The proposed Saami Convention:
A test for the Nordic commitment on rights
Mattias Arhen, Human Rights Coordinator,
In 1986, the Saami Council proposed that the four countries in which the Saami population reside, together with the Saami people, should elaborate a "Saami Convention" both to underline the Saami people's right as an indigenous people as well as to address the problems that national borders cause for them. In February 1995, the Nordic Council decided to commence the work with a Nordic Saami Convention. In November 2001, the governments of
From the outset, there was a clear understanding among all relevant parties that the Saami Convention would be elaborated in complete and equal partnership between the four parties involved; the Finnish, Norwegian, Swedish and the Saami people. Consequently, it was decided that the Expert Group should consist of one member appointed by each of the governments and one member appointed by each of the Saami parliaments. The Expert Group among others consisted of Professor Carsten Smith, former Chief Judge of the Norwegian Supreme Court (Chair of the Expert group), Mr. Hans Danelius, former Supreme Court Judge in Sweden and former judge on the International Court of Justice as well as Chief Lawyer for the Swedish Ministry of Foreign Affairs and Professor Martin Scheinin, former member of the UN Human Rights Committee and presently the UN's Special Rapporteur on Human Rights and Terrorism.
The Expert Group spent a little bit less than three years negotiating the Convention. In November 2005, it presented a unanimous proposal for a Saami Convention to the three governments and the three Saami parliaments.
Salient features of the Saami Convention
As common in international instruments, the Saami Convention consists of one preambular and one operative part. What probably renders the Saami Convention unique, however, is that the preambular part is divided into two wherein the governments and the Saami parliaments separately outline the foundation for the Saami Convention. The preambular section underscores that the Saami Convention rests on a general understanding that the Saami people have the right to self-determination and rights to its traditional lands, waters and natural resources. Also, the preambular part underlines that the fact that the Saami people have throughout history suffered injustices and have not been treated as an equal people shall be taken into consideration when determining future status of the Saami people.
In operative part, Article 1 of the Saami Convention spells out the objectives of the Convention: (i) to underline the Saami people's human rights and (ii), to the largest extent possible remove or mitigate the problems caused to the Saami people by the fact that our traditional territory is today divided by national borders.
Article 3 stipulates that the Saami people - as a people - has the right to self-determination. The Article essentially merges paras. 1 and 2 of the common Article 1 of the 1966 Covenants, and thus also includes the resource dimension of the right of self-determination. Interestingly, the Expert Group agreed on the paramount Article 3 in the Convention without much disagreement or debate. An entire chapter of the Convention (Articles 14-22) is devoted to how the right to self-determination shall be implemented in a Saami context, given that the entire Saami area today have a mixed population. The Saami people today share their territory with the colonizing population. The Chapter therefore introduces a sliding scale, where the Saami people have complete decision-making authority on matters that only concerns the Saami or, that even though they also have implications on the non-Saami population, are of significant importance to the Saami people. On matters of importance to the Saami, but that also concerns the non-Saami populations, the Convention proposes a joint-decision making between the two peoples through negotiation mechanisms. On matters that affect the Saami, but that are not of that importance to them, the Saami should be consulted before any decision-making. The Saami people shall also be allowed to be represented in public councils or committees that deal with Saami issues. The Convention further stipulates that the Saami parliaments shall represent the Saami people in international affairs. In other words, the Saami Convention underscores that the Saami people is entitled also to the external aspect of self-determination. Intrinsically linked to the right to self-determination, Article 9 stipulates that the states shall duly recognize the Saami people's customary legal thinking and norms.
In the standard setting processes on the rights of indigenous peoples at the United Nations, the right to self-determination and rights over land and resources are the most contentious issues. Unlike the right to self-determination, the Expert Group too, was really struggling to agree on how the Saami Convention should address these matters. The final outcome, arrived at after lengthy debate, is contained in Chapter IV (Articles 34-40). Generally speaking, the land and resource rights chapter was drawn from the corresponding articles in the ILO Convention No. 169 on Indigenous and Tribal Peoples. Article 34 stipulates that the Saami people have the right to own areas they occupy solely or predominantly and the right to continued usage of areas they presently share with the non-Saami population. The article further underlines that the evaluation of whether the Saami people have traditionally utilized an area must be made taking into consideration that the Saami traditional livelihoods such as reindeer husbandry leave little permanent traces in nature. Similar to Article 27 of the Covenant on Civil and Political Rights, as interpreted by the Human Rights Committee, the Convention includes an absolute prohibition of activities in the Saami areas that would render it impossible or make it considerably more difficult for the Saami people to pursue their traditional livelihoods. The Saami Convention does not take a final stand on what rights the Saami people have to sub-surface resources such as oil, gas and minerals, but highlights that such rights must be respected when existing. In a similar manner, the Convention stresses that the Saami people might indeed be entitled to restitution of lands and waters lost during the colonization of the Saami traditional areas.
