Abstract:

International law has historically been, and in some cases continues to be, operationalised in order to disempower Indigenous peoples. In addition, legal systems in settler states and post-colonial contexts often continue to be largely unavailable to Indigenous people as a tool for empowerment due to multiple forms of discrimination. It is therefore unsurprising that for Indigenous peoples, Indigenous justice mechanisms are more accessible and often preferrable. Through comprehensive doctrinal analysis, this article investigates the right of Indigenous peoples to maintain their own legal systems under both international and regional human rights law. First, the article explores instances in which this right is enumerated in international legal documents, as well as the increasingly frequent references to the right by Treaty Bodies in general comments/recommendations and concluding observations. Next, I examine the approaches of the three major regional human rights regimes: The Organization of American States, The African Union, and the Council of Europe. I then examine limits to the right, specifically the requirement that when Indigenous legal systems are active, they must operate in accordance with international human rights law. Finally, the article explores some dynamics of the implementation of the right, drawing on the examples of the US and Bolivia. These cases demonstrate that even in contexts where the state recognises substantial Indigenous jurisdiction, progress in the realisation of the right of Indigenous peoples to maintain their own legal systems is likely to be unsystematic and non-liner, resulting exceedingly intricate legal realities.

KEYWORDS: indigenous law; indigenous rights; international law; legal pluralism