The domestic consequences of International Human Rights Treaty Ratification: Norway’s ratification of ILO Convention 169 On Indigenous and Tribal Peoples
What domestic consequences has Norway’s ratification of the ILO Convention 169 had so far, and were these consequences foreseen by the Norwegian Parliament, the Storting, at the time of ratification? This chapter aims at answering these two questions. I will argue that the decision to ratify the ILO Convention 169 has had some important domestic effects. As will be shown, these effects were quite clearly not forseen by the Storting at the time of ratification.
The first section of this paper will briefly descrice the background against which the decision to ratify the ILO Convention 169 should be seen. In section two, I will give an account of the most important articles in the ILO Convention 169 as well as scetch the process that preceded the phrasing of some of these articles. I will focus on those articles that have been particularly important tools of domestic change. Then I will review the basis for the Storting’s decision to ratify the ILO Convention 169. I will argue that the Storting had little reason to believe that ratification would have domestic consequences. In section 4 I give an account of the work of the Sami Rights commission and the most important domestic consequences of ratification of ILO Convention 169. Since these effects were not forseen by the Storting at the time of ratification, Norway may be characterized as an ‘ignorant ratifyer’. Through what mechanisms did the provisions of ILO 169 have domestic consequences in Norway nevertheless?
The ILO Convention 169 On Indigenous and Tribal Peoples succeeded the ILO Convention 107 On Indigenous and Other Tribal and Semi-tribal populations. When ILO Convention 107 was adopted in 1957, the Norwegian government voted in favour. Norway never ratified this convention, however, since the government at that time held the view that the Sami did not qualify as an indigenous population.1 The content of the Convention was consequently not considered relevant to domestic Norwegian affairs by the Norwegian government.
Representatives of the Sami population in Norway did not claim indigenous status until the 1970s. The process that preceded this claim has been termed the aboriginalisation of Sami self-understanding by Eidheim (1992). This process was not least influenced by the fact that representatives of the Sami met representatives of the emergent transnational movement of indigenous peoples – the Fourth World Movement - in the mid 1970s, became active participants in this movement from 19XX [CHECK in Minde] and were active in turning this movement into a formal organisation, the World Council of Indigenous Peoples (WCIP) in 1975.
The so-called Alta affair reinforced this process. The Alta affair was triggered by the Storting’s decision in November 1978 to approve of a hydroelectric project that involved the damming of the Alta river, which flows through central parts of Finnmark, Norway’s northernmost county. The decision was controversial and led to a wave of protest from the local population, Sami and non-Sami alike, as well as from nature conservationists and others. After a prolonged period of actions of civil disobedience as well as a hunger strike by some Sami in front of the Storting, the decision was effectuated in January 1981, despite massive protests.
The turbulence which the Alta affair aroused in Norwegian politics led the Norwegian government to appoint two governmental advisory boards, the Commission on Sami Cultural and Educational Matters and the Sami Rights Commission, in October 1980. The Sami Rights Commission deleivered its first report, a governmental green paper called Om samenes rettstilling (NOU 1984:18) [On the Legal Status of the Sami] in 1984. The report concentrated on two issues: whether the Sami ought to have a separate representative body, and whether a special “Sami clause” should be included in the Norwegian constitution. The delicate issue of the right to land and water in Finnmark was not considered in the first report by the Commission. The Sami Parliament was established by law in 1987, and the first elections to the Sami Parliament were held two years later. In order to be entitled to vote in elections to the Sami Parliament, individuals have to register in a special electoral roster. The criteria for registration are a combination of a self-identification criterion and a linguistic criterion: The person, or at least one of that person’s parents, grand parents or great grand parents must have spoken Sami at home while growing up.2 After having submitted its first report, the Sami Rights Commission continued its work on land rights.
From ILO 107 to ILO 169
The ILO Convention 107 aimed very explicitly at large-scale integration of the indigenous populations, including integration on the national labor markets, and was considered overly assimilationist by many representatives of indigenous groups. And when this convention was renegotiated in the late 1980s, Norway participated actively in the negotiation process.
The issue of revising the ILO Convention 107 was discussed during the 75th International Labour Conference in 1988. The negotiations continued and were completed on the 76th International Labor Conference in Geneva in 1989, which approved of the revised convention, the ILO Convention 169 On Indigenous and Tribal Peoples. The 1988 ILO Conference had chosen to move the negotiations on the issue of land rights to the subsequent conference, and the entire section that addresses land rights was being negotiated during the 1989 conference. The Norwegian delegation’s report from the conference describes the work with the convention as difficult, not least since the issues that are addressed in the convention in no way fit the tripartite structure of the ILO (St.prp.nr. 102, p. 17). The work with the section in the convention that deals with land rights is described as extremely time consuming and difficult (ibid., p.25). The negotiations were protracted, but a compromise that included an entire “package” on land rights was reached in the end.
