Pub Date : 2023-07-07DOI: 10.31338/2544-3135.si.2023-96.19
W. Załuski
It seems undeniable that there are certain kinds of wrongdoing which can hardly be described in terms of rights’ violations. Their wrongful character is so extreme that a different kind of moral language is indispensable to adequately capture their moral gravity. In this paper it is argued that such a language is provided by Simone Weil’s moral theory. The first part of the paper is an attempt at reconstructing this theory, highlighting Weil’s critique of the language of rights and analysing the ‘moral extremes’ that this theory embraces, viz. absolute goodness and absolute evil (which Weil calls ‘injustice’). In this part an attempt is also made at clarifying the normative relations between both ‘extremes’, which Weil did not discuss at greater length. The second part is a case study of a type of injustice, namely crimes committed against the indigenous peoples. In the last part a comparison is made between Weil’s and Hannah Arendt’s views on the legitimacy of using ‘absolutist’ moral language in the public discourse.
{"title":"HOW TO CONCEPTUALIZE ‘CRIMES BEYOND WORDS’? SIMONE WEIL’S PERSPECTIVE","authors":"W. Załuski","doi":"10.31338/2544-3135.si.2023-96.19","DOIUrl":"https://doi.org/10.31338/2544-3135.si.2023-96.19","url":null,"abstract":"It seems undeniable that there are certain kinds of wrongdoing which can hardly be described in terms of rights’ violations. Their wrongful character is so extreme that a different kind of moral language is indispensable to adequately capture their moral gravity. In this paper it is argued that such a language is provided by Simone Weil’s moral theory. The first part of the paper is an attempt at reconstructing this theory, highlighting Weil’s critique of the language of rights and analysing the ‘moral extremes’ that this theory embraces, viz. absolute goodness and absolute evil (which Weil calls ‘injustice’). In this part an attempt is also made at clarifying the normative relations between both ‘extremes’, which Weil did not discuss at greater length. The second part is a case study of a type of injustice, namely crimes committed against the indigenous peoples. In the last part a comparison is made between Weil’s and Hannah Arendt’s views on the legitimacy of using ‘absolutist’ moral language in the public discourse.","PeriodicalId":36157,"journal":{"name":"Studia Iuridica Lublinensia","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-07-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77765225","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-07-07DOI: 10.31338/2544-3135.si.2023-96.11
Karolina Mendecka
Language is an essential element of indigenous culture and identity. Meanwhile, indigenous languages are endangered or nearly extinct. It is argued that ensuring that native communities receive education in their mother tongue is key to conserve and revitalize indigenous cultures and linguistic heritage. This paper reviews the normative guidelines regarding the right to be taught in one’s own language set out in international and regional human rights law. It is argued that although there is currently no binding, universally accepted obligation to provide education for indigenous peoples in their native languages, a binding measure might soon emerge. Additionally, it is argued that the protection of indigenous heritage and cultural diversity requires re-evaluation of the current standards and that the right of native peoples to mother tongue-based education should be strongly endorsed by the international community.
{"title":"THE RIGHT TO MOTHER TONGUE EDUCATION FOR INDIGENOUS PEOPLES: AN OVERVIEW OF INTERNATIONAL AND REGIONAL STANDARDS","authors":"Karolina Mendecka","doi":"10.31338/2544-3135.si.2023-96.11","DOIUrl":"https://doi.org/10.31338/2544-3135.si.2023-96.11","url":null,"abstract":"Language is an essential element of indigenous culture and identity. Meanwhile, indigenous languages are endangered or nearly extinct. It is argued that ensuring that native communities receive education in their mother tongue is key to conserve and revitalize indigenous cultures and linguistic heritage. This paper reviews the normative guidelines regarding the right to be taught in one’s own language set out in international and regional human rights law. It is argued that although there is currently no binding, universally accepted obligation to provide education for indigenous peoples in their native languages, a binding measure might soon emerge. Additionally, it is argued that the protection of indigenous heritage and cultural diversity requires re-evaluation of the current standards and that the right of native peoples to mother tongue-based education should be strongly endorsed by the international community.","PeriodicalId":36157,"journal":{"name":"Studia Iuridica Lublinensia","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-07-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88847263","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-07-07DOI: 10.31338/2544-3135.si.2023-96.12
J. Menkes, Magdalena Suska
The paper is a critical analysis of the index of norms and mechanisms protecting the collective rights of indigenous peoples established at the United Nations. The norms and mechanisms for the rights of indigenous peoples have been studied from two viewpoints: firstly, through the prism of how the norm of ‘the right to self-determination’ is created and implemented within the framework of international cooperation; and secondly, as collective rights, which are both a form of implementation of the individual human right and its complement. The United Nations Declaration on the Rights of Indigenous Peoples has been analysed with the use of the legal and dogmatic method. The conclusion provides an assessment complemented by de lege ferenda postulates.
