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Monday, April 2, 2012

Definitions –Proposed Draft Law on Harmonization of Customary Laws on Natural Resources (for Gilgit and Baltistan)

Definitions –Draft Laws (for Gilgit and Baltistan)
Laws:              Law[2] is a system of rules, enforced through a set of institutions,[3] used as an instrument to underpin civil obedience, politics, economics and society. Law serves as the foremost social mediator in relations between people. Writing in 350 BC, the Greek philosopher Aristotle declared, "The rule of law is better than the rule of any individual."[4]
Law consists of a wide variety of separate disciplines. Contract law regulates binding agreements which may relate to everything from civil purchase to trading on derivatives markets. Property law defines rights and obligations related to the transfer and title of personal and real property. Trust law applies to assets held for investment and financial security, while Tort law allows claims for compensation if an individual or their property is injured or harmed. If the harm is criminalised in penal code, criminal law offers means by which the state can prosecute the perpetrator. Constitutional law provides a framework for the creation of law, the protection of human rights and the election of political representatives. Administrative law regulates the activities the administrative agencies of government, while International law governs affairs between sovereign nation states in activities ranging from trade, environmental regulation or military action.
Legal systems elaborate rights and responsibilities in a variety of ways. A basic distinction is generally made between civil law jurisdictions and systems using common law. In some countries, religion informs the law. Scholars investigate the nature of law through many perspectives, including legal history and philosophy, or social sciences such as economics and sociology. The study of law raises important and complex issues concerning equality, fairness, liberty and justice. "In its majestic equality", said the author Anatole France in 1894, "the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread."[5] The central institutions for interpreting and creating law are the three main branches of government, namely an impartial judiciary, a democratic legislature, and an accountable executive. To implement and enforce the law and provide services to the public, a government's bureaucracy, the military and police are vital. While all these organs of the state are creatures created and bound by law, an independent legal profession and a vibrant civil society inform and support their progress.
All legal systems deal with similar issues and behaviors, but each country categorises and identifies its legal standards and principals in different ways. A common distinction is that between "public law" (a term related closely to the state, and including constitutional, administrative and criminal law), and "private law" (which covers contract, tort and property).[6] In civil law systems, contract and tort fall under a general law of obligations, while trusts law is dealt with under statutory regimes or international conventions. International, constitutional and administrative law, criminal law, contract, tort, property law and trusts are regarded as the "traditional core subjects",[7] although there are many further disciplines which may be of greater practical importance.

Customary Law:       In law, custom can be described as the established patterns of behavior that can be objectively verified within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law." Generally, customary law exists where:
  1. a certain legal practice is observed and
  2. the relevant actors consider it to be law (opinio juris).
The modern codification of civil law developed out of the customs, or coutumes of the Middle Ages, expressions of law that developed in particular communities and slowly collected and later written down by local jurists. Such customs acquired the force of law when they became the undisputed rule by which certain entitlements (rights) or obligations were regulated between members of a community.[1] The Custom of Paris - the customary law that developed within the city of Paris - is an example of custom law.

Customary law within contemporary legal systems

Customary law is a recognized, but inferior, source of law within jurisdictions of the civil law tradition. It is strictly inferior to both statutes and regulations. In addressing custom as a source of law within the civil law tradition, John Henry Merryman notes that, though the attention it is given in scholarly works is great, its importance is "slight and decreasing."[2]
In Canada, customary aboriginal law has a constitutional foundation[3] and for this reason has increasing influence.[4]
In the Scandinavian countries customary law continues to exist and has great influence.[dubious ] Customary law is also used in some Third World countries, such as in Africa, usually used alongside common or civil law.[1]

Statutes: A statute is a formal written enactment of a legislative authority that governs a state, city, or county.[1] Typically, statutes command or prohibit something, or declare policy.[1] The word is often used to distinguish law made by legislative bodies from case law and the regulations issued by government agencies.[1] Statutes are sometimes referred to as legislation or "black letter law". As a source of law, statutes are considered primary authority (as opposed to secondary authority). 
  Ideally all Statutes must be in Harmony with the fundamental law of the land (Constitutional).

This word is used in contradistinction to the common law. Statutes acquire their force from the time of their passage unless otherwise provided. Statutes are of several kinds; namely, Public or private. Declaratory or remedial. Temporary or perpetual.
1. A temporary statute is one which is limited in its duration at the time of its enactment. It continues in force until the time of its limitation has expired, unless sooner repealed. A perpetual statute is one for the continuance of which there is no limited time, although it be not expressly declared to be so. If, however, a statute which did not itself contain any limitation, is to be governed by another which is temporary only, the former will also be temporary and dependent upon the existence of the latter.[2]
Before a statute becomes law in some countries, it must be agreed upon by the highest executive in the government, and finally published as part of a code. In many countries, statutes are organized in topical arrangements (or "codified") within publications called codes, such as the United States Code. In many nations statutory law is distinguished from and subordinate to constitutional law.

