A Research Outline for a Doctoral Thesis Presentation
PhD Candidate Laila Susanne Vars
Affirmed in the United Nations Charter and other principal international legal instruments,
self-determination is acknowledged to be a principle of customary international law. Selfdetermination is even a jus cogens norm, deriving from philosophical affirmations of human
equality. The United Nations` successful attempts at law- making in the human rights field in
the 1960s and 1970s led to a gradual expansion of the “principle of equal rights and selfdetermination of peoples” mentioned in the Charter. The term gained prominence in
international political discourse around World War 1.
The 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples,
and the 1970 Declaration on Principles of International Law concerning Friendly Relations
and Co-operation among States in accordance with the Charter of the United Nations were
two of the most significant resolutions that were adopted by the United Nations during this
process. The latter is considered to restate customary international law, and it includes a
provision which reads “all peoples have the right freely to determine, without external
interference, their political status and to pursue their economic, social and cultural
development.” The Declaration on Friendly Relations also includes a reference to the
principles of “territorial integrity or political unity of sovereign and independent States”, and
a frequently reiterated admonition concerning actions which would dismember or impair the
territorial integrity and political unity of such states.
The right to self-determination is a fundamental, collective human right. It is one of the
fundamental principles of the UN Charter1, and many of the UN General Assembly
Resolutions concern the right to self-determination.2 The right to self-determination is also
mentioned in the Helsinki- declaration, the African Human Rights Declaration, The CSCE
Charter of Paris for a new Europe. The International Court of Justice (ICJ) has referred to the
peoples right to self-determination in the cases of Namibia (1971 ICJ 16), the Western Sahara
case (1975, ICJ 12) and the East Timor case (1995, ICJ 102).
The two international human rights covenants that were drafted during the 1950s and 1960s,
the International Covenant on Civil and Political Rights (ICCPR) and the International
Covenant on Economic, Social and Cultural Rights (ICESCR) contains both an identical first
article:
“1. All 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.
2. All peoples may, for their own ends, freely dispose of their natural wealth and resources
without prejudice to any obligations arising out of international economic co-operation,
based upon the principle of mutual benefit, and international law. In no case may a people be
deprived of its own means of subsistence.
3. The States Parties to the present Covenant, including those having responsibility for the
administration of Non- Self- Governing and Trust- Territories, shall promote the realization
1
2
Article 1 (2) and 55, and chapters XI and XII.
For instance: Resolution 1514 (XV), Resolution 1541 (XV) and Resolution 2625 (XXV)
of the right of self- determination, and shall respect that right, in conformity with the
provisions of the Charter of the United Nations.”
Article 1 comprises of three paragraphs that relate to the various dimensions of selfdetermination. Paragraph 1 is a proclamation of the right to self- determination and its main
dimensions: the political dimension (the right to freely determine their political status) and the
resource dimension (the right to pursue their economic, social and cultural development).
As a collective human right, the linkage between self-determination and the term “peoples”
becomes obvious. There are many variants of approaches to the right of self-determination,
and most approaches have that in common that they restrict the scope of self-determination to
only concern classic colonial situations, populations in already existing independent states or
people that live in exclusive territorial communities (typical example: people living on
islands). Many of these approaches are problematic for indigenous peoples who are in a
minority situation or otherwise not able to fully enjoy their human rights and fundamental
freedoms.
The understanding of indigenous peoples as beneficiaries of the right to self- determination
has been evolving; by, inter alia, practice of governing bodies and recommendations from
international conferences and by various contributions of scholars and experts in the field.3
Leading scholars on the subject has been preoccupied by the dichotomy of “internal” vs.
