Researching Indigenous Law. Legal Anthropology or Comparative Law?

Table of Content

1. Introduction
a) Perceptions of indigenous peoples in majority societies
b) Indigenous Law as an Area of Research
c) Legal Anthropology or Comparative Law?

2. Access and Benefit Sharing
a) General remarks
b) Character of the duty to ensure ABS

3. Beyond ABS: A duty to publish?
a) General remarks
b) A role for indigenous law in national law
c) Differences between legal and anthropological research regarding the publication of all data
d) Rule of law and the right to a fair trial

4. Conclusions: Consequences for research funding

1. Introduction

a) Perceptions of indigenous peoples in majority societies

In developed countries, indigenous peoples are often portrayed as (noble) savages or as remnants from an other age. However, they are neither. While being different from the majority population, and all too often having been (and often continuing to be) oppressed, in recent years a change has become visible in the attitude towards indigenous peoples. Indigenous peoples are first of all that, peoples - with their own cultures and histories. It is because of their particular lifestyle and relationship with an other culture, that they are seen as different. However, more and more indigenous peoples are taken more seriously in their own right. At the same time, it has to be noted that this is a process which is just beginning. Discrimination against indigenous peoples is still widespread and often indigenous persons still face significant challenges when compared to the majority society. This ranges from simple language problems which can limit access to health care^[1] to discrimination in daily life to massive human rights violations, including the loss of ancestral lands.^[2] At the same time there is a significant academic interest in indigenous peoples. Part of the appeal of indigenous peoples for non-indigenous researchers (apart from personal connections to indigenous persons) is certainly the exotic nature of some indigenous groups, but there are valid concerns that the loss of indigenous lifestyles and culture would mean a loss for all of mankind. Hence those who research indigenous peoples’ cultures can provide a service to all of mankind.

b) Indigenous Law as an Area of Research

Research about indigenous peoples is often perceived as being restricted to anthropological or cultural studies. However, among the cultural and social practices and customs researched are often also the laws of the indigenous people in question. As much as it is necessary to ensure that research into indigenous issues adheres to standards which take into account not only ethical but also legal considerations concerning the rights of indigenous peoples, it is necessary to consider how research into indigenous laws can be conducted while safeguarding the rights of indigenous peoples.

As research subjects should also benefit from research - an idea we will look at in more detail later - one key question in this regard is how research results can be made accessible. It will be shown that the rights of indigenous peoples provide strong arguments in favor of open access publishing of the results of indigenous law research. Without going too much into the details of different open access models,^[3] open access is here understood as full online access (“Gold”^[4] ) to academic publications which is free of charge to the person or persons accessing the research results. While both conducting research and the publication of research results cost money, the rights of indigenous peoples have implications for both. Some of these implications are ethical, others legal in nature.

In this article I aim to explain how the way research into indigenous law is conducted is subject to ethical requirements which follow from the rights of indigenous peoples and how legal rules of a general character can require the state to actively finance the publication of research results in the field of indigenous laws.

c) Legal Anthropology or Comparative Law?

Indigenous law research can be conducted from two perspectives which are fundamentally different in nature but, due to their shared research objects will necessarily have to be seen as closely related to each other. Research into indigenous legal rules can be in the form of legal anthropology. In this case, law is merely one expression of the social structure of an indigenous group, not that much different from religious practices or traditions or customs. Indeed, there might be significant overlaps (although not every practice is religious in nature, not every custom amounts to the observance of legal rules) which make it easy for anthropologists to treat law as an expression also of indigenous identity, not dissimilar from indigenous culture. From this perspective, the indigenous society as a whole is likely to be somewhat present in the mind of the researcher and he or she will have knowledge about other aspects of the indigenous people in question, beyond their laws. The alternative is to understand indigenous law research as a form of comparative law. While other information about the people who are governed by legal rules, their lives, economies, politics etc. might be of some interest for the researcher, such additional information is not necessarily decisive. Rather than asking how laws fit into the description of the people as such, the comparative lawyer’s interest goes to problems he or she might already have encountered in his or her own legal system. The comparative law researcher is a lawyer, hence somebody who is familiar with legal tools in general. The anthropologist’s view is wider and while an anthropologist might have in-depth knowledge e.g. about indigenous art, he or she does not have to be an artist - nor a lawyer, for that matter. The professional connection is likely to bring the comparative law researcher closer to the research subject while the anthropologist’s wider view is made possible by standing a step behind. While not having the lawyer’s legal skills, the anthropologist is more likely to be able to put newly won information into a wider context. In so far, these two types of researchers have different sets of skills and in all likelihood different research approaches. This does not mean that one type of research is better than the other, however, there is an inherent difference between these two approaches to indigenous law research - which is not to say that both dimensions might not be present in a single research project, even in an individual researcher, as is true for the third approach: indigenous law research in its own right - not as legal anthropology, nor as comparative law (both of which provide outside views on the indigenous legal system) but as research by those indigenous persons who simply practice this kind of law. This is what I refer to as practical legal research.^[5] While there is of course also a specific scientific value in legal anthropology and comparative law research, as there might be more practical experience involved in the research.^[6] This third approach would be no different from a Russian lawyer conducting research in Russian private law or a Finnish lawyer researching a question of Finnish criminal law. This, however requires that the indigenous law actually has a group of people who are involved in researching legal rules. If there is an institution like a court or a judge in the indigenous community in question, indigenous law research is also what happens if the indigenous judge is faced with a novel legal question which requires research in order to be answered. The next step would then be the development of legal research not only as a practical necessity for solving current cases but as an academic discipline within the indigenous community.^[7]

