1. C USTOMARY I NTERNATIONAL L AW & THE P ROTECTION OF M INORITIES Prof. Joshua Castellino, Professor of Law & Head of Law Department, Middlesex University, London, UK

2. W HAT IS ‘C USTOMARY I NTERNATIONAL L AW ?’ Source of Public International Law Article 38, Statute of the International Court of Justice, United Nations Charter, 1945 Other sources: – Treaties – General principles – Academic Writings & Judicial Decisions

3. P ROBLEMS WITH ‘C USTOMARY I NTERNATIONAL L AW ’, M INORITIES & I NDIGENOUS P EOPLES State Centric ‘Consistent Practice’ Verifiability & Consistency In Written Format Not subject to Change Slow evolution

4. ‘I NTERNATIONAL C USTOM ’, M INORITIES, I NDIGENOUS P EOPLES & C OURTS OF L AW ‘Custom’ v ‘Usage’ – Evidence of Custom Elements of Custom – Uniformity and Consistency of Practice – Duration – Generality of practice – Opinio juris et necessitates

5. E MERGING D IFFICULTIES WITH ‘I NTERNATIONAL C USTOM ’ IN C OURTS Burden of proof Bilateral relations and local customs Opinio juris State practice

6. C ODIFICATION OF C USTOM The Role of Institutions: – United Nations – International Law Commission – World Trade Organisation – Council of Europe – International Labour Organisation – World Intellectual Property Organisation Bilateral Treaties & Agreements Courts (International, Regional, National) Domestic Statues Contributions from jurists

7. R ELATIONSHIP BETWEEN C USTOM & C ULTURE Culture is the manifestation of practice dictated by custom. It is the primary source for normative systems. (An-Na’im) ‘Culture is a network of perspectives in which different groups hold different values and views, and in which some groups have more power to present their vision as the true culture…’ (Ibawoh) ‘Since culture needs to respond to different & competing individual and collective needs and aspirations, it tends to combine stability and continuous change, offering its adherents a range of options and seeking to accommodate varying responses to its norms…’ (An-Na’im)

8. E VOLVING B ATTLE BETWEEN ‘F ORMAL L AW ’ & ‘T RADITIONAL L AW ’ Evidence: Land rights cases Decisions concerning the codification of intellectual property rights Decisions concerning unitary legal systems Antagonism towards legal pluralism

9. F ORMAL L AW : S OME G ENERALISATIONS Based on Western legal principles Monopoly of Law Focused on individual liberty Imposed by colonialism Codified in Writing Attempts to create egalitarian society

10. ‘T RADITIONAL LAW ’: S OME G ENERALISATIONS Community oriented value system Developed over time ‘Indigenous’ Based on cultural practices Oral Patriarchal

11. P ERCEPTION OF THE C LASH West: – Process of civilisation – Universality of rights – Protection of the individual East: – Interference – Hurts of colonialism – Neo-colonialism – Different agenda viz. community basis

12. M AINTENANCE OF THE F ORMAL OVER THE T RADITIONAL The role of ‘western’ elites The impact of Multinational Corporations The role of the State The Human Rights Agenda