The Constitutionalization of Indigenous Rights, Customary Law and Traditional Political Institutions

In many constitutions of the world, we find special provisions for ethnic identity groups. Such provisions grant special rights to ethnic minorities, they acknowledge customary law as a basis for collective decision-making and judicial process for these groups, or they acknowledge and regulate traditional forms of political organization of ethnic groups. However, not every multi-ethnic country includes these kinds of constitutional provisions. Some constitutions do not mention ethnic identity groups at all; others have only a few provisions in their constitutions, whereas again others have many. While some constitutions give special rights to specific groups, others provide general regulation for all ethnic groups. This variation begs the question of which factors account for the constitutionalization of indigenous group rights, customary law and traditional political institutions. In order to explore the reasons for the constitutionalization of the three groups of rights, we develop seven hypotheses that relate to (1) the structure and composition of the societies, (2) the demand for ethnic recognition and (3) the supply of constitutional ethnic groups rights. We test our hypotheses using a newly composed dataset based on detailed coding of 193 current UN constitutions. Descriptively, countries specifying indigenous rights cluster in Latin America, while those constitutionalizing customary law and traditional institutions cluster in Africa. Our quantitative analyses show that the constitutionalization of customary law and traditional institutions is most likely in former European colonies with high ethnic fractionalization, while indigenous rights appear also in other countries. All three groups of provisions are more likely in countries with low levels of development, low levels of metropolization and high levels of education. Democratic states are also more open to constitutionalizing such rights. Previous internal conflict stimulates the constitutionalization of indigenous rights but does not account for the inclusion of provisions concerning customary law and traditional institutions.