The draft nordic saami convention: Nations working together

International Community Law Review

Volumn 10, Issue 3, 2008, Pages 279-293

  Koivurova, Timo ^a  

^a UNIVERSITY OF LAPLAND   (Finland)

Author keywords

Human rights; Indigenous peoples; Nordic countries; Saami; Self determination

Indexed keywords

EID: 70349170205     PISSN: 18719740     EISSN: 18719732     Source Type: Journal    
DOI: 10.1163/187197308X346814     Document Type: Article

References (53)

1. See Pablo Gutiérrez Vega, "The Municipalization of the Legal Status of Indigenous Nations by Modern (European) International Law" in Law & Anthropology, Volume 12, pp. 17-54 (special editors Kuppe, R. and Potz R.). Martinus Nijhoff Publishers 2005.
2. See the term "Lapp Codicil" in The Saami: a Cultural Encyclopedia (eds. Kulonen U.M., Seurujärvi-Kari, I. and Pulkkinen, R.), p. 185. Suomalaisen Kirjallisuuden Seuran toimituksia 925. Vammalan kirjapaino Oy 2005.
3. Preface, the Draft Convention. The unoffi cial English version of the Draft Convention can be found from the Saami Council website, at 〈http://www.saamicouncil.net/includes/file-download.asp?deptid=2195&fi leid=2097&fi le=Nordic%20Saami%20Convention%20(Unoffi cial%20English%20Translation).doc〉 (22 Nov. 2007). This Lapp Codicil is, in fact, still relevant today, since in the absence of cross-border reindeer herding agreement between Norway and Sweden, the Swedish side argues that the Lapp Codicil continues to be in force during this interim period (see p. 234 of the Report, infra note 9).
4. See the keyword assimilation from The Saami: A Cultural Encyclopedia, pp. 24-25 and the accompanying sources.
5. These fi gures cannot be but rough estimates as there is no clear definition of who constitute the Saami. See the Report, at p. 65, infra note 9. See also the introduction to The Saami: A Cultural Encyclopedia, p. 5.
6. See pp. 90-96 of the Report, see infra note 9.
7. The Convention Concerning Indigenous and Tribal Peoples in Independent Countries, adopted by the General Conference of the International Labour Organisation 27 June 1989, entered into force on 5 September 1991, 28 I.L.M. 1382 (1989).
8. The Report was submitted by the Expert Committee in Oslo 26 October 2005. In Finland, it was submitted, in the presence of all the responsible Saami ministers and the presidents of the Saami parliaments, in the premises of the Ministry of Justice, on 16 November 2005. See the press release at 〈http://www.om.fi /Etusivu/Ajankohtaista/Uutiset/Uutisarkisto/Uutiset2005/ 1145624694333〉 (22 Nov. 2005).
9. See pp. 151-246. The other parts of the Report consist of the following: how the Committee was appointed and its terms of reference (Section 2, pp. 44-46), summary of the content of the proposed text for a Convention (Section 3, pp. 47-56), explanation of the process leading to the appointment of the Committee and how the Committee has fulfilled its task (Section 4, pp. 57-62), discussion of some of the general issues related to the Convention (Section 5, pp. 63-64), review of the legal and factual situation of the Saami in Finland, Norway, Sweden, and the Russian Federation (Section 6, pp. 65-103), extensive analysis of the international treaties and other international instruments relevant from the viewpoint of Saami rights (Section 7, pp. 104-147), the discussion of the status of the Saami in the Convention (Section 8, pp. 148-150). The Annexes deal with a study of whether the Saami could be parties to the proposed Convention (Annex I, pp. 247-250), the legal status of the Russian Saami (Annex II, pp. 251-262), an article by the three members of the Committee about the right to self-determination of the Saami (Annex III, pp. 263-318 and the Draft United Nations Declaration on the Rights of Indigenous Peoples, together with suggestions from Nordic countries, New Zealand, and Switzerland (Annex IV, pp. 319-340).
10. Ibid., pp. 9-43.
11. Ibid., pp. 151-244.
12. See p. 57 of the Report.
13. Ibid., p. 58. Translation by the author from Finnish.
14. Ibid., p. 59.
15. Ibid. pp. 44-46.
16. See the preamble of the Honningsvåg Declaration from the website of the Saami Council, at 〈http://www.saamicouncil.net/fi les/20041215142715. doc〉 (22.11.2007).
