DOCUMENT: 88-12368.TXT U N I T E D N A T I O N S ECONOMIC AND SOCIAL Distr. COUNCIL GENERAL E/CN.4/Sub.2/AC.4/1988/2 Original: ENGLISH and 24 May 1988 RUSSIAN GE.88-12368/4446G COMMISSION ON HUMAN RIGHTS Sub-Commission on Prevention of Discrimination and Protection of Minorities Working Group on Indigenous Peoples Sixth Session 1-5 August 1988 Items 4 and 5 of the provisional agenda REVIEW OF DEVELOPMENTS PERTAINING TO THE PROMOTION AND PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS OF INDIGENOUS POPULATIONS STANDARD-SETTING ACTIVITIES: EVOLUTION OF STANDARDS CONCERNING THE RIGHTS OF INDIGENOUS POPULATIONS Information received from Governments ------------------------------------- Page ---- Introduction ........................................ 2 Byelorussian Soviet Socialist Republic .............. 2 Finland ............................................. 3 Japan ............................................... 8 Union of Soviet Socialist Republics ................. 9 E/CN.4/Sub.2/AC.4/1988/2 page 2 INTRODUCTION 1. In resolution 1982/34 of 7 May 1982, the Economic and Social Council authorized the Sub-Commission to establish annually a working group on indigenous populations to review developments pertaining to the promotion and protection of the human rights and fundamental freedoms of indigenous populations, including information requested by the Secretary-General annually, and to give special attention to the evolution of standards concerning the rights of indigenous populations. 2. In resolution 1988/44 of 8 March 1988, the Commission on Human Rights, on the recommendation of the Sub-Commission, by its resolution 1987/8, encouraged Governments and indigenous organizations and communities, as well as other interested parties, to review and comment upon the preliminary draft principles contained in annex II to the report of the Working Group on its Fifth session (E/CN.4/Sub.2/1987/22). 3. In resolution 1987/16, the Sub-Commission requested the Secretary-General to transmit the Working Group's report and its annexes to Governments, specialized agencies, organizations of indigenous peoples and other non- governmental organizations, for comments and suggestions, calling their attention in particular to annex II to the report. 4. In accordance with this resolution, appropriate communications requesting information, comments and suggestions were addressed by the Secretary-General to Governments and the organizations referred to. 5. The present document contains replies received from Governments up to 10 May 1988. Additional replies, if any, will be included in addenda to this document. BYELORUSSIAN SOVIET SOCIALIST REPUBLIC [13 April 1988] [Original: Russian] The Byelorussian SSR supports the idea of drawing up and adopting a declaration on the rights of indigenous populations. The inclusion in the declaration being drafted of the individual and collective rights of indigenous populations constitutes yet another step towards the development of international co-operation in human rights matters. However, some of the wording and principles need to be clarified. For example, it should be stated that the right to the full and effective enjoyment of fundamental rights and freedoms is of an extremely general nature, and does not have the effect of introducing substantial changes in the legal status of indigenous populations. The right to life should be regarded as an individual as well as collective right. The right to life of various social segments of the population can be guaranteed, for example, by curbing and subsequently putting an end to the arms race. It should be borne in mind that the right to be free is not absolute but limited by legislative provisions (second principle). E/CN.4/Sub.2/AC.4/1988/2 page 3 The sixth principle should be worded more clearly, as the existence of indigenous populations in a country should not in every case give rise to the creation of any special political institutions. The draft declaration should also include a provision to the effect that the exercise of the rights embodied in it should not be prejudicial to the interests of society and the State. FINLAND [7 April 1988] [Original: ENGLISH] 1. GENERAL CONSIDERATIONS Although the document to be commented on is a draft for a legally non-binding declaration, the Ministry of Justice deems it proper to discuss its compatibility with Finnish law and Finnish human rights ideals in some detail. This is so, INTER ALIA, for the reason that in the United Nations practice on human rights such a declaration is normally followed by a corresponding convention on the subject. The background materials forwarded to the Ministry of Justice indicate that the same is likely to be the case also with regard to the Draft Declaration of Principles on the Rights of Indigenous Populations. Before discussion concerning each particular provision of the Draft Declaration some remarks of a more general nature appear pertinent. The Ministry of Justice firstly notes that the Draft does not contain a definition of "indigenous population". This seems a defect which, despite apparent difficulties of definition, should be corrected in so far as possible. In any case it seems clear that in Finland the Sami (also called the Lapps) is the only such indigenous population as is covered by the Draft Declaration. The position of the Sami has on some occasions already been discussed in connection with international supervision and control mechanisms concerning human rights. Thus Finland has reported on its relevant legislation and practice to the Human Rights Committee, the supervisory organ established by virtue of the International Covenant on Civil and Political Rights (Finnish Treaty Series 7-8/1976). Neither the Committee as a whole nor its individual members have raised any noteworthy criticism concerning the provision of the Sami in light of Article 27 of the Covenant (protection of minorities). In addition to the Covenant, perhaps the most important human rights instrument binding on Finland, the Convention on the Elimination of All Forms of Racial Discrimination (Finnish Treaty Series 37/1970) deserves to be mentioned in this connection. The implementation of this Convention is supervised by the Committee on the Elimination of Racial Discrimination, to which also Finland has reported, INTER ALIA, on the position of the Sami. Especially the obligations defined in the above- mentioned Article 27, however, differ in two important respects from those formulated in the Draft Declaration. According to Article 27 of the Covenant "PERSONS belonging to ... minorities SHALL NOT BE DENIED the right, in community with the other members of the group, to enjoy their own culture, to profess and practice E/CN.4/Sub.2/AC.4/1988/2 page 4 their own religion, or to use their own language". Thus the obligation, firstly, has been defined negatively, i.e. no positive actions to improve the situation of indigenous populations are explicitly required. Secondly, in this provision also the protection of minorities is approached from the point of view of rights of individuals. Although in the evolving interpretation of the Article it is hardly desirable or even possible to stick to the wording literally, the difference as compared to the Draft Declaration of Principles on the Rights of Indigenous Populations is, as a matter of principle at least, considerable: several provisions of the latter do explicitly require from the State active measures to secure and improve the position of indigenous populations. Characteristic in the Draft, furthermore, is the stress laid on the collective rights of indigenous populations. This certainly is correct, as the protection of a distinct population inherently presupposes the recognition of the group nature of the people intended to be protected. Nevertheless, one may ask whether this collective approach should be balanced more than by a reference to certain general international human rights instruments and principles. Perhaps a clause could be considered to the effect that nothing in the Declaration should be interpreted as affecting the human rights of the individual, including his right not to identify with an indigenous population. The Samis live in the northern part of Fenno-Scandia and are the oldest known inhabitants of that area. They number between 40,000 and 70,000, depending on how the term "Sami" is defined. In Finland a Sami is defined as a person who either speaks Sami as his first language or has at least one parent or grandparent who has done so. Finland's only indigenous people is the Samis. Finland has 5,700 Samis, of whom 3,900 live in their home territory - the three northernmost local-authority areas of the country. The Sami culture covers a wide area extending over several international frontiers. In Finland the Samis are a small minority but, together with those living in the other Nordic countries and the Soviet Union, they form quite a large group. The main problem in Finland is a loss of language and culture as the occupational structure of the Samis comes to resemble that of the Finnish majority. Another problem is the poor legal safeguards for their rights in respect of land and water areas which the Samis have held on the basis of tenure since time immemorial. Indigenous peoples need special protection and positive action in addition to their internationally recognized basic rights and freedoms. The principles in the Draft Declaration of Principles on the Rights of Indigenous Populations should be active and goal- oriented. Implementation of the Declaration should lead to an enlargement of their rights and to awareness and acknowledgement of their cultural identity. 