Today is Sami National Day!
Following friendly and independent contact today, from within a Swedish media outlet to IOSDE founder and director on the issue of ILO 169 and why Sweden has not ratified it yet after all this time and demand from Sami voices as such, posted below is a discussion regarding Sweden and ILO 169, and two of ILO 169's regional (the Nordic Saami Convention 'to be', a mention) and international (the UNDRIP, current) counterparts.
Here is IOSDE's Director's statement:
"Sweden has continued to delay and avoid ratification of ILO 169 because the treaty is binding and thus can be utilized for direct redress jurisprudence, ie legal matters and cases, via the independent and external international ILO legal system; decisions which Sweden would then be obligated to implement.
To not ratify ILO 169 grants Sweden the ongoing power, throughout any and all Swedish governments over the years, and even those government systems under the and within the Swedish State, to continue to hold the Sami within the controlled scope of the Swedish domestic legal system. Sweden thus controls the outcomes of all potential matters and issues within the would-be scope of ILO 169. Essentially, this is a classical control tactic, rendering people bound to 'what is' and within the control or norms of the group (in this case the group being the State).
This State- and national systems-altering effect of direct and binding jurisprudence of ILO 169 can be seen, for example, in the use of the ILO legal system with the 169 treaty by the Norwegian side of Sapmi, as a result of Norway's obligations to the treaty as signatory party to ILO 169. The results regarding ILO 169 case decisions and matters, therein, have dramatically reshaped the landscape on the Norwegian side of Sapmi for both Norway and the Sami People, in terms of land, law, and other matters. However, this is only one example of its binding nature. ILO 169's potential to influence does not stop there- it is a comprehensive treaty citing many rights and therefore all articles and interpretations within its text can potentially be taking up for decisions on matters by the ILO system. Sweden would then, if having ratified, be obligated to enact such outcomes.
Some persons may argue a more benign and well-intentioned cause, claiming that Sweden's delay might also be due to a notion that truly democratic States take time to ratify international treaties. Meaning, that if the State intends to truly follow through on its obligations once it ratifies it thus can take years, even decades, to prepare internally and on many levels to be able to do so. However, this point is moot in the case of Sweden, because Sweden has ratified many international treaties of the United Nations that it does not uphold the expert recommendations of, concerning matters not only relating to the Sami People but many other humans and human rights, all people within Sweden, and on a wide range of issues, in general. Even recommendations of the EU to Sweden on a variety of matters are not upheld by the State, as its government(s) chooses.
Back to the point- it is the leeway gap of a binding versus non-binding juridical system that is the issue here. Sweden maintains control domestically via its own legal system by finely selecting which binding legal systems outside of its jurisdiction to subject itself to.
However, with this said, Sweden has signed the UNDRIP, and many Indigenous Peoples and experts, together collectively in the field of Indigenous Rights, argue that the UNDRIP offers much if not even more to enact Indigenous Rights, for Indigenous Peoples, than ILO 169, both comparatively and universally. Some even feel that ILO 169 is, compared to the UNDRIP, outdated, starting with the fact that the UNDRIP was, at its inception, an Indigenous-negotiated treaty (negotiated with States), and with more recent context and verbiage as sought after therein, as a result.
However, the caveat being that States still had the ultimate control in UNDRIP negotiations and thus possibly still do; States demanded inclusion at the final days of 'the deal' a clause within the UNDRIP that protects the State right to territorial integrity as encompassing any reading of the treaty rights themselves. A tricky move, given that this clause's invlusion contradicts the fact that the treaty is meant to be- or at least is titled to be- about Indigenous Rights, not the rights of a State. Clearly, the States requiring that clause at the time (or lobby for its inclusion secretly, whatever the case may have been) were trying to suppress formal territorial decolonization rights of Indigenous Peoples, and saw the chance to codify that as leverage agree to collectively approve the treaty into its existence. Not all Indigenous Peoples are concerned about this, and at the end of the day those who had the upper hand among the Indigenous delegates agreed, anyway, to this concession. To this day this continues to be a point of discussion, but most people are willing to work with the UNDRIP and find ways around the issue. Others still rightfully claim their own territorial integrity as a formal right of peoples to formal territorial decolonization, per still-standing international laws of peoples' rights to self-determination per the original and older, long-standing backbone treaties of the UN, meant to rectify root causes of genocide and other ills in the world, and the UN decolonization treaties.
