Legal Pluralism As a Human Right and/or As a Human Rights Violation

Eva Brems 

Ghent University-Universiteit Gent

December 29, 2016

Forthcoming, Giselle Corradi, Eva Brems and Mark Goodale (eds), Human Rights Encounter Legal Pluralism, Oñati International Series in Law and Society, Hart Publishing (2017), ISBN: 9781849467612 

Abstract:

International human rights law is a complex multilayered reality that can be analysed in terms of legal pluralism. The paper submits that it is highly relevant for scholars of human rights law to study human rights law as an integrated whole: looking amongst others at issues of consistency and alignment as well as divergence, at gaps in the overall protection system, and at all kinds of cross-cutting or isolated dynamics.

One such inconsistency in international human rights law concerns the attitude towards the recognition of legal pluralism, in the sense of an official legal system making room for a system of ‘traditional law’, a term which I intend to cover indigenous law, customary law as well as religious law. There is one field of international human rights law (the global regime concerning the rights of indigenous peoples, as laid down in ILO Convention 169 (1989) concerning Indigenous and Tribal Peoples in Independent Countries and in the United Nations Declaration on the Rights of Indigenous Peoples (2007)) that considers such a recognition as mandatory, and non-recognition as a violation of human rights. And there is another field of international human rights law (ECtHR case law) that considers such a recognition as a violation of human rights. The paper details each of these positions before examining whether their co-existence within international human rights law is sustainable or not.

Number of Pages in PDF File: 18

Disponível em: <https://ssrn.com/abstract=2891284>. Acesso em: 2 jan. 2017.