2. International Conventions and Their Status in Norwegian Law

Through the Human Rights Act, the Equality and Anti-Discrimination Act and the Finnmark Act, several of the key human rights provisions concerning the protection of indigenous peoples’ rights have been made directly applicable in Norwegian law.

2.1 Incorporation of human rights into Norwegian law

Human rights conventions, as with other conventions or treaties, are legally binding agreements amongst the states that choose to be parties to them. Human rights regulate primarily the relationship between each state and the individuals under its jurisdiction.

The authorities are obliged to implement, that is, respect and ensure, human rights. Article 92 of the Norwegian Constitution states that “The authorities of the State shall respect and ensure human rights as they are expressed in this Constitution and in the treaties concerning human rights that are binding for Norway.”

In other words, public authorities at all levels, both state and municipal, are obliged by human rights.

Norwegian law and international law are basically two different and separate legal systems. In order for international rules to have direct effect in Norwegian national law, they must be incorporated separately. Through the Human Rights Act, the Equality and Anti-Discrimination Act and the Finnmark Act, several of the central human rights provisions have been incorporated (made directly applicable as Norwegian law). This does not mean that the incorporated rights in themselves are stronger than treaty rights that have not been incorporated, but that they can have a more direct impact on the Norwegian legal system. International law takes effect in Norwegian national law through three different approaches:

1. It is noted that there are no contradictions between the international rule and Norwegian law and that therefore no action is being taken (determination of legal harmony or passive transformation).
2. The international rule is given effect through some legislative changes (transformation).
3. The international rule is given direct effect in Norwegian law (incorporation).

The ICCPR is incorporated into the Human Rights Act.¹⁰Act Relating to the Strengthening of the Status of Human Rights in Norwegian law (the Human Rights Act) of 21 May 1999. It takes precedence over other Norwegian legislative provisions through Section 3 of the Act in the event of a conflict with them.¹¹Human Rights Act Section 3. The same applies, inter alia, to the European Convention on Human Rights (ECHR).¹²Other conventions incorporated in this law are the UN International Covenant on Economic, Social and Cultural Rights (ICESCR), the UN Convention on the Rights of the Child, and the UN Convention on the Elimination of All Forms of Discrimination against Women. The UN International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), which is also relevant for the protection of indigenous peoples and the culture of minorities, is incorporated into the Equality and Anti-Discrimination Act¹³Act Relating to Equality and a Prohibition against Discrimination (Equality and Anti-Discrimination Act) of 16 June 2017. – that is, it has the same status as other laws. ILO 169 is partially incorporated into Section 3 of the Finnmark Act.¹⁴Act Relating to Legal Relations and Management of Land and Natural Resources in Finnmark (Finnmark Act) of 17 June 2005. It states that the Act applies with “the limitations that follow from ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries” and that the Act shall “be applied in compliance with the provisions of international law concerning indigenous peoples and minorities”. An equivalent provision is also found in the Tana Act (Act on fishing rights in the Tana watercourse of 20 June 2014) Section 3. The Reindeer Husbandry Act (Act Relating to Reindeer Husbandry of 15 June 2007) also stipulates that: “The Act shall be applied in accordance with the rules of international law on indigenous peoples and minorities”. Although this provision does not have the same wording as the Finnmark Act Section 3, it is assumed that it has a similar content. See Susann Funderud Skogvang, Samerett, 3rd ed., (Oslo: Scandinavian University Press, 2017), p. 260, cf. p. 122. The Minerals Act Section 6 also has a similar wording and must be assumed to have a corresponding significance for the scope of the Minerals Act.

The relevant provisions of these conventions are covered in Chapter 3.

2.2 The Constitution Article 108

Article 108 of the Constitution states that “The authorities of the state shall create conditions enabling the Sami people to preserve and develop its language, culture and way of life.”

