A/67/278 F. Challenges in ensuring human rights are upheld in informal justice systems 85. Considering that the formal justice system is often remote or difficult to access for persons living in poverty, their grievances are often resolved outside the formal justice system through alternative dispute resolution systems, including those based on traditional, customary or religious law. Indeed, research shows that people living in poorer communities are more likely to resort to informal justice systems; in some countries more than half of all legal disputes are resolved in this manner. For persons living in poverty, resolving disputes through a means other than the formal system is not necessarily due to preference but rather to the lack of choice available to them because of the inaccessibility of the State legal order, or to social or economic compulsion. 24 86. Informal justice systems are often more accessible to persons living in poverty and may have the potential to provide quick, affordable and culturally relevant remedies. 25 However, informal justice mechanisms frequently exhibit some of the same weaknesses as State systems. For example, they may exclude women, minorities and disadvantaged groups, be susceptible to corruption and abuse of power, require payment from claimants or impose heavy fines, and in some there may be frequent lengthy delays in deciding cases. 26 87. The complexity of plural legal orders is likely to privilege those who are well informed and wealthy, and disadvantage those who are poor or marginalized, as often occurs in the formal State justice system. Moreover, informal justice mechanisms can act as a barrier to meaningful justice, particularly for the poorest and most disadvantaged community members, often reinforcing existing power structures and promoting elite domination and influence. In some cases, non-State justice mechanisms prioritize the interests of the community over the interests of the individual, which may have the effect of exacerbating the situation of the worst off in the community. Rarely do informal mechanisms take into account the legal rights of the individuals involved or consider international human rights standards. 88. Customary and traditional justice systems can also threaten women’s access to fair and equal justice. Informal justice systems based on custom, tradition or ethnic or religious identity often contain unequal provisions for women and men, do not have sanctions against gender-based violence or other abuses which take place in the domestic sphere, and are sometimes procedurally biased against women. This is especially problematic as it is family laws and property laws that are most often subject to the jurisdiction of such legal systems. 89. Sometimes such systems also impose extremely punitive measures for the commission of even minor crimes. Moreover, while non-State legal orders may often be praised for providing rapid justice, speedy justice proceedings are by no means always just, and indeed many have features that constitute human rights violations by omitting basic due process guarantees. __________________ 24 25 26 12-45806 Indigenous peoples have specific rights regarding the maintenance and development of their own legal institutions and juridical systems: Declaration on the Rights of Indigenous Peoples (arts. 5, 34 and 40). Doing Justice: How Informal Justice Systems can Contribute (United Nations Development Programme and Oslo Governance Centre, 2006), p. 5. When Legal Worlds Overlap: Human Rights, State and Non-State Law (Versoix, Switzerland, International Council on Human Rights Policy, 2009), p. 53. 19