Articles 35 and 47 oblige the state parties to provide financial assistance to the Saami people and individuals, rendering it possible for them to have cases of great importance tried before courts of law.
Article 45 establishes a committee with the mandate to oversee the implementation of the Convention. The Saami Convention committee is not a true treaty body, in the meaning of the institutions tasked to monitor state compliance with the major UN human rights treaties. Still, individuals can report alleged violations of the Saami Convention to the committee, and expect a response. Further, pursuant to Article 46, the state parties are, when possible, obliged to implement the provisions in the Convention into national legislation.
Limits of international law:
The negotiations in the Expert Group were carried out in good spirit with a genuine interest from all parties to reach a fair and balanced text which can be also implemented by the countries concerned. Generally speaking, good arguments were decisive, international legal standards were the guiding light, and the process was never allowed to be politicised. The Saami members of the Expert Group were treated as equal partners, and their arguments carried as much weight as any of the government appointees. Still, the work with elaborating the Saami Convention was a negotiating process and the outcome not perfect from a Saami perspective.
The Saami Convention marks a new partnership between the Saami people on one side and the Finnish, Norwegian and Swedish peoples on the other. Hence, it would have been natural that the Saami people had been a party to the Convention. This was also the aspiration of the Expert Group. However, a legal opinion commissioned by the expert group concluded that making the Saami people a party to the Convention would likely deprive it of the status as a legally binding document under international law. Faced with this imperfection in international law, the Expert Group opted for a solution according to which only the states are formal parties to the Saami Convention, but where the Convention text stipulates that the entering into force of, and any amendment to, the Convention requires the approval not only of the three states, but also of the Saami parliaments. It is thus fair to say that the Saami Convention is a modern treaty between the Finnish, Norwegian and Swedish state-forming peoples on one hand and the Saami people, on the other.
Without doubt, the biggest shortcoming of the Saami Convention is that the Convention does not apply to the parts of the Saami people's traditional areas that are today situated within the
In conclusion, the Saami Convention stands out as a unique international instrument and project. Even though the Convention is not perfect, the mere fact that the colonized Saami people and the colonizing peoples can - in the 21st Century - agree on a new basis for their future relationship, should serve as an inspiration for other countries in which indigenous peoples reside.
Test for Nordic commitments on rights
Following the presentation of the draft Saami Convention in November 2005, it was decided that the Convention text should be sent to relevant national, regional, local and Saami institutions for comments. In July 2006, the hearing period has just ended. The comments submitted are about to be compiled. Early indications suggest, as could be expected, mixed responses. Many comments have been positive, referring to the Saami Convention text as balanced and well drafted, and calling for a speedy adoption of the Convention by the states and the Saami parties. Other responses, particularly from municipal institutions, representing the non-Saami population in the Saami areas, are negative, calling on the state parties not to adopt the Saami Convention. These are bodies that are normally negative towards respect for the Saami people's human rights. It appears that generally speaking, the responses have been most positive in
Presumably, a political (rather than an expert) group, consisting of representatives of the three governments and the three Saami parliaments will be established in the autumn 2006 with the aim to agree on an adoption and ratification of the Saami Convention. It is not easy to foresee how these discussions will develop. Potentially, the governments and the Saami parliaments could agree fairly easily to adopt the Saami Convention with no or minor amendments to the Expert Group text. The adoption by the UN Human Rights Council of the Draft UN Declaration on the Rights of Indigenous Peoples suggests such a development, since the UN Declaration contains many provisions that are similar to, and sometimes more far reaching, than the corresponding provisions in the Saami Convention. However, as in most countries with indigenous populations, the Saami issues have a tendency to be politicized. As indicated by the hearing responses, certainly large segments of the non-Saami population in the Saami areas will try to convince the states not to adopt the Saami Convention. Such pressure, has so far, for instance, prevented
However the question to