Informal Justice Systems: Charting a Course for Human - UN Women

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that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with
international human rights norms and standards. it requires, as well, measures to ensure adherence to the principles
of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law,
separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural
and legal transparency.” 16
these principles are similarly applicable when assessing the accountability of ijs procedures and providers.
although discussions of legal pluralism are often concerned with the fourth of these elements (i.e., the equality of
all before the law), all of these elements are useful in assessing ijs on their own terms.
access to Justice
there have also been attempts to define the concept of access to justice. unDP’s 2004 Practice note on the subject,
going beyond mere access to institutions, deals with access to justice as a process leading from grievance to
remedy and requiring the following elements:
1. legal protection (in terms of the legal framework that sets down acceptable substantive and
procedural standards)
2. legal awareness
3. legal assistance (of various kinds, including legal aid and counsel)
4. adjudication of disputes
5. enforcement or remedies
6. oversight of the operation of the system
international standards and the work of practitioners and scholars elaborate these elements and their applicable
criteria. later chapters of this study explore this and, together with the qualitative and quantitative studies, use
well-established parameters of accessibility, including distance, cost, time and opportunity cost, familiarity and
complexity of procedures, and social and psychological barriers.
LegaL pLuraLism
Providing accessible justice is thus a state obligation according to (most) national and international human rights
standards. 17 these standards do not necessarily require that all justice provision be centred in state courts or be
based uniquely on national legislation. ultimately, human rights law is concerned with results – the effectiveness
of protection and enjoyment of rights – rather than with its sources or mechanisms. thus, human rights law as such
is not opposed to legal pluralism or ijs.
legal pluralism is a fact, though a complicated one, and this study remains principally neutral on the subject. it
neither advocates nor opposes development organizations’ promotion of legal pluralism at the expense of a functioning
unitary legal order. it does take as its outset, though, that states and international actors are obligated to
respect, protect and fulfil human rights, including through the provision of justice and legal remedies.
a legally pluralistic approach does not relieve states of their human rights obligations, and it is a potential way to satisfy
those rights. a variety of mechanisms for the delivery of justice may present fewer difficulties for human rights
than a variety of normative sets and frameworks. indeed, a pluralistic approach to normative sets, mechanisms
16 report of the secretary-general on the rule of law and transitional justice in conflict and Post-conflict societies,
un document (s/2004/616).
17 rights to a remedy, a fair trial and equality before the law, among other things, are relevant.
a stuDy of informal justice systems: access to justice anD human rights