In two recently released decisions, United Nations Human Rights Committee determined that the Finnish government interfered with Sámi individuals’ rights to political participation and culture when a national court expanded the group of people authorized to vote, or run as candidates, in the Indigenous group’s parliamentary elections. [OHCHR Press Release: Finland] While the Committee and other UN human rights bodies have raised concerns about this issue before, these are the first complaints to be decided concerning the Sámi people’s self-determination. The Committee has given Finland six months to submit a report outlining the progress it has made in implementing the decisions. [OHCHR Press Release: Finland] One other communication on the same matter is pending before the Committee on the Elimination of Racial Discrimination (CERD). See Human Rights Committee, Sanila-Aikio v. Finland, Views of 1 November 2018, UN Doc. CCPR/C/124/D/2668/2015, para. 4.2.
Facts of the Case
Both cases arose out of Finland’s alleged interference in the internal politics of the Sámi people, an Indigenous group located in the north of Finland and three surrounding countries. See Human Rights Committee, Käkkäläjärvi et al. v. Finland, Views of 2 November 2018, UN Doc. CCPR/C/124/D/2950/2017; Human Rights Committee, Sanila-Aikio v. Finland, para. 1.2. The President of the Sámi Parliament of Finland, Tiina Sanila-Aikio, brought one complaint and 25 members of the Sámi people brought the other complaint, both alleging violations of their rights under the International Covenant on Civil and Political Rights (ICCPR). [OHCHR Press Release: Finland]
In September 2011, the Finnish Supreme Administrative Court issued a decision departing from the accepted interpretation of Section 3 of the Act on the Sámi Parliament, which defines who qualifies as a Sámi person for the purposes of participation in the elections of the Sámi Parliament, and giving priority to self-identification. See Human Rights Committee, Sanila-Aikio v. Finland, para. 1.2. In the run up to the 2015 Sámi Parliament elections, 182 people who had been denied the ability to register themselves as Sámi appealed to the court. See Human Rights Committee, Käkkäläjärvi et al. v. Finland, para. 2.9. In September 2015, the Court granted the right to vote in Sámi Parliament elections to 93 of those people, acknowledging that in a majority of the cases, the person whose application was accepted did not meet any of the three objective criterion required to establish their Sámi identity under Section 3 of the Act. See id. at paras. 2.5, 2.9, 2.10. The Court explained its position as being “constitutional rights and human rights friendly” and argued that exclusion from the electoral role would constitute discrimination in some cases. See id. para. 2.10. At least one of those individuals subsequently won election to the Sámi Parliament. See Human Rights Committee, Sanila-Aikio v. Finland, para. 5.8. Once admitted to the voter rolls, individuals are eligible to serve as members of the Sámi Parliament and all of their descendants are also admitted to the rolls. See Human Rights Committee, Käkkäläjärvi et al. v. Finland, para. 2.14.
The President of the Sámi Parliament submitted an initial application to the Human Rights Committee in October 2015, and the Committee found this communication admissible in 2017 insofar as the communication claimed violations of her individual rights, as required by Article 2 of the Optional Protocol. See Human Rights Committee, Sanila-Aikio v. Finland, Views of 28 March 2017, UN Doc. CCPR/C/119/D/2668/2015, para. 8.5. The 25 members of the Sámi people submitted their application in March 2016, and the Committee analyzed the admissibility of the communication together with the merits in its November 2018 decision. See Human Rights Committee, Käkkäläjärvi et al. v. Finland.
With regard to both communications, the Committee rejected the authors’ allegations under Article 1 (self-determination) of the ICCPR. It reiterated its view that “an author, as an individual, cannot claim under the Optional Protocol to be a victim of a violation of the right of self-determination enshrined in article 1 of the Covenant, which deals with rights conferred to peoples, as such.” However, the Committee emphasized that while it could not make a finding regarding an alleged violation of the right to self-determination, it would “interpret article 1, when this is relevant, in determining whether rights protected in parts II and III of the Covenant have been violated.” See Human Rights Committee, Käkkäläjärvi et al. v. Finland, para. 8.6.
Additionally, Finland argued that the Käkkäläjärvi et al. communication should be considered inadmissible because the same matter is being examined under another international procedure, identifying a complaint submitted before the CERD. See Human Rights Committee, Käkkäläjärvi et al. v. Finland, para. 4.4. Further, Finland argued that the individuals in this communication were already covered by the Sanila-Aikio communication submitted on behalf of the Sámi people, and that they could not submit more than one complaint concerning the same facts. See id. at para 4.4.