The provision was adopted in 1988 as Article 110a of the Constitution. In the constitutional reform in 2014, it was moved to Article 108. The provision is based on a proposal from the Sami Rights Committee in the NOU (Official Norwegian Report) 1984:18, which in accordance with the Committee’s mandate, contained a study of the basis and design of a constitutional provision. The report refers to, among other things, increasing demands for an explicit recognition of the status of the Sami people. Furthermore, the Sami Rights Committee’s report states that “[…] even if the most significant effect will be of a political and moral nature, and not of a legal nature, the provision will also impose a certain legal obligation on the state authorities”.¹⁵NOU 1984:18, p. 432.

Article 108 of the Constitution is based on ICCPR Article 27 and there is a close link between the provisions.¹⁶On the relationship between ICCPR Article 27 and the Constitution Article 108, see NOU 2007:13 p. 190 onwards, as well as NOU 2008:5 p. 259 onwards. To ensure that the constitutional provision would provide sufficiently far-reaching cultural protection, the term “way of life” was included in addition to the concept of culture.¹⁷NOU 1984:18, p. 437. The provision establishes the state’s legal obligations to the Sami people and has independent significance in the interpretation of laws and in the application of customary law rules.  This is discussed in the Supreme Court’s plenary judgment in a case concerning wilderness management in Nesseby,¹⁸HR-2018-456-P (Nesseby), para. 91. where reference is made to the preparatory works for the constitutional amendments in 2014.¹⁹Document 16 (2011–2012) Report to Parliament’s Presidency of the Human Rights Committee on human rights in the Constitution, p. 215. In these preparatory works, the significance of the provision (formerly Article 110a) is described as follows:

Although Article 110a of the Constitution first and foremost is aimed at the Government and Parliament, the principle expressed in the provision may have an impact on the interpretation of laws and in the application of customary legal rules, for example as a guiding provision for the exercise of discretion by administrative authorities.²⁰Document 16 (2011–2012), p. 215.

In a case concerning liability for Femund sitje (a reindeer district), the Supreme Court stated that Article 108 of the Constitution has independent significance in the interpretation of laws, in the application of customary legal rules and as an independent legal basis where other sources of law do not provide an answer.²¹HR-2018-872-A (Femund sijte), para. 39. The case concerned a claim for compensation for damage caused by reindeer on cultivated land. This was repeated in the Fosen judgment, where the Supreme Court ruled that Article 108 of the Constitution “is based on Article 27 ICCPR and may constitute an independent legal basis where other sources of law give no answer”.²²HR-2021-1975, (Fosen), para. 99. In the Fosen judgment, the Supreme Court also stated that Article 108 of the Constitution supports the understanding that reindeer herding groups (siidas) can have the legal capacity to sue and be sued in Norwegian courts.²³HR-2021-1975, (Fosen), para. 110.

In legal theory, it has been pointed out that the courts have both a competence and an obligation to review whether the authorities comply with the obligations pursuant to Article 108 of the Constitution, but that this right of review may have limited significance in practice because the obligation is so generally formulated.²⁴Skogvang, Samerett, pp. 185 and 188 onwards.

The Supreme Court has ruled that the human rights provisions of the Constitution should generally be interpreted in light of its “models” under international law. The Supreme Court, however, has stated that future practice by the international enforcement monitoring bodies does not have:

the same judicial precedent in a constitutional interpretation as in the interpretation of the parallel provisions of the convention: In our view, it is the Supreme Court — not the international enforcement agencies – which has the responsibility to interpret, clarify, and develop the Norwegian Constitution’s human rights provisions.²⁵Rt. 2015 (Maria) p. 93, para. 57.

The Supreme Court has ruled that the protection pursuant to Article 108 does not go further than the protection pursuant to ICCPR Article 27.²⁶HR-2017-2428-A (Sara), para. 53.

