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1 International Covenant on Civil and Political Rights
2 Convention on the Elimination of All Forms of Racial Discrimination
3 European Convention on Human Rights
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1 International Covenant on Civil and Political Rights
How does general international human rights law protect indigenous peoples? After all, the Universal Declaration of Human Rights[1] (UDHR) remains silent on the issue. But the UDHR formed the fundament for the creation of the International Covenant on Civil and Political Rights[2] (ICCPR) and the International Covenant on Economic Social and Cultural Rights[3] (ICESCR), which share a common Article 1, which protects indigenous livelihoods. Article 1 (2) ICCPR / ICESCR is a reminder of the right to self-determination of peoples and while there is some debate as to whether this is a subjective right of peoples in relation to states or merely a legal principle and if it also applies to indigenous peoples, Article 1 ICCPR / ICESCR is a reminder of the continued relevance of indigenous sovereignty. According to Article 1 (1) ICCPR / ICESCR
“All peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”[4]
These documents were drafted in the 1960s, at a time of decolonialization. But the situation experienced by indigenous peoples is colonial in nature. The difference between the relation between e.g. the Swedish state and Sápmi today and e.g. the Netherlands and Suriname prior to the independence of what used to be informally called Dutch Guiana in 1975 are the geographic distance and the political relationship. If we look at the legal status of French Guiana within the French Republic today, we see a full integration in the legal sense of the term, which makes Suriname an independent country and French Guiana simply an overseas region of France but also part of the European Union. Why should Sápmi (or, for that matter, indigenous homelands in the Russian Federation) be treated differently from other colonies? They key difference is geographic proximity and indeed coherence. Settlers in Sápmi moved in from the South and in doing so they did not have to cross an ocean — just like settlers in Russia moved eastward (although they later also crossed the ocean into Alaska and as far south as Northern parts of what is today California). Right now, neither the Sámi people nor the indigenous peoples of Russia have any realistic chance of political independence in the foreseeable future and indeed this is not even a political issue. How is this compatible with Article 1 ICCPR / ICESCR? After all, in the words of Timo Koivurova,
“[i]t would seem fairly clear that, in any ordinary treaty interpretation, Article 1 [ICCPR/ICESCR] applies to all peoples, not only to colonial peoples [in the sense of overseas colonies, such as the people of India, Ghana, Kenya etc. prior to independence], even if there is no authoritative definition of who constitutes a people in international law. [T]hese rights do not inhere in States or governments but in peoples—common Article 1 being part of a human rights treaty. Lastly, and presumtively, if ‘people’ were given any meaning, it would seem to refer to people in an ethnographic sense, not to a component part of the people.
Hence, there was always the potential for the self-determination of peoples to reach further than colonial peoples [in the sense explained earlier, meaning that indigenous peoples, too, enjoy the right to self-determination]. It was difficult to justify why other kinds of alien domination were different from European colonialism. Surely the basis rationale for why colonialism lost its legitimacy was that foreign powers should not control the fate of African and Asian peoples, and that the same legitimacy deficit would come to haunt any power wanting to invade and dominate another people anywhere in the world, including outside of colonial context.”[5]
Koivurova continues by describing the impact of this line of thinking[6] and looks more closely at the importance of the Quebec[7] case.[8] Even though it is a decision by a national court on a question of general international law, ever lawyer engaging in international law research in the context of indigenous peoples has to know this decision as it continues to remain to reflect the current state of customary international law in this regard.[9]
Indeed, it is necessary to even go two steps further: the Sámi have been referred to by outsiders as “peoples”,[10] that is, in the plural form. This might be explained by the different languages or lifestyles but it does not do justice to the self-identification of the Sámi people — and you will notice that I intentionally use the singular. It is only up to the Sámi and not to outsiders to define their people and there is a sense of identity across languages and across different regions, which show that the Sámi people have made a choice in so far as they consider themselves to be one people. This choice must be respected by outsiders. Indigenous peoples are not mere objects for classification by outsiders, rather, the outside world has to respect the choices made by indigenous peoples.
Article 27 ICCPR is the key human rights norm when it comes to indigenous peoples. According to this norm, “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.”
The key explanatory document dealing with Article 27 ICCPR is the UN Human Rights Committee’s General Comment 23.[11] This document explains what Article 27 ICCPR can provide — and what not, in particular from the perspective of litigation under the Optional Protocol[12] to the ICCPR:
“In some communications submitted to the Committee under the Optional Protocol, the right protected under article 27 has been confused with the right of peoples to self-determination proclaimed in article 1 of the Covenant. Further, in reports submitted by States parties under article 40 of the Covenant, the obligations placed upon States parties under article 27 have sometimes been confused with their duty under article 2.1 to ensure the enjoyment of the rights guaranteed under the Covenant without discrimination and also with equality before the law and equal protection of the law under article 26. […]
The Covenant draws a distinction between the right to self-determination and the rights protected under article 27. The former is expressed to be a right belonging to peoples and is dealt with in a separate part (Part I) of the Covenant. Self-determination is not a right cognizable under the Optional Protocol. Article 27, on the other hand, relates to rights conferred on individuals as such and is included, like the articles relating to other personal rights conferred on individuals, in Part III of the Covenant and is cognizable under the Optional Protocol. […]
The enjoyment of the rights to which article 27 relates does not prejudice the sovereignty and territorial integrity of a State party. At the same time, one or other aspect of the rights of individuals protected under that article - for example, to enjoy a particular culture - may consist in a way of life which is closely associated with territory and use of its resources. […] This may particularly be true of members of indigenous communities constituting a minority. […]
The Covenant also distinguishes the rights protected under article 27 from the guarantees under articles 2.1 and 26. The entitlement, under article 2.1, to enjoy the rights under the Covenant without discrimination applies to all individuals within the territory or under the jurisdiction of the State whether or not those persons belong to a minority. In addition, there is a distinct right provided under article 26 for equality before the law, equal protection of the law, and non-discrimination in respect of rights granted and obligations imposed by the States. It governs the exercise of all rights, whether protected under the Covenant or not, which the State party confers by law on individuals within its territory or under its jurisdiction, irrespective of whether they belong to the minorities specified in article 27 or not.“[13]
The General Comment also explains the nature of the obligation of the state:
“Although article 27 is expressed in negative terms, that article, nevertheless, does recognize the existence of a "right" and requires that it shall not be denied. Consequently, a State party is under an obligation to ensure that the existence and the exercise of this right are protected against their denial or violation. Positive measures of protection are, therefore, required not only against the acts of the State party itself, whether through its legislative, judicial or administrative authorities, but also against the acts of other persons within the State party.