The Sami Parliament in Sweden, still a branch of the Swedish Government, publicly states on its website that 1. "Sami self-determination is not about forming a new state." and, following that, 2. "This right is not granted by international law since the principle of states’ rights to territorial integrity places restrictions on the exercise of the right of self-determination." However, one can see that since Indigenous Peoples have never been allowed formal decolonization per UN and thus international standards for Peoples and decolonization both, and thus no formal voting or decision making process (unless internally taken up by the Indigenous leaders in their own communities and/or nations, as an act of self-determination or otherwise) has been undertaken to seek opinion on these matters within Indigenous Peoples communities and nations per People and per person, world-wide, including in Sapmi. How, then has it been decided that sentence #1 is true? Regarding Sentence #2, in expert legal opinion using all international law, the sentance is false; sentance #2 is not legally sound. Anyway, as long as the Sami People do not mind or demand otherwise from the Sami Parliament or Sweden or via their communities, it is so in Sweden. So, return the discussion to the likes of ILO 169, the UNDRIP, the Sami Nordic Convention.
Regarding binding versus non-binding and the argument that ILO 169 is the only binding Indigenous Rights legal instrument, is also said by many experts that the UNDRIP has been in force long enough and is crucial enough in the international and historical context to be considered binding law as customary law. Moreover, Sweden is obligated to incorporate the UNDRIP into its national law, as a signatory to the treaty, and to both consult with equal and full participation of the Sami People and their free, prior and informed consent of such a process and how, if and when to do so at all stages. With the UNDRIP, this implementation aspect gives Indigenous Peoples more leverage than, say the ILO 169 process, which continues to render Indigenous Peoples subject to external determination by a "higher" power, versus own decision-making on same footing as a State. However, there remains to this day no court outside of States for Indigenous Peoples to hold cases directly in light of the UNDRIP as a legal system as the ILO 169 can be, if that is the goal. This issue of lack of redress via the UNDRIP itself has been discussed under participation and consultation with Indigenous Peoples and us all as collective experts in the field of Indigenous Rights in more recent years at the UN under Indigenous- and collaborative-led UN initiatives, wherein a dicussed possible action that the United Nations can take up and build upon would be to create a mechanism of redress for the UNDRIP under and within the UN umbrella. For the time being, this has not happened.
Certain Indigenous UN mechanisms such as UNPFII and EMRIP and other select representative roles have, instead of creation of a UN-based or operated UNDRIP redress mechanism open to all, been empowered with authority to dictate select recommendations on interpretations of implementation of the UNDRIP or related matters via either their own increased inclusion within the UN system or, for example, country visits. It is important to note that such a process is hardly a replacement for an actual (binding or non-binding) legal UNDRIP redress mechanism, as country visits, for example, are a process applied to selected request applications by the EMRIP mechanism, and then in turn the process is closed to only those people who are chosen for such a visit, and within that, in action, only those who have the power to participate or determine participation locally/regionally, including within Indigenous Peoples co-opted hierarchies and potentially States'. A UN-based UNDRIP redress mechanism would undoubtedly still render recommendations and not binding decisions, due to political influence, and perhaps less political leverage than country visits, but an international UNDRIP legal redress mechanism would meet a fundamental necessaity for legal validity that the EMRIP country visits scheme does not- that of equal access to justice.
