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Arctic Indigenous Peoples and International Law

In: Nordic Journal of International Law
Authors:
Sara Olsvig Chair, Inuit Circumpolar Council, PhD-fellow Ilisimatusarfik – University of Greenland, Nuuk, Greenland

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Miriam Cullen Associate Professor, Faculty of Law, University of Copenhagen, Copenhagen, Denmark

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Abstract

Arctic Indigenous Peoples have, through their own persistence, advanced the development of the Western European legal norms in a system that once facilitated their colonisation. The fiftieth anniversary of the Arctic Peoples’ Conference took place in 2023. The occasion was marked with another Conference, this time in Ilulissat, Greenland. It was a moment to reflect on the achievements of Arctic Indigenous Peoples, to build upon the 1973 resolutions and to address contemporary challenges. The resultant Joint Statement addresses the need for enhanced engagement in the forums of international law, intergenerational justice, intersecting rights to wellbeing, land, water and natural resources, and to address the risks posed by climate change and colonialism.

1 Introduction

This year marks the fiftieth anniversary since the first Arctic Peoples’ Conference was held in 1973, at which Indigenous Peoples1 from across the Arctic came together for the first time in an event organised by and for themselves.2 Fifty years on, in July 2023, that landmark moment was celebrated with another Arctic Peoples’ Conference, in Ilulissat, Greenland, the Statement from which charts a course for Arctic Indigenous Peoples’ future, including collective engagement in international law and policy. It is thus an apt moment at which to reflect on the contributions of Arctic Indigenous Peoples to international law, and to consider the work that still needs to be done to meaningfully incorporate diverse ways of knowing into an international legal framework steeped in colonial understandings of the world, and to ensure that the distinct rights, perspectives, and interpretations of international law by Arctic Indigenous Peoples are fully understood.3

In some ways, this contribution sits uneasily within a special issue dedicated to “interdisciplinarity in Nordic approaches to international law”. The perspectives of Indigenous Peoples are neither a discipline, nor do their views form part of a single homogenous whole. Neither Sámi nor Inuit4 reside exclusively within the cartographical division of a single state, and Greenland does not really sit within the Nordic Region at all as a matter of geography (although Danish colonisation meant that it does as a matter of law). The homelands of Sámi and Inuit stretch across and beyond the Nordic Region, into parts of North America and Russia. Sámi and Inuit represent the “Arctic Region” sociocultural grouping within the international legal order of the UN and for this reason “Arctic Indigenous Peoples” is the expression used in this article, rather than “Nordic”.5 Yet it is important to note that Inuit and Sámi are not the only Indigenous Peoples within the Arctic Region, and their territories also stretch beyond it. In these and other ways, Indigenous Peoples both transcend the state-based order of the international legal system, and are constrained and confined by it. In fact, the need to bring Arctic Indigenous Peoples together in 1973 was partly a reaction to the divisions imposed through the structures of international law itself. Euro-centric conceptualisations of sovereignty and territory demarcated boundaries in ways arbitrary to the history, heritage, languages, and families of its indigenous inhabitants, and without any recognition of them as Peoples. Indeed, colonialism was pivotal to the formation of international law, which “has always been animated by the civilizing mission”.6

Yet the invitation to contribute is important because the voices of Indigenous Peoples are routinely misunderstood, sidelined, marginalised, and excluded from such discussions, and yet are crucial to a complete understanding of the state-based system of international law in a Nordic context. Nordic states are renowned champions of human rights on the international stage, including Indigenous Peoples’ rights specifically. They are world leaders in the provision of overseas development assistance, adept at balancing capitalist endeavours with principles of egalitarianism and strong social security.7 Yet Nordic championship of the rules-based international legal order has cloaked systemic failures to uphold those rights domestically, particularly for Indigenous Peoples.8 This reflective article seeks to elaborate the evolution of the relationship between Indigenous Peoples and international law in a Nordic context. From the colonial roots of the international legal order, through which Indigenous Peoples were at best invisible and at worst chattels, to eventual recognition of Indigenous Peoples’ existence, agency and rights, and then the contemporary challenges of today. The selection of examples in this article are illustrative, not exhaustive. To do justice to the many Arctic Indigenous Peoples’ interventions, initiatives, leaders, and exemplars in international law is impossible within the brevity of this piece. Needless to say, Arctic Indigenous Peoples have a strong history of engagement in the formal structures of international law-making and continue to contribute to its evolution and development, some of which will be showcased here.

2 Traditional Exclusion

Indigenous Peoples’ history began well before colonisation, including through various treaty agreements, bilateral and multilateral agreements with other Indigenous Nations and Peoples. Yet the annals of international law typically ignore those arrangements, both formally and in scholarship. In the European-styled system of international law too, Indigenous Peoples were asserting their sovereignty from the outset, although usually without success. The Haudenosaunee People of Canada famously sought recognition of their sovereignty at the League of Nations in 1923. Thereafter Indigenous Peoples have continued to pursue participation in the creation and implementation of international law, and recognition of their sovereignty within it. They have also been routinely turned away, their voices and interests often deemed a matter of domestic concern, or, worse, their existence disavowed. In 1933, the Permanent Court of International Justice (pcij) declared the territory of Greenland terra nullius (“land belonging to no one”) prior to 1814, and formally recognised it as part of the Danish state, ignoring millennia of human occupation before European arrivals. In this way, the pcij subscribed to notions that underpin the doctrine of discovery.9

