Right of Indigenous People to Own Law

Archiv für Rechts- und Sozialphilosophie, 2012

The aim of this paper is to analyze an interesting case about the rights of the indigenous peoples to their own law. In this case, an Argentinean court had to solve a con- flict originated in the hypothetical right of a member of the wichí community to have sexual intercourse with his concubine’s daughter, based on an alleged indigenous custom. The paper tries to prove that the claim of the accused is unacceptable, because it affects the universality of some of the human rights present in the case.

The paper focuses on indigenous peoples, their rights and customary laws in the North in context of the Sámi people situation in the Nordic countries and Russia. It is to analyse and conceptualise some important issues concerning Sámi customary laws in the light of indigenous rights, constitutional law and legal pluralism as well as to propose new forms of cooperation between universities or scholars in the North in research in this field. First, after proposing new forms of academic cooperation, we flash focus on theory of legal pluralism and on Sámi customary laws. Secondly, we differ the institutional axiology from the real axiology in state legal orders. Thirdly, we analyse rules concerning the Sámi in Finland's legislation, Sweden's constitutional acts and Norway's Constitution. Fourthly, we express some chosen conflicts of laws: Sámi laws versus national laws and interests. Fifthly, using many criteria, we try to evaluate the Nordic countries in the field of recognition of indigenous rights. Sixthly, we show Russia's laws and Sámi problems (the Ponoi case and violation of the Russian Sámi rights). Seventhly, we consider contemporary problems of Sámi: the right of indigenous peoples to customary law, the right to self-determination as a basis of Sámi claims, and finally, treating Sámi as "people", "nation", not "ethnic minority". I also analyse what was behind the current state of affairs in Scandinavia, proposing a classification of political, ideological, religious and educational, economic, and cultural factors. In the conclusion, I maintain that indigenous rights, including Sámi rights to land and political self-government, should be better recognised in the North. It still remains a paradox, as the problem is not resolved in Scandinavian liberal societies, which are supposed to be sensitive in the field of human rights and protection of cultural diversity. I think that going back to customary laws or legal pluralism is such an inspiration for seeking new forms of political organisation of the Sámi people in Scandinavia (and maybe in Russia).

Probing into the concept, scope and implementation patterns and potential of the indigenous people's right to self-determination, is the sole aim of this essay. Significant normative precepts as enshrined in the international law and the exegeses that surround are analysed here coupled with the implementation problems and possible solutions. Ultimately, it is states who are obliged to implement the autonomy indigenous peoples are entitled to, hence, state behaviour and certain responses are also reflected to understand the situation better. Real life difficulties and obstacles that indigenous people confront in exercising their right to self-determination also run along. A few good practices also feature in at the end to prescribe (1)suitable ways to emulate.

2003

Batulis Civil Law Review

This article describes the position of indigenous peoples who are starting to be marginalized due to the democratization process of existing laws. This article aims to show how far the process of legal democratization has progressed so that indigenous peoples are often marginalized while the law should uphold human rights. The research method used is the normative research method, and the research approaches used are the statute approach, the conceptual approach, and the analytical approach, so that they can help examine and find good research results. The democratic method begins with the freedom of the right to vote, which allows every citizen to participate in making political decisions. Each participant has equal rights in determining their own choices and also has the opportunity to be elected. The principle of a majority vote is essential to reaching decisions in the concept of democracy. "Democracy" contains three phenomena at once, namely political phenomena (power...

International Community Law Review, 2009

Indigenous peoples experience three levels of injustice: they are the trans-generational victims of historic colonisation; they are politically disenfranchised and their cultural diversity is not officially recognized. Indigenous peoples struggle for the recognition of their specific rights in order to overcome the injustice they are currently experiencing. This article explains how the recognition of these rights conflicts with some of the basic principles of modern constitutional democracy: the declared equality of all citizens; the legitimization of the state for the common good of all and the legal fiction of one homogenous people making up the state.