Also in process for a long time is the Nordic Saami Convention, negotiated between States and Sami representatives from within the States encompassing Sapmi in the Nordic region (Norway, Sweden, Finland). This treaty remains to be seen for its results or even an agree-upon final treaty outcome. Important to point out is that Sapmi is also encompassed by Russia, so this treaty, the "Nordic" Saami Convention, is obviously not representative of whole Sami Nation or Sami People of all of Sapmi, even as a Sami-representative-participating treaty. It can only be hoped that lessons learned from both ILO 169 and the UNDRIP will be applied in its ultimate future, especially given that its creation has the participation of selected Sami representatives who claim to speak for the rights of Sami People, from their respective and encompassing Nordic States.
Comparatively, it most behooves most Indigenous Peoples to undertake as priority, between the ILO 169 and UNDRIP, to make demands and/or initiatives to full participation in implementation the UNDRIP into State law, policies, systems, structures and procedures, as hard and binding customary law, as a most comprehensive act of self-determination and steps towards just equality therein... with the major caveat, however -and one to not be brushed aside- , of the fact that, if Indigenous Peoples rightly seek independence per the ultimate right of full political and territorial decolonization via People's right to self-determination, none of these treaties apply without major and unjust blockages or complete nuisance, unless meant to warm States and naysayers up to Indigenous Rights and a slow progression. In any case, there is a formal UN decolonization process to access, including regarding territory and political rights of all people within a People, as well as other peaceful mediation and negotiation methods for such, also in the best interest of all humans' and human rights and the rights of nations, peoples, or otherwise, and thus these methods are also long-time enshrined and still being lobbied for by certain Peoples, communities, groups and experts and representatives.
Ultimately, it is the choice of the Sami People which path(s) to take so meet their desired ends, and that is, in and of itself, self-determination, so long as all people within the nation (since we are talking about "Sami National Day"!), the Sami Nation (as a nation divided by States or one whole), have access to influence, and per reasonable norms and not force, externally or within. Human Rights are, after all and this day and age, both collective and individual, as well as fundamentally universal.
India Reed Bowers, BA LLM, Founder & Director IOSDE
Following friendly and independent contact today, from within a Swedish media outlet to IOSDE founder and director on the issue of ILO 169 and why Sweden has not ratified it yet after all this time and demand from Sami voices as such, posted below is a discussion regarding Sweden and ILO 169, and two of ILO 169's regional (the Nordic Saami Convention 'to be', a mention) and international (the UNDRIP, current) counterparts.
Here is IOSDE's Director's statement:
"Sweden has continued to delay and avoid ratification of ILO 169 because the treaty is binding and thus can be utilized for direct redress jurisprudence, ie legal matters and cases, via the independent and external international ILO legal system; decisions which Sweden would then be obligated to implement.
To not ratify ILO 169 grants Sweden the ongoing power, throughout any and all Swedish governments over the years, and even those government systems under the and within the Swedish State, to continue to hold the Sami within the controlled scope of the Swedish domestic legal system. Sweden thus controls the outcomes of all potential matters and issues within the would-be scope of ILO 169. Essentially, this is a classical control tactic, rendering people bound to 'what is' and within the control or norms of the group (in this case the group being the State).
This State- and national systems-altering effect of direct and binding jurisprudence of ILO 169 can be seen, for example, in the use of the ILO legal system with the 169 treaty by the Norwegian side of Sapmi, as a result of Norway's obligations to the treaty as signatory party to ILO 169. The results regarding ILO 169 case decisions and matters, therein, have dramatically reshaped the landscape on the Norwegian side of Sapmi for both Norway and the Sami People, in terms of land, law, and other matters. However, this is only one example of its binding nature. ILO 169's potential to influence does not stop there- it is a comprehensive treaty citing many rights and therefore all articles and interpretations within its text can potentially be taking up for decisions on matters by the ILO system. Sweden would then, if having ratified, be obligated to enact such outcomes.