The doctrine of discovery was once explained by a 19th century arbitral tribunal as the idea that “[c]ountries inhabited by savage tribes may, under well-established rules of public law, be so occupied and possessed by the representatives of a Christian power as to dispossess the native sovereignty and transfer it to the Christian power.”10 While the tenor of the tribunal’s sentiment has troubling contemporary familiarity, it no longer reflects the law. Much has changed since 19th century notions of Christian elite. Still, any system the foundations of which rest on such premises warrants ongoing reflection. In the near century since, Indigenous Peoples have been central in not only infusing and shifting the content of international law but also offering alternative methods through which to understand and implement it. That is, international law has not only been transformative for Indigenous Peoples, it has also been transformed by Indigenous Peoples.11 Yet principles of equity demand that the distinct cultural context of international law as it continues to be articulated and practiced today is both recognised and challenged by the actors and institutions within it.

In the late-1960s waves of public protest against racial segregation, war, and imperial rule, wrested these issues onto the international stage. Those movements emboldened minority Indigenous Peoples to challenge settler governments in United States, Australia, Canada, New Zealand, Norway, Sweden, and elsewhere, and to demand official acknowledgement of their sovereignty, land, and treaty rights.12 This insistence on recognition as first peoples forced authorities and the general public to reckon with history in new ways. In 1970, the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities initiated a comprehensive study on the specific issue of discrimination against Indigenous Peoples. The resultant reports are central to the way in which indigeneity is understood today. They also led to the establishment of the Working Group on Indigenous Populations under the auspices of the Economic and Social Council in 1982, and by 1985 preparation for a UN declaration on the rights of Indigenous Peoples was underway.

In this context, Arctic Indigenous Peoples found resurgent energy for international engagement and regional coordination, which led to the Arctic Peoples’ Conference in 1973. The Conference was significant in itself, being the first time Arctic Indigenous Peoples had come together to discuss their collective interests as a matter of strategic diplomacy. It also led to the establishment of more distinct Arctic Indigenous Peoples’ Organizations, which facilitated greater participation in international processes, both separately and jointly.13 The Inuit Circumpolar Council was founded four years after the conference, in 1977, with Russian Inuit joining in 1992. The Nordic Saami Council had first been established in 1956 and later became ‘the Saami Council’ in 1992 when Russian Sámi joined. Both organizations have navigated the international legal system for decades, mastering foreign European notions of diplomacy and law to advocate for their own rights and place within it. For instance, after its founding, the Inuit Circumpolar Council sought and obtained consultative status in the UN, and it has actively participated in UN processes since.

The Saami Council and the Inuit Circumpolar Council have played pivotal roles in the decades of negotiations and discussions which led to the 2007 adoption of the UN Declaration on the Rights of Indigenous Peoples (the Declaration).14 For example, in the early 1980s the Inuit Circumpolar Council’s UN delegate was one of five Indigenous representatives to draft the Declaration of Principles of Indigenous Rights which included as Principle 1 “All indigenous peoples have the right of self-determination. By virtue of this right they may freely determine their political status and freely pursue their economic, social, religious, and cultural development”.15 That is now clearly reflected in Article 3 of the UN Declaration: “Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”. The Inuit Circumpolar Council also insisted that the rights contained in the Declaration were recognised as being inherent to Indigenous Peoples, rather than granted at the discretion of states.16 The final text was endorsed by all Nordic states. Although two of the eight Arctic states initially opposed its adoption (Canada/ US), and Russia abstained from voting, the Declaration now enjoys near universal support.

There can be little doubt that the adoption of the Declaration was a landmark moment for the relationship between international law and Indigenous Peoples. The discussions which led to its acceptance also contained their own milestones. Over the course of negotiations, Indigenous Peoples advocated for institutional reform within the UN to ensure Indigenous Peoples could participate in the international decisions that affect them. As a result of this advocacy, systemic change began even before the Declaration text was adopted, and it continued thereafter. The UN Permanent Forum on Indigenous Issues, for instance, was established under the auspices of the United Nations Economic, Social and Cultural Council (ecosoc) in 2000. The UN Human Rights Council founded the Expert Mechanism on the Rights of Indigenous Peoples in the same year the Declaration was adopted, while the first UN Special Rapporteur on the Rights of Indigenous Peoples was appointed in 2001. There are also examples beyond Indigenous-specific mandates, for example, the Local Communities and Indigenous Peoples Platform began work in 2017 under the auspices of the UN Framework Convention on Climate Change.

The first World Conference on Indigenous Peoples, was held at UN Headquarters in New York in September 2014 as a high-level plenary meeting of the UN General Assembly. Arctic Indigenous Peoples hosted a global Indigenous Peoples’ preparatory meeting in Alta, Sápmi (Norway) in June 2013. The Alta Outcome Document was instrumental in the discussions in New York and referred to in the General Assembly resolution that followed.17 While the World Conference on Indigenous Peoples signalled a renewed willingness by UN member states to respect, promote, and advance indigenous rights, it was also, like the Declaration itself, a political rather than legal commitment and undertook discussions in a forum in which Indigenous Peoples themselves were not, strictly speaking, party. Indeed, as much was acknowledged in the World Conference on Indigenous Peoples’ outcome resolution itself, which recognised the lack of full and effective participation of Indigenous Peoples within the UN in decisions which affect them (a matter addressed in the next section of this article).18

