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?
1. The context:
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.
2. 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.”
3. 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:
1. Are existing laws and practices in accordance with the requirements of the convention in question?
2. 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?
3. 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]