Some persons may argue a more benign and well-intentioned cause, claiming that Sweden's delay might also be due to a notion that truly democratic States take time to ratify international treaties. Meaning, that if the State intends to truly follow through on its obligations once it ratifies it thus can take years, even decades, to prepare internally and on many levels to be able to do so. However, this point is moot in the case of Sweden, because Sweden has ratified many international treaties of the United Nations that it does not uphold the expert recommendations of, concerning matters not only relating to the Sami People but many other humans and human rights, all people within Sweden, and on a wide range of issues, in general. Even recommendations of the EU to Sweden on a variety of matters are not upheld by the State, as its government(s) chooses.
Back to the point- it is the leeway gap of a binding versus non-binding juridical system that is the issue here. Sweden maintains control domestically via its own legal system by finely selecting which binding legal systems outside of its jurisdiction to subject itself to.
However, with this said, Sweden has signed the UNDRIP, and many Indigenous Peoples and experts, together collectively in the field of Indigenous Rights, argue that the UNDRIP offers much if not even more to enact Indigenous Rights, for Indigenous Peoples, than ILO 169, both comparatively and universally. Some even feel that ILO 169 is, compared to the UNDRIP, outdated, starting with the fact that the UNDRIP was, at its inception, an Indigenous-negotiated treaty (negotiated with States), and with more recent context and verbiage as sought after therein, as a result.
However, the caveat being that States still had the ultimate control in UNDRIP negotiations and thus possibly still do; States demanded inclusion at the final days of 'the deal' a clause within the UNDRIP that protects the State right to territorial integrity as encompassing any reading of the treaty rights themselves. A tricky move, given that this clause's invlusion contradicts the fact that the treaty is meant to be- or at least is titled to be- about Indigenous Rights, not the rights of a State. Clearly, the States requiring that clause at the time (or lobby for its inclusion secretly, whatever the case may have been) were trying to suppress formal territorial decolonization rights of Indigenous Peoples, and saw the chance to codify that as leverage agree to collectively approve the treaty into its existence. Not all Indigenous Peoples are concerned about this, and at the end of the day those who had the upper hand among the Indigenous delegates agreed, anyway, to this concession. To this day this continues to be a point of discussion, but most people are willing to work with the UNDRIP and find ways around the issue. Others still rightfully claim their own territorial integrity as a formal right of peoples to formal territorial decolonization, per still-standing international laws of peoples' rights to self-determination per the original and older, long-standing backbone treaties of the UN, meant to rectify root causes of genocide and other ills in the world, and the UN decolonization treaties.
The Sami Parliament in Sweden, still a branch of the Swedish Government, publicly states on its website that 1. "Sami self-determination is not about forming a new state." and, following that, 2. "This right is not granted by international law since the principle of states’ rights to territorial integrity places restrictions on the exercise of the right of self-determination." However, one can see that since Indigenous Peoples have never been allowed formal decolonization per UN and thus international standards for Peoples and decolonization both, and thus no formal voting or decision making process (unless internally taken up by the Indigenous leaders in their own communities and/or nations, as an act of self-determination or otherwise) has been undertaken to seek opinion on these matters within Indigenous Peoples communities and nations per People and per person, world-wide, including in Sapmi. How, then has it been decided that sentence #1 is true? Regarding Sentence #2, in expert legal opinion using all international law, the sentance is false; sentance #2 is not legally sound. Anyway, as long as the Sami People do not mind or demand otherwise from the Sami Parliament or Sweden or via their communities, it is so in Sweden. So, return the discussion to the likes of ILO 169, the UNDRIP, the Sami Nordic Convention.