{"title":"THE ISSUE OF INDIGENOUS PEOPLES AT THE UNITED NATIONS: SELECTED PROBLEMS","authors":"J. Menkes, Magdalena Suska","doi":"10.31338/2544-3135.si.2023-96.12","DOIUrl":"https://doi.org/10.31338/2544-3135.si.2023-96.12","url":null,"abstract":"The paper is a critical analysis of the index of norms and mechanisms protecting the collective rights of indigenous peoples established at the United Nations. The norms and mechanisms for the rights of indigenous peoples have been studied from two viewpoints: firstly, through the prism of how the norm of ‘the right to self-determination’ is created and implemented within the framework of international cooperation; and secondly, as collective rights, which are both a form of implementation of the individual human right and its complement. The United Nations Declaration on the Rights of Indigenous Peoples has been analysed with the use of the legal and dogmatic method. The conclusion provides an assessment complemented by de lege ferenda postulates.","PeriodicalId":36157,"journal":{"name":"Studia Iuridica Lublinensia","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-07-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84950639","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-07-07DOI: 10.31338/2544-3135.si.2023-96.7
Natalia Deptała
This paper focuses on the concept of delinquency in addition to prevention and suppression methods and the idea of guilt in pre-Columbian Mesoamerica, while treating its inhabitants as highly-developed indigenous peoples. The first section of the study examines the ideas of law and justice in terms of the particular policies that shape people’s way of life in every society. The premise for addressing law in this manner is that one can only comprehend it via ongoing experience. The main focus of this paper is placed on the earlier timeline, when two crucial civilisations existed in Mesoamerica. Both the Maya and the Aztecs built vast, densely inhabited, and extremely efficient empires. However, even a large human society cannot function without order and there is no order without law. Committing a crime or a tort is incompatible with the desirable values and norms that govern the society and causes harm and hazard. Taking into consideration also the detrimental consequences of a forbidden act, the psychological determination of the delinquent and his or her personal attitude towards the act, the concepts of guilt and shame cultures should be brought to attention. From a historical point of view, a delinquent’s feeling of guilt was given consideration during criminal trials in Europe as early as in the Middle Ages, while in Mesoamerica this concept had already existed. Furthermore, some of pre-Columbian Mesoamericans distinguished between intentional and accidental acts, which had an impact of final judgments.
