationship with human rights law.
The author analyzes the role of customary law in tribal, national and international governance of Indigenous peoples’ lands, resources and cultural heritage. He explores the challenges and opportunities for its recognition by courts and alternative dispute resolution mechanisms, including issues of proof of law and conflicts between customary practices and human rights. He throws light on the richness inherent in legal diversity and key principles of customary law and their influence in legal practice and on emerging notions of intercultural equity and justice. He concludes that Indigenous peoples’ rights to their customary legal regimes and states’ obligations to respect and recognize customary law, in order to secure their human rights, are principles of international customary law, and as such binding on all states.
At a time when the self-determination, land, resources and cultural heritage of Indigenous peoples are increasingly under threat, this accessible book presents the key issues for both legal and non-legal scholars, practitioners, students of human rights and environmental justice, and Indigenous peoples themselves.
Table of Contents
Introduction 1. Customary Law in Context 2. Self-Determination in Practice 3. Where Custom is the Law 4. In Search of the Living Law 5. Ancestral Rights Recovered: Lands and Traditional Territories 6. Natural Resources or Essences of Life? 7. Right to Culture and Cultural Heritage 8. Traditional Knowledge 9. Intercultural Equity and Justice In Closing: Traditions for the Future
Brendan Tobin (Ashoka Fellow, Ashoka Innovators for the Public) a Research Fellow at the Law School, Griffith University, Australia, has over 20 years of experience working on environmental law and human rights around the world. He has previously been a lecturer at the National University of San Marcos, Peru, a researcher at the United Nations University, Japan. As a legal consultant he has worked for a range of clients including the World Intellectual Property Organization and Central University of Minorities in Beijing, China. He was the Coordinator and Founding Member of the Asociación para la Defensa de los Derechos Naturales (Association for the Defence of Natural Rights) based in Peru and an NGO representative on the Peruvian national delegation to the Convention on Biological Diversity. He has a PhD from the Irish Centre for Human Rights, National University of Ireland, Galway, and practised as a barrister in Dublin, Ireland. He holds dual Irish and Peruvian citizenship.
"I have been waiting for a book like this for a long time. It makes customary law more accessible to experts and generalists alike. Comprehensively researched, the book summarizes major themes and frameworks associated with customary law in the world today. It is an impressive work." – John Borrows, Professor and Canada Research Chair in Indigenous Law, University of Victoria, Canada.
"Dr Tobin's incisive and authoritative account convincingly and expertly demonstrates why customary law still matters for us all. It tells exactly how both the pursuit of social justice and a healthier relationship between humans and nature can be advanced by an enhanced appreciation and accommodation for what indigenous peoples call 'the living law'." – Graham Dutfield, Professor of International Governance, University of Leeds, UK.
"Tobin has compiled a very important work that demonstrates an extraordinarily in-depth understanding of the dynamic evolution of indigenous rights and the role of customary laws in national and international standards and policies. A must read for legal practitioners, policy makers, and researchers interested in indigenous rights, customary law and international processes." – Aroha Te Pareake Mead, Chair, IUCN Commission on Environment, Economic and Social Policy and Senior Lecturer and Director of Maori Business, Victoria University of Wellington, New Zealand.
"Tobin provides a unique and timely analysis of customary law and its importance as one of the principal sources of law for good national and global legal governance. This work will be an invaluable resource for all those wishing to understand the role of customary law as a fundamental basis for realising indigenous peoples' human rights and self-determination." – Victoria Tauli-Corpuz, UN Special Rapporteur on the Rights of Indigenous Peoples.
"Tobin has written a tour de force on the living law that places custom in a lengthy tradition reaching back to Plato. The sensitive, vivid writing sweeps across cultures and continents to illuminate our understanding of law’s deep structure. A remarkable work that will interest specialist and non-specialist readers alike." – Patrick Thornberry, Emeritus Professor of International Law at Keele University, Fellow of Kellogg College, University of Oxford, UK and Board Member of the Commission for Elimination of Racial Discrimination (CERD).
"Tobin has produced a valuable work on customary law, a previously much neglected subject in western jurisprudence. Based on his rich experience of research into various aspects of human rights and customary law, he offers deep insights into the value of the cultures of indigenous peoples. His book performs an obvious service to the peoples concened, but, at the same time, it offers food for serious thought by any person concerned with jurisprudence, legal pluralism, legal anthropology and human rights." - The Journal of Legal Pluralism and Unofficial LawThomas Bennett, Cape Town University
"I would highly recommend this book to academic researchers and practitioners interested or working in the relevant fields. I also recommend this book to libraries of academic institutions, organizations and government agencies working closely with indigenous peoples." - DipLawMatic Dialogues, Alex Zhang, University of Michigan