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166 Project Day Session Human Rights Challenges in the Arctic Dr. Gudmundur Alfredsson1 Director, Raoul Wallenberg Institute of Human Rights and Humanitarian Law Lund, Sweden Introduction The headline of the Northern Research Forum (NRF) Conference in Oulu in October 2006 was The Borderless North.

It is a statement that constitutes an ambitious goal, certainly desirable and worthwhile, but also opti- mistic, even romantic.

And it’s not yet a reality.


Yes, there are several instances of meaningful coopera- tion, and they are growing in number and scope.

The NRF is one prominent initiative.


An examination from a legal perspective, looking at both domestic legislation and international standards and their application, nev- ertheless serves to demonstrate that varying approach- es and sharp diﬀ erences in many instances continue to underline boundaries as barriers - rather than bridges - between The legal challenges appear in many contexts, and many areas of law are aﬀ ected.
Again and again, real-life prac- tices - when we look at assertions of sovereignty and of territorial integrity, boundary disputes on land and at sea, the treatment of indigenous peoples, the explora- tion and exploitation of natural resources, the responses to environmental problems, security considerations and military preparedness, transport, communications, and so on - highlight the presence of State borders and the importance a" ached to them by States.
In this article, with a focus on international human rights law, some recent developments are outlined, with reference to the rights of the people and of the peoples who live in the Arctic.
The ﬁ ve issues and events that I’ll be looking at are: 1) the evolution of the right to external self-determina- tion and its consolidation as binding law in a decolo- nization context, as well as the ongoing elaboration of self-government or the internal dimension of self-deter- mination, 2) the adoption of ILO Convention No 169 concerning Indigenous and Tribal Peoples in Independent Coun- tries, 3) the UN dra$ declaration on the rights of indigenous peoples that is pending before the UN General Assem- bly, 4) the dra$ Nordic Sami convention that is being circu- lated for comments from interested parties, and ﬁ nally 5) Greenland where my argument would be that the Greenlanders are not only an indigenous people but a people or a nation, in a country of their own, entitled to external self-determination and decolonization if and when they so wish.
6) A few concluding observations will follow.

The Right of External Self-Determination (1) Peoples are entitled to exercise the right of external self- determination.
This right is set forth in a series of inter- national instruments, such as the Charter of the United Nations, the two International Covenants on Human Rights, the Declaration on the Granting of Independ- ence to Colonial Countries and Peoples in General As- sembly resolution 1514 (XV), and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.
The right of colonized peoples to external self-determination is con- ﬁ rmed in the consistent practice of States and interna- tional organizations, not least the Namibia, Western Sa- hara and East Timor cases decided by the International Court of Justice.
A people (or a nation) in the self-determination context means the population of a distinct territory, as evidenced by provisions in the UN Charter on non-self-governing territories (rather than non-self-governing peoples) and in the title of the Declaration on the Granting of Inde- pendence to Colonial Countries and Peoples (countries comes ﬁ rst).

The territory is geographically separate and preferably overseas from the controlling power.
This emphasis on a geographical rather than a popular entity is also ﬁ rmly rooted in several international law texts and conﬁ rmed in State practice.

Through the exercise of the right of external self-deter- mination, a people is able to determine its international juridical status.
At least for decolonization purposes, under General Assembly resolution 1541 (XV) which adds selection criteria and procedural formulations to the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples, the available options are independence, free association and integration.

The choice belongs to the people, and popular support for the outcome as expressed in a referendum or otherwise is essential.
Opposite to the external dimension of self-determina- tion that can lead to independence, autonomy, self-gov- ernment or internal self-determination are not supposed to bring about such a result.

Instead self-government is very much about political participation within a State, without interruption of sovereignty and the territorial integrity of the State concerned.
The term ‘internal self- determination’ is nowadays fashionable in academic literature and in the demands of some minority and indigenous groups, and the lines are not always easily drawn.

The term (even with the addition of internal) indeed invites resistance by governments which fear subsequent trouble and even violent conﬂ ict relating to secession.
Indeed, if we are talking about self-govern- ment for groups within State borders, it would be more logical and more productive to refer to self-government or autonomy.

Furthermore, the term ‘internal self-deter- mination’ is not ﬁ rmly established in the international human rights instruments.

In the Lund Recommendations on the Eﬀ ective Partici- pation of National Minorities in Public Life, that were dra$ ed under the auspices of the HCNM of the OSCE, the term self-determination is not employed at all.
The choice of terminology was very much intentional.

Its provisions on self-governance for groups provide for their own institutions and for the handing over of cer- tain internal powers within the State.

The distinction between the external and internal as- pects of self-determination is important inasmuch as self-determination comes up relating to all the subse- quent issues brought up in this article, that is ILO Con- vention No.
169, the UN dra$ declaration on the rights Project Day Session 167 of indigenous peoples, the dra$ Sami convention, and the status of Greenland.

L e g a l C h a l l e n g e s i n t h e A r c t i c ILO Convention No.