The final compromise includes measures that aim to provide indigenous groups with the right to ownership and possession over areas where these groups are dominant. The Convention also contains measures aimed at safeguarding usufruct rights to areas which are also inhabited by other groups, but to which indigenous groups have had access for traditional utilisation of natural resources. The Convention furthermore contains measures to safeguard the right to participate in the use, management and conservation of the natural resources in ‘their lands’.3 In addition, the convention contains one article on governments’ obligation to consult indigenous peoples in a wide range of matters. The objective of these consultations is to achieving agreement to the proposed measures.4
The main article on land rights is article 14. During the negotiations, Norway proposed to equalize ‘usufruct rights’ with the ‘right to ownership and possession’ in this article. This proposition was opposed by NGOs and the employees/labour unions, but also by many governments, and was later withdrawn as part of an effort at reaching an agreement during the negotiations [St.prp.nr 102, p. 26, citation from minutes?].
The report from the Norwegian delegation says that the delegation had clearly preferred that usufruct rights had been put on a par with the right to ownership and possession in the final text. However, as it stands, article 14 protects the traditional form of rights fulfillment (den tradisjonelle form for rettighetsutøvelse), the report says. Furthermore, the inclusion of the reference to the right to use lands and to nomadic lifestyles matches the situation in the Nordic countries, where usufruct rights to reindeer herding areas is the most common situation. The report also refers to meetings with the secretariat regarding the Implementation Committee’s (gjennomføringskomiteens) interpretation of the term “ownership” in the ILO Convention 107 and refers to the Committee’s conclusion that “…firm, permanent and assured possiession did not constitute a violation of the requirement of ownership in the Convention no. 107…” (quited from St.prp. nr. 102, p. 26). Since the ILO Convention 169 includes user rights among those kinds of land rights that are to be protected, the report concludes that the flexibility that ILO Convention 107 allowed was strengthened in the revised convention.
When Arne G. Arnesen, governmental advisor, spoke on behalf of Denmark, Sweden, Finland and Norway during the plenary session on the revision of the ILO Convention 107, he also stressed the need for flexibility: “In the course of our work, the need for flexibility in the instruments’ provisions and in the national implementation has been repeatedly pointed out. Given the enormous variations of national circumstances and of the position of the indigenous peoples, flexibility stands out as a sheer necessity. This is especially true in the part dealing with land rights…” (quoted from St.prp. nr. 102, p. 38).
One article, article 34, addresses the issue of flexible implementation:
“The nature and scope of the measures to be taken to give effect to this Convention shall be determined in a flexible manner, having regard to the conditions characteristic of each country.”
The Storting’s decision to ratify ILO Convention 169
The legal arrangements which regulated the rights of ownership and possession to the territory in Finnmark at the time Stortinget was asked to approve of ratification of ILO 169 was premised on the view that the Norwegian state, through a state owned enterprise called Statsskog, owned all areas over which no private ownership had been established.5 The area that was formally owned by Statsskog, comprised approximately 96% of Finnmark’s total area of 48,649 square kilometre, which amounts to roughly 1,5 times the area of Belgium.
The recommendation to the Storting to ratify the ILO Convention was prepared by the Standing Committee on Municipal- and Environmental Affairs on the basis of a proposition worked out by the Ministry of Municipal- and Labour Affairs (St.prp.nr. 102 (1989-1990) and presented to the Storting as a unanimous recommendation (Innst.S.nr. 197 (1989-1990). A total of 20 parties (including ministries, organizations, research institutes and the Sami Parliament) had been asked to state their opinion on the issue of ratification of ILO 169 in a hearing prior to the completion of the proposition St.prp.nr.102 (1989-1990). The parties in the hearing were asked to state their opinions on three questions:
Are existing laws and practices in accordance with the requirements of the convention in question?
If the answer to the first question is ‘no’: Should existing laws or practices be changed so as to make Norway fulfil the requirements of the convention?
If the answer to the first question is ‘yes’: Should Norway ratify the convention?