“external” self- determination. This discussion has two different domains: one having to do
with matters entirely internal to a people (for instance the right to political participation and
other local affairs), and the other having to do with the peoples status vis-à-vis other peoples
(international participation, freedom of alien rule). The political dimension in article 1, para 1
in the Covenant on Civil and Political Rights (ICCPR) includes both the external aspect of
sovereignty and the internal aspect of governance. There are several international norms
which must be elaborated on in a self-determination context. Jim Anaya includes the
following categories; non-discrimination, cultural integrity, lands and resources, social
welfare and development and self-government.4
Article 28 in the ICCPR establishes the Human Rights Committee (HRC) to monitor the
implementation of the Covenant. The dynamic interpretation reflected in the practise of the
HRC will naturally be a part of the analysis. Both individual cases, periodic reports by the
State parties and general comments and observations of the HRC will cast light upon the
interpretation of article 1 in the ICCPR, and will thus be examined. The HRC has in its
Concluding Observations emphasized the link between the political dimension in article 1 and
article 25 that requires democratic governance.5
Some of the UN human rights bodies have addressed issues relating to indigenous peoples
right to self- determination. The UN General Assembly has stated that “The right [contained
in article 1 of the Covenants] would be proclaimed in the Covenants as a universal right and
for all time.” The implementation of a people’s right to self- determination is by many experts
3
For more on this subject see, inter alia: S. James Anaya, Indigenous peoples in International
Law, (2000) M. Scheinin and P. Aikio (eds) Operationalizing the Right of Indigenous Peoples
to Self- Determination (Åbo 2000),C. Tomuschat (ed.) Modern Law of Self- determination
(Dordrecht, Martinus Nijhoff, 1993), Thomas D. Musgrave Self- determination and national
minorities (Oxford 1997)
4
Anaya, Indigenous Peoples in International Law (2000)
5
R. Hanski and M. Scheinin, Leading Cases of the Human Rights Committee (Åbo 2003) 414
seen as a condition for the fulfilment of other human rights and fundamental freedoms. The
Draft United Nations Declaration of the Rights of Indigenous Peoples contains specific
recognition of their right to self-determination, borrowing language from the Covenants
article 1.6 Explicit references to either article 1 or to self-determination have been made in the
HRC concluding observations on Mexico (1999), Norway (1999) Australia (2000), Denmark
(2000) and Sweden (2002). In its comments to the Periodic Reports of Norway and Sweden
the Committee has a specific reference to the Sami people’s right to self-determination.
In the first part of the thesis I will look into some of the main concepts concerning selfdetermination, specially the understanding of the term “peoples” and “indigenous peoples”. In
the second part I will give an analysis of the right to self-determination in contemporary
international law, including the international norms that are closely linked to it, and the latest
developments in modern international law. I will look into the development of the principle
in the practise of international governing bodies, contemporary teachings of scholars and the
process in the United Nations Working Group on the Draft Declaration on the Rights of
Indigenous Peoples (WGDD).7
Governments have been reluctant to concede that indigenous peoples are beneficiaries to this
right if this right includes a right of secession, even though many scholars have pointed out
that a people’s right to self-determination does not automatically entail a right of secession or
statehood for every group that qualifies as a distinct people. The right to secede is recognized
only under specific circumstances.8The narrow context of decolonization which the United
Nations resolutions regarding the people’s right to self- determination are written in can no
longer be decisive to the understanding of the principle. In a classical colonial situation, selfdetermination is often equated to the right to secede from the colonial powers. However,
unless a group has no other option but to secede in order to protect itself from fundamental
violations of human rights, self- determination should be sought within the existing nation
states. This means that contemporary international law already limits the right to secession to
those cases where there are no other options for the people in order to survive as a distinct
people. This makes it less understandable that many states still have difficulties accepting
indigenous people’s right to self-determination.
Like other peoples, indigenous peoples, including the Sami people of the Arctic, claim their
right to self-determination. The Sami people have, like many other indigenous peoples,
retained their own social structures, institutions and identities to present time. My objective is,
besides analyzing the self- determination principle, to make some recommendations on how
to solve the claim of sami self-determination. Will the recognition of a right to selfdetermination for the Sami people in Finland, Norway and Sweden be a good solution for the
Sami minority? Are there other ways to comply with the needs and claims of the Sami people,
without recognising the Sami people’s right to self-determination, and at the same time
securing the Samis peoples fundamental rights? Will it be contra productive to use a term
which is primarily based on ideologies that differ substantially from the ideologies of
indigenous peoples, a principle which has been shaped without the influence of indigenous
peoples?
