This article was originally published on The Conversation, an independent and nonprofit source of news, analysis and commentary from academic experts. Disclosure information is available on the original site.
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Author: Laura Dehaibi, Professeure adjointe en droit du travail, Universit茅 Laval
In October 2024, the United Nations Committee on Economic, Social and Cultural Rights (UNCESCR) issued a landmark decision stating that Finland had violated the rights of the S谩mi Indigenous people to their culture and land. This decision, unprecedented in Europe, signals a potential paradigm shift in the protection of Indigenous rights globally.
The S谩mi are a semi-nomadic Indigenous people who practise traditional reindeer herding in northern Europe. Their traditional territory, S谩pmi, extends throughout parts of Sweden, Norway, Finland and Russia. It鈥檚 believed the S谩mi have occupied this region for thousands of years.
A petition was filed before the UNCESCR by 17 members of the S谩mi community in Finland due to encroachment by the Finnish state on their traditional territories 鈥� notably for prospective mining activities.
The petitioners argued that by failing to conduct a proper impact assessment and engaging in a process of consultation, the state violated their 鈥渞ights to take part in the cultural life of a community and to enjoy just and favourable conditions of work that ensure remuneration that provides them with a decent living for themselves and their families鈥�.
In reaching its decision, the UNCESCR relied on the International Covenant on Economic, Social and Cultural Rights (ICESCR). This covenant outlines a series of social rights meant to provide a minimum standard of living 鈥� whether in terms of work, social security, education, health or culture.
According to the ICESCR, the importance of herding for the S谩mi would qualify as a cultural right, alongside their right to well-being and self-determination. The UNCESCR committee also recognized 鈥淚ndigenous Peoples鈥� right to land as an indispensable part of their right to take part in cultural life鈥� 鈥� as well as the close connection between land and self-determination for Indigenous groups.
The UN committee ultimately concluded the S谩mi have a right to their lands, territories and resources 鈥� and that the Finnish state had violated these rights by not consulting them. It asks Finland to 鈥渢ake all steps necessary to prevent similar violations from occurring in the future.鈥�
This includes modifying its legislation and policies in regard to environmental, social and cultural impact assessments and acknowledging the right of Indigenous Peoples to free, prior and informed consent.
A long road to justice
This isn鈥檛 the first time the S谩mi have sought recognition of their rights before an international forum. But it is the first time they can do so without relying on the right to property.
The European system of human rights had previously deemed various S谩mi claims inadmissible 鈥� either because of the collective nature of the claims or because the claims did not correspond with the European definition of property.
For instance, in the 1983 case G and E v. Norway, the S谩mi had petitioned the European Commission of Human Rights to halt a hydroelectric project that threatened to inundate their traditional land, claiming a violation of their property rights. However, the court set aside the claim, concluding the nomadic lifestyle of the S谩mi was incompatible with 鈥榯raditional鈥� property rights concepts.
What鈥檚 more, the European system has generally failed to recognize the historical presence of the S谩mi as a determining factor in upholding their rights as an Indigenous people 鈥� framing their ownership claims in one case as a mere 鈥渉ope of recognition鈥� as opposed to an existing entitlement enabled by state law.
Being able to file individual complaints to the UNCESCR is relatively new. For most of the 20th century, human rights law dictated that rights of a social nature could not be submitted to judicial scrutiny.
It鈥檚 only since the adoption of the Optional Protocol to the ICESCR, which Finland ratified in 2014, that the UNCESCR acquired the authority to examine direct violations of social rights. This has framed social rights in a way that allows greater adaptability. This change has set the foundation of innovative rulings 鈥� such as the one the S谩mi recently won.
For Indigenous Peoples in Europe, this means they no longer have to rely solely on the traditional legal definitions of property to defend their rights. They can instead use open-ended concepts, such as the rights to decent living or culture, to frame their land claims based on their unique circumstances.
The African Commission on Human and Peoples鈥� Rights has been a pioneer in this respect. The 1981 African Charter on Human and Peoples鈥� Rights gives equal value to civil and political rights, social rights and collective rights. This allowed the African Commission to look beyond property rights to assess violations of Indigenous land rights.
Future of indigenous rights
The Finland decision has two major implications for the recognition of indigenous land rights.
It creates a shift in how we approach human rights generally 鈥� recognizing the collective nature of certain rights as opposed to mere individual entitlements. The decision also encourages us to embrace indigenous conceptions of land, beyond traditional property rights. These conceptions more readily see land as holding cultural and political significance.
It鈥檚 not impossible to conceive of the right to property in an emancipatory way. But there is a limit in how far the conception of this right can be expanded since property rights are so intrinsically associated with liberalism and market economy. Treating land as fungible and as neatly divided through fixed boundaries seldom reflects the fluid nature of Indigenous territory.
For now, the S谩mi鈥檚 victory provides a first step to long-awaited justice. The influence of this decision could potentially extend beyond the case of Indigenous rights. It could transcend classical views of property and reframe them in a more socially oriented way that could change land and housing rights for people from many communities.
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Laura Dehaibi does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.
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This article is republished from The Conversation under a Creative Commons license. Disclosure information is available on the original site. Read the original article: https://theconversation.com/what-a-landmark-ruling-for-the-sami-people-in-finland-means-for-the-protection-of-indigenous-rights-globally-249567
Laura Dehaibi, Professeure adjointe en droit du travail, Universit茅 Laval, The Conversation