Only one of the parties that took part in the hearing stated that existing Norwegian laws and practices were probably not in accordance with the requirements of the ILO Convention 169: The Sami Parliament wrote that it was highly doubtful whether domestic Norwegian law fulfilled the requirements in ILO Convention 14(1). The Sami Parliament recommended ratification, but also pointed at the fact that the Sami Rights Commission was in the midst of the process of evaluating the need for new legislation, and that a ratification would most likely necessitate new legislation at a later stage (St.prp.nr 102, p. 12). Also the Ministry on Environmental Affairs expressed doubt as to whether Norwegian domestic law fulfilled the requirements of the ILO convention 169 14(1). Furthermore, the MEA would have preferred that the Sami rights Commission has completed its work before the question of ratification was settled, but takes for granted that a possible ratification will not affect the Sami Rights Commission’s lex ferenda discussions beyond what follows from the commission’s mandate and existing guidelines. Although some of the other parties, most notably the Ministry of Justice and the Ministry of Foreign Affairs, addressed the question whether usufruct rights were sufficient to satisfy the Convention’s requirements concerning the right to ownership and possession, none of the parties argued that existing Norwegian law constituted a ratification hurdle. Many of the parties stressed that the revised convention opened up for considerable flexibility in the national implementation of the provisions in the convention, including the provisions on land rights. The Sami Rights commission was asked to take part in the hearing, but declared that it did not want to comment upon the convention. All the parties that participated in the hearing recommended ratification.
The Storting debated the proposition to ratify the ILO Convention 169 on 7 June 1990. The responsible person [saksordfører] for the case, Karita Bekkemellem (Labour), stated that the Ministry of Justice regarded it as ‘not unlikely’ that the state could continue its ownership to land in most parts of Finnmark county. She stated that the Sami Rights Commission could conclude otherwise, but that it was too early to know. She then added that it would be undesirable to ratify the ILO Convention 169 now, if one consequence of ratification was that this would affect the legal evaluations done by the Sami Rights Commission, beyond what follows from Norwegian laws and statements by Norwegian public authorities. The point that ratification of ILO Convention would not significantly constrain the work of the Sami Rights Commission was then emphasised: “I believe it is important to underline that a Norwegian ratification will not constrain the Sami Rights Commission’s lex ferenda discussions beyond those guidelines that follow from binding decisions and statements by Norwegian public authorities.”6
Only three other persons took part in the Storting’s discussion of ratification of the ILO Convention 169, and the unanimous recommendation that Norway ratify the ILO convention 169 by the Standing Committee on Municipal- and Environmental Affairs was unanimously approved by the Storting.
The Sami Rights Commission’s work and the domestic consequences of ratification
In 1985, the Sami Rights Commission appointed a group of legal experts, rettsgruppen [the Law Group], to clarify the legal status of the existing arrangements in Finnmark. Its majority concluded that the requirements of Articles 14 and 15 in ILO Convention 169 had only limited relevance for Norwegian affairs, as the Sami did not fulfil the conditions for claiming “ownership and possession” to land in Finnmark.7 This triggered protest, not least from the Sami, who argued that the expert group had paid insufficient attention to Sami legal traditions and had given an inadequate interpretation of the Norwegian state’s obligations under international law. Partially as a response to this protest, the Sami Rights Commission appointed a group of experts on international law, folkerettsgruppen [The International Law group], who were to put more emphasis on Sami legal traditions and to specify the Norwegian state’s obligations under international law. The conclusions of The International Law Group deviate from those presented by The Law Group. The former concluded that the Sami do fulfil the conditions for claiming “ownership and possession” to land in parts of Finnmark. The requirements in Article 14 (1) are thus deemed relevant to Norwegian affairs by The International Law group.8
The majority of the Samerettsutvalg recommended that the right to ownership to land in Finnmark for which no private ownership has been established be transferred from the Norwegian state to a new management arrangement, Finnmark grunnforvaltning, which is to be organised as an independent legal entity. The majority recommends that the board of Finnmark grunnforvaltning consist of eight members – four to be appointed by Sametinget, and four by fylkestinget (the County Council) in Finnmark.
Insert: A section on how different interpretations of Norway’s obligations under international human rights convention in general and ILO 169 in particular impacted on the issue of land rights: The law proposal on land rights: Ot.prp. 53 (2002-2003) Build on, but is not identical with, the proposals in NOU 1997: 4. Triggered protests from domestic as well as international actors. Independent legal review by two professors from the University of Oslo: Geir Ulfstein and Hans Petter Graver, who concluded that the proposition did not fulfil Norwegian substantive obligations under ILO 169. The Sami Parliament: What about the right to be consulted? The Sami Parliament has not been consulted, contrary to the requirements of Article 6 in ILO 169. The Standing Committee on Justice initiated a total of four formal consultations with the Sami Parliament and Finnmark County Council. The procedures for consultations between the state and the Sami Parliament have later been specified and formalized in a royal resolution which stipulates that the aim of the consultations is to reach an agreement on the substantive issues between the Sami Parliament and the relevant state authority.9 The right to be consulted therefore clearly goes beyond the right to take part in ordinary hearings, but does not include a right to veto decisions passed by, e.g., the Storting.
The Standing Committee on Justice delivered its recommendation to the Storting’s Lower chamber in May 2005 (Innst.O. nr. 80 (2004-2005)). Some not insignificant differences between Ot.prp. 53 (2002-2003) and Innst.O.nr. 80 (2004-2005).
