Book Review: Indigenous Peoples, Customary Law and Human Rights – Why Living Law Matters

By: Xiaomeng (“Alex”) ZhangIndigenous Peoples

Brendan Tobin. Indigenous Peoples, Customary Law and Human Rights – Why Living Law Matters (Routledge, 2014). 302 p. Hardcover $145.00.

Brendan Tobin, a research fellow at Griffith University Law School with significant experience in the areas of environmental law, customary law, and global human rights law, makes a highly valuable contribution to the area of customary law and the rights of Indigenous Peoples through this well-written and thoroughly researched monograph.  The book not only provides insights to theoretical research but also offers practical guidance to both legal and non-legal professionals working in the area of human rights, environmental justice, and indigenous peoples’ rights.

Tobin’s principal purpose, through this book, is to “demonstrate the importance, legitimacy and durability of Indigenous Peoples’ legal regimes, their rights to regulate their internal affairs in accordance with their own laws, customs, and traditions, and the central role that customary law has to play in securing the realization of their human rights.”  Tobin starts with the premise that Indigenous Peoples’ rights of self-determination and autonomy are important and that customary legal regimes exist to protect those rights.  He also draws a large amount of empirical evidence showing the dire consequences of not recognizing “customary law and indigenous jurisdiction.”

Despite being recognized by many binding international legal instruments and some domestic legal tools, Indigenous Peoples’ rights are not effectively protected.  Tobin argues that neither the States nor legal professionals (such as Judges) fully appreciate the importance of customary law, a core component of most (if not all) Indigenous legal systems. As a result, many of customary legal principles are not given equal consideration as positive law during the dispute settlement and/or litigation process.

The problem that Tobin tries to resolve is a long-standing issue. There are many discussions on the (in)effectiveness of Indigenous Peoples’ rights protection.[1] There are many barriers that prevent effective protection of rights politically, economically, culturally, psychologically and judicially. Effective protection not only depends on recognizing the rights protected by legal instruments such as ratified international agreements, constitutions, statutes and case law, but also relies on implementation and enforcement of these legal instruments. Two major barriers to effective enforcement of customary law are due to the nature of custom and the nature of indigenous rights. The author is able to focus on both areas and make a thorough examination on both issues.

To sum up, there are three major contributions of this book. First, Tobin provides thorough analyses of the issues of ineffective protection of Indigenous Peoples’ rights and of ineffective implementation of customary law in indigenous legal regimes, drawing on a large amount of empirical data and major well-established theories in the area. Second, Tobin, in the second half of the book, closely examines the current (in)effective implementation of customary law in many practical areas, such as rights to land, right to culture, natural resources and traditional knowledge. Finally, Tobin also provides extensive footnotes and a comprehensive bibliography that would benefit other researchers in this area. Therefore, 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.

[1] For example, see Jeremie Gilbert, Indigenous Peoples’ Land Rights under International Law: From Victims to Actors (Ardsley, NY: Transnational Publishers, 2006).

Two Views of Runnymede: Magna Carta at the Library of Congress and the British Library

By: Gabriela Femenia 

As has been widely noted, 2015 is the 800th anniversaryLOC Magna Carta of Magna Carta, the revolutionary charter between King John I and his barons often cited as the foundation of basic Anglo-American concepts of protected liberties, rule of law, and good government.  There have been many events planned to commemorate its importance this year, and I was fortunate enough to be able to see two of the best: the traveling Lincoln Cathedral manuscript and related exhibit at the Library of Congress in December, and the magnificent display of multiple manuscripts at the British Library last month.

Magna Carta: Muse and Mentor, at the Library of Congress November 2014 – January 2015, was a ten-week exhibit sponsored by the Federalist Society, and therefore strongly focused on tracing the arc between Magna Carta, the Declaration of Independence, and the Bill of Rights. In addition to displays explaining Magna Carta’s history and featuring one of the four surviving original copies, parts of the exhibit specifically connected Magna Carta to our constitutional rights to due process, trial by jury, and habeas corpus.  A very interesting additional section on Magna Carta in popular culture demonstrated how this medieval document of limited impact in its own century has nonetheless managed to resonate deeply and broadly in the popular imagination in more recent times.