17. See the Report, pp. 63-64. The Committee also pondered the name of the Draft Convention from the perspective of the Russian Saami. The Nordic Saami Convention as a name conveys, according to the Committee, an idea that the Russian Saami are not covered by the Draft Convention. The Committee also discussed this issue from the viewpoint of whether the name is justifi ed when it covers only three out of fi ve Nordic states, but in the end decided that it is the most convenient name, as otherwise the title would have needed to be revised from that used by the Saami Co-operation Council when it drafted the terms of reference and from the title used by the working group that studied the need and basis for a Nordic Saami Convention (ibid., pp. 151-152).
18. The Expert Committee held a meeting with representatives of the Russian Saami in January 2005 in Kiiruna, Sweden (ibid., p. 64).
19. The legal status of the Russian Saami is studied in the Report, see ibid., pp. 99-103.
20. The underlying vision of the Draft Convention can be seen to be to pursue a path to a joint Nordic Saamination. At the core of the Draft Convention is a vision of Saami that will in time develop their joint Saami Parliament, with further attempts made to include the Russian Saami in one way or the other, which would be empowered to make decisions and represent the Saami in state and international settings; that their rights to their traditional lands, waters and sea areas are secured making it possible to see a common homeland for the Saami people; and to have their cross-border rights guaranteed, in order for the Saami presently separated by the state borders to develop their co-operation especially in carrying to the future their unique culture in its totality. Evidently, such a vision is also manifested in the work of the Saami Council since they represent all the Saamis, not only the Nordic ones. Yet, the Saami Council is a non-governmental organisation, representing unelected Saami associations from the four states, and having no public powers. See the structure of the Council at 〈http://www.saamicouncil.net/?deptid=2181〉 (22.11.2007).
21. Article 2 of the Draft Convention.
22. The Saami right to external self-determination is more fully fl eshed out in an article attached to the Report as Annex III, Henriksen, J.B., Scheinin, M., Åhren M., 'Saamelaisten itsemääräämisoikeus', pp. 263-315 of the Report.
23. The wording of the Article seems to suggest that the Saami Parliamentshave an exclusive right to represent the Saami in intergovernmental matters, but this is not the case. According to the Commentary to Article 19, it is explicitly provided that the Saami Parliaments do not have an exclusive right to representation and that in some contexts other Saami bodies can represent the Saami in international forums. A good example is the Arctic Council, a high-level inter-governmental forum between the eight Arctic states (the fi ve Nordic states, the Russian Federation, the USA, and Canada), in which the Saami are represented by the Saami Council. In the Arctic Council, the indigenous peoples' organisationshave been given a unique status as permanent participants, the charter of foundation of the Arctic Council even requiring that the permanent participants be fully consulted before a joint decision is made by the states. See Timo Koivurova and Leena Heinämäki, "The Participation of Indigenous Peoples in International Norm-Making in the Arctic" in 221 Polar Record (2006), 101-109. For a study on the role of the Saami Council in the UN Permanent Forum on Indigenous Issues, see Marjo Lindroth, "Indigenous-State Relations in the UN: Establishing the Indigenous Forum" in 222 Polar Record (2006), 239-248.
24. The Commentary to Article 45 also discusses the issue of a Nordic ombudsman, which might have played a role in general in consolidating the status of all conventions concluded under the auspices of the Nordic Council, but provides that this idea has not made further progress. P. 238.
25. See pp. 239-240.
26. Article 46 of the Draft Convention.
27. See pp. 237-240 of the Report.
28. Ibid.
29. Article 45 (2).
30. Report, p. 239.
31. Article 49.
32. Yet, since the work of the Expert Committee was done on the basis of the Norwegian and Swedish languages, the Expert Committee recommends that at least in the initial stages these two languages should be regarded as authoritative when interpreting the Draft Convention. See p. 47 of the Report.
33. See Gudmundur Alfredsson, "Minimum Requirements for a New Nordic Sami Convention" in 68 NJIL (1999) 397-411.
