Indigenous affairs raise tough questionsicelds
On 1 February 2019, the UN Human Rights Committee (HRC) publicised two decisions on identical complaints about the political participation of Sami in Finland . In the both, the Committee found a violation of Art. 25 of the International Covenant on Civil and Political Rights (the right to political participation) taken alone and in conjunction with Art. 27 (the rights of persons, belonging to ethnic, religious or linguistic minorities). These decisions are not a novelty and are not something extraordinary. They fully comply with many other decisions of the HCR and other UN treaty bodies on similar issues. However, they deserve attention as a good illustration of some trends in international jurisprudence and expert debates, and as a reminder about some complex questions that go far beyond indigenous issues.
The Sami is the only indigenous people within the EU; of approximately 75,000 Nordic Sami 10,000 live in Finland. In Finland, the Sami enjoy partial self-government in the issues pertinent to language and culture. In each of the three Scandinavian countries, the Sami have a representative assembly which is a public body established by law. The Sami Parliament (SP) in Finland  was set up in 1996. According to the Sami Parliament Act , its major tasks are to consult the government and to be a mediator between the Sami population and authorities. Section 9 of the Act obliges the Finnish government to consult with the SP on all the issues concerning the Sami albeit do not enjoy special land rights. Besides, the SP coordinates cultural and educational activities concerning the Sami and runs cultural projects of its own . The Parliament is composed on 21 members elected by direct ballot for the term of four years. The persons eligible to vote are defined in Section 3 of the Sami Parliament Act :
A Sami means a person who considers himself a Sami provided: (1) That he himself or at least one of his parents or grandparents has learned Sami as his first language; (2) that he is a descendent of a person who has been entered in a land, taxation or population register as a mountain, forest or fishing Lapp; or (3) that at least one of his parents has or could have been registered as an elector for an election to the Sami Delegation or the Sami Parliament.
It’s quite predictable, that there is no such thing as a bounded Sami community. Most Sami reside in urban areas outside of their traditional homeland, and many people of Sami ancestry have mixed origin. Many who qualify as voters to the SP do not take part in the elections. On the contrary, some would like for a variety of reasons to position themselves as Sami and to participate in the Sami activities. However, they do not comply with the criteria established by law and are not eligible to vote. In disputable cases people seeking enrolment in the Sami electoral list may apply to the Sami Electoral Committee, and if they are still not satisfied with the decision, they may further appeal to the SP Executive Board and then to the Supreme Administrative Court of Finland . Starting from 2011, the Supreme Administrative Court has been repeatedly ruling in favour of the claimants previously turned down by the Sami instances.
The two communications in question were filed separately by President of the Sami Parliament Tiina Sanila-Aikio and by other 25 persons representing themselves as the Sami. Both claims concerned decisions made by the Supreme Administrative Court of Finland about admitting 93 persons formally ineligible under the law, into the SP electoral roll in 2015. The claimants pointed out that the court was not using a uniform approach to the complaints and repeatedly departed from the definition of a person eligible to vote enshrined in the law. The enrolment of ineligible persons led to the election of two people who did not represent the Sami interests genuinely and adequately and therefore weaken the SP’s working capacity and its position vis-à-vis the Finnish government. The Administrative Court’s decisions diluted the right of the claimants and the Sami people’s vote in general. Besides, they negatively affected the well-being and cultural integrity of the Sami community and thus also indirectly encroached on the claimants’ rights. The petitioners claimed that external interference into the Sami decision-making on who belongs to the community and who is entitled to represents it amounts to the violation of Art. 25 and 27 as well as of Art.1(1) (peoples’ right to self-determination) of the ICCPR .
The Finnish government in its response to the HRC pointed out that the Supreme Administrative Court acted within the limits of its competence. The court was doing “overall consideration” – a substantive and thorough examination of all individual cases; the priority was given to the criterion of individual self-identification. The turn in the court’s stances with regard to the Sami eligibility to vote was partly caused by international criticism . Indeed, the UN Committee on the Elimination of All Forms of Racial Discrimination (CERD) in 2009 assessed the criteria set up by the Finnish law for the enrolment as Sami voters as too restrictive .
The Human Rights Committee found that the Supreme Administrative Court’s departure from the consensual interpretation of the law determining membership in the electoral rolls of the Sami Parliament was not based on reasonable and objective criteria. Therefore, the court’s rulings against the stand of the Sami Electoral Committee and Executive Board violated Art.25 (right to political participation), read alone and in conjunction with Art. 27 (the rights of persons belonging to minorities). In accordance with the HRC opinion, Finland is under an obligation to provide the claimants with an effective remedy including full reparation to individuals whose rights have been violated. Accordingly, the state party is obligated to review Section 3 of the Sami Parliament Act with a view to ensuring that the criteria for eligibility to vote in Sami Parliament elections are defined and applied in a manner that respects the right of the Sami people to exercise their internal self-determination, in accordance with Art. 25 and 27 of the Covenant. The State party is also under an obligation to prevent similar violations in the future .
