| Summary: | Although recognized both in the ILO Convention No169 and in the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), the right of indigenous peoples to maintain their customary laws and systems continues to be a rather unexplored issue in legal literature. Until recently, customary laws of indigenous peoples have mainly been explored by social anthropologists (e.g., Bennet 2006), while largely legal experts still mainly focused on written and codified ‘positive’ law (however, see Weisbrot 1981:3-4). The recognition of such laws though is really important for indigenous peoples. Embedded in the culture and values of indigenous communities, indigenous customary laws are an intrinsic and central part of their way of life and their identity. They define rights and responsibilities relating to key aspects of their cultures and world views, and guide indigenous communities on a wide range of issues; from the conduct of spiritual life, to land, and to use of and access to resources. Maintaining customary laws can be crucial for the maintenance of the cultural heritage and knowledge systems of indigenous peoples. Indigenous communities all around the world have steadily argued that any legal regime for the protection of their knowledge must be grounded in their own customary laws and practices. Indeed, the term ‘customary law’ has often been used as a generic term to refer to indigenous peoples’ legal regimes, frequently seen as deriving from their customs and traditions. However, not all indigenous laws have customary roots. As Borrows argues, indigenous law may also be ‘positivist, deliberative, or based on the theories of divine or natural law (Borrows 2010:12). Therefore, the perception that views ‘customary law’ as the sole indigenous legal source does not accurately describe some contemporary indigenous legal regimes, as the latter often incorporate elements also drawn from non-indigenous sources (Tobin & Taylor 2009:7). Borrows rightly pushes forward a wider definition of ‘indigenous law’ that ...
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