Today, Arctic Indigenous Peoples are active participants in various fora of international law-making and implementation. The Inuit Circumpolar Council, for instance, contributes substantively to the Conference of the Parties to the Central Arctic Ocean Fisheries Agreement negotiations, and holds distinct status in the Intergovernmental Panel on Climate Change (ipcc), and provisionally the International Maritime Organization. Both Inuit Circumpolar Council and the Saami Council are UN accredited ngo s. The Sámi Parliamentary Council, representing the Sámi Parliaments of Norway, Sweden, and Finland, are actively involved in the UN as part of the respective states’ delegations. Arctic Indigenous Peoples also influence regional legal arrangements. The Saami Council, for example, has been consciously engaged within the EU at least since 1992 with a dedicated an EU Unit since 2019),19 and the Inuit Circumpolar Council has initiated processes to establish Inuit-led marine governance regimes between Greenland and Canada in the North Water Polynya.20

3 One Step Forward, Two Steps Backwards? Ongoing Challenges for Arctic Indigenous Peoples

In some respects, the overarching goals of the 1973 Arctic Peoples’ Conference have been achieved: most Arctic Indigenous Peoples are now recognised as Peoples under domestic and international law, and they have co-founded the Arctic Council, a circumpolar body in which Indigenous Peoples are permanent participants alongside states.21 Yet other important aspects of the 1973 resolutions continue to languish. The full implementation of fundamental rights and equity for Arctic Indigenous Peoples is yet to materialise, as standards and recognition differ substantively from jurisdiction to jurisdiction.22 In the face of new and ongoing colonialities, which this section will elaborate, the following passage from the Outcome Document reads as relevantly today as it did in 1973: “we request the obvious: that the government of each state from which we come recognize our rights as peoples entitled to the dignity of self-fulfilment and realization … [and] … there must not be any displacement or interference with our rights by government and/or industry, nor can there be disturbance of our lands.”23

Despite advances, international law continues to exclude Indigenous Peoples in both direct and indirect ways. The participation of Arctic Indigenous Peoples’ Organizations and other representatives of Indigenous Peoples in international fora must be lobbied for each time, including for renewal. Indigenous Peoples have long sought improved participation within the UN system pursuant to Indigenous Peoples’ rights to self-determination,24 to autonomy,25 and to participate in decisions which affect their rights.26 Through numerous reports, institutional efforts, and coordinated campaigning,27 including the specific efforts of Arctic Indigenous Peoples,28 Indigenous Peoples seek recognition of UN accreditation status distinct from that afforded to ngo s or other non-state entities. This would mean that Indigenous Peoples’ own representative institutions such as parliaments, governments assemblies, or traditional councils, would have at minimum, “permanent observer status within the UN system”, to facilitate their direct rather than indirect participation in international negotiations.29

A distinct UN status would afford participation in all meetings of the UN on matters that affect them, whether or not specifically dealing with Indigenous Peoples’ rights. Such arrangements would also encompass practical matters such as speaking time within UN fora and allocation on speakers lists, inclusion within informal consultations on draft resolutions, and the chance to speak on country visit reports. To this end, in 2020, Indigenous Peoples established an Indigenous Coordinating Body for Enhanced Participation in the UN, made up of two members from each of the seven Indigenous regions recognised by the UN.30 There have been positive musings from the UN General Assembly on enhancing the participation of Indigenous Peoples,31 including in the 2014 World Conference on Indigenous Peoples outcome document,32 resulting in proposals for reform related to participation venues, modalities of participation, accreditation criteria and the establishment of a body to undertake accreditation within the UN Human Rights Council.

Some of the challenges that persist arise in part from an apparent and concerning broader confusion about what constitutes an Indigenous People and the rights to which they are entitled. For example, instruments and forums of international law continue to conflate “local communities” with “Indigenous Peoples” by running them together without differentiation.33 The UN Permanent Forum on Indigenous Issues has described this as an “alarming trend in the behaviour of States to devalue indigenous peoples’ status, rights and participation”.34 Unlike local communities, Indigenous Peoples enjoy specific rights and status under international law. Indigenous Peoples share a collective identity steeped in centuries of history, culture, science, ways of living, and knowing, and have suffered historic injustices including colonisation and various forms of dispossession. In fact, Indigenous Peoples and local communities have often been pitted against each other, for instance where human rights specific to Indigenous Peoples come into conflict with private property rights.35 The phrase “local communities” is not a term of legal art and does not take into account the Indigenous Peoples who have been dispossessed of their land as a result of the colonial encounter.36 Nor can a “local” perspective adequately encompass the views of Peoples who exist across a vast territory, which is the case for Inuit and Sámi.

Even aspects of international law designed to protect the rights of Indigenous Peoples can have the paradoxical consequence of facilitating greater exclusion. For instance, that states have an obligation to obtain Indigenous Peoples’ free, prior and informed consent in decisions which affect them is not fully implemented in Greenland. The governments of both Greenland and Denmark agree that for the purposes of ensuring adherence to the principle of obtaining Indigenous Peoples free, prior and informed consent, the consent of the Greenlandic Government alone is sufficient.37 This interpretation is not in keeping with obligations under the UN Declaration on the Rights of Indigenous Peoples or Convention No. 169 on Indigenous and Tribal Peoples in Independent Countries, nor the broader suite of human rights obligations under both International Covenant on Civil and Political Rights (iccpr) and International Covenant on Economic, Social and Cultural Rights (icescr).