The Committee clarified that under Article 5(2)(a) of the Optional Protocol to the ICCPR, in order for a complaint to be rejected because it raises “the same matter,” it must involve the same authors, facts, and substantive rights. See id. at para. 8.2. The Committee found that the complaint before the CERD involved none of the same authors, and concluded that “the same matter” was not being examined under another international procedure. See id. at paras. 5.1, 8.2. Similarly, with respect to the communication submitted by the President of the Sámi Parliament, the Committee concluded that that communication was submitted on her own behalf and therefore involved different authors. See id. at para. 8.3.
Human Rights Committee Findings
In both cases, the Human Rights Committee found that Finland’s circumvention of Sámi Electoral Board decisions regarding the interpretation of Section 3 of the Sámi Parliament Act violated their right to exercise internal self-determination. [OHCHR Press Release: Finland] Specifically, the Committee found violations of Article 25 (political participation), alone and in conjunction with Article 27 (minority rights). [OHCHR Press Release: Finland] The Committee determined that the Court’s decision distorted the representative value of the Sámi Parliament to the detriment of their rights to effective participation in public affairs. See Human Rights Committee, Käkkäläjärvi et al. v. Finland, para. 8.7.
While most of international human rights law is concerned with the protection of the rights of individuals, the Committee stated that in the context of Indigenous peoples’ rights, articles 25 and 27, have a “collective dimension” and thus aspects of those rights can only be fully enjoyed “in community with others.” See Human Rights Committee, Sanila-Aikio v. Finland, para. 6.9. The Committee also clarified that in situations in which the State alters political representation of an Indigenous community, any harm imposed on the collective may also be rightly considered an injury to each individual member of that community. See id. at para. 6.9.
With respect to article 25 of the ICCPR, the right to take part in public life, the Committee explained that “objective and reasonable” criteria must be applied to election structures. See id. at paras. 6.5, 6.6. It found that in determining who would be considered Sámi for purposes of voting in Sámi Parliament elections, the Finish Court did not apply the required elements objectively and relied on individuals’ own opinions, which impacted the right of the Sámi people to effective representation in the Sámi Parliament. See id. at paras. 6.7, 6.10, 6.11. Further, the Committee, referencing its General Comment No. 23, explained that the rights of minorities need to be thought of as a means of pursuing the preservation of the rights of the community to enjoy their own culture and use their own language. See id. at para. 6.9. The Committee explained that “[t]he electoral process for the Sámi Parliament accordingly must ensure the effective participation of those concerned in the internal self-determination process, which is necessary for the continued viability and welfare of the indigenous community as a whole.” See id. at para. 6.10. The Committee concluded that the determination of who qualifies as Sámi is a key aspect of the Sámi peoples’ right to internal self-determination. See id. at para. 6.11.
Based on the violations found, the Committee asserted that Finland is now under an obligation to provide an effective remedy, including making full reparation to those individuals whose rights have been violated. See Human Rights Committee, Sanila-Aikio v. Finland, para. 8. Specifically, the State was instructed to review the Sámi Parliament Act to ensure it is properly designed to reflect the will of the Sámi people in defining voter eligibility and take all steps to ensure similar violations do not occur in the future. See id.
Following these decisions, Committee Chairperson Yuval Shany said in a statement regarding State involvement in Indigenous affairs, that while States may exercise some “oversight over procedures designed to facilitate the operation of indigenous peoples’ democratic institutions, such powers should be applied carefully, on the basis of reasonable and objective criteria.” [OHCHR Press Release: Finland]
Attention from Other Human Rights Mechanisms
Various other human rights experts have raised concerns regarding the situation of the Sámi people in Finland. In 2015, the UN Special Rapporteur on the rights of indigenous peoples, Victoria Tauli Corpuz, stated her concern regarding Sámi people’s land rights in light of the push from extractive industries to gain access to minerals and establish renewable energy projects in their region. [OHCHR Press Release: Land] Her predecessor, James Anaya, issued a special report on the Sami people’s rights in Norway, Finland, and Sweden, in which he raised similar concerns. See Report of the Special Rapporteur on the rights of indigenous peoples, James Anaya: The situation of the Sami people of the Sápmi region of Norway, Sweden and Finland, UN Doc. A/HRC/18/35/Add.2, 6 June 2011. The CERD has also included the Sámi people in its concluding observations following its review of Finland, recommending that “in defining who is eligible to vote for Members of the Sami Parliament, the State party accord due weight to the rights of the Sami people to self-determination concerning their status within Finland, to determine their own membership and to not be subjected to forced assimilation.” See CERD, Concluding observations on the twenty-third period report of Finland, UN Doc. CERD/C/FIN/CO/23, 8 June 2017, para. 15.
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