2. Access and Benefit Sharing

a) General remarks

In this context, the research of indigenous peoples presents lawyers with one particular issue which is more relevant for the legal community, and in particular legal researchers, than is often realized, the question of research benefits for the researched community. This is the issue of Access and Benefit Sharing (ABS).^[8] The concept itself is hardly new, in fact the basic idea behind it goes back some time. The idea itself might be more common in medical and pharmaceutical research, where research should benefit the research subject. But ABS can also play an important role when it comes to researching indigenous peoples. A well-known example is the fact that indigenous peoples often have a long history of using specific plants to treat medical ailments.^[9] The healing properties of such plants are of interest to pharmaceutical companies and there is a strong economic interest in such traditional knowledge. There is an increasing feeling among many working with indigenous groups that indigenous peoples should also benefit from the commercialization of their traditional knowledge. In addition to this benefit sharing, there should also be access for the indigenous group to the research results as well as to resulting products.

The basic idea behind ABS should also apply to the research of indigenous laws. It ca be often tempting to think of academic (rather than practical) legal research as simply researching something abstract. This is certainly also influenced by the fact that lawyers are used to working with texts and it appears reasonable to assume that this abstract view of the law is in the minds of at least some researchers when they investigate indigenous legal rules. Dealing with indigenous law however usually means dealing with customary law, and it usually means that you have to talk with people to find out about the local customs and customary laws. In this moment, we involve indigenous groups and use them as sources of knowledge.

Indigenous groups should benefit from research which is conducted about them. Rather than remaining only objects of research, indigenous peoples should therefore also be at least beneficiaries of indigenous research by increasing the knowledge which is available to the indigenous community. This also applies to the research of indigenous laws and customs. Which practical value the indigenous community draws from this increase in knowledge is not relevant for the researchers’ primary moral obligation to let them benefit from the research.

b) Character of the duty to ensure ABS

For a lawyer, the interesting question is of course the question whether this obligation is not only moral but also legal in nature. Yet, there is no universally applicable binding international treaty concerning indigenous rights: the International Labour Organization’s (ILO) Indigenous and Tribal Peoples Convention (ILO 169^[10] ), which follows the same organization’s 1957 Convention of the same name (ILO 107^[11] ) the dates back to 1989, only enjoys limited acceptance (mainly in Latin America but not in the Arctic countries, with the exceptions of Norway and Denmark) and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP^[12] ) has been adopted “only” by the United Nations’ General Assembly and hence is not legally binding.^[13]

Both the UNDRIP^[14] and ILO 169 call for the protection of indigenous cultures^[15] and when applying ILO 169, states shall respect indigenous cultures, practices and institutions.^[16] This can also include indigenous legal systems.

But legal knowledge differs from know knowledge about things such as the medicinal effects of plants in so far as the former is not easily patentable in the form of a product (one might raise the question whether a specific, unique, process of finding the law could enjoy some legal protection against being copied, but that seems rather far-fetched).

[...]

^[1] See e.g. Stefan Kirchner, “Access to Mental Health Care for Indigenous Women: Positive Horizontal Human Rights Obligations”, in: Institute for Cultural Diplomacy (ed.), An Interdisciplinary Analysis of the Role of International Law in Promoting Women's Rights - Participants ’ Papers, 1st ed., Berlin (2014), forthcoming.