2. COMMENTS ON THE PARTICULAR PROVISIONS OF THE DRAFT PRINCIPLES Hereinbelow the Ministry of Justice makes some remarks and comments on the various provisions of the Draft Principles especially against the background of Finnish law. 1. From the last-mentioned point of view the first provision does not give reason for particular remarks. As a purely terminological matter it may be questioned whether the expression "International Bill of Human Rights" is sufficiently specific to be used in this kind of "quasi- judicial" document. E/CN.4/Sub.2/AC.4/1988/2 page 5 2. In its second provision the Draft Declaration sets forth the general principle of equality and non-discrimination. The provision covers primarily what may be called "formal equality", or "equality before the law", and it does not contain anything contrary to Finnish law. In this regard a reference can be made to Section 5 of the Constitution Act, according to which wall citizens of Finland are equal before the law", as well as to the Criminal Code which has made certain discriminatory acts punishable. Principles aimed at the realization of material equality are dealt with in subsequent provisions of the Draft. 3. Finnish law and our international treaties make it incumbent on Finland to act in accordance with the principles set forth in the third provision. As regards the collective rights dealt with in the provision, the following elaboration appears pertinent. As early as 1946 and 1947 the State of Finland resorted to special measures with a view to SECURING THE EXISTENCE of those "Skolt Sami" who had moved from the Petsamo area, ceded to the Soviet Union in 1944, to the Finnish municipality of Inari. These measures included the reserving of areas for the SETTLEMENT of these people, as well as the provision of funds for the construction of houses and acquisition of reindeers and fishing equipment. By a 1955 Act on the Settlement of the Skolt Sami the ownership to the houses and buildings thus erected, as well as to the land needed for them, was granted to the Skolt Sami without consideration. By a decision of the Council of State made in 1947 they were given privileges such as permission to collect wood in State-owned forests, to erect, on State- owned land, reindeer huts, fishing huts and other constructions needed for the carrying of their traditional means of subsistence. By the SKOLT ACT of 1984 these provisions have been renewed and updated to be in accordance with the legislation concerning indigenous economies enacted that year. Further it can be mentioned that GENOCIDE is punishable according to the Criminal Code. The definition of this crime follows that contained in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, to which Finland is a party (Finnish Treaty Series 4/1960). Attempt and conspiracy to commit genocide are also punishable under the Criminal Code. The individual rights and liberties proposed in the provision are guaranteed by the Constitution Act to all Finnish citizens, including the Sami. 4. The principle contained in the fourth provision is acceptable and worth being supported. From the Finnish point of view it is, as a matter of cultural policy, important to secure the preservation and development of the unique features of the Sami culture. This was stated in the Government's report on cultural policy in 1982, and the same aspect was emphasized in many speeches delivered in the Parliament on the occasion of the said report. Since 1973 the Nordic Sami Institute provides a framework for Nordic co-operation in matters concerning the improvement of the cultural, educational and other position of the Sami. 5. This provision, too, is acceptable to Finland. Not only discrimination but also INCITEMENT TO THE DISCRIMINATION OF A GROUP OF PERSONS is punishable under the Criminal Code. Also in other respects Finnish law protects the Sami against measures dealt with in the fifth provision. E/CN.4/Sub.2/AC.4/1988/2 page 6 6. The sixth provision requires that the Sami be given a "COLLECTIVE right to participate FULLY in the economic, political and social life and to have their specific character reflected in the legal system and in the political institutions" in Finland. On the basis of EQUALITY with other citizens of Finland they do enjoy such a right. An additional channel for the Sami to contribute to the improvement of their own position is provided by the Sami Parliament, an organ the composition of which is determined, through elections, solely by the Sami. The Sami Parliament, however, has only a consultative status without any decision-making power of its own. Further it should be mentioned that the Sami can influence matters concerning themselves through activities in various organizations. The Sami population, however, is too small to make it possible for this minority to found a political party in accordance with the relevant Finnish legislation. The requirement of the collective right to FULL participation in the public affairs of the country seems somewhat ambiguous and, if literally interpreted, too strict. Some clarification (possibly the substitution of the word "fully" by the words Son the basis of equality") would appear necessary. 