European Court of Human Rights for the Protection of Arctic Indigenous Peoples' land rights

133 Pages·2017·1.8 MB·English

European Court of Human Rights for the
Protection of Arctic Indigenous Peoples’ land
rights

Jan Mikael Lundmark

Faculty of Law/School
University of Akureyri
2017
XXdeild/svið

European Court of Human Rights for the
Protection of Arctic Indigenous Peoples’
land rights

Jan Mikael Lundmark

30 ECTS thesis submitted in
partial fulfilment of the degree of
Master of Polar Law (LLM)

Advisor
Professor Guðmundur Alfredsson

Faculty of Law
School of Humanities and Social Sciences
University of Akureyri
Akureyri, November 2017
The European Court of Human Rights for the Protection of Arctic
Indigenous Peoples’ land rights
Arctic Indigenous Peoples and European Human Rights
30 ECTS thesis submitted in partial fulfilment of the degree of Master of
Polar Law (LLM)

Copyright © 2017 Jan Mikael Lundmark
All rights reserved

Faculty of Law
School of Humanities and Social Sciences
University of Akureyri
Sólborg, Norðurslóð 2
600 Akureyri

Telephone: [phone]

Bibliographic information:
Mikael Lundmark, 2017, The European Court of Human Rights for the
Protection of Arctic Indigenous Peoples’ land rights, Master’s thesis,
Faculty of Law, University of Akureyri

Printing: Teknologtryck
Gothenburg, Sweden November 2017
Abstract
This study examines how indigenous peoples’ right to property of
ancestral land has been interpreted by three international human rights
courts; the European Court of Human Rights, the Inter-American
Court of Human rights, and the African Court on Human and People’s
Rights. The study shows that the European Court is lagging behind the
development of international law concerning indigenous peoples'
rights, and in relation to its counterparts takes a more conservative
position in their interpretation of indigenous peoples’ right to property.
In an Arctic context, this means that the only human rights court with
the mandate to examine cases concerning indigenous peoples rights
fails to take into account the progressive development of international
law. However, based on the concepts of rights and property, through
the history of the European human rights system, the study shows that
the European system contains the necessary elements for the European
Court to take into consideration the unique situation of the Arctic
indigenous peoples in its interpretation of the indigenous peoples'
rights to their ancestral land, under Article 1 of Protocol No. 1 of the
European Convention.

To the Memory of My Grandmother Agda Pettersson

Preface
The violation of right lies either in the fact
that the holder possesses as proprietor, while
he should possess only as usufructuary; or in
the fact that he has purchased a thing which
no one had a right to transfer or sell.
(P.J Proudhon/St. Paul)
In the past 50 years, the Convention for the Protection of Human Rights and
Fundamental Freedoms has been a guiding beacon and a blueprint for
international human rights protection. From the theoretical protection
introduced in the aftermath of the Second World War in the first half of the
twentieth century Strasbourg, the European Court of Human Rights has
added substantial materials to develop a comprehensive system for the
provision of protection of human rights. During the same time Arctic
indigenous peoples, living in the outskirts of the convention’s geographical
scope, continues to struggle for recognition of rights that we all take for
granted. It could be expected that alongside with a changing climate leading
to accessibility to areas in the north for various reasons, and international as
well as regional recognition of indigenous peoples’ rights to their traditional
land, the question should be in the centre of attention also for the European
Court. A question that the European Court recognises is complex not only
due to history and legal issues, but also politically. This thesis provides an
analysis of the European Court’s approach to the first article of the Protocol
to the Convention for the Protection of Human Rights and Fundamental
Freedoms, by comparing it to the approach taken by the Inter-American
Court of Human Rights and the African Court on Human and Peoples’ rights.
Jan Mikael Lundmark
Akureyri, 2017