In June 2005 the Storting passed the Finnmark Act. This Act assigned a registered title to the land in Finnmark county that was previously formally owned by the Norwegian state through Statsskog – in practice about 96 per cent of Finnmark’s total area of 48,649 square kms – to a new body: the Finnmark Estate [Finnmarkseiendommen]. The board of the Finnmark Estate consists of six members: three to be appointed by the Sami Parliament, and three by Finnmark County Council. The composition of the board thus reflects an attempt at sharing power between all the residents of Finnmark, represented by Finnmark County Council, and the Sami population qua group, represented by the Sami Parliament. The members elect the head of the board. Justified by ILO 169, article 14(1). Furthermore, in accordance with the Finnmark Act, the Sami Parliament has issued guidelines for assessing how Sami interests are affected by changes in the use of uncultivated lands in Finnmark.
Massive protests in Finnmark: More than 11,000 persons signed a petition against the Bill in three weeks. Allegation: The Finnmark Acts increases the political significance of descent and creates two kinds of citizens in Finnmark, with unequal political rights. The petition was largely ignored by the Storting.
Moral motivation 1 (?): Support for the content of the convention. ILO 169 a legal instrument that relies heavily on a historical/Nozickian theory of justice: What counts, in determinig rightful ownership to lands, is historical use of that land. The Finnmark Act is justified because it gives the land in finnmark back to its rightful owner.
Moral motivation 2: (?) Support for international law as such: The Finnmark Act is justified because it is in accordance with obligations under international law.
Non-moral motivation (?): Important to act in accordance with international law domestically to strengthen credibility of foreign policy role: The ‘engagement policy’ and Norway’s self-understanding as an important promoter of human rights and peace.
Judicialisation a central part of the parliamentary debate on the Finnmark Act.
The processes whereby the consequences of the decision to ratify the ILO Convention 169 are identified have not been completed, however. Two governmental reports/green papers are important: NOU 2007:13 Den nye sameretten [The New Sami Legal regime], which is the third major report by the Sami Rights Commission, and the report on coastal fisheries, NOU 2008:5, Retten til å fiske i havet utenfor Finnmark [The right to fish in the ocean outside Finnmark county] The Sami Rights Commission suggests three new Acts: The Sami Rights Commission suggests three new Acts: First, the Identification and recognition Act, relating to the identification and recognition of existing rights in the traditional Sami area from Troms, Norway’s second northermost county and southwards. Second, the establishment of a new ownership body to the remaining parts of what is now state owned land in Troms and Nordland counties, which today amounts to approximately 44 per cent, or approximately 30 000 square kilometres, of the land in these two counties: The Hålogaland Common Land. The composition of the board: Six members, two to be appointed by the county councils in Troms and Nordland, and two to be appointed by the Sami Parliament. Third, the Sami Rights Commission suggests a new Act termed the Administrative Procedure and Consultation Act. Especially the second and third of these proposals are presented as changes that are necessitated by obligations under ILO 169 (plus other human rights instruments). The report on coastal fisheries, NOU 2008:5, also contains law proposals, including the proposal to transfer management power to a new regional body termed Finnmark fiskeriforvaltning [Finnmark Management of Fisheries], led by a board consisting of six persons, three to be appointed by the county council of Finnmark, and three to be appointed by the Sami Parliament.
On her last day in office, Minister of Fisheries and Coastal Affairs, Helga Pedersen (Labour), turned parts of the Report on coastal fisheries, including the proposal to establish a new “3 plus 3” body, down. In connection with the decision to turn parts of the proposition down, Helga Pedersen, herself Sami, stated that “...it is time that politics concerning the Sami is wrested out of the lawyers’ grasp and (...) to a much greater extent is turned into a discussion of what specific and practical solutions the fishermen in Finnmark will actually benefit from” (Ságat, 7 October 2009).
Signals backlash? If so, why?
Bringing politics back in 1: Give in to the majority? (The perceived threat from the rising electoral support for the right wing Progress Party in Finnmark, traditionally a socialist stronghold in Norway.)
Bringing politics back in 2: Contested interpretations of Norway’s obligations under ILO 169: The Office of the Attorney-General in Norway: NOU 2007:13 and NOU 2008:5 implies an overfulfilment of obligations under ILO 169 because these green papers blur the line between de lege lata and de lege ferenda. ILO 169 constrain, but does not determine politics. The Sami Rights commission’s as well as the Commission on Coastal Fisheries’s interpretation of the obligations under ILO 169 leave much too little room for politics.
Change in normative judgement: To the extent that fulfilling the obligations under ILO 169 further increases the political significance of the descent based political membership in Norway (i.e. which is only avaliable to the Sami), the Norwegian government no longer believe that it is morally right to fulfil the obligations?
Fear of further increasing ethnic tensions in Finnmark?