7. The provision sets forth an obligation to support the Sami economically "within the resources available". In Finland there is a system, based on certain pieces of legislation dealt with under 3 SUPRA, as well as on the Reindeer Farm Act of 1969, which aims at improving the living conditions of those, including the Sami, dependent on what may be called indigenous, or traditional, means of subsistence. Likewise a reference can be made to a recent proposition for the enactment of the Sami Language Act which, if enacted, would secure governmental aid for the improvement of the linguistic rights of the Sami people. The provision under discussion seems as such acceptable to Finland. 8. Special State measures for the improvement of the social and economic conditions of the Sami are possible, without prejudice to the interests of the rest of the population, as long as they are not continued beyond the point at which equality with the main population has been achieved. In consideration of special measures the expert knowledge of the above-mentioned Sami Parliament, as well as of the Consultative Council of the Sami Affairs (a co- ordinating body in which both the Sami Parliament and the Government are represented) can be utilized. The insertion of a sentence making the fulfillment of the obligations enunciated in this provision, too, dependent on the available resources possibly should be considered. 9. From the Finnish point this provision does not seem to need changes. A few supplementary remarks, however, can be made: REINDEER HERDING is in Finland regulated by the 1948 Reindeer Management Act. Unlike the case in Sweden and Norway, right to reindeer herding has not been reserved to the Sami only. For this reason the preparation of a new Reindeer Management Act has not been able to proceed. In no case, however, can the Sami people earning their living from reindeer herding be regarded as suffering from discrimination; it is not easy to justify why reindeer herding in Finland should be reserved to the Sami only. E/CN.4/Sub.2/AC.4/1988/2 page 7 As to FISHING, it may be noted that the 1982 Fishing Act was not brought to force in the three most northern municipalities, the reason being the unclear situation regarding the rights, based on prescription, of those inhabitants, mostly of the Sami origin, who do not own land. Now the major problems concerning the fishing rights have been settled by a judgement of the Supreme Court in which also the fishing rights of the Sami in the municipalities referred to have been satisfactorily arranged. Fishing rights also have not been reserved to the Sami only, but this hardly means discrimination. An indigenous population may have wider interests in its home territory than the mere right to practise traditional occupations. The Finnish Parliamentary Constitutional Committee, for instance, has established that the Samis have some constitutional rights over the present State-owned area in northern Lapland. Though private ownership of land is alien to the Samis, as to many other indigenous peoples, they have been paying State tax on their usufructuary rights for many centuries. Legislation is being studied to assure better legal security for their usufruct in Finland. Indigenous peoples should also have a say on the uses to which their land and water resources are put. In Finland, for example, forestry and estate formation rights on State- owned lands in the Samis home territory have a variety of effects on the rights of the Samis. These effects relate not only to "traditional means of subsistence", but also to the development of new livelihoods as the occupational structure of the Samis diversifies. 10. This provision in its present form is incompatible with the Finnish legal system. It possibly could be accepted with a modification to the effect that the right in question be limited to health, etc. programmes affecting the indigenous population SOLELY. Without such a clarification the provision does not quite fit in the democratic decision- making process applied in Finland. 11. This provision is fully acceptable. In Finland the Sami have full freedom to exercise the kind of rights in question here. 12. According to the Basic School Act and the Decree supplementing it Sami pupils living in the Sami area shall be given instruction at the basic school also in Sami (sometimes referred to as Lappish). In practice the teaching is hampered by the lack of suitable teaching material in that language. Even at the high school level the Sami language, in addition to Finnish and Swedish, can be used as a language of instruction. The Professional Schooling Centre of the Sami Area gives, in that area, cost-free professional education primarily with a view to the needs of the local industry and commerce, taking into account the preservation and development of the traditional Sami economy and culture. A special Sami Educational Council acting under the auspices of the County Government of Lapland serves as an expert organ of the Ministry of Education in educational matters concerning the Sami. Rules concerning the use of the Sami language by and before public authorities are being prepared. E/CN.4/Sub.2/AC.4/1988/2 page 8 In Finnish or Swedish, the two official languages of the country, the