{"title":"THE CONCEPT OF DELINQUENCY IN MESOAMERICA: FOCUS ON THE AZTECS AND THE MAYA","authors":"Natalia Deptała","doi":"10.31338/2544-3135.si.2023-96.7","DOIUrl":"https://doi.org/10.31338/2544-3135.si.2023-96.7","url":null,"abstract":"This paper focuses on the concept of delinquency in addition to prevention and suppression methods and the idea of guilt in pre-Columbian Mesoamerica, while treating its inhabitants as highly-developed indigenous peoples. The first section of the study examines the ideas of law and justice in terms of the particular policies that shape people’s way of life in every society. The premise for addressing law in this manner is that one can only comprehend it via ongoing experience. The main focus of this paper is placed on the earlier timeline, when two crucial civilisations existed in Mesoamerica. Both the Maya and the Aztecs built vast, densely inhabited, and extremely efficient empires. However, even a large human society cannot function without order and there is no order without law. Committing a crime or a tort is incompatible with the desirable values and norms that govern the society and causes harm and hazard. Taking into consideration also the detrimental consequences of a forbidden act, the psychological determination of the delinquent and his or her personal attitude towards the act, the concepts of guilt and shame cultures should be brought to attention. From a historical point of view, a delinquent’s feeling of guilt was given consideration during criminal trials in Europe as early as in the Middle Ages, while in Mesoamerica this concept had already existed. Furthermore, some of pre-Columbian Mesoamericans distinguished between intentional and accidental acts, which had an impact of final judgments.","PeriodicalId":36157,"journal":{"name":"Studia Iuridica Lublinensia","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-07-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84605101","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-07-07DOI: 10.31338/2544-3135.si.2023-96.13
A. Posern-Zieliński
One of the core elements of the contemporary Latin American indigenous activism is postcolonial ethnonationalism, oriented towards ethnic, cultural, social, and civic emancipation. It has been developed to facilitate the struggle for the native rights, the defence of the ethnic territory, to maintain identity and protect own heritage. The inventors and disseminators of the concept are representatives of the emerging indigenous elite, usually controlling many ethnic organizations. That new social group, referred to sometimes as neo-Indians, is very heterogeneous and composed of the grass-roots leaders, experienced activists, educated professionals, rebellious youth, and intellectuals. There are among them ethnic leaders, politicians, journalists, artists, writers, scientists, teachers, students, lawyers, small entrepreneurs, and many other influential people. All of them have contributed to the formation of emancipative ideas, shaping the syncretic world outlook of the contemporary native peoples, which is an important factor underpinning their modern ethnic identity. The ideology of ethnonationalism, based on the concept of ‘indianismo’ (indigenous interests expressed and safeguarded by the native people themselves) is a creative combination of traits of different origins. Among them, four components are of special significance: (i) transmuted ethnic ideas but rooted in the native culture; (ii) original features invented in the course of the ethnic mobilization; (iii) concepts borrowed from the international and global discourse, and adapted to the local needs; and (iv) ideas taken directly from the contemporary political, social, and judicial thought. Different combinations of these traits are present both in indigenous ethnonationalism and in the ethnic activism associated therewith. They serve as a building material for the native political projects and their symbolism, help to reinterpret the vision of the native past, facilitate the development of intercultural education, inspire the aboriginal concepts of ecology, enable the revival of ancient religion, lead to the restitution of social justice, and strengthen the formation of modern ethnicity. Reflections on the development of that process, where all these different elements have been put together, and on the role of the native elite in the formation of ethnonationalism, are at the centre of this study. It is based on ethnographic fieldwork and anthropological research carried out in four Andean countries (Ecuador, Peru, Bolivia and Chile), where indigenous mobilization has been a significant factor in the social and political life since the second half of the twentieth century.
{"title":"NEW INDIGENOUS ELITE AND THE FORMATION OF ETHNONATIONALISM: THE CASE OF THE ANDEAN COUNTRIES","authors":"A. Posern-Zieliński","doi":"10.31338/2544-3135.si.2023-96.13","DOIUrl":"https://doi.org/10.31338/2544-3135.si.2023-96.13","url":null,"abstract":"One of the core elements of the contemporary Latin American indigenous activism is postcolonial ethnonationalism, oriented towards ethnic, cultural, social, and civic emancipation. It has been developed to facilitate the struggle for the native rights, the defence of the ethnic territory, to maintain identity and protect own heritage. The inventors and disseminators of the concept are representatives of the emerging indigenous elite, usually controlling many ethnic organizations. That new social group, referred to sometimes as neo-Indians, is very heterogeneous and composed of the grass-roots leaders, experienced activists, educated professionals, rebellious youth, and intellectuals. There are among them ethnic leaders, politicians, journalists, artists, writers, scientists, teachers, students, lawyers, small entrepreneurs, and many other influential people. All of them have contributed to the formation of emancipative ideas, shaping the syncretic world outlook of the contemporary native peoples, which is an important factor underpinning their modern ethnic identity. The ideology of ethnonationalism, based on the concept of ‘indianismo’ (indigenous interests expressed and safeguarded by the native people themselves) is a creative combination of traits of different origins. Among them, four components are of special significance: (i) transmuted ethnic ideas but rooted in the native culture; (ii) original features invented in the course of the ethnic mobilization; (iii) concepts borrowed from the international and global discourse, and adapted to the local needs; and (iv) ideas taken directly from the contemporary political, social, and judicial thought. Different combinations of these traits are present both in indigenous