Research Materials

The research materials utilized are introduced from the perspectives of IL and political research. From the view of IL, the chosen method for this dissertation is the interpreta-tion and systemisainterpreta-tion of existing law and legal dogmatics.²⁹¹ Within the framework of this thesis, existing law consists both international and domestic law. When research-ing standards of IL concernresearch-ing indigenous rights, Article 38 of the Statute of the International Court of Justice may well be regarded as a starting point.²⁹² Article 38 is widely accepted as expressing an authoritative enlistment of IL sources. These include:

international conventions, international custom, general principles of law recognised by civilised nations, judicial decisions, and the teachings of the most highly qualified publicists of various nations. For the purpose of this study, international convention(s) are considered to be the most important source of IL. However, as mentioned in the text, it must be emphasized that other relevant instruments concerning the rights of indigenous peoples also exist. The UN Declaration on the Rights of Indigenous Peoples, which is non-binding in nature, but serves as an important development, is one of these instruments. Additionally, local attempts at codifying and harmonizing various indigenous rights; such as the Draft Nordic Saami Convention also exist.

Two conventions, ILO Convention No. 107 concerning the Protection and Integra-tion of Indigenous and other Semi-Tribal PopulaIntegra-tions in Independent Countries and ILO Convention No. 169 concerning the Rights of Indigenous Peoples in Independ-ent countries, specifically address the rights of indigenous peoples. Both contain land rights provisions, which are examined in separate articles of the thesis, as well as in the synthesis and in chapter 2.1., in a more detailed manner. However, despite the fact that Convention No. 107 is no longer open for new ratifications, it remains in force for those state parties who have not ratified the revised Convention.²⁹³

In regard to the interpretation of land rights provisions in ILO Convention No.

169, Lee Swepston writes:

291 Legal dogmatics in Continental European law (scientia iuris, Rechtswissenschaft) consists of professional legal writ-ings whose task is to systematize and interpret valid law. Legal dogmatics pursues knowledge of the existing law, yet in many cases it leads to a change of the law. Among general theories of legal dogmatics, one may mention the theories of negligence, intent, adequate causation and ownership. The theories produce principles and they also produce defeasible rules. By means of production of general and defeasible theories, legal dogmatics aims at obtaining a system of law that is both internally coherent and harmonized with its background in morality and (political) philosophy. Legal dogmatics is necessary in the context of constitutional constraints on the majority rule. Only if the courts act on the basis of Reason can they be a legitimate counterpart of the majority rule. And Reason cannot be exhausted by particular decision making. It also needs a more abstract deliberation, given by expert jurists. However, legal dogmatics has been a target of several kinds of criticism: empirical, morally-political, epistemological, logical, and ontological. Peczenik Aleksander, Scientia iuris : An unsolved philosophical. In Ethical Theory and moral practice, vol.3, no.3, 2000, Abstract.

292 The Statute of the International Court of Justice, signed 26^th June 1945, came into force on 24^th October 1945.

293 Ratified countries: Belgium, Cuba, Dominican Republic, El Salvador, Ghana, Haiti, India, Egypt, Syrian Arab Re-public, Pakistan, Portugal, Tunisia, Brazil, Malawi, Panama, Bangladesh, Angola; Guinea-Bissay; Iraq.

[An i]nterpretation of this section is difficult, because of the way it was adopted. Discussions were so tense that at one point certain members of the Conference Committee went away with this whole section, and came back with a “take-it-or-leave-it” text. No records were kept of the discussion in that special working group. So the legislative history here is almost blank. We must rely on the words of the Convention itself.²⁹⁴

When analysing the land rights provisions of ILO Convention No. 169, available ILO material, including documents related to the partial revision of ILO Convention No. 107 have been used. This constitutes a form of travaux préparatoires or legislative history of ILO Convention No. 169.²⁹⁵ Notable importance is also given to the three guides of ILO Convention No. 169²⁹⁶, as well as to the texts of authorities within this field, introduced in the chapter above. Swepston notes that, the interpretation of an international convention is always a challenge. As a result, general guidelines may be found in the 1969 Vienna Convention on the Law of Treaties.²⁹⁷Article 31 lays down the general rule of interpretation and states: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. There are also other existing rules within the Vienna Convention.²⁹⁸

The International Covenant on Civil and Political Rights (hereafter the ICCPR or the Covenant) is the third most important convention in dealing with the rights of peoples and minorities. The UN Human Rights Committee (hereafter referred to as the HRC or the Committee)²⁹⁹ has deduced that the Covenant’s Article 27, on the

294 Swepston, Lee 1998a 43, according to Niemi, Heli 2001.

295 International Labour Conference, 75th Session, 1988, Report VI (1) Partial Revision of the Indigenous and Tribal Populations Convention, 1957 (No. 107) ILO, Geneva, 1987; International Labour Conference, 75th Session, 1988, Report VI (2) Partial Revision of the Indigenous and Tribal Populations Convention, 1957 (No. 107) ILO, Geneva, 1988; International Labour Conference, 76th Session, 1989, Report IV (1) Partial Revision of the Indigenous and Tribal Populations Convention, 1957 (No. 107) ILO, Geneva, 1988; International Labour Conference, 76th Session, 1989, Report IV (2A) Partial Revision of the Indigenous and Tribal Populations Convention, 1957 (No. 107) ILO, Geneva, 1989; International Labour Conference, 76th Session, 1989, Report IV (2B) Partial Revision of the Indigenous and Tribal Populations Convention, 1957 (No. 107) ILO, Geneva, 1989.