169 (2) The Convention concerning Indigenous and Tribal Peo- ples in Independent Countries (ILO Convention No.

169, from 1989) now has 17 ratiﬁ cations.

It is still a low number, but a few more country ratiﬁ cations are in the pipeline.
In the Arctic region it is only Norway that has come forward with a ratiﬁ cation.

Denmark has also done so with regard to Greenland but with a declaration saying that land rights should belong to the permanent population and not speciﬁ cally the indigenous people.

This declaration presumably extends land rights to eth- nic-Danish residents, thus rendering the acceptance less meaningful.

Perhaps the most signiﬁ cant provisions in ILO Con- vention No.
169 are article 7 on the right of indigenous peoples to decide their own priorities for the process of development as it aﬀ ects their way of life, article 14 on indigenous property rights to traditionally occupied land, and article 15 on partial property and participa- tory rights concerning natural resources.
In case-law under article 27 of the International Covenant on Civil and Political Rights, the treaty monitoring body under UN auspices, that is the Human Rights Commi" ee, has come to similar conclusions inasmuch as land is essen- tial to maintaining the culture of an indigenous people.

Provisions in ILO Convention No.


169 concerning management of land and the exploitation of natural resources clearly foresee input on behalf of the indig- enous peoples, as groups, which requires some sort of representative and autonomous institutions.

We are therefore talking about self-government or internal self- determination.
It’s not external self-determination be- cause the Convention is about the rights of the groups within States; furthermore, in article 1, paragraph 3, it is spelled out that the “use of the term peoples in this Convention shall not be construed as having any im- plications as regards the rights which may a" ach to the term under international law”.
Draft Declaration on the Rights of Indigenous Peoples (3) In June 2006 the new UN Human Rights Council, a$ er some 20 years of dra$ ing, adopted a dra$ declaration on the rights of indigenous peoples.

It was not done by a consensus vote as is frequently the case with the adoption of international human rights instruments: the vote was 30 in favor, 2 against and 12 abstentions.
As to countries in the Arctic region, Finland voted in 168 Project Day Session favor of the dra$ declaration in the Council, but Canada and Russia cast the two negative votes.

When the dra$ declaration came up for a ﬁ nal vote in the UN General Assembly in December 2006, it was decided not to take action on the text pending further consultations.
It is mainly provisions on the right of self-determina- tion that have been the source of disagreement in the elaboration and voting on the dra$ declaration, and one has to admit that in that respect there are somewhat good reasons for the non-approving votes.

In particular, when it comes to self-determination, the dra$ declara- tion is ambiguous since the text does not clearly distin- guish between its external and internal dimensions.
The main thrust of the dra$ declaration is on internal self-determination, as is inherent in an instrument deal- ing with the enjoyment of rights within States.

Dra$ ar- ticle 4 says that “Indigenous peoples, in exercising their right of self-determination, have the right to autonomy or self-government in ma" ers relating to their internal and local aﬀ airs, as well as ways and means for ﬁ nanc- ing their autonomous functions”.
In several other arti- cles, the dra$ declaration constructs or refers to autono- mous functions of an internal character, for example in articles 14, 18-20, 23, 26, 31-34, and 36.

On the other side, dra$ article 3 reads: “Indigenous peoples have the right of self-determination.
By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” This wording is derived from common article 1 of the two International Covenants on Human Rights and can be seen as having an external dimen- sion.
That same sentiment is reﬂ ected in the 16th and 17th paragraphs of the dra$ declaration’s preamble, with a listing of the main sources of self-determination in general and with a reference to parameters of inter- national law that are still under evolution.

If adopted and if accompanied by a serious monitor- ing mandate, the new declaration with a wide range of substantive provisions would on many fronts sig- niﬁ cantly strengthen the rights of indigenous peoples.
This would be welcome, also as a tool for harmonizing national practices.

Nevertheless, it is unfortunate if this human rights instrument were to create unrealistic ex- pectations as to its self-determination aspects and even the potential for violent conﬂ ict.

The Draft Nordic Sami Convention (4) The dra$ Nordic Sami convention has been circulated for comments in the three countries involved, Finland, Norway and Sweden, and among the Sami.
Many as- pects of the dra$ text are progressive and highly praise- worthy, not least in terms of an increased role for the Sami and their own institutions and self-governance on political, economic and cultural ma" ers, as well as for the idea of adopting a treaty with the indigenous peo- ples as partners.

Nevertheless, a few provisions in the dra$ convention may give rise to concern.
Article 34 on land rights, pro- viding for both individual and group rights, looks like falling below the standard set in article 14 of ILO Con- vention No.

169 that extends land rights to the groups only so as to prevent the spli" ing up of indigenous lands which in turn would harm their pursuit of iden- tity and culture.
Under article 3 of the dra$ convention, the Sami would have the right of self-determination as a people in ac- cordance with international law and the provisions of the convention, and to the degree allowed they could decide on their economic, social and cultural develop- ment and control their natural resources.
While again the thrust of dra$ article 3 and subsequent articles of the text is on internal self-determination, the references to international law as well as wording in the accompa- nying explanatory notes leave the door open to varying interpretations and therefore uncertainty.