ethnonationalism and in the ethnic activism associated therewith. They serve as a building material for the native political projects and their symbolism, help to reinterpret the vision of the native past, facilitate the development of intercultural education, inspire the aboriginal concepts of ecology, enable the revival of ancient religion, lead to the restitution of social justice, and strengthen the formation of modern ethnicity. Reflections on the development of that process, where all these different elements have been put together, and on the role of the native elite in the formation of ethnonationalism, are at the centre of this study. It is based on ethnographic fieldwork and anthropological research carried out in four Andean countries (Ecuador, Peru, Bolivia and Chile), where indigenous mobilization has been a significant factor in the social and political life since the second half of the twentieth century.","PeriodicalId":36157,"journal":{"name":"Studia Iuridica Lublinensia","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-07-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77944325","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-07-07DOI: 10.31338/2544-3135.si.2023-96.14
Karolina Prażmowska-Marcinowska
Climate change and its negative consequences represent a common problem for all the people on Earth and are likely to become one of the most serious challenges that humankind faces. As such, mitigation measures and adaptation actions are of particular importance. Although often thought as the two sides of the same coin, the climate change mitigation and adaptation differ from each other, especially in the context of indigenous peoples. Therefore, the first part of the paper centres on the relation between climate change mitigation and adaptation and their consequences for indigenous communities. The newest international treaty on climate change, the Paris Agreement, establishes the global goal on adaptation, which should take into consideration vulnerable groups, communities and ecosystems, and more importantly, should be based on and guided by the best available science and knowledge of indigenous peoples, often referred to as ‘traditional knowledge’. As such, the second part of the paper focuses on the adaptation methods guided by the traditional knowledge. Although examples include indigenous peoples’ traditional knowledge from all over the globe, much attention is given to the Arctic Indigenous Peoples as, due to current speed of climate change, the Arctic is recognized as a global climate change hotspot. Although indigenous peoples have been living in their territories since the time immemorial, adapting their ways of life to the difficult weather and environmental conditions, with the current climate change happening so rapidly, their possibilities of adaptation are weakening and climate change renders them more vulnerable, altering their economic and cultural activities and threatening their very existence. However, the current rate of climate change is not the only factor impairing the indigenous peoples’ adaptive capacities. Therefore, the final part of the paper is aimed at presenting what the obstacles to the successful adaptation to climate change are and whether migration should be considered an adaptive action.
{"title":"CLIMATE CHANGE MITIGATION AND ADAPTATION: WITH OR AGAINST INDIGENOUS PEOPLES?","authors":"Karolina Prażmowska-Marcinowska","doi":"10.31338/2544-3135.si.2023-96.14","DOIUrl":"https://doi.org/10.31338/2544-3135.si.2023-96.14","url":null,"abstract":"Climate change and its negative consequences represent a common problem for all the people on Earth and are likely to become one of the most serious challenges that humankind faces. As such, mitigation measures and adaptation actions are of particular importance. Although often thought as the two sides of the same coin, the climate change mitigation and adaptation differ from each other, especially in the context of indigenous peoples. Therefore, the first part of the paper centres on the relation between climate change mitigation and adaptation and their consequences for indigenous communities. The newest international treaty on climate change, the Paris Agreement, establishes the global goal on adaptation, which should take into consideration vulnerable groups, communities and ecosystems, and more importantly, should be based on and guided by the best available science and knowledge of indigenous peoples, often referred to as ‘traditional knowledge’. As such, the second part of the paper focuses on the adaptation methods guided by the traditional knowledge. Although examples include indigenous peoples’ traditional knowledge from all over the globe, much attention is given to the Arctic Indigenous Peoples as, due to current speed of climate change, the Arctic is recognized as a global climate change hotspot. Although indigenous peoples have been living in their territories since the time immemorial, adapting their ways of life to the difficult weather and environmental conditions, with the current climate change happening so rapidly, their possibilities of adaptation are weakening and climate change renders them more vulnerable, altering their economic and cultural activities and threatening their very existence. However, the current rate of climate change is not the only factor impairing the indigenous peoples’ adaptive capacities. Therefore, the final part of the paper is aimed at presenting what the obstacles to the successful adaptation to climate change are and whether migration should be considered an adaptive action.","PeriodicalId":36157,"journal":{"name":"Studia Iuridica Lublinensia","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-07-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77565736","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-07-07DOI: 10.31338/2544-3135.si.2023-96.2
D. Bach-Golecka
The aim of the paper is to present the evolution of papal social teaching on indigenous peoples’ rights from a historical perspective. It seems possible to distinguish various phases of the Catholic standpoint based on the factual, historical background: medieval challenges of infidel peoples, the Indian question during the colonization period, the impact of modernity: class struggle and the Catholic social teaching, and finally, the contemporary globalization era during the present pontificate of Pope Francis. The common threads of papal teaching concern, firstly, the evangelizing mission of the Church to bring faith to overseas peoples and, secondly, human rights of indigenous peoples. The human rights perspective is inextricably linked with the principle of self-determination, understood as the foundation of good governance.
