Indigenous customary law and community protocols

Indigenous customary law has been defined as “that body of customs, norms and associated practices, which have been developed or adopted by indigenous peoples or local communities, whether maintained in oral or written format, to regulate their activities and which they consider to be binding upon them without the need for reference to national or other temporal authorities”.[1] Most indigenous peoples around the world still rely on their customary law and institutions to govern and manage their lands, territories and environmental resources. Indigenous “customary law serves to bind and strengthen communities and acts as a foil to the erratic toss and turn of state law.”[2] Not all indigenous law – i.e. all norms, institutions, decision making procedures, means of enforcement, etc – are customary, as they may also include laws derived from state sources, from collective deliberations or from natural law. Customary law in today’s world exists in a condition of ‘inter-legality’.[3]

International law (e.g., ILO Convention 169, UNDRIP) explicitly recognizes the indigenous right to their own institutions and legal custom. However, different peoples enjoy different levels of national recognition of customary law, ranging from officially accepted to openly opposed. The relationship with state law and with international (human rights) law is complex and often problematic, but it is essential for the protection and thriving of indigenous peoples’ ways of life, as it is intertwined with their identities, practices and self-determination. Well-functioning and long-lasting ICCAs–territories of life are often accompanied by some form of state recognition of customary/indigenous law.

One of the many challenges concerning the interaction between customary/indigenous law and state law is the fact that the first, in order to maintain its adaptive and dynamic character, is often resistant to be codified (which is, instead, the classic form of statutory law). Thanks to the advocacy by indigenous representatives and NGOs, however, international law has incorporated an instrument to address that reluctance: community protocols.

Articles 12 and 22 of the Nagoya Protocol to the Convention on Biological Diversity call on parties to implement their obligations taking into consideration the customary laws of indigenous and local communities and their community protocols when dealing with the access and use of natural resources and #traditional knowledge. Community protocols are instruments in the form of documents in which communities assert specific rules and regulations regarding their territories of life, and the access to, and use of, biodiversity based on their rights, goals, and worldviews. These rules can be derived from customary as well as non-customary indigenous law. Community protocols are compiled after extensive internal consultations and legal awareness raising, usually facilitated by NGOs or community-based organizations. Although this entails a certain formalization of rules embedded in customary practice and oral transmission, such protocols are context-specific and can be revised by the community itself, unlike statutory laws. They are important as they can increase the capacity of a community to reflect upon and possibly regenerate customary laws, values, principles, needs and custodianship roles, and can promote local implementation of international and national environmental laws. In a broader sense, protocols are useful to show to others (e.g. local governments or protected area managers) that the custodian communities, and their customary/ indigenous law, have important roles to play in governing and managing territories and conserving nature, which deserve appropriate forms of recognition and support.

Key references:

Santos, 2001; Bavikatte and Jonas, 2009; Shrumm and Jonas, 2012; Swiderska et al., 2012; Tobin, 2013; Tobin, 2014; Weitzner, 2018.

[1] Tobin, 2014, page 10.

[2] Ibid, page 1.

[3] Santos, 2001; Weitzner 2018.