^[2] See for example on the land rights issues faced by indigenous Maasai in Kenya Ben Koissaba, “Elusive Justice: The Maasai Contestestation of Land Appropriation in Kenya. A Historical and Contemporary Perspective”, in: Stefan Kirchner / Joan Policastri (eds.), Indigenous Rights in International Law, forthcoming.

^[3] On the different standards see Bill Hubbard, “Green, Blue, Yellow, White & Gold - A brief guide to the open access rainbow”, available online at <http://www.sherpa.ac.uk/documents/sherpaplusdocs/Nottingham-colour-guide.pdf> last accessed 24 March 2014.

^[4] See ibid., p. 3.

^[5] In the interest of full disclosure, it should be noted that the author’s academic origins are closely related to the University of Giessen’s “Studies in Applied International Law” concept.

^[6] A notion which can also be found in the Sámi saying “Dat guht uhc´can suhkká, sus leat rašit gieđat.”, which translates as “He who rows little has weak hands”, emphasizing the importance of experience, also, Sámi sayings such as “It don goit mus leat goahtemuorran orron” (“You have never been a tent pole in my [tent]”) or “Mas amas diehtá maid oarri borrá.” (“How can a stranger know what a squirrel eats”) serve as a reminder that we have to guard ourselves against assuming that we fully understand the other, a notion which is particularly useful for those who research indigenous communities without being a part of the community. The benefit of the outsider’s detached perspective comes at the price of a certain detachment. The quoted Sámi sayings and translations as well as the basic explanations are from Harald Gaski (Translation by John Weinstock), “Folk WIsdom and Orally Transmitted Knowledge - Everyday Poetry in Adages, Rhyme and Riddles”, in: Sami Culture, available online at <http://www.utexas.edu/courses/sami/diehtu/siida/language/folkevisdom.htm> last accessed 24 March 2014.

^[7] Obviously I am using terminology which is familiar to both the readers and myself. While an indigenous community might have different understandings of concepts such as “courts”, “judges” or “academia”, I presume that the desire to find just solutions to actual legal issues as well as the desire for more knowledge, and hence research, can be found in virtually all human societies in one form or an other.

^[8] On this concept see e.g. Rachel Wynberg / Doris Schroeder / Roger Chennells (eds.), Indigenous Peoples, Consent and Benefit Sharing - Lessons from the San-Hodia Case, 1st ed., Springer, Dordrecht (2009) ; United Nations Environmental Programme, Access and Benefit-Sharing: Reducing Deforestation while promoting sustainable Livelihoods for indigenous and local communities, available online at <http://www.unep.org/forests/Portals/142/docs/our_vision/ABS.pdf> last accessed 24 March 2014; Natural Justice, Access and Benefit Sharing, available online at <http://naturaljustice.org/wp-content/uploads/pdf/Access-and-Benefit-Sharing.pdf> last accessed 24 March 2014. The concept of Access and Benefit Sharing plays a particular role in the Convention on Biological Diversity (CBD), available online at <http://www.cbd.int/doc/legal/cbd-en.pdf> last accessed 24 March 2014, but is by no means limited to it.

^[9] This is hardly new. In fact, AspirinⓇ includes an ingredient which can also be found in willow bark and teas made of willow bark have similar effects. The medicinal properties of willow bark have been made public by Edmund Stone, “An Account of the Success of the Bark of the Willow in the Cure of Agues. In a Letter to the Right Honourable George Earl or Macclesfield, President of R. S. from the Rev. Mr. Edmund Stone, of Chipping-Norton in Oxfordshire”, in: 53 Philosophical Transaction 1763, pp. 195 et seq., available online at < http://rstl.royalsocietypublishing.org/content/53/195 > last accessed 24 March 2014.

^[10] For different translations of ILO 169 see <http://www.ilo.org/indigenous/Resources/Translations/lang--en/index.htm> last accessed 24 March 2014.

^[11] Available online (with links to different language versions) at <http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C107> last accessed 24 March 2014.

^[12] Available online at <http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf> last accessed 24 March 2014.

^[13] Cf. Gregory J. Kerwin, “The Role of United Nations General Assembly Resolutions in Determining Principles of International Law in United States Courts”, in: 32 Duke Law Journal, 1983, pp. 876 et seq., available online at <http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2852&context=dlj> last accessed 24 March 2014, at p. 879, there fn. 19 with further references.

^[14] Article 20 (1) UNDRIP.

^[15] Article 4 (1) ILO 169.

^[16] Article 5 ILO 169.