The consultation and participation of Indigenous Peoples in decisions which affect them is not satisfied automatically merely because the Government is made up of people who identify as Inuit.38 Such an interpretation undermines the purpose of the principle which is to prevent harm to those affected by the relevant decision, and compromises the idea that Indigenous Peoples “engage in decision-making processes through representatives chosen by themselves and in accordance with their own procedures …”.39 Although today the Government of Greenland is elected by a populace who are predominantly Inuit, that may not always be the case. Most Danish citizens who have held residence in Greenland for six months can stand for election and vote. In addition, political leaders must take into account the interests of a range of other stakeholders, including their non-indigenous constituents, business interests, other interest groups, as well as internal stakeholders in exercising legislative and executive authority.40 That a political executive could claim to be the exclusive voice of Indigenous Peoples could lead to a paradoxical result in which the purported implementation of participatory rights effectively diminishes, rather than advances them,41 for instance if the demography of Greenland shifts, or the Government of Greenland prioritises other considerations over Inuit rights. That is not to say that the Government of Greenland could never fulfil such a role, rather, it cannot be assumed that it does so as a matter of default.42

Arctic Indigenous Peoples are experiencing new encroachments on their rights in the name of environmental protection, reminiscent of historical dispossessions and the long-standing misalignment between the interrelated rights of Indigenous Peoples and the desires of those claiming to safeguard or represent the interests of nature and the environment. The term “green colonialism” has been used by Sámi in particular, and was also referred to in the Joint Statement of the 2023 Arctic Peoples’ Conference to describe “land encroachment, resource extraction, renewable energy production, and protectionist conservation … undertaken at the expense of Indigenous Peoples’ reality”.43 When pursued in this way, the green transition reproduces colonial logics and can lead to actual or effective dispossession of Indigenous Peoples’ natural resources, territory, and culture. Moreover, it infringes the distinct rights held by Indigenous Peoples including self-determination, free determination of political, social, economic, and cultural development, and free, prior, and informed consent in decisions that affect them.44

For example, the Øyfjellet wind energy project in Norway is located in the middle of an important reindeer migration route and pasture area. The project first broke ground in April 2020 after a fiercely contested licensing process.45 The construction and presence of the subsequent windmills has compromised indigenous knowledge and Sámi capacity to continue traditional herding practices. Yet some litigious action has succeeded in halting such developments. In 2021, the Supreme Court of Norway found that the Norwegian Ministry of Petroleum and Energy’s decision to grant a license for wind energy infrastructure on the Fosen Peninsula was a violation of reindeer herders’ right to enjoy their own culture under Article 27 of the iccpr. The decision echoed earlier concerns of the UN Special Rapporteur on the Rights of Indigenous Peoples that the installation of wind power plants in territory traditionally used by Sámi could constitute an unlawful limitation of Sámi rights.46 The court’s reasoning stood in contrast to a much earlier decision of the Norwegian Supreme Court (1982) which upheld a government decision to build hydroelectricity infrastructure on the Alta River, construction for which was completed in 1987.47 Thus, while tensions between Sámi rights and green energy infrastructure projects are not themselves new, the success of arguments grounded in international law is a more contemporary development.48

Inuit are also increasingly approached with suggestions for projects that would fundamentally alter their way of life in the name of the climate response, although Inuit have not (yet) resorted to litigation to respond. Scientists rush to engineer mechanisms to slow the melting of the Greenland ice sheet, but often do so with little or no input from the Peoples on whose territories the relevant infrastructure will be placed. Such technologies are often profoundly invasive because they require large-scale manipulation. The Polar Umbrella for instance, would utilise massive canopies to cool the surface of the icecap by deflecting sun and each would be so large as to host helipads and tourist attractions. Underlying such initiatives is a prevailing and problematic assumption that the interests of Indigenous Peoples are inherently aligned with the mechanisms for implementing the green transition. To be sure, Arctic Indigenous Peoples have long been supportive of measures to diminish the harms caused by climate change and to ensure sustainable approaches to natural resource management.49 However, they will resist initiatives that do so at the expense of their inherent rights, existence or way of life, or in contravention of the norms of international law they have long fought to secure (as the Joint Statement of the 2023 Arctic Peoples’ Conference attests).

While new in its tenacity and clarity, the 2023 Joint Statement also reflects some longer-held positions of Arctic Indigenous Peoples. In 2010, for example, after years of preparation and revisions, the Inuit Circumpolar Council issued a single Inuit Arctic Policy, which prioritised the recognition of the interests of Inuit as a single Arctic People living across four very different nation-states. The policy is distinct from those issued by states, which typically view the Arctic as a site of resource extraction, and potential transit, with the rights and interests of Arctic Indigenous Peoples routinely ignored, or mentioned superficially, which is inconsistent with Indigenous Peoples rights to directly participate in decisions which impact them.

Climate change continues to constitute an existential threat to Arctic Indigenous Peoples and their livelihoods, and unjust green transition and climate mitigation initiatives add to existing pressures. This is not aided by geopolitical developments in and around the Arctic. The Arctic has been the object of great-power military competition for centuries, and Arctic Indigenous Peoples have long navigated icy political waters across state boundaries, not least during the militarization of Inuit territories during and between the first and second World Wars. A 1977 Inuit Circumpolar Council resolution concerning peaceful and safe uses of the Arctic Circumpolar Zone exemplifies longstanding Inuit insistence on maintaining a peaceful region.50 More recent military threats have triggered renewed recognition of the strategic advantage of the Arctic. Here too, actions based on real or perceived military imperatives add to other forms of new colonialism, in which neo-colonial arguments insistent on “greater good” imperatives, ignore Indigenous Peoples’ knowledge, interests, and sovereignty and, more fundamentally their rights, under international law entirely.

