The goal of legal and human rights support is to help marginalised communities, such as indigenous ones, to negotiate with public and private stakeholders regarding legal matters. This is particularly relevant in the case of the management of natural commons, which might be contested resources.
When discussing law in the context of indigenous communities, we can identify different levels: · Customary law, that is the shared set of rules adopted and recognised by the community; · National, constitutional law; · International law. These three levels of the law might, at times, contradict and contrast with each other. When this happens, it is clear that indigenous communities are in a less powerful position than the state or international organisations, and are thus in a vulnerable position when they have to exercise their rights. In these cases, legal and human right support gives amplifies the voices of these marginalised communities and helps them overcoming legal hurdles presented by conflict with national and international law frameworks. In the case of the Forest Peoples Programme, legal and human rights support is offered through the Strategic Legal Response Centre, which is part of the NGO’s Legal and Human Rights Programme. The centre offers support for test cases, rapid response support, fosters capacity building in indigenous communities and a community of practice on forest peoples’ rights (Forest Peoples Programme, 2020).
- In order to manage the territory they live in, including its resources, as a collective system, indigenous communities and forest peoples use a shared set of rules. We can understand these rules as a form of “customary law”; it “arises when the members of a community adopt habitual forms of conduct in social life and these customs become generally regarded as obligatory in that community” (New Oxford Companion to Law, 2008). Customary law often includes guidelines that regulate access to shared natural resources and their use thus, as a matter of fact, providing a legal framework for the safeguard of the natural commons. Customary law is embedded in the beliefs, practices and culture of a community, and are an important part of its life. The customary aspect of this set of rules and their deep rootedness in culture, sometimes can prevent a community from realizing that national institutions are not aware of them and therefore do not respect them. Part of the process of human rights and legal support is to support communities in having their customary practices recognised in statutory/international law. It is then easier to identify the aspect of customary law that collide with national law frameworks and find solutions to the problems faced by communities. - Define the commons/territory and its use Mapping the territory of indigenous communities and defining the way in which they are used is an important part of the work of FPP. Once these are defined, it easier to connect customary law to precise areas and resources, thus making the dialogue with national and international institutions easier. -Define the demands of the communities NGOs can assist communities in formally recording customary law, bringing it to the relevant government body to have it recognised in statutory law. However, these processes are often convoluted, onerous and burdensome because it is not in the interest of government or, specifically, companies, to have these recognised as it impedes access to indigenous territories which are often rich in natural resources these parties wish to exploit. The next step is to help the community define its demands. This process is rooted in the principle of self-determination of indigenous communities, and aims to create political spaces that recognise their rights and listens to their requests. The entire process must be focused on the needs of the community; for an NGO, it might be tempting to decide its projects on the basis of the needs of funders and powerful stakeholders, but this is clearly in contrast with the ethical principles that guide human rights and legal support. - Raise awareness of customary law with national or international legal institutions A fundamental aspect of NGOs who provide human rights and legal support is to raise awareness of customary law with the state and international institutions, who often might ignore the wealth of knowledge and culture of indigenous communities and forest peoples. Governments tend to ignore the existence of its indigenous peoples as it hinders investment from extractive industries. Furthermore, some institutions might have a racist understanding of these communities and perceive them as underdeveloped, ignorant or backward. - Collect evidence In order for a community to make its customary law to be recognised by national or international legal frameworks, it is necessary to provide proof of said customary law. Therefore, the process of mapping and defining customary law and the territories it applies to, which has been described above, is instrumental in collecting evidence of the existence of customary law. In some instances, this evidence might have to be certified by an academic institution, and then it can reach the national government for approval; for example, this is the case in Indonesia. - Be aware of implicit legal hurdles Some national legal frameworks might, in theory, recognise the existence of customary law and officially protect it. However, these legal frameworks might present mechanisms that can quickly rescind the rights of indigenous communities and forest peoples, or significantly limit their freedom. In this case, the NGO must be aware of these possible legal hurdles and devise strategies to support the community tackling them. - Provide continuous support The processes describe above take a considerable amount of time; in particular, it takes years to get customary law recognised by national legal frameworks. For this reason, it is necessary for the NGO to continue to provide legal support when it is needed, without a strict sense of “ending” of the process. However, the NGO must not replace communities’ agency, but must rather provide legal assistance to strengthen their ability to make their own decisions.
We can see legal and human rights support as an evolution of the concept of legal empowerment. Indeed, this definition also fits legal and human rights support: “Legal empowerment occurs when poor or marginalised people use the law, legal systems and dispute resolution or redress mechanisms (formal and informal) to improve or transform their social, political or economic situations, to hold power holders to account or to contest unjust power relations. Legal empowerment can be individual or collective. The justice and legal mechanisms used can be formal and provided by the state. In plural legal systems, however, justice and redress is often provided by non-state actors and may not be recognised by law (informal).” (Domingo and O’ Neil, 2014, p.4). However, Forest Peoples Programme notices how the idea of “empowering” someone can be patronising and actually diminish the capacity of self-determination of indigenous communities. FPP stresses that their role is not to replace the agency of the communities they work with, but to amplify their voices and ensure the respect of their customary laws. Furthermore, customary law cannot be separated by the broader wealth of knowledge, beliefs and values of a community; this is why FPP does not limit its work to offer legal support, but also assists communities with knowledge and cultural transmission. As explained in tool 2- Bridge funding, the culture and the value of a community play a fundamental role in the way it manages a commons, and they must be taken into account when working in partnership. Domingo and O’Neil further comment: “The experience of legal action can be humiliating or intimidating and can reinforce the status quo and acceptance of asymmetric power relations and injustice. Indeed, historically, dominant classes have used dispute resolution mechanisms and justice systems to reinforce social injustices, discriminatory social norms and defend their privileges” (idem, p.10). Indeed, dealing with legal problems with very powerful agents, such as the state, is a very long and difficult process that can cause feelings of powerlessness and hopelessness. This is why legal and human rights support must continuously support communities during the process of legal action, offering support in overcoming obstacles, identifying potential hurdles and solutions.
customary law. 2008. In The New Oxford Companion to Law (1st ed.). Oxford University Press. Domingo, P., & O’Neil, T. 2014. The politics of legal empowerment Legal mobilisation strategies and implications for development. Available at https://www.odi.org/sites/odi.org.uk/files/odi-assets/publications-opinion-files/9008.pdf Forest Peoples Programme. 2020. Law and Policy. Available at https://www.forestpeoples.org/taxonomy/term/2