Grad - Fromherz

Abstract

On September 13, 2007 the United Nations General Assembly overwhelmingly adopted the “United Nations Declaration on the Rights of Indigenous Peoples,” which recognized, inter alia, the right of such peoples to “self-determination,”  “autonomy or self government,” and “the right to promote, develop and maintain . . .  in the cases where they exist, juridical systems or customs, in accordance with international human rights standards.”  The Declaration is probably the single most important development in the history of international indigenous law. Meanwhile, regional and national indigenous movements have gained significant ground in various parts of the world.  Most notably, Bolivia, where 62% of the population is indigenous, elected its first indigenous president in 2005, and is currently rewriting its Constitution, in which one of the most important, and contentious, goals is redress for subjugation of the indigenous majority.  In particular, the Bolivian Constitutional Assembly is redesigning the justice system to include not one judiciary—that is, traditional “ordinary justice” based on the civil law—but two:  In addition to the civil judiciary, the proposed Bolivian Constitution contemplates a “community justice” system, or indigenous judiciary, based on indigenous law and custom. This paper looks at the legal and policy questions raised by the prospect of a separate indigenous judiciary in Bolivia, including the problems of compliance with international human rights norms, jurisdictional coordination between systems, and “legal translation.”  The paper takes the normative a priori that the collective right to “promote, develop, and maintain [indigenous] juridical systems” is worth protecting despite the costs it may impose on the state and the private sector.  However, the paper (1) suggests that—as currently framed—the proposed Bolivian system needs change to effectively implement the spirit of the UN Declaration, and (2) proposes several broad criteria indigenous peoples’ and States should use in future judicial reform.