BL Magna Carta

Magna Carta: Law, Liberty, Legacy, at the British Library until September 1, 2015, was naturally much larger in scope, as many more manuscripts and objects were available for display within the United Kingdom than could travel to the U.S.  Among the highlights, the exhibit features all four surviving 1215 manuscripts, copies of the 1225 reissue, one of Thomas Jefferson’s two drafts of the Declaration of Independence, and, delightfully, a map of William Penn’s Pennsylvania detailed enough for me to identify approximately where my house is. In addition to the richness of the collection, the exhibit featured wonderfully-executed video and multimedia enhancements to assist the visitor in following Magna Carta’s evolution from its critical reissue under Henry III, through its role in the growth of the common law on both sides of the Atlantic, and down to the modern development of international human rights law.

TempleChurch

Even if you can’t make it to London, much of this additional content is available at the British Library’s website, asare high-quality images of most of the items, making it possible to experience some of the outstanding curation and to glean fun ideas for your FCIL reference and teaching activities.  If this really piques your interest in Magna Carta and its contributions to the development of both the common law and international law, you may even consider signing up for the University of London’s upcoming MOOC, Freedom and Protest:Magna Carta and its Legacies, beginning June 15.

Introducing…Anne Mostad-Jensen as the June FCIL Librarian of the Month

1. Where did you grow up?Mostad-Jensen Photo

I grew up in Kelliher, a very small town (population 262) in Northern Minnesota. It is an hour south of the Canadian border and 17 miles from Red Lake, which is the largest freshwater lake enclosed in one state.

2. Why did you select law librarianship as a career?

I did things a little backwards. I got my MLIS degree first. After finishing that degree I wanted an additional challenge and was interested in copyright issues, so I decided to go to law school. While in law school I told myself that I would be open to new opportunities and experiences outside librarianship. So I spent two summers in China – one summer at an incubator and venture capital firm and another summer at a large Chinese-Australian law firm. I really enjoyed these experiences. They were exciting, challenging, and I learned a lot. But during those experiences I always felt like I was just visiting and when I am in a library I feel like I am home. So when I graduated from law school I immediately started to apply for jobs in law libraries. (Though I did take and pass the California Bar Exam, because I thought it was important to understand the final step law school graduates go through before entering the legal profession.)

3. When did you develop an interest in foreign, comparative, and international law?

I think my interest in foreign, comparative, and international law started before I even went to law school. While pursuing my MLIS I took International Librarianship. As part of the course we attended the IFLA conference in Quebec City. While there I had had a conversation with Emilija Banionyte, who was on the EIFL Advisory Board (Electronic Information for Libraries), about global issues relating to access to information – especially trying to negotiate fair licensing agreements in Eastern European countries. I think this really planted the seed with regards to my interest in foreign, comparative, and international law. But those interests were nurtured and encouraged by Mary Sexton, the FCIL librarian at Santa Clara University School of Law, while I was in law school and following law school. Mary Rumsey and Heidi Frostestad Kuehl have also been very helpful in answering any and all questions I have had about FCIL librarianship.

4. Who is your current employer? How long have you worked there?

My current employer is Concordia University School of Law in Boise, ID. I have worked here since October 2014. But I just accepted a position as Head of Faculty Services at the University of North Dakota School of Law in Grand Forks, ND.

5. Do you speak any foreign languages?

Not fluently. My best foreign language is Danish. I speak a little Danish and understand most things I watch and read in Danish. I also speak a little Mandarin. But again, I can read more Mandarin than I can speak. If pressed, I can understand a decent amount of Swedish and Norwegian.

6. What is your most significant professional achievement?

My most significant achievement professional achievement so far is having a doctrinal faculty member be impressed enough with my contribution to a project that he invited me to co-author a law review article.

7. What is your biggest food weakness?

I have a lot of food weaknesses. But I think my biggest food weakness is lefse.

8. What song makes you want to get up and sing/dance?

Robyn’s Dancing on My Own is the first thing that comes to mind.  If you are a runner and like to run to slower music, I would recommend Antony and the Johnson’s album The Crying Light. I once ran five miles out of town on a rural Minnesotan road listening to this album without even realizing how far I had gone. Until I saw a deer leg. Just a deer leg. And realized I was over approximately two miles from the nearest house. The trip back was not nearly as enjoyable as the run out of town and I instituted a policy that I would never run more than one mile out of town in any direction.

9. What ability or skill do you most wish you had (that you don’t have already)?

The seemingly universal desire amongst all FCIL librarians – the ability to speak more foreign languages. And the ability to fly.

10. Aside from the basic necessities, what is one thing you could not go a day without?

Is coffee a basic necessity? If not, coffee.

11. Anything else you would like to share with us?

I have a twin sister who is also has an MLIS degree, but she is not a law librarian. But she does speak and read Icelandic, so she would likely be willing to help if anybody ever needs help translating or finding Icelandic legal resources.