6
7
8
See Article 3 in the draft declaration.
UN- document: E/CN.4/Sub.2/1994/2/Add.1
For example see the Quebec Secession Case (Supreme Court of Canada) Reference re
Secession of Quebeq (1998) 2 S.C.R. 217, paragraph 128.
The ongoing preparatory work towards the regional recognition of the right to selfdetermination of the Sami will be a milestone in the history of indigenous people’s rights
worldwide. One of the key issues in the mandate of the Expert group drafting a Nordic Sami
Convention is the issue of self-determination for the Sami. Another important issue is the
process of recognizing Sami land rights in areas which they have occupied and used. Closely
linked to the discussion of self-determination is the discussion of indigenous people’s
permanent sovereignty over natural resources. This discussion includes the principle of prior
and informed consent (PIC), another topic that is extensively discussed internationally at the
moment. The principle of PIC, if applicable, clearly implies a right for the Sami people to
exercise some form of control over their lands can thus be said to be one way to exercise the
right to self-determination. The Sami land issues will thus naturally be touched upon when
the doctoral thesis investigates the link between the right to self-determination and states
claim to permanent sovereignty over natural resources.
It will be useful to make some comparisons with other indigenous peoples that are in the same
situation as the Sami; inhabiting areas which are under the jurisdiction of many nation states
where they constitute a minority.
Methods and theories to be used in the project
Evidently, the doctoral thesis will predominantly be based on sources of international law.
There are a number of articles and books of academic and other character on selfdetermination, but there has not, not to my best knowledge, been Official documents
produced by UN organizations in preparation for conferences etc., will also be of great
importance for the analysis. In addition, cases and comments from the Human Rights
Committee will be of great importance. In conclusion, the findings in the doctoral thesis can
be expected to be based predominantly on the sources of international law, but also on the
conclusions from my study on the legal characteristics and customs of the Sami people
themselves and studies of the constitutional framework of the Nordic countries in question.
The research will give an outline on some of the different aspects which hopefully will give
some substance to the right to self-determination of indigenous peoples.
In order to make some recommendations on how the sami claim for self-determination should
be solved, firstly I need to give an analysis of the norm and the current understanding of it in
international law.
Secondly, I will do some comparative studies of the legal situation of the Sami people in
Finland, Norway and Sweden. There are many methods one can use to analyze the legal
situation of the Sami people in these countries, inter alia comparative studies of the
constitutional framework in each country. There are also some differences in the legal
situation of the Samis, depending on which country they are citizens of. Norway has ratified
the ILO Convention no. 169 on the rights of indigenous and tribal peoples. Finland and
Sweden are still considering which changes they have to make in their domestic law in order
to ratify the convention. The ILO Convention does not include a reference to selfdetermination, but requires the development of special measures to safeguard indigenous
people’s culture, and recognize their rights to the lands and resources which they own, use or
otherwise occupy. It also includes many provisions which give indigenous peoples a right to
participate in decision making processes and to be consulted in issues relating to them.
Thirdly, there is the challenge of culture, values and the internal aspects of the Sámi culture:
How was the Sámi society before the assimilation processes and the establishment of the
Nordic states? 9 I would like to examine both the Sámi political and social structures of today,
and the traditional “tribal /siida” governance and social structures. The latter, the Sámi people
had up to the time when the states to some degree successfully changed Sámi traditional way
of living by, inter alia, making laws that made lasting changes in some of the Sámi social
structures. Elements of the siida- governance still exist in different segments of the Sámi
society. The siida as a traditional governing model, would it be a good model and form the
basis of increased Sámi self-rule today? As a part of this “legal-anthropology” and historical
examination, I will try to find elements in Sámi customary law that says something about
what kind of governing systems the Sámi people traditionally had. In the Sámi society there
was a distinction between the female and the male areas of responsibility – perhaps the selfdetermination of Sámi in practice should reflect those differences? The different siidas had
their own siida areas, which some of the Sámi elders still know about. Could this kind of local
governance (return to the siida- system) be a good solution for the Sámi claim of selfdetermination?
9
The political and legal situation of the Russian Samis will not be a part of this thesis.