Sami have right to education at all levels on the basis of equality with the rest of the population. The provision would appear acceptable - however, a clause making the full implementation of the right to education in the indigenous population's own language dependent on the available resources might be worth consideration. The right to education in their own language is not enough to guarantee an indigenous people the preservation and development of its language and culture. Other important factors may include child day care, literature, newspapers, periodicals, radio and television in their own language, and the right to use it with the authorities. Economic support is also needed for organizational activity to increase the linguistic and cultural solidarity of its users. 13.-14. Also these provisions are acceptable as such. It, however, might be considered whether provisions 4 and 13 should be combined. Concerning draft principle 14, apart from promoting intercultural information, international co- operation is important in cases where national frontiers cross the home territories of indigenous peoples. For example, the Samis in Finland, Norway and Sweden have a long tradition of collaboration. Neighbouring countries should promote the natural transborder contacts of an indigenous population at both a personal and a national level. States should also promote intercultural contacts in the broader sense referred to in Draft Principle 14. As well as fostering solidarity, this will help indigenous peoples throughout the world to monitor the implementation of each others' rights. JAPAN [19 April 1988] [Original: ENGLISH] The Government of Japan regards the standard-setting work of the Working Group on Indigenous Populations as a noteworthy one to be undertaken by the United Nations bodies in the field of human rights. While appreciating the aforementioned work, the Government is convinced that any eventual declaration should not be left ambiguous as to the definition of its scope, and that it should be consistent with guidelines as set out in operative paragraph 4 of General Assembly resolution 41/120. E/CN.4/Sub.2/AC.4/1988/2 page 9 UNION OF SOVIET SOCIALIST REPUBLICS [12 April 1988] [Original: RUSSIAN] The USSR supports the idea of adopting a declaration on the rights of indigenous populations. This document will, in the opinion of the Soviet Union, assist the indigenous populations of various countries of the world in the struggle for the realization of their rights. The inclusion in the declaration being drafted of not only the individual but also the collective rights of indigenous populations reflects current trends in the development of international co-operation on human rights matters. However, the wording and substance of individual principles needs to be clarified. In the case of the right to the full and effective enjoyment of fundamental human rights and freedoms, it should be noted that this right is too general and comprehensive in nature, and cannot bring about any substantial changes in the legal status of indigenous populations. Moreover, a legal provision that guarantees the right to exercise rights can hardly be regarded as felicitous. As for the right to life, it is to be noted that this right, as a universal right, may be not only of an individual but also a collective nature. For example, the right to life of various social communities can be guaranteed by curbing and, subsequently, ending the arms race. The second principle should be supplemented by wording to the effect that the right to be free is not absolute and may be circumscribed by legislative provisions. The wording of the sixth principle should be reviewed. Issue is taken with the idea that the specific character of indigenous populations should be reflected "in the legal system and in the political institutions of their country". On the one hand, this principle is vague and, on the other, the existence of indigenous populations in a country should not, in our view, give rise in every case to the creation of some kind of special political institutions. The draft declaration should also be supplemented by a provision to the effect that the exercise of the rights embodied in it should not be prejudicial to the interests of society and the State. -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: :: -= THE FOURTH WORLD DOCUMENTATION PROJECT =- :: :: A service provided by :: :: The Center For World Indigenous Studies :: :: www.cwis.org :: ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: Originating at the Center for World Indigenous Studies, Olympia, Washington USA www.cwis.org © 1999 Center for World Indigenous Studies (All Rights Reserved. References up to 500 words must be referenced to the Center for World Indigenous Studies and/or the Author Copyright Policy Material appearing in the Fourth World Documentation Project Archive is accepted on the basis that the material is the original, unoccupied work of the author or authors. 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