The HCR in its reasoning pointed out that the case must be considered in light of Art. 1(1) of the ICCPR concerning the right of peoples to self-determination. The general argument looks as follows. The Sami voting system is devised for the representation of the Sami people as a whole. The Sami people in accordance with Art. 1(1) of the ICCPR and the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) is entitled to decide without any external interference who represents the community. Along with this, restrictive criteria for individual participation must be based on reasonable and objective justification. The rights of persons belonging to minorities enshrined in Art. 27 of the ICCPR according to the HRC General Comment No.23  are indispensable from the protection and preservation of cultural identity and well-being of minorities taken as entities. The same follows from the UNDRIP. Therefore, the dilution of the Sami voters’ corps would be contrary to the very idea of Sami representation, and thus it will violate the right to political participation as such (Art.25) and as part of rights of persons belonging to minorities aimed at the preservation and development of minorities’ collective identity and integrity.
The problem as such looks simple and not unique. There is an explicit definition of who is entitled to vote at the SP elections, and there was a consensual interpretation of this provision. The Supreme Administrative Court departed from this definition, and the state party was unable to substantiate this departure in the HRC. A court may resort to contra legem, but in the given situation there was no fundamental legal principle that would override the law. One should add here that the story has a long prehistory. Sami activists repeatedly filed petitions before the UN and other treaty bodies on a range of issues concerning inter alia political representation, and the UN treaty bodies repeatedly issued opinions on the Sami affairs.
A broader context looks also clear. A public protection of certain ethnic categories, such as minorities or indigenous peoples, often involves special group entitlements and the redistribution of certain limited resources, such as funding for separate schooling. The spokespersons of the protected groups usually and quite predictably act as gatekeepers. They seek to set up firm boundaries of their constituencies for excluding contenders and competitors who may claim the same deficient assets or weaken the group’s stand before the government. There is well-known vicious circle. As Sir Ivor Jennings formulated: “The people cannot decide until someone decides who are the people.”  The most vociferous leaders decide whom their constituency consists of, and the constituency supports the leaders. However, the governments do not necessarily object this gate-keeping. Governmental bodies and other mainstream institutions as well as international organizations have to deal somehow with ethnic spokespersons and thus compromise with them on a variety of issues including group membership.
The acknowledgement of the entitlements of groups as such and of special rights of persons belonging to designated categories cannot but conflict with certain individual rights and individuals’ equality before the law. Then arises a situation of striking a proper balance between conflicting rights or between rights and legitimate public interests protected by law. These collisions are a routine and can be resolved by juridical means. The general rule is that restriction of individual rights and special treatment of certain categories are legally appropriate if they pursue legitimate goals, are proportionate to these goals and are based on objective and justifiable criteria. In particular, special mechanisms of group representation involve restrictive admission criteria. Indeed, it is not unfair to demand using different strands of argument that only people having compelling interest in certain affairs and running them shall have the decision-making power concerning these affairs. Respectively, the right to freely choose and define individual ethnic affiliation gains a growing moral recognition but legally it is not unlimited and does not apply with regard to indigenous affairs and affirmative action.
Although the situation looks clear, it serves as a reminder and prompts a reiteration of some questions and concerns.
First, the major threats to human rights do not come from a blatant denial of human rights. The question is about the things that counter-balance individual rights and the ways how these things are applied. Individual rights can be limited, and a formally lawful and legitimate limitation can make these rights meaningless or turn them into their opposite. The question is about counterbalances to individual rights and the ways how they are applied and potentially abused. As we see, among these counterbalances are group rights and the need to preserve group identity. A problem with these two notions is that they are too nebulous. Group rights in fact mean stands and claims of group spokespersons defending their authority and privilege. Indeed, few scholars would insist that ‘identity’ of a group is a certain substance defining the group’s basic features. ‘Identity’ in academia currently is a term denoting awkward theoretical constructions aimed at binding together various practices of cognition and representation . Along with this, ‘identity’, having gained a high symbolic status, serves as a normatively and emotionality loaded category for propaganda purposes. Nothing is bad about seeking a compromise between competing particularistic interests concerning, for example, group representation or cultural policies. There is a big temptation to portray such claims as a pursuit of some universal principles or protection of common value. The next stage is depicting them as a fight between good and evil. How far can ethnic spokespersons go for achieving their goals? Rhetorically, one can justify too much for the sake of ‘peoples’ rights’ and ‘the protection of identity’ while no one know what the said ‘rights’ and ‘identity’ mean. Perhaps, barring certain individuals from elections to a minority assembly does not bring substantive harm to anyone. What other rights can be restricted in favour of presumed group-related good? How far can ethnic activists and governments go particularly in light of the ongoing corrosion of international law?