Indigenous peoples: The term indigenous peoples or autochthonous peoples can be used to describe any ethnic group of people who inhabit a geographic region with which they have the earliest known historical connection, alongside migrants which have populated the region and which are greater in number. [1] However, several widely-accepted formulations, which define the term indigenous peoples in stricter terms, have been put forward by prominent and internationally-recognized organizations, such as the United Nations, the International Labour Organization and the World Bank. Indigenous peoples in this article is used in such a narrower sense.
Drawing on these, a contemporary working definition of "indigenous people" for certain purposes has criteria which would seek to include cultural groups (and their continuity or association with a given region, or parts of a region, and who formerly or currently inhabit the region either:
  • before its subsequent colonization or annexation; or
  • alongside other cultural groups during the formation of a nation-state; or
  • independently or largely isolated from the influence of the claimed governance by a nation-state,
and who furthermore:
  • have maintained at least in part their distinct linguistic, cultural and social/organizational characteristics, and in doing so remain differentiated in some degree from the surrounding populations and dominant culture of the nation-state.
To the above, a criterion is usually added to also include:
  • peoples who are self-identified as indigenous, and/or those recognised as such by other groups.
Note that even if all the above criteria are fulfilled, some people may either not consider themselves as indigenous or may not be considered as indigenous by governments, organizations or scholars.
Other related terms for indigenous peoples include aborigines ( æbəˈɹɪdʒɪni (help·info)), aboriginal peoples, native peoples, first peoples, first nations, amerigine, and autochthonous (this last term having a derivation from Greek, meaning "sprung from the earth"). Indigenous peoples may often be used in preference to these or other terms, as a neutral replacement where these terms may have taken on negative or pejorative connotations by their prior association and use. It is the preferred term in use by the United Nations and its subsidiary organizations.

Natural Resources:      Natural resources (economically referred to as land or raw materials) are naturally forming substances that are considered valuable in their relatively unmodified (natural) form. A natural resource's value rests in the amount and extractability of the material available and the demand for it. The latter is determined by its usefulness to production. A commodity is generally considered a natural resource when the primary activities associated with it are extraction and purification, as opposed to creation. Thus, mining, petroleum extraction, fishing, hunting, and forestry are generally considered natural-resource industries, while agriculture is not. The term was introduced to a broad audience by E. F. Schumacher in his 1970s book Small is Beautiful.[1] The term is defined in the United States by the United States of America Geological Survey as "The Nation's natural resources include its minerals, energy, land, water, and biota."[2]

Natural resource management:        Natural resource management, conservation and restoration are applications of ecological principles by humans. Judgment of success is from the human perspective. The scale of application is variable within the "human scale" of activity – yet manifested and viewed from global down to small acreages and households, even to the microscopic. Regulations and laws may be assets, or impediments, depending on their adaptability to local and temporal conditions and subject to skillful implementation over time. Economics may produce strong forces that support or undermine success. The perspective of individuals or groups of individuals often conflict with the needed changes and management activities. Although conservation and restoration are science based activities, we know far less than we need to have a routine procedure to follow. Therefore, our management actions must address the processes of conservation and restoration on an appropriate scale and then be maintained for an extended time with appropriate mid-course corrections for our ecological objectives to be approached.
The single greatest difficulty for achieving desired results becomes that of unrecognized human ignorance acted upon with overconfidence. In practice, successful management of natural resources, conservation and restoration must coordinate complex time-dependent ecosystem processes with human dynamics. We need a clear understanding of our self and how we either facilitate or hinder the progress toward healthy ecosystem functions. Successful management implies continuous learning.

Capacity-building:                 Capacity building often refers to assistance which is provided to entities, usually developing country societies, which have a need to develop a certain skill or competence, or for general upgrading of performance ability. Most capacity is built by societies themselves, sometimes in the public, sometimes in the non-governmental and sometimes in the private sector. Many international organizations, often of the UN-family, have provided capacity building as a part of their programmes of technical cooperation with their member countries. Bilaterally funded entities and private sector consulting firms or non-governmental organizations, called (NGOs) have also offered capacity building services. Sometimes NGOs, in developing countries are themselves recipients of capacity building.
Capacity Building is, however, not limited to international aid work. More recently, capacity building is being used by government to transform community and industry approaches to social and environmental problems.
Resource-management:  In organizational studies, resource management is the efficient and effective deployment of an organization's resources when they are needed. Such resources may include financial resources, inventory, human skills, production resources, or information technology (IT). In the realm of project management, processes, techniques and philosophies as to the best approach for allocating resources have been developed. These include discussions on functional vs. cross-functional resource allocation as well as processes espoused by organizations like PMI through their PMBOK methodology to project management. Resource management is a key element to activity resource estimating and project human resource management. Both are essential components of a comprehensive project management plan to execute and monitor a project successfully.[1] As is the case with the larger discipline of project management, there are resource management software tools available that automate and assist the process of resource allocation to projects and portfolio resource visibility including supply and demand of resources.

Strategy:         A strategy is a long term plan of action designed to achieve a particular goal. Strategy is differentiated from tactics, or immediate actions, with resources at hand by its nature of being extensively premeditated, and often practically rehearsed.
The word derives from the Greek word stratēgos, which derives from two words: stratos (army) and ago (ancient Greek for leading). Stratēgos referred to a 'military commander' during the age of Athenian Democracy.

Sustainable development:     Sustainable development is a new term that grew out of the conservation/environmental movement of the 1970's. While the conservation/environmental movement asked questions about preserving the Earth's resources, sustainable development includes questions about how human decisions affect the Earth's environment. At this moment, sustainable development means different things to different people/groups. The most widely held definition is that of the Brundtland Commission Report of 1987 which stated we must " meet the needs of the present without compromising the ability of future generations to meet their own needs". In other words, when people make decisions about how to use the Earth's resources such as forests , water, minerals, gems, wildlife, etc., they must take into account not only how much of these resources they are using, what processes they used to get these resources., and who has access to these resources. Are enough resources going to be left for your grandchildren to use and will the environment be left as you know it today?

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