Divers Paths to Justice - English - Forest Peoples Programme

Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast Asiapeoples, as they are now referred to in international law, have had longhistories of dealings with various forms of the ‘State’ and indeed their socialorders may be substantially evolved to avoid and resist these States’depredations. 5 Yet cultural, political and legal pluralism has also been a longterm characteristic of many of the pre-colonial State polities of SoutheastAsia. 6The rise of post-colonial independent States in the region and thepenetration of their economies by industrial capitalism now pose majorchallenges to such peoples. On the one hand their lands, livelihoods,cultures and very identities face unprecedented pressures from outsideinterests. On the other hand they have responded in varied ways to asserttheir rights and choose their own paths of development according to theirown priorities. With growing assertiveness indigenous peoples have beendemanding ‘recognition’ of their rights to their lands, territories and naturalresources, to control their own lives and order their affairs based on theircustoms and traditional systems of decision-making. The Forest PeoplesProgramme supports this movement. 7Yet we are at the same time aware that ‘recognition’ is a sword with twovery sharp edges. ‘Recognition’ of customary laws and systems ofgovernance by the colonial powers always came at the price of submissionto the colonial State’s overarching authority. Acceptance of this authoritywould inevitably lead to more interference in community affairs than theideal of nested sovereignties might promise. As Lyda Favali and RoyPateman were driven to conclude from their detailed study of legalpluralism in Eritrea:Following Favali and Pateman (2003:14-15), we agree it is not very productive totry to distinguish between the two, although in the English vernacular ‘custom’ tendsbe considered more labile and evolving than ‘tradition’ which is often consideredmore conservative and inflexible.4 Colchester et alii 20065 Scott 20096 Reid 1995 see especially page 51.7 and see AMAN 200618