Traditional security concerns have also undermined some of the advances by Arctic Indigenous Peoples in regional arrangements such as the Arctic Council. Established in 1996, the purpose of the Arctic Council is to provide a means for promoting cooperation, coordination and interaction among Arctic states, with the full participation of Arctic Indigenous Peoples.51 It is made up of eight member states and six organizations representing Arctic Indigenous Peoples’. The Arctic Council is unique because it has always made decisions based on consensus, which grants its Indigenous participants significant informal power. Moreover, given the regularly changing governments within the state apparatus, the Indigenous participants make up the Arctic Council’s institutional memory. When Russia invaded Ukraine in 2022, seven of the eight Arctic states paused the Arctic Council’s proceedings, and there was some concern that the Arctic Council might no longer function, which would eschew Arctic Indigenous Peoples’ meaningful participation in regional governance. The Inuit Circumpolar Council and the Saami Council each represent peoples on the Russian side of their homelands too, and are accustomed to navigating tense East-West cooperation. The situation was partly resolved in May 2023 when Arctic Council, in accordance with its rules of procedure, held its biennial meeting and facilitated the transfer of its chairmanship from Russia to Norway.52 It nevertheless illustrates the importance of regional arrangements for Arctic Indigenous Peoples’ inclusion in processes which affect them, their value when they are included, and at the same time their continued susceptibility to the unilateral decision-making of states.

Although, Nordic states have stood at the forefront of international advocacy for the rights of Indigenous Peoples in multilateral fora, their commitment to the implementation of those norms abroad often contrasts with their implementation of them at home. Arctic Indigenous Peoples have sought to address the shortcomings in human rights implementation through their own self-governance arrangements and associated ngo s. It is challenging work, particularly when undertaken in the context of a lack of adequate resources, the cultural domination of settler states, and when it must be performed by people who are already spread thin across multiple roles and legal systems. For Inuit and Sámi, regular re-configuration to fit the remit of a state-based system of international law is both par for the course and immensely challenging. For instance, in relation to enhanced participation in the UN system, Inuit are yet to determine which institution(s) constitute a representative body for them. Nor do Inuit have a collaborative parliamentary body across the national territorial boundaries akin to the Sámi Parliamentary Council, and neither Sámi nor Inuit can currently engage fully with their Russian counterparts. The recognition of Indigenous Peoples’ interconnected and indivisible rights have been achieved in the UN Declaration. However, the nation-state model of the existing world order must continue to evolve progressively, in line with Indigenous Peoples’ direct, full and effective participation across the Arctic.

4 Conclusion

The state-based system of international law is replete with examples of its structured contradictions.53 It forbids the initiation of war and also provides the rules for its conduct, facilitates international industrial trade and the exploitation of non-renewable resources, and also purports to limit emissions, and in this case, it provides rules to uphold Indigenous Peoples’ rights while at the same time paying homage to the wealth and sovereignties constructed at their expense. International law underpins the capitalist-colonial project, while at the same time attempting to minimise the damage of that very endeavour. The international legal system is comprised of states, but the world is made up of peoples, who live as nations across, within, and between, state borders.

Despite various failures of international law to recognise or address centuries of structural violence, dispossession, and disenfranchisement, Arctic Indigenous Peoples have, through their own persistence, mastered and contributed to the development of the Western European legal norms in a system that once facilitated their colonisation. The fiftieth anniversary of the Arctic Peoples’ Conference was a moment to reflect on these and other achievements of Arctic Indigenous Peoples, building upon the 1973 resolutions and addressing contemporary challenges. The 2023 Joint Statement addresses the need for enhanced engagement in the forums of international law, intergenerational justice, intersecting rights to wellbeing, land, water and natural resources, and to address the risks posed by climate change and colonialism. It reflects on Arctic Indigenous Peoples’ “contributions to various national and international governing bodies and how our way forward was paved by the people, now elders, who first came together to envision a better future.”54 Although Arctic Indigenous Peoples “have survived, and thrived, through hundreds of years of colonization … many challenges and colonial systems remain to be dismantled.”55 Within the forums of international law, Arctic Indigenous Peoples continue to work to address inequalities in representation and recognition, and to insist that the rules-based international legal order upholds the rights, interests, and sovereignties of those it has systematically excluded.

Acknowledgement

The authors would like to thank Dalee Sambo Dorough and Rune Fjellheim for their valuable comments on an earlier draft. Any remaining errors are our own. This research was made possible with funding from the Independent Research Fund Denmark (grant number 1127-00125B).

1

This article capitalises “Indigenous Peoples” throughout. It is an intentional style choice, borne out of respect, and one which seeks to address the orthodoxy in which Indigenous Peoples were historically perceived “as having no legitimate national identities; government, social, spiritual, or religious institutions; or collective Rights”. See further: Gregory Younging, Elements of Indigenous Style: A Guide for Writing By and About Indigenous Peoples (Brush Education, Edmonton, 2018) 77.

2

I. Kleivan, ‘The Arctic Peoples’ Conference in Copenhagen, November 22–25, 1973’, 16 (1/2) Études Inuit Studies (1992) p.227.