{"title":"THE EVOLUTION OF PAPAL SOCIAL THOUGHT ON INDIGENOUS PEOPLES","authors":"D. Bach-Golecka","doi":"10.31338/2544-3135.si.2023-96.2","DOIUrl":"https://doi.org/10.31338/2544-3135.si.2023-96.2","url":null,"abstract":"The aim of the paper is to present the evolution of papal social teaching on indigenous peoples’ rights from a historical perspective. It seems possible to distinguish various phases of the Catholic standpoint based on the factual, historical background: medieval challenges of infidel peoples, the Indian question during the colonization period, the impact of modernity: class struggle and the Catholic social teaching, and finally, the contemporary globalization era during the present pontificate of Pope Francis. The common threads of papal teaching concern, firstly, the evangelizing mission of the Church to bring faith to overseas peoples and, secondly, human rights of indigenous peoples. The human rights perspective is inextricably linked with the principle of self-determination, understood as the foundation of good governance.","PeriodicalId":36157,"journal":{"name":"Studia Iuridica Lublinensia","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-07-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73070921","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-07-07DOI: 10.31338/2544-3135.si.2023-96.15
Iwona Ryniak-Olszanka
The concept of ‘responsibility to protect’ (RtoP) was adopted at the United Nations World Summit by the Member States in 2005. The first pillar of this principle laid down in paragraph 138 of the World Summit Outcome Document of the UN General Assembly obliges states to protect their population from genocide, war crimes, crimes against humanity, and ethnic cleansing. This paper aims to prove that Indonesia not only endorsed this idea at the diplomatic level but also implemented a mechanism which protects the indigenous community in the event of serious human rights violations. The Indonesian system is based on the state’s obligations arising from ratified international human rights treaties and the national institutions, such as the Indonesian National Commission on Human Rights (Komnas HAM) and Human Rights Courts that respond to the first pillar of the responsibility to protect. This paper presents the international and national legislation as well as the mechanism set up by the Indonesian authorities to protect indigenous people in cases of serious human rights violations. It focuses on examples of the actions undertaken by Komnas HAM and the ad hoc tribunal established at the permanent Human Rights Court in connection with situations where the rights of the Papuan people were violated. Despite the imperfection of the system, the conclusion is that the Indonesian state has the instruments necessary to protect the rights of the indigenous communities according to the RtoP principle embodied in paragraph 138 of the UN World Summit Outcome Document.
