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oa Comparative and International Law Journal of Southern Africa - The International Covenant on Civil and Political Rights and the recognition of customary law practices of indigenous tribes: the case of Australian Aborigines

 

Abstract

In Australia today, the weight of opinion is in favour of the recognition of Aboriginal customary law. However, the recognition entails several difficulties. Firstly there is the politically sensitive issue of whether it is appropriate to apply a different regime of laws to a section of the Australian population. Secondly, significant aspects of Aboriginal customary law are secret; this makes recognition of the law rather difficult. More importantly, there are rules and practices of Aboriginal customary law which seem repugnant to white and indeed, Western standards of human rights. Thus while general opinion in Australia favours the recognition of Aboriginal customary law, it does not support the recognition of tribal Aboriginal practices, particularly relating to punishment. The justification for rejecting such practices is based in part on the view that article 7 of the International Covenant on Civil and Political Rights (ICCPR) precludes their recognition through the prohibition of inhuman treatment or punishment. The focus of this paper is on the recognition of Aboriginal laws with respect to customary practices.

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/content/cilsa/19/2/AJA00104051_712
1986-07-01
2016-12-09
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