3

“Ways of knowing” is preferred to “epistemology” in this context because the latter has historically tended to exclude, dismiss or invalidate Indigenous knowledge, sometimes perceiving it either as “folklore or myth”, and other times subsuming aspects of Indigenous knowledge into Western science as “new discoveries” without acknowledgement of the origin: V. W. Simonds and S. Christopher, ‘Adapting Western Research Methods to Indigenous Ways of Knowing’ 103(12) American Journal of Public Health (2013) 2185, 2185; and L.T. Smith, Decolonizing Methodologies: Research and Indigenous Peoples (Bloomsbury, 3rd ed, 2021) 70–74.

4

There are three different ethnographic Indigenous groups within Greenland, although not currently recognised as separate and distinct “Peoples” under international law. These are “the Kalaallit of West Greenland, who speak Kalaallisut; the Iivit of Kangia (East Greenland), who speak Iivi oraasia (East Greenlandic) and the Inughuit/Avanersuarmiut near Thule who speak Inuktun”: International Working Group on Indigenous Affairs, The Indigenous World 2023 (iwgia, 2023) 456.

5

Whereas UN member states are organised into five regional groupings, Indigenous Peoples at the UN are organised into seven sociocultural regions: Africa; Asia; Central and South America and the Caribbean; the Arctic; Central and Eastern Europe, Russian Federation, Central Asia and Transcaucasia; North America; and the Pacific. Indigenous Peoples who live in the Arctic participate in three of these sociocultural regions (the Arctic, North America; and Eastern Europe and Russia).

6

A. Anghie, ‘The Evolution of International Law: Colonial and Postcolonial Realities’, 27(5) Third World Quarterly (2006) 739.

7

A. Massari-Vaudé, ‘Shifting Status: Nordic Countries and Norm Entrepreneurship after the Overturning of Disaster-Related Mobility Provisions’, in M. Cullen and M. Scott (eds.), Nordic Approaches to Climate-Related Human Mobility (Routledge, 2024) (forthcoming).

8

These systemic failures would include, among other examples, colonisation, declarations of terra nullius, the application of the doctrine of discovery, systematised forced displacement, enforced contraception, as well as education systems through which children were removed from their family, culture, and language. See further: Visit to Denmark and Greenland: Report of the Special Rapporteur on the rights of Indigenous Peoples, José Francisco Calí Tzay, UN Doc a/hrc/54/31/Add.1 (3 August 2023); Report of the Special Rapporteur on the Rights of Indigenous Peoples on the Human Rights Situation of the Sami People in the Sápmi Region of Norway, Sweden and Finland, UN Doc a/hrc/33/42/Add.3 (9 August 2016).

9

M. Cullen, B.S. Holm, C. Brassart-Olsen, ‘A Human Rights-Based Approach to Disaster Risk Management in Greenland: Displacement, Relocation and the Legacies of Colonialism’, Yearbook of International Disaster Law (2024, forthcoming).

10

Arbitral award between Portugal and the United Kingdom, regarding the dispute about the sovereignty over the Island of Bulama, and over a part of the mainland opposite to it, (21 April 1870) Vol xxviii, 131, 137.

11

C. Charters, ‘The Sweet Spot Between Formalism and Fairness: Indigenous Peoples’ Contributions to International Law’, 115 American Journal of International Law Unbound (2021) p.123. doi:10.1017/aju.2021.9.

12

See further, M. Johnson, The Land is Our History: Indigeneity, Law, and the Settler State (oup, 2016) Ch1.

13

See Arctic Council Declaration on the Establishment of the Arctic Council: Joint Communique of the Governments of the Arctic Countries on the Establishment of the Arctic Council 1996 para. 2 recognizing both the eight Arctic states as well as “The Inuit Circumpolar Conference [as it was then], the Saami Council and the Association of Indigenous Minorities of the North, Siberia and the Far East of the Russian Federation” as permanent participants in the Arctic Council. It moreover left open future participation of other organizations of Arctic Indigenous Peoples.

14

United Nations Declaration on the Rights of Indigenous Peoples, ga Res 6/295, UN Doc a/res/61/295 (2 October 2007, adopted 13 September 2007) (hereafter ‘Declaration’).

15

Dalee Sambo Dorough represented the Inuit Circumpolar Council at the UN in 1985 and was one of five Indigenous authors to draft the World Council of Indigenous Peoples, Declaration of Principles of Indigenous Rights (1 September 1984, reprinted in U.N. Doc. e/cn.4/1985/22, Annex 2).

16

Declaration, supra note 14, preamble para. 7. Inuit and Sámi representatives were among the leaders in the development of the Declaration: M. Davis, ‘A Personal Reflection on the United Nations Declaration on the Rights of Indigenous Peoples’ 7(11) Indigenous Law Bulletin (2009) p.11.

17

Outcome document of the high-level plenary meeting of the General Assembly known as the World Conference on Indigenous Peoples, ga Res 69/2, UN Doc a/res/69/2 (25 September 2014, adopted 22 September 2014) para. 2.

18

Ibid paras 15, 17, and 33.

19

See further: Saami Council, ‘EU Unit’ <https://www.saamicouncil.net/en/euunit>, visited 7 September 2023.

20

Through the work of the Pikialasorsuaq Commission <http://pikialasorsuaq.org/en/>, visited 7 September 2023.