296 Tomei Manuela and Lee Swepston, Indigenous and Tribal Peoples: A Guide to ILO Convention No. 169. Policies for Development Branch, Equality and Human Rights Coordination Branch. International Labour Office, Geneva, 1996; A Manual. ILO Convention on Indigenous and Tribal Peoples, 1989 (no.169).ILO, Geneva, 2000, MacKay Fergus, A Guide to Indigenous Peoples’ Rights in the International Labour Organization. Forest Peoples Programme, Stratford Road, 2002.

297 Vienna Convention on the Law of Treaties, done in Vienna on 23 May 1969, entered into force on 27 January 1980.

United Nations, Treaty Series, vol. 1155, p. 331. Can be found at: http://untreaty.un.org/ilc/texts/instruments/english/

conventions/1_1_1969.pdf Accessed 22.2. 2011.

298 Article 32 and Article 33 of the Vienna Convention on the law of Treaties deals with the supplementary means of interpretation and the interpretation of treaties authenticated in two or more languages.

299 International Covenant on Civil and Political Rights. Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966. Entry into force 23 March 1976, in accordance with Article 49.

cultural rights of minorities, may also be interpreted as offering protection to indig-enous land rights. In regard to this understanding of Article 27, it has been noted that its travaux préparatoires do not offer much help in regarding the substantive content of the provision.³⁰⁰ Additionally, according to Articles 31-32³⁰¹ of the Vienna Convention on the Law of Treaties (1969), the legislative history has a secondary place in treaty interpretation. According to Spiliopoulou, case law and the annual reports of the Human Rights Committee, in combination with the General Comment on Article 27, provide considerable guidance regarding the content and application of the ICCPR. They may, thus, be considered as the primary means of interpreting the Convention under Article 31 of the Vienna Convention.³⁰²

In the context of indigenous peoples, it is also notable to mention that the United Nations Declaration on the Rights of Indigenous Peoples belongs to the category of so called soft law,³⁰³ which means that is not a legally binding Convention per se. Nevertheless, it already possesses great authority and may contribute to the development of customary law. Furthermore, according to Professor James Anaya, the UN Declaration “stands in

300 Article 27 of the ICCPR: 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.

301 Article 31 General rule of interpretation

1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its pre-amble and annexes:

(a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;

(b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

3. There shall be taken into account, together with the context:

(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;

(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;

(c) any relevant rules of international law applicable in the relations between the parties.

4. A special meaning shall be given to a term if it is established that the parties so intended Article 32 Supplementary means of interpretation

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:

(a) leaves the meaning ambiguous or obscure; or

(b) leads to a result which is manifestly absurd or unreasonable.

302 Spiliopoulou, Sia, Protection of Minorities under Article 27 of the International Covenant on Civil and political Rights and the Reporting System of the Hyman Rights Committee, Juridica Lapponica 8, NIEM/Univ. of Lapland, Rovaniemi, 1994. Human Rights Committee, General Comment No. 23: The rights of minorities (Art. 27) : 8.4.1994. CCPR/C/21/

Rev.1/Add.5, General Comment No. 23 (General Comments). In point 7. in the case of indigenous peoples, the Committee states: “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.”

303 In the field of human rights there exists extensive “soft law”, contained, inter alia, in such instruments as resolutions, declarations, recommendations, codes of conduct, standard minimum rules, guidelines, basic principles, and model treaties.

its own rights as an authoritative statement of norms concerning indigenous peoples on the basis of generally applicable human rights principles.”³⁰⁴

There are, of course, other Conventions that also play a significant role in the context of indigenous peoples, but cannot be examined in detail here. They will, thus, only be mentioned if relevant to the subject matter.

Both IR and IL methods are used in this thesis. From the IR perspective, the pur-pose is not to focus on the details and specific wording of the particular conventions, but to rather investigate how important obligations, rights and duties are internalized into daily domestic legal and political practices. The thesis aims to examine how vari-ous states, who have ratified ILO Convention No. 169, have implemented it. It also observes the challenges that they have faced, as well as the solutions that have been found. ILO materials were utilized in order to answer these questions. These primarily consist of reports that have been sent by ratified states to the Committee of Experts of the Application of Conventions and Recommendations (CEACR). These reports contain relevant information on the individual country’s legal and political situation.³⁰⁵ In conclusion, the primary sources include:

1) The statements given in Finland, Sweden and Norway after state committee-reports (NOU 1997, SOU 1999 and four committee-reports in Finland),

2) The legislative history of ILO-Convention No. 169 (1989) and the record of proceedings,

3) The country reports submitted to the ILO by ratified states (22 total),

4) The cases investigated by the Governing Body of the ILO in the context of Convention No. 169 (11 of which 8 have been decided),

5) Interviews and personal discussions (e.g. with Members of the Finnish Parlia-ment, Finnish Ministry of Justice, various officials responsible ministries, Saami representatives, local peoples of the three Nordic countries)

304 Anaya 1996, 53, according to Niemi, Heli, Recognition and Protection of Indigenous Land and Resource Rights. A Comparison between Australia and Finland in Light of International Law. Avhadling pro gradu I folkrätt. Åbo Akademi, 2001, 9.

305 The ILO has a number of procedures to examine how its conventions are being applied. There is thus a process of dialogue between the country and the ILO supervisory bodies. Once a Convention has been ratified, Article 22 of the ILO Constitution requires that member States report regularly to the International Labour Office on the measures they have taken to give effect (implementation) to the Conventions to which they are party. These reports should include information on the situation in the relevant area, both in law and in actual practice. The reports sent by governments and by employers’ and workers’ organisations are reviewed by the Committee of Experts on the Application of Convention and Recommendations (CEACR). It is made up of 20 independent experts and convenes every year. The Committee’s response to the State reports include more general Observations and also Direct Requests for further information and clarification.

These are also published on the ILO website.