2.3 UN Declaration on the Rights of Indigenous Peoples (UNDRIP)

Human rights conventions such as the ICCPR, ICERD and ILO 169 form part of the international legal basis for the protection of indigenous peoples against interferences in their traditional business activities.²⁷Other instruments of international law also provide material protection for indigenous peoples’ cultural practice, e.g. the Convention on Biological Diversity (CBD). The UN Declaration on the Rights of Indigenous Peoples (UNDRIP), which is a newer instrument, is based in part on these conventions as well as on practice and customary practices. UNDRIP is not in itself legally binding but is largely inspired by and reflects legally binding provisions, in particular ICCPR Article 27 as interpreted by the Human Rights Committee, as well as ILO 169.

A key starting point in the Declaration is that, pursuant to Article 2, indigenous peoples are equal to other peoples, and that under Article 3, they have a right to self-determination and that they can freely determine their political status and pursue their “economic, social and cultural development”.²⁸The exercise of this right of self-determination shall be seen in light of Article 4 on “internal and local affairs”, and Article 5 on the right to “maintain and strengthen” their institutions. See more about the right to self-determination in Chapter 3.3.2.

The Declaration has several provisions concerning rights to land and natural resources. Two key provisions in this context are Article 26 and Article 32.

While Article 26 recognises indigenous peoples’ right to land and natural resources and control over them, Article 32 has formulations of indigenous peoples’ own priorities on the development and use of resources, in particular, situations concerning the development of indigenous peoples’ areas. According to the provision, states shall consult with indigenous peoples concerned for the purpose of obtaining “their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources”.

In the Nesseby judgment, the following was said about the significance of the declaration:

The UN Declaration on the Rights of Indigenous Peoples (UNDRIP), adopted at the UN General Assembly in 2007, must be regarded as a central document within indigenous law, as it reflects the international law principles in the field and has gained support from a large number of states. […] It is not legally binding, and the scope of its provisions does not seem wider than the scope of the provisions in binding conventions, primarily the ILO Convention no. 169.³⁰HR-2018-456-P (Nesseby), para. 97.

This statement thus emphasises that although the Declaration itself is not legally binding, it largely reflects binding international law. It is therefore an important instrument for the development and implementation of indigenous peoples’ rights.³¹This is emphasised i.a. by the fact that the international community is behind the Declaration. At the vote in the UN General Assembly on 13 September in 2007, 143 states voted in favour of the Declaration, four voted against and 11 abstained. The four who voted against have later accepted the Declaration.

2.4 International monitoring

Human rights conventions are monitored and interpreted by their own treaty bodies, which can be a committee, expert group or court. The national impact of the various treaty bodies varies, and depends, among other things, on the design of the convention, the mandate of the treaty body and how the conventions are incorporated into Norwegian law.

Judgments from the European Court of Human Rights (ECtHR) are directly binding on the state that is a party to the individual case. The judgments contain interpretations of the provisions of the convention, and the guidelines laid down in judgments from the ECtHR are generally of great importance to all member states of the Council of Europe.³²The individual judgment is only directly binding on the state party to the case, but nevertheless often lays down guidelines for other member states.

For the UN conventions on human rights, separate monitoring bodies (treaty bodies) have been established to monitor states’ compliance with the conventions. The committees consist of independent experts who are nominated and elected by the states parties to the relevant convention. The monitoring takes place, among other things, through the examination of the states’ periodic reports on the implementation of the conventions, which states must provide regularly at intervals of a few years. After the individual state has been examined by the committee, the committee prepares so-called Concluding observations which contain recommendations to the state.³³In connection with the states’ reports, both affected civil society organisations and national human rights institutions can submit their own so-called “shadow reports” with input to the committees.

These committees also adopt general interpretative statements for various provisions of the individual convention, referred to as General Comments or General Recommendations. The comments express what the committees believe is the more detailed content of the individual provisions of the conventions. In an analysis of the statements of the treaty bodies, the General Comments are therefore characterised as a form of treaty writing.³⁴Thom Arne Hellerslia, “Uttalelser fra FN-komiteene–en strukturell analyse” (“Statements from the UN Committees – a Structural Analysis”), Jussens Venner 53, no. 02 (2018), p. 31. The closer the comments are anchored in the text of the convention, the more binding the states will perceive them.³⁵In a case concerning whether the state had an obligation to comply with a request for interim measure from the Committee against Torture, the Supreme Court stated that this “has no basis in the text of the convention”, Rt. 2008 p. 513, para. 57. The most important general comment in the indigenous peoples’ area is General Comment 23 from the Human Rights Committee that deals with ICCPR Article 27.³⁶HRC General Comment No. 23, para. 27 (Rights of Minorities).

