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Indigenous corporal punishments in ecuador and the prohibition of torture and Ill-treatments

Oswaldo-Rafael Ruiz-Chiriboga UGent (2012) AMERICAN UNIVERSITY INTERNATIONAL LAW REVIEW. 28(4). p.975-1016
abstract
Indigenous customary law (ICL) has always coexisted with national law throughout the history of Ecuador. At first it was tolerated, then it became illegal, and now it is fully recognized by the Constitution and by International Human Rights Law (IHRL). An integral part of ICL is the power to enact and apply punishments. Such punishments are in principle lawful, because of the broad wording of the constitutional recognition. A number of sanctions and the rituals that precede them have a physical component. As a result, indigenous peoples and Ecuadorian authorities are engaged in a debate over the compatibility of such punishments with human rights. Some maintain that corporal sanctions violate the prohibition of torture and other cruel, inhuman, and degrading punishments (CIDP). Indigenous peoples respond that their traditional practices must be respected. The aim of this research is to show that not all indigenous corporal punishments amount to forbidden acts. I will not try to undermine the prohibition of torture, instead, using the elements of the concept of ‘torture’ and ‘cruel, inhuman, and degrading punishments’ (CIDP) given by IHRL, I will show that certain indigenous corporal punishments do not fulfill all the requirements of torture or CIDP. I will also demonstrate that despite the views of several international bodies of the contrary, the culture of a society is always present in what it considers acceptable suffering for the assessment of the elements of torture and CIDP.
Please use this url to cite or link to this publication:
author
organization
year
type
journalArticle (original)
publication status
published
subject
keyword
torture, legal pluralism, corporal punishments, Ecuador, indigenous peoples, cruel inhuman or degrading punishment
journal title
AMERICAN UNIVERSITY INTERNATIONAL LAW REVIEW
Am. Univ. int. law rev.
volume
28
issue
4
issue title
Indigenous Peoples' Rights and International Human Rights Law
pages
975 - 1016
ISSN
1520-460X
language
English
UGent publication?
yes
classification
A2
additional info
This article obtained the first place in the 2012 Human Rights Essay Award organized by the Academy on Human Rights and Humanitarian Law, Washington College of Law, American University, USA.
copyright statement
I have transferred the copyright for this publication to the publisher
id
2084521
handle
http://hdl.handle.net/1854/LU-2084521
alternative location
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1996919
date created
2012-04-12 09:46:42
date last changed
2013-09-20 11:22:44
@article{2084521,
  abstract     = {Indigenous customary law (ICL) has always coexisted with national law throughout the history of Ecuador. At first it was tolerated, then it became illegal, and now it is fully recognized by the Constitution and by International Human Rights Law (IHRL). An integral part of ICL is the power to enact and apply punishments. Such punishments are in principle lawful, because of the broad wording of the constitutional recognition. A number of sanctions and the rituals that precede them have a physical component. As a result, indigenous peoples and Ecuadorian authorities are engaged in a debate over the compatibility of such punishments with human rights. Some maintain that corporal sanctions violate the prohibition of torture and other cruel, inhuman, and degrading punishments (CIDP). Indigenous peoples respond that their traditional practices must be respected. The aim of this research is to show that not all indigenous corporal punishments amount to forbidden acts. I will not try to undermine the prohibition of torture, instead, using the elements of the concept of {\textquoteleft}torture{\textquoteright} and {\textquoteleft}cruel, inhuman, and degrading punishments{\textquoteright} (CIDP) given by IHRL, I will show that certain indigenous corporal punishments do not fulfill all the requirements of torture or CIDP. I will also demonstrate that despite the views of several international bodies of the contrary, the culture of a society is always present in what it considers acceptable suffering for the assessment of the elements of torture and CIDP.},
  author       = {Ruiz-Chiriboga, Oswaldo-Rafael},
  issn         = {1520-460X},
  journal      = {AMERICAN UNIVERSITY INTERNATIONAL LAW REVIEW},
  keyword      = {torture,legal pluralism,corporal punishments,Ecuador,indigenous peoples,cruel inhuman or degrading punishment},
  language     = {eng},
  number       = {4},
  pages        = {975--1016},
  title        = {Indigenous corporal punishments in ecuador and the prohibition of torture and Ill-treatments},
  url          = {http://papers.ssrn.com/sol3/papers.cfm?abstract\_id=1996919},
  volume       = {28},
  year         = {2012},
}

Chicago
Ruiz-Chiriboga, Oswaldo-Rafael. 2012. “Indigenous Corporal Punishments in Ecuador and the Prohibition of Torture and Ill-treatments.” American University International Law Review 28 (4): 975–1016.
APA
Ruiz-Chiriboga, O.-R. (2012). Indigenous corporal punishments in ecuador and the prohibition of torture and Ill-treatments. AMERICAN UNIVERSITY INTERNATIONAL LAW REVIEW, 28(4), 975–1016.
Vancouver
1.
Ruiz-Chiriboga O-R. Indigenous corporal punishments in ecuador and the prohibition of torture and Ill-treatments. AMERICAN UNIVERSITY INTERNATIONAL LAW REVIEW. 2012;28(4):975–1016.
MLA
Ruiz-Chiriboga, Oswaldo-Rafael. “Indigenous Corporal Punishments in Ecuador and the Prohibition of Torture and Ill-treatments.” AMERICAN UNIVERSITY INTERNATIONAL LAW REVIEW 28.4 (2012): 975–1016. Print.