Regarding binding versus non-binding and the argument that ILO 169 is the only binding Indigenous Rights legal instrument, is also said by many experts that the UNDRIP has been in force long enough and is crucial enough in the international and historical context to be considered binding law as customary law. Moreover, Sweden is obligated to incorporate the UNDRIP into its national law, as a signatory to the treaty, and to both consult with equal and full participation of the Sami People and their free, prior and informed consent of such a process and how, if and when to do so at all stages. With the UNDRIP, this implementation aspect gives Indigenous Peoples more leverage than, say the ILO 169 process, which continues to render Indigenous Peoples subject to external determination by a "higher" power, versus own decision-making on same footing as a State. However, there remains to this day no court outside of States for Indigenous Peoples to hold cases directly in light of the UNDRIP as a legal system as the ILO 169 can be, if that is the goal. This issue of lack of redress via the UNDRIP itself has been discussed under participation and consultation with Indigenous Peoples and us all as collective experts in the field of Indigenous Rights in more recent years at the UN under Indigenous- and collaborative-led UN initiatives, wherein a dicussed possible action that the United Nations can take up and build upon would be to create a mechanism of redress for the UNDRIP under and within the UN umbrella. For the time being, this has not happened.
Certain Indigenous UN mechanisms such as UNPFII and EMRIP and other select representative roles have, instead of creation of a UN-based or operated UNDRIP redress mechanism open to all, been empowered with authority to dictate select recommendations on interpretations of implementation of the UNDRIP or related matters via either their own increased inclusion within the UN system or, for example, country visits. It is important to note that such a process is hardly a replacement for an actual (binding or non-binding) legal UNDRIP redress mechanism, as country visits, for example, are a process applied to selected request applications by the EMRIP mechanism, and then in turn the process is closed to only those people who are chosen for such a visit, and within that, in action, only those who have the power to participate or determine participation locally/regionally, including within Indigenous Peoples co-opted hierarchies and potentially States'. A UN-based UNDRIP redress mechanism would undoubtedly still render recommendations and not binding decisions, due to political influence, and perhaps less political leverage than country visits, but an international UNDRIP legal redress mechanism would meet a fundamental necessaity for legal validity that the EMRIP country visits scheme does not- that of equal access to justice.
Also in process for a long time is the Nordic Saami Convention, negotiated between States and Sami representatives from within the States encompassing Sapmi in the Nordic region (Norway, Sweden, Finland). This treaty remains to be seen for its results or even an agree-upon final treaty outcome. Important to point out is that Sapmi is also encompassed by Russia, so this treaty, the "Nordic" Saami Convention, is obviously not representative of whole Sami Nation or Sami People of all of Sapmi, even as a Sami-representative-participating treaty. It can only be hoped that lessons learned from both ILO 169 and the UNDRIP will be applied in its ultimate future, especially given that its creation has the participation of selected Sami representatives who claim to speak for the rights of Sami People, from their respective and encompassing Nordic States.
Comparatively, it most behooves most Indigenous Peoples to undertake as priority, between the ILO 169 and UNDRIP, to make demands and/or initiatives to full participation in implementation the UNDRIP into State law, policies, systems, structures and procedures, as hard and binding customary law, as a most comprehensive act of self-determination and steps towards just equality therein... with the major caveat, however -and one to not be brushed aside- , of the fact that, if Indigenous Peoples rightly seek independence per the ultimate right of full political and territorial decolonization via People's right to self-determination, none of these treaties apply without major and unjust blockages or complete nuisance, unless meant to warm States and naysayers up to Indigenous Rights and a slow progression. In any case, there is a formal UN decolonization process to access, including regarding territory and political rights of all people within a People, as well as other peaceful mediation and negotiation methods for such, also in the best interest of all humans' and human rights and the rights of nations, peoples, or otherwise, and thus these methods are also long-time enshrined and still being lobbied for by certain Peoples, communities, groups and experts and representatives.
Ultimately, it is the choice of the Sami People which path(s) to take so meet their desired ends, and that is, in and of itself, self-determination, so long as all people within the nation (since we are talking about "Sami National Day"!), the Sami Nation (as a nation divided by States or one whole), have access to influence, and per reasonable norms and not force, externally or within. Human Rights are, after all and this day and age, both collective and individual, as well as fundamentally universal.
India Reed Bowers, BA LLM, Founder & Director IOSDE
RSS Feed