【书评】马碧玉│评田艳《少数民族习惯权利研究》

本文刊登于Asian Ethnicity 杂志2016年12月版。

马碧玉（1977—），女，云南大学法学院副教授，研究领域：知识产权法学，创新政策，印度法律制度。

Reviews on Customary Rights of the Minorities

Customary Rights of the Minorities, by Tian Yan, Beijing, China Minzu University Press, 2013, 283PP, RMB25, ISBN：9787566004758.

This book is surely one ofthe best treatments of the subject indicated in the title. With abundant fieldwork experience, the author, Tian Yan is able to interpret the protection of minorities’customary rights in China so clearly. Customary rights, like the other rightssuch as moral rights, religious rights, legal rights and so on, need to berespected and protected. It is a significant and absolutely necessary part of minorities’rights protection, because customary rights take into account ethnicminorities’ community interests. Tian Yan proposes some approaches in her book aboutthe rule of law for minorities’ customary rights. Within the frame of a bookreview it is impossible to define one’s view to all the numerous topics somasterfully expounded by Tian Yan. Only three significant aspects will behighlighted in this review.

First, the author redefinesthe customary rights of minorities based on special resources that they use, thatit is the rights of the people who are living in a particular community topossess, use and derive profit from the natural resources or cultural resourcesin which they are living. For instance, Professor Tian argues that it is thecustomary rights of Tibetans who are living in the Tibetan regions to gatherChinese caterpillar fungus in special areas. Tibetans’ customary rights toenjoy their natural resources, not the general rights to economic developmentshould be protected.

Secondly, although customaryrights is not legal rights, but the holders of customary rights still can performor not perform a particular act, or prohibit other people to perform aparticular act. So it needs to be guaranteed by the compulsive power. From thissense, the customary rights of the minorities will inevitably towards to therule of law. The author demonstrates the legal relationship of customary rightsof minorities from the three elements, subject, object and content. And thenpoints out that this relation can be confirmed by the approaches of that thecentral legislation promulgates principles of the customary rights, and then thelocal legislation and the special legislation specify the content of thecustomary rights. Furthermore, the author also points out that, in addition tolegislative confirmation, enough necessary room should be made in the judicialadjudication and administrative enforcement for the customary rights ofminorities to remedy the scarcity and lag of the law. The author’s insightfulviews offer useful reference for the implementation of the protection ofminorities’ customary rights in China.

At last, this book covers a largenumber of the cases of how the minorities’ customary rights can be and havebeen exercised. The study is based on in-depth fieldwork covering from theGreater Hinggan Mountains in the northern part of China where the Oroqen peoplelive, to Tibetan regions in the western part of China, and to China’ssouthwestern border areas, Xishuangbanna and Gaoligong Mountain area in YunnanProvince. The coverage of fieldwork is wide, including many major areas whereminorities live. The author also goes into details to discuss how localgovernmental institutions, economic development and cultures come into playwhen one wants to carry out the protection of minorities’ customary rights. Thearguments and conclusions presented in this book are detailed and fairlyobjective. The informative nature of this book makes it a valuable referencefor scholars and students interested in minority protections in China.

Notes on contributor

Ma Biyu received her PhD of IntellectualProperty Law from the China University of Political Science and Law in 2012.Sheis author of a number of papers on intellectual property issue and over 20publications, including journal articles and book chapters in Chinese andEnglish.

Author’s postal address: Law School of YunnanUniversity, Chenggong District, Kunming City, Yunnan, China

Ma Biyu, PhD

Associate Professor in LawSchool of Yunnan University

                         Kunming, China                              

 [e-mail]

---

主编：何明

编辑：冯瑜