Most of the UN human rights conventions also have provisions where individuals who allege that they have been the victim of a violation of the convention by a State Party, can lodge a complaint to the relevant committee. Such individual complaint mechanisms are optional, and state parties to the individual convention can choose to accept them.³⁷Norway has accepted such individual complaint mechanisms for ICCPR, the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), the International Convention on the Elimination of All Forms of Racial Discrimination and the Convention against Torture. Statements (views) from UN committees (treaty bodies) in cases concerning whether there has been a violation of a convention are not binding under international law, but may have legal significance in national jurisdictions. In for example a Grand Chamber decision by the Supreme Court, it was stated “On the basis of what I have reviewed here of the preparatory work on the Human Rights Act, I find it clear that a convention interpretation made by the UN Human Rights Committee must have considerable weight as a source of law.”³⁸Rt. 2008 p. 1764 (Restauratør decision), para. 81. The question concerned the legal significance of a statement in an individual communication before the Human Rights Committee (it was not a case against Norway), paras. 89 and 91. It is in particular where there is a interpretation of the wording of the convention that the statement may be given weight. The Supreme Court has stated that “The decisive factor will nevertheless be how clearly it must be considered to express the monitoring bodies’ understanding of the parties’ obligations under the conventions. In particular, one must consider whether the statement must be seen as an interpretative statement, or more as a recommendation on optimal practice within the scope of the convention.”³⁹Rt. 2009 p. 1261, para. 44.

The Supreme Court has also stated that statements on the interpretation of the convention’s wording in the form of General Comments can be given “considerable weight”.⁴⁰HR-2016-2591-A, para. 57. The case concerned guardianship and the UN Convention on the Rights of Persons with Disabilities (CRPD). See also Rt. 2008 p. 1764 (Restauratør decision), para. 81. The UN Human Rights Committee’s General Comment on ICCPR Article 27 is therefore important in interpreting this provision.

The Human Rights Committee has decided on a number of individual complaints related to ICCPR Article 27 in cases concerning interference in indigenous peoples’ culture. This practice is central to the further determination of the content of the provision.

The ICERD also has a monitoring committee (the Committee on the Elimination of Racial Discrimination), which makes General Recommendations as well as statements in individual complaint cases.

The ILO has its own monitoring system, where states report to the ILO’s expert committee for monitoring the implementation of conventions and recommendations (CEACR).⁴¹ILO, “Supervision of Convention No. 169 and No. 107 (Indigenous and Tribal Peoples)”, https://www.ilo.org/global/topics/indigenous-tribal/supervision/lang-en/index.htm. The expert committee prepares reports for the ILO’s annual labour conferences, which are the ILO’s highest body. When the expert committee has concluded that a state has not fulfilled its obligations under the convention, it may be asked to explain itself to the labour conference.

The ILO’s Constitution also establishes a system of appeals, in which a state can complain against another state, as well as a system in which employers’ and workers’ organisations can complain, the so-called “organisational complaints”, which is the most used of these two systems.⁴²The ILO also has arrangements for co-operation and consultations with e.g. international civil society organisations, including the Sami organisation the Sami Council. ILO, “Complaints”, https://www.ilo.org/global/standards/applying-and-promoting-international-labor-standards/complaints/lang-en/index.htm. ILO, “Non-State Actors and Civil Society”, https://www.ilo.org/pardev/partnerships/civil-society/lang–en/index.htm. The Sami Council is on the “ILO Special List of NGOs”, https://www.ilo.org/pardev/partnerships/civil-society/ngos/ilo-special-list-of-ngos/lang–en/index.htm