Customary Law and Indigenous Rights: A Comparative Study of Legal Recognition and Cultural Preservation

Аннотация

The legal recognition of customary law and indigenous rights has emerged as a defining challenge of contemporary pluralist legal orders, yet the relationship between formal recognition and substantive cultural preservation remains undertheorized. This study examines how international, regional, and domestic legal frameworks recognize customary law and protect indigenous cultural rights through a comparative analysis spanning Latin America, Africa, Southeast Asia, and the Arctic. Drawing on a normative juridical methodology with a comparative-analytical design, the research synthesizes the jurisprudence of the Inter-American Court of Human Rights, the African Court on Human and Peoples' Rights, constitutional courts in Indonesia, South Africa, and Colombia, and the evolving practice of Arctic states regarding the Sámi. The analysis reveals that legal recognition of customary law operates through three distinct modalities—constitutional entrenchment, statutory delegation, and judicial construction—each generating different patterns of protection and contestation. A central finding is the persistent gap between formal recognition and material control: states increasingly acknowledge indigenous customary rights in principle while simultaneously re-scaling indigenous authority into administrative and market-compatible forms that constrain substantive self-determination. The study develops the concept of "recognition without redistribution" to capture this mechanism, demonstrating how international norms such as the United Nations Declaration on the Rights of Indigenous Peoples and ILO Convention No. 169 are domesticated through configurations of state authority that prioritize regulatory legibility over indigenous autonomy. A second finding concerns the internal tensions within customary law systems, particularly regarding gender equality and the rights of internal minorities, where absolute deference to customary authority may entrench discrimination while excessive state intervention may undermine cultural integrity. The study proposes a proportionality-based framework for resolving such conflicts that recognizes customary autonomy while establishing constitutional minimum guarantees. The theoretical contribution lies in integrating legal pluralism theory with vulnerability analysis to explain why indigenous communities remain structurally disadvantaged despite unprecedented normative recognition.