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).

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