34. He argues on page 408 that "The Sami should be a party to a new Sami convention. The traditional approach has it that States conclude treaties, but there is no rule without exception. Sovereign States may choose to make agreements with non-state entities; accordingly, it is easy and simple for the Nordic States, if they so decide for reasons of equality and justice, to conclude a new convention with and not only about the Sami. It would be for the representative organs of the Sami themselves to decide whether they were to ratify a new convention as one group or as three groups".
35. Her argument is presented in Annex I to the Report (pp. 247-250).
36. Ibid., p. 247.
37. Article 3 of the Draft Declaration as it was adopted by the Human Rights Council provides: "Indigenous peopleshave the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development."
38. Article 4 prescribes: "Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local aff airs, as well as ways and means for financing their autonomous functions." See pages 247-250 of the Report
39. Henriksen, J.B., Scheinin, M., Åhren M., 'Saamelaisten itsemääräämisoikeus', pp. 263-315 of the Report.
40. The International Covenant on Civil and Political Rights, adopted and opened for signature, ratifi cation and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entered into force on 23 March 1976, 999 UNTS 171.
41. See the following concluding observations by the HRC where explicit references to either the concept of self-determination of peoples or Article 1 can be found: Canada (UN doc. CCPR/C/79/Add.105 (1999)); Mexico (UN Doc. CCPR/C/79/Add.109 (1999)); Norway (UN Doc. CCPR/c/79/Add.112 (1999)); Australia (UN Doc. CCPR/CO/69/AUS (2000)); Denmark (UN Doc. CCPR/CO/70/DNK (2000)); Sweden (UN Doc. CCPR/CO/74/SWE (2002)). The recent concluding observations on Finland (UN Doc. CCPR/CO/82/FIN (2004)) leave no room for doubt: 'The Committee regrets that it has not received a clear answer concerning the rights of the Sami as an indigenous people (Constitution, sect. 17, subsect. 3), in the light of article 1 of the Covenant (paragraph 17, fi rst sentence). USA, CCPR/C/USA/Q/3/CRP.4 (2006)).
42. See pp. 297-303 of the Report.
43. Greenland has concluded fi sheries and whaling agreements with states located geographically close to it. In addition, under the Greenland Home Rule Act, international conventions must be submitted to Greenland prior to ratifi cation in Denmark, see more at 〈http://explorenorth.com/library/facts/ greenland2000.html#16〉 (22.11.2007).
44. See also Lauri Hannikainen, "Åland och rätten till självbestämmande - I går, i dag och i morgon" in Vitbok för utveckling av Ålands självbestämmanderätt (ed. Harry Jansson), p. 70, footnote 35.
45. Report, pp. 300-302.
46. Ibid., p. 148.
47. Ibid., pp. 148-150.
48. The matter came up for a final decision in the 61st session of the General Assembly, in September 2007, where the Declaration was adopted, with 143 states voting in favour, 4 against (New Zealand, Australia, the USA and Canada) and 11 abstaining (including Russia). For a general overview, see the information at 〈http://www.iwgia.org/sw248.asp〉 (22.11.2007).
49. The Declaration can be downloaded at 〈http://www.iwgia.org/graphics/ Synkron-Library/Documents/InternationalProcesses/DraftDeclaration/ 07-09-13ResolutiontextDeclaration.pdf〉 (22.11.2007).
50. The Ministry of Justice, the responsible ministry of Saami aff airs in Finland, (together with the Finnish Saami Parliament), requested comments from altogether 88 authorities, bodies and associations to the draft Nordic Saami Convention on 2 March 2006. The commenting period, which was the same for all three Nordic countries, lasted till 15 June 2006. The Ministry of Justice and the Saami Parliament received 63 statements to the Draft Convention plus four non-requested ones, which are all compiled to a Summary Report. See the Summary Report of the statements in Finnish (introductory page), which can be donwloaded from the Ministry of Justice'shomepage at 〈http://www.om.fi/Etusivu/ Julkaisut/Lausuntojajaselvityksia/Lausuntojenjaselvitystenarkisto/ Lausuntojajaselvityksia2007/1172045482900〉 (22.11.2007). Lausuntoja ja selvityksiä 2007:6, Luonnos pohjoismaiseksi saamelaissopimukseksi (lausuntotiivistelmä).
51. Telephone conversation with the responsible official from the Ministry of Justice Mirja Kurkinen 29 November 2007.
52. See Martin Scheinin, 'Ihmisen ja Kansan oikeudet - kohti Pohjoismaista saamelaissopimusta' in 1 Lakimies (2006), 27-41.
53. See also forthcoming Francesco Francioni and Martin Scheinin (eds.), Cultural Human Rights (Brill 2008).