{"title":"THE RIGHTS OF INDIGENOUS PEOPLES IN INDONESIA IN THE CONTEXT OF ‘RESPONSIBILITY TO PROTECT’","authors":"Iwona Ryniak-Olszanka","doi":"10.31338/2544-3135.si.2023-96.15","DOIUrl":"https://doi.org/10.31338/2544-3135.si.2023-96.15","url":null,"abstract":"The concept of ‘responsibility to protect’ (RtoP) was adopted at the United Nations World Summit by the Member States in 2005. The first pillar of this principle laid down in paragraph 138 of the World Summit Outcome Document of the UN General Assembly obliges states to protect their population from genocide, war crimes, crimes against humanity, and ethnic cleansing. This paper aims to prove that Indonesia not only endorsed this idea at the diplomatic level but also implemented a mechanism which protects the indigenous community in the event of serious human rights violations. The Indonesian system is based on the state’s obligations arising from ratified international human rights treaties and the national institutions, such as the Indonesian National Commission on Human Rights (Komnas HAM) and Human Rights Courts that respond to the first pillar of the responsibility to protect. This paper presents the international and national legislation as well as the mechanism set up by the Indonesian authorities to protect indigenous people in cases of serious human rights violations. It focuses on examples of the actions undertaken by Komnas HAM and the ad hoc tribunal established at the permanent Human Rights Court in connection with situations where the rights of the Papuan people were violated. Despite the imperfection of the system, the conclusion is that the Indonesian state has the instruments necessary to protect the rights of the indigenous communities according to the RtoP principle embodied in paragraph 138 of the UN World Summit Outcome Document.","PeriodicalId":36157,"journal":{"name":"Studia Iuridica Lublinensia","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-07-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80306020","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-07-07DOI: 10.31338/2544-3135.si.2023-96.8
Magdalena Krysińska-Kałużna
Indigenous and positive law systems are often based on different ontological assumptions. This is one of the aspects that can give rise to collision in a field of legal conflict. The text presents examples of the ontological differences between legal systems and social and cultural phenomena related to them, while pointing out that, despite their great importance, they do not prove to be the major obstacle to enduring understanding between cultures and their law systems.
{"title":"\"MANTALIL\", \"MAURI\" AND \"DJANG\": LAW AND JUSTICE IN THE INDIGENOUS WORLDS","authors":"Magdalena Krysińska-Kałużna","doi":"10.31338/2544-3135.si.2023-96.8","DOIUrl":"https://doi.org/10.31338/2544-3135.si.2023-96.8","url":null,"abstract":"Indigenous and positive law systems are often based on different ontological assumptions. This is one of the aspects that can give rise to collision in a field of legal conflict. The text presents examples of the ontological differences between legal systems and social and cultural phenomena related to them, while pointing out that, despite their great importance, they do not prove to be the major obstacle to enduring understanding between cultures and their law systems.","PeriodicalId":36157,"journal":{"name":"Studia Iuridica Lublinensia","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-07-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83945602","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-07-07DOI: 10.31338/2544-3135.si.2023-96.10
J. Kurczewski
The author in this study tests the applicability of basic categories of Leon Petrażycki’s (1865–1931) socio-psychological theory of law, pointing at ambiguity of the concept of ‘indigenous law’, ‘natives’ law’ and ‘customary law’. First, however, the right to one’s own law is followed through the history of colonization. It is essential for the plight of the indigenous people that already in 1537 Popes recognized that ‘original inhabitants’ had ‘rights’ and thus ‘legitimate claims’. If, on the one hand, there are ‘rights’ and ‘rightful claims’ then, on the other, there are duties that include not only the negative refraining from appropriation but also the positive duty to protect in exchange for the impairing the indigenous sovereignty. But whenever the nexus iuris is recognized, i.e. the link of correlative rights and duties, there is a law (Petrażycki) and ‘inherent – even if impaired, or as some say, abused – sovereignty of the indigenous people’ (Justice Marshall). The pluralist notion of ‘law’, the distinction between the ‘normative positive’ reference and the ‘normative intuition’ and the distinction between the ‘normative’ and the ‘factual’ should allow one to organize systematically the multiple issues that one encounters when approaching the area of ‘indigenous law’. From discussion of the official nonindigenous indigenous law exemplified by the federal Native American law of the United States the paper moves on to discuss the Navajo case of the official tribal law. It comes out that the native procedures and law are full of religious meaning so the ‘cultural’ sovereignty is much more fundamental and value-loaded than the secular philosophy of human rights incommensurable with the right to one’s own law. This is not considered when borrowing from native law into secular Western law (Greenland’s Criminal Code; mediation procedures in North America). The meaning of cultural sovereignty is the right to develop one’s law so that it fits one’s needs and aims. But the full success story is when the antithesis of the ‘indigenous’ and ‘dominant’ law is settled through the feedback from the former to the latter, like when the law – not only of a country but also on the global level – becomes syncretic and embraces deeper universalization of the human rights.
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