21

Kleivan, supra note 2. Arctic Indigenous Peoples co-founded the Arctic Council in 1996 through the advocacy of the Inuit Circumpolar Council, the Saami Council and the then Russian Association of Indigenous Peoples and have since enjoyed status as Permanent Participant to the Arctic Council together with the Gwich’in people, Athabaskans and the Aleut people who joined as Permanent Participants in the early 2000s.

22

The Nordic Sámi Convention 2016 between Finland, Norway and Sweden recognises Sámi as an Indigenous People of the three states. However contemporary challenges in Finland have compromised Sámi rights to self-determination: Sámi Parliament, ‘The Sámi Parliament is disappointed with the Decision of the Constitutional Law Committee – the Constitutional Law Committee has stopped handling of the Sámi Parliament Act’ (Press Release, 24 February 2023) <https://www.samediggi.fi/2023/02/24/the-sami-parliament-is-disappointed-with-the-decision-of-the-constitutional-law-committee-the-constitutional-law-committee-has-stopped-handling-of-the-sami-parliament-act/?lang=en>, visited 7 September 2023. The original inhabitants of Greenland are a People with the right to self-determination under international law, and are recognised by Denmark as the only Indigenous People within the Realm: 2009 Act on Greenland Self-Government (Denmark) Preamble; and Convention No. 169 on Indigenous and Tribal Peoples in Independent Countries, opened for signature 27 June 1989, 1650 unts 383 (entered into force 5 September 1991) (hereafter ‘ilo 169’), Declaration in Relation to Convention No. 169, Order no. 97 of 19 October 1997 of the ilo Convention no. 169 of 28 June 1989 (bki nr 97 af 09/10/1997 Erklæring i forbindelse med ratifikation af ilo-Konventionen Nr. 169 af Oprindelige Folk og Stammefolk i Selvstændige Stater), para. 1; reproduced in English in: International Labour Organization (ilo), Report of the Committee set up to examine the representation alleging non-observance by Denmark of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), made under article 24 of the ilo Constitution by the National Confederation of Trade Unions of Greenland (Sulinermik Inuussutissarsiuteqartut Kattuffiat-sik) (sik), Decision (2001) para. 25.

23

Reproduced in Kleivan, supra note 2, 231–232.

24

Declaration supra note 14, Preamble and Arts 3, 4 and 5; International Covenant on Civil and Political Rights, opened for signature 16 December 1996, 999 unts 171 (entered into force 23 March 1976) Art 1; International Covenant on Economic, Social, and Cultural Rights, opened for signature 16 December 1996, 993 unts 3 (entered into force 3 January 1976) Art 1; and is also in line with the principle of public participation (see United Nations General Assembly Rules of Procedure, rule 60).

25

Declaration, ibid, Art 4.

26

Ibid Arts 10, 18; ilo 169, supra note 22, Arts 6(1)(a), 7(1).

27

Arctic Indigenous Peoples, for instance, contributed to the 2020 Dialogue Meeting on Enhanced Indigenous Peoples’ Participation at the UN which, among other things, established the Indigenous Coordinating Body: Dialogue Meeting on Enhanced Indigenous Peoples’ Participation at the UN (27–30 January 2020, Quito, Ecuador) para. E1 (hereafter ‘Quito Outcome Document’).

28

See, for example: Sámi Parliament (Finland), ‘Doable Ways to Enhance the Participation of Indigenous Peoples in the work of the Human Rights Council as mandated by Council resolution 48/11’ (Written Contribution, 31 October 2022).

29

Alta Outcome Document (Global Indigenous Preparatory Conference for the United Nations High Level Plenary Meeting of the General Assembly to be known as the World Conference on Indigenous Peoples, 10–12 June 2013) para. 10 <https://www.un.org/esa/socdev/unpfii/documents/wc/AdoptedAlta_outcomedoc_EN.pdf>, visited 7 September 2023; Quito Outcome Document, supra note 27.

30

The Sámi Parliamentary Council and Inuit Circumpolar Council represent the Arctic in this body. The Indigenous Coordinating Body was established through the Quito Outcome Document, ibid, para. E1. The UN system has incorporated the recommendations of the Indigenous Coordinating Body into aspects of its work, for example, in November 2022 the United Nations Office of the High Commissioner for Human Rights convened an expert workshop on ways to enhance the participation of Indigenous Peoples in the work of the Human Rights Council; and inter-active dialogues between Indigenous Peoples and the UN President of the General Assembly now form part of the annual UN Permanent Forum on Indigenous Issues.

31

See, for example, Enhancing the participation of indigenous peoples’ representatives and institutions in meetings of relevant United Nations bodies on issues affecting them ga Res 71/321, UN Doc a/res/71/321 (21 September 2017, adopted 8 September 2017) which encouraged further effort to facilitate the participation of Indigenous Peoples in UN meetings on issues affecting them, and tasked the President of the General Assembly and the Secretary-General with undertaking further inquiries in that respect but did not go so far as to decide any changes.

32

Which included the commitment to “considering, at the seventieth session of the General Assembly, ways to enable the participation of indigenous peoples’ representatives and institutions in meetings of relevant United Nations bodies on issues affecting them: Outcome document of the high-level plenary meeting of the General Assembly known as the World Conference on Indigenous Peoples, supra note 17, para. 33.

33

See, for example, the Rio Declaration on Environment and Development, UN Doc a/conf/.151/26 (vol i), 31 ilm 874 (1992) Principle 22; Convention on Biodiversity, opened for signature 5 June 1992, 1760 unts 79 (entered into force 29 December 1993) Preamble, and Art 8(j)); or even the United Nations Framework Convention on Climate Change, ‘Local Communities and Indigenous Peoples’ Platform’ <https://lcipp.unfccc.int/>, visited 7 September 2023.