Second, it would be naïve to expect that international jurisprudence can provide a balanced and impartial approach to such complex cases. As a rule, treaty bodies do not provide a substantive consideration. They examine compliance with certain general provisions, while the substance of the latter are not always indisputable (see above). Besides, treaty bodies are not always act consistently. For example, in 2009 the CERD criticized Finland for a too restrictive approach to defining the Sami voter, while in 2012 the same committee, commenting on the same issue, underlined on the need to respect the integrity and the rights to self-determination of the Sami people . International organizations are increasingly playing am ambiguous role: they are losing credibility and are lacking enforcement capacities; on the contrary, they generate opinions that can be selectively applied for propaganda purposes. It is noteworthy, that international organizations are rapidly introducing into the international legal vocabulary new terms irresponsibly coined by academics or political activists. For example, in the case in question, the HRC operated the notion of ‘internal self-determination’.
Third, many would say that certain limitation of the rights of persons belonging to ‘dominant’ categories in favour of vulnerable groups is a problem only for certain individuals and rather is an acceptable price for justice. One should not forget that all arguments in favour of protecting and promoting vulnerable groups, such as minorities or indigenous populations, can be easily turned in the opposite direction and employed for defending majorities which, according to the same logic, must also have group rights and identities. Majority nationalists in Central and Eastern Europe extensively use this argumentation. One should not also forget about such phenomenon as ‘majority backlash’ in Western European and North American politics  as well as about the fact that the ‘cultural defence of nations’ is already part of the academic discourse .
Image: The Sámi Cultural Centre Sajos in Inari, Finland, Credit: Yupik (CC BY-SA 4.0.).
. CCPR/C/124/D/2668/2015, Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 2668/2015, 1 February 2019; CCPR/C/124/D/2950/2017, Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 2950/2017, 1 February 2019; https://tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documents/Forms/AllItems.aspx?RootFolder=%2fTreaties%2fCCPR%2fShared%20Documents%2fFIN&FolderCTID=0x0120009DDF124D65279A47B2957083FC592E76.
. The Sámi Parliament, https://www.samediggi.fi/?lang=en.
. Act on the Sámi Parliament (974/1995; amendments up to 1026/2003 included); unofficial translation, https://www.finlex.fi/fi/laki/kaannokset/1995/en19950974.pdf.
. Activities, The Sámi Parliament, https://www.samediggi.fi/activities/?lang=en.
. Act on the Sámi Parliament; Section 3.
. Ibid., Sections 25a – 26d.
. CCPR/C/124/D/2668/2015, items 3.1 – 3.8.
. CCPR/C/124/D/2668/2015, items 2.1 – 2.7.
. CERD/C/FIN/CO/19. Concluding observations of the Committee on the Elimination of Racial Discrimination. Finland. 13 March 2009. Item 13. https://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CERD%2fC%2fFIN%2fCO%2f19&Lang=en.
. CCPR/C/124/D/2668/2015, items 6.1 – 9; CCPR/C/124/D/2950/2017, items 9.1 – 12.
. General Comment No. 23: The rights of minorities (Art. 27), https://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2f21%2fRev.1%2fAdd.5&Lang=en.
. Jennings, I. (1956). The Approach to Self-Government. Cambridge: Cambridge University Press, p.56.
. See for instance: Abdelal, R., Y. M. Herrera, A. Johnston, and R. McDermott. 2006. “Identity as a Variable”, Perspectives on Politics 4 (4): 695–711.
. CERD/C/FIN/CO/20-22. Concluding observations on the twentieth to twenty-second periodic reports of Finland, adopted by the Committee at its eighty-first session (6–31 August 2012). Item 12. https://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CERD%2fC%2fFIN%2fCO%2f20-22&Lang=en.
. Hewitt, R. (2005). White Backlash and the Politics of Multiculturalism. Cambridge: Cambridge University Press; Vertovec S. and S. Wessendorf (eds.) (2010). The Multiculturalism Backlash. European Discourses, Policies and Practices. London; New York Routledge.
. Orgad, L. (2015). The Cultural Defense of Nations. A Liberal Theory of Majority Rights. Oxford: Oxford University Press.