Although the rights protected under article 27 are individual rights, they depend in turn on the ability of the minority group to maintain its culture, language or religion. Accordingly, positive measures by States may also be necessary to protect the identity of a minority and the rights of its members to enjoy and develop their culture and language and to practise their religion, in community with the other members of the group. In this connection, it has to be observed that such positive measures must respect the provisions of articles 2.1 and 26 of the Covenant both as regards the treatment between different minorities and the treatment between the persons belonging to them and the remaining part of the population. However, as long as those measures are aimed at correcting conditions which prevent or impair the enjoyment of the rights guaranteed under article 27, they may constitute a legitimate differentiation under the Covenant, provided that they are based on reasonable and objective criteria. […]
With regard to the exercise of the cultural rights protected under article 27, the Committee observes that culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples. That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law. […] The enjoyment of those rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them.”[14]
But there are also obligations on the part of individual members of indigenous groups, such as a duty to make use of Article 27 ICCPR only in ways which are not incompatible with the rights protected under the ICCPR.[15] This is not just a simply abuse of rights clause. Because Article 27 ICCPR presupposes the use of individual rights as a member of a minority, it also imposes an indirect human rights obligation on the minority. This notion can be seen for example in Lovelace v. Canada concerning the question of who is a member of an indigenous group.
For the Human Rights Committee,
“article 27 relates to rights whose protection imposes specific obligations on States parties. The protection of these rights is directed towards ensuring the survival and continued development of the cultural, religious and social identity of the minorities concerned, thus enriching the fabric of society as a whole. Accordingly, the Committee observes that these rights must be protected as such and should not be confused with other personal rights conferred on one and all under the Covenant.”[16]
This highlights there is not only a conceptual but also a material difference between indigenous rights and other human rights.
Sámi litigants have been trailblazers when it comes to using more general human rights instruments for the purpose of defending indigenous rights and this is a tool which should not be discarded easily. Three cases deserve to be named in this context:
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[1] Available online at <http://www.un.org/en/documents/udhr/>.
[2] Available online at <http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx>.
[3] Available online at <http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx>.
[4] Article 1 (1) ICCPR / ICESCR.
[5] Timo Koivurova, Can Saami Transnational Indigenous Peoples Exercise Their Self-Determination in a World of Sovereign States?, in: Nigel Bankes / Timo Koivurova (eds.), The Proposed Nordic Saami Convention - National and International Dimensions of Indigenous Property Rights, 1st ed., Hart Publishing, Oxford / Portland (2013), pp. 105-124, at pp. 109 et seq., footnote omitted.
[6] Ibid. p. 110.
[7] Supreme Court of Canada, Reference re: Secession of Quebec, [1998] 2 S.C.R. 217.
[8] Timo Koivurova, Can Saami Transnational Indigenous Peoples Exercise Their Self-Determination in a World of Sovereign States?, in: Nigel Bankes / Timo Koivurova (eds.), The Proposed Nordic Saami Convention - National and International Dimensions of Indigenous Property Rights, 1st ed., Hart Publishing, Oxford / Portland (2013), pp. 105-124.
[9] Stefan Kirchner, Crimea’s Declaration of Independence and the Subsequent Annexation by Russia Under International Law, in: 18 Gonzaga Journal of International Law (2014), pp. 41-65, at p. 53.
[10] See e.g. Neil Kent, The Sámi Peoples of the North - A Social and Cultural History, 1st ed., Hurst & Company, London (2014).
[11] UN Doc. CCPR/C/21/Rev.1/Add.5, available online at <http://sitemaker.umich.edu/drwcasebook/files/human_rights_committee_general_comment_23.pdf>.
[12] Optional Protocol to the International Covenant on Civil and Political Rights, available online at <http://www.ohchr.org/Documents/ProfessionalInterest/ccpr-one.pdf>.
[13] UN Human Rights Committee (HRC), CCPR General Comment No. 23: Article 27 (Rights of Minorities), 8 April 1994, CCPR/C/21/Rev.1/Add.5, available online at <http://www.refworld.org/docid/453883fc0.html>, paras. 2 et seq.
[14] Ibid., paras 6 et seq.
[15] Ibid., para 8.
[16] Ibid., para. 9.