34

Referring to the United Nations Framework Convention on Climate Change, ibid; the Convention on Biological Diversity ibid; as well as mechanisms of the Food and Agriculture Organization of the United Nations (fao), the World Intellectual Property Organization (wipo), the United Nations Educational, Scientific and Cultural Organization (unesco) and the World Bank: United Nations Permanent Forum on Indigenous Issues, Study on how States exploit weak procedural rules in international organizations to devalue the United Nations Declaration on the Rights of Indigenous Peoples and other international human rights law, UN Doc e/c.19/2016/4 (19 February 2016) para. 2.

35

Inuit Circumpolar Council, Policy Paper on the Matter of “Local Communities” (12 October 2020) <https://hh30e7.p3cdn1.secureserver.net/wp-content/uploads/FINAL-ICC-Policy-Paper-on-matter-of-local-communities-2.pdf> visited 7 September 2023; See also Handōlsdalen Sami Village and Others v. Sweden [2010] Eur Court hr 418.

36

Which has been recognised in the Declaration supra note 14, Preamble, para. 5.

37

Cullen et al., supra note 9; M. Cullen, ‘Climate Change, Colonialism, and Human Rights in Greenland’ in Petra Butler and Jean-Pierre Gauci (eds), Small States and International Law, (Brill, forthcoming), pp.8–9 <https://static-curis.ku.dk/portal/files/357050337/Cullen_Climate_Change_Colonialism_and_Human_Rights_in_Greenland_rev_.pdf> visited 7 September 2023; Rachael Lorna Johnstone, ‘The Impact of International Law on Natural Resource Governance in Greenland’ (2020) 56/21 Polar Record, p.5. https://doi.org/10.1017/S0032247419000287.

38

Cullen et al., supra note 9. Nor can consultation alone cannot satisfy the right to free, prior and informed consent, or self-determination: Free, prior and informed consent: a human rights-based approach: Report of the UN Expert Mechanism on the Rights of Indigenous Peoples, UN Doc a/hrc/39/62 (10 August 2018), paras 17–18, referring to Poma Poma v. Peru (ccpr/c/95/d/1457/2006), para. 7.6.

39

Declaration, supra note 14, Art. 18.

40

Ibid.

41

E. Tuck and K. W. Yang, ‘Decolonization Is Not a Metaphor’ 1(1) Decolonization: Indigeneity, Education & Society (2012) p.1, 3; D. L. Townsend, ‘Silencing, Consultation and Indigenous Descriptions of the World’ 10(2) Journal of Human Rights and the Environment (2019) p.193, 781. https://doi.org/10.4337/jhre.2019.02.03.

42

“Indigenous People have the right to engage in decision-making processes through representatives chosen by themselves and in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions”: Declaration, supra note 14, Art. 18.

43

Inuit Circumpolar Council, Statement of the Arctic Peoples’ Conference 2023 – Inuiaat Issittormiut Ataatsimeersuarnerat 2023 (21 July 2023) para.17.

44

Ibid.

45

E. M. Fjellheim, ‘“You Can Kill Us with Dialogue”: Critical Perspectives on Wind Energy Development in a Nordic-Sámi Green Colonial Context’ Human Rights Review (2023) p. 25, 38. https://doi.org/10.1007/s12142-023-00678-4.

46

Report of the Special Rapporteur on the Rights of Indigenous Peoples on the Human Rights Situation of the Sami People in the Sápmi Region of Norway, Sweden and Finland, supra note 8, para. 46.

47

Ø. Dalland, ‘The Alta Case: Learning from the Errors made in a Human Ecological Conflict in Norway’ 14(2) Geoforum (1983) p.193, 194.

48

Note also that Sámi communications to the UN Human Rights Committee have led to important steps in the iccpr being interpreted through and in line with the Declaration. See, for example, Human Rights Committee, Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 2668/2015 (Tiina Sanila-Aikio v Finland), UN Doc ccpr/c/124/d/2668/2015 (20 March 2019, adopted 1 November 2018) paras 6.8-6.10.

49

See, for example, Inuit Circumpolar Council, Resolution 77-06: A Resolution Concerning Environmental Policy (1977); Inuit Circumpolar Council, Principles and Elements for a Comprehensive Arctic Policy (1992) pp 31–76; Inuit Circumpolar Council, Inuit Arctic Policy (2010) pp. 23–49; Inuit Circumpolar Council, A Circumpolar Inuit Declaration on Resource Development Principles in Inuit Nunaat (2016).

50

Inuit Circumpolar Council, Resolution 77–11 Concerning peaceful and safe uses of the Arctic Circumpolar Zone (1977) was adopted at the founding meeting of the Inuit Circumpolar Conference in 1977, and was reaffirmed in: Inuit Circumpolar Council, Inuit Circumpolar Council Declaration 2022, preamble para. 9.

51

Declaration on the Establishment of the Arctic Council (19 September 1996) Art 1(a).

52

Arctic Council, Arctic Council Statement on the Occasion of the Thirteenth Meeting of the Arctic Council (11 May 2023).

53

N. Tzouvala, Capitalism as Civilization (Cambridge University Press, Cambridge, 2020).

54

Inuit Circumpolar Council, supra note 43, para. 5.

55

Ibid, para. 3.

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