In my opinion, albeit to a lesser degree, the dra$ con- vention may suﬀ er from the same type of ambiguity as the UN dra$ declaration, blurring the lines between external and internal self-determination.
One must keep in mind that this convention, if adopted, would likely serve as a model for other countries and indig- enous peoples.

In the dra$ ing of human rights instru- ments every eﬀ ort should be made, both as to internal consumption and external precedent, to employ crystal clear language and terminology so as to avoid mislead- ing messages and unrealistic expectations.
The Status of Greenland (5) As to the people of Greenland, they meet all the criteria which have been laid down in the course of the decolo- nization process as conditions for the exercise of the right of external self-determination: - they live in a distinct overseas territory with an ocean separating them from Denmark, meaning the so-called salt-water theory of decolonization is applicable.

The Greenlandic situation is thus quite diﬀ erent from that of groups which live within metropolitan boundaries.
Ac- cordingly, in a 1998 case, the Supreme Court of Canada found that Quebec does not meet the threshold of co- lonial or other criteria pertinent to the right of external self-determination; Project Day Session 169 L e g a l C h a l l e n g e s i n t h e A r c t i c - they possess subjective and objective identity and culture, with distinct identity, history, language and other national characteristics that diﬀ er signiﬁ cantly from those of the administering power and o$ en re- sult in separate status or diﬀ erent treatment (like non- membership in the European Union, exclusion in some Danish treaty ratiﬁ cations, a ﬂ ag and postage stamps of their own, etc.
); Relying on decolonization constitutes the strongest claim to external self-determination under international law.

The decolonization argument, no ma" er how mild and modern the colonization setup may be, is therefore an avenue which in my view is open to the Greenland- ers as a people.

It will be interesting in the years ahead to follow the debate in Greenland and to see what deci- sion the Greenlandic people eventually will take.
- they have come under long-standing colonial control, as conﬁ rmed by Denmark with the inclusion of Green- land on the list of non-self-governing territories under the UN Charter from 1946 to 1954.
The termination of this listing in 1954 was seriously ﬂ awed under interna- tional law standards of that time; the consultation was minimal and did not extend to the whole people, the Greenlanders were not given the required options like independence or free association and, unlike the popu- lation of Denmark, they were not able to vote in the ref- erendum on the amendment to the Danish constitution which brought about their supposed integration; and - In Danish reports to the United Nations during the period 1946-54, the information submi" ed was seri- ously ﬂ awed and misleading, including statements to the eﬀ ect that there were no Eskimos le$ in Greenland because of the mixing with Danish blood and that the Greenlanders had accepted integration when approved in a municipal council which did not represent the whole island, did not have a mandate for deciding on constitutional issues, did not receive information about the full implications of the process, and was not given any other choices than integration.
A people in the pursuit of the right of external self-de- termination, should be entitled to leveling the playing ﬁ eld with the controlling State, with the aim of equal footing in negotiations.

International law considera- tions have an impact, and this applies not least to le- gitimate decolonization claims where the solidarity of newly independent States and peoples will enter the picture.
Accordingly, the mandate for ongoing nego- tiations between Denmark and Greenland, in a joint parliamentary Self-Governance Commission which is scheduled to complete its work in 2007, encompasses both international law and Danish constitutional law.

Concluding Observations (6) It’s time for a few concluding observations.

The human rights picture now drawn up presents a series of human rights challenges that are pending in the Arctic.

Still the list is by no means an exhaustive one.


A survey of the in- digenous peoples in the Arctic region shows diﬀ erences in State responses as to the scope of self-governance or autonomous arrangements, with some of them gener- ous and others more restrictive.

Similar diﬀ erences exist as to the active protection of identities and cultures and, in particular, the rights to lands and natural resources.

These challenges will be diﬃ cult to deal with.


That is so not because the legal solutions are missing or because the international standards are unclear, but because of political opposition by States and population majorities when it comes to sharing power and natural wealth.

One must hope and expect that the rich and democratic countries of the far North can do be" er.
They should be willing and able to undertake signiﬁ cant human rights improvements that would lead to be" er living conditions for their indigenous peoples in dignity and without discrimination and to consistency of treatment, not least in relation to self-governance and land and resources rights, also when new arrangements would result in multi-layered governance and increased cross- border cooperation.
Notes 1 The author is Professor at the Law Faculty of Lund University and the Faculty of Social Sciences and Law at the University of Akureyri and former Director (1995-2006) of the Raoul Wallenberg Institute of Human Rights and Humanitarian Law in Lund.

He is an expert member of the Danish-Greenlan- dic Self-Governance Commission, Chairman/Rapporteur of the UN Working Group on Minorities, and Editor-in-Chief of the International Journal on Minority and Group Rights.