| |
1. The authors of the
communication dated 18 December 1990 are Messrs. O. Sara, J. Näkkäläjärvi
and O. Hirvasvuopio and Ms. A. Aärelä, all Finnish citizens. They claim to
be the victims of a violation by Finland of article 27 of the International
Covenant on Civil and Political Rights. They are represented by counsel.
The facts as submitted by the authors
2.1 The authors are reindeer breeders of Sami ethnic origin. Together with
the Herdsmen's committees (cooperative bodies set up to regulate reindeer
husbandry in Finland), they represent a substantial part of reindeer herding
in Finnish Lapland. Mr. Sara is the chief and Mr. Näkkäläjärvi, the deputy
chief of the Sallivaara Herdsmen Committee; Mr. Hirvasvuopio is the chief of
the Lappi Herdsmen Committee. In terms of counted reindeer the Sallivaara
Herdsmen Committee is the second largest herdsmen's committee in Finland;
the Lappi Herdsmen's Committee is the third largest.
2.2 On 16 November 1990, the Finnish Parliament passed bill 42/1990, called
the Wilderness Act (erämaalaki), which entered into force on 1 February
1991. The legal history of this bill is the result of a delicate compromise
reached after protracted discussions between the Samis, environmental
protection lobbyists and the Finnish Forest Administration about the extent
of logging activities in northernmost Finland, that is, close to or north of
the Arctic Circle. Under the provisions of the Act, specifically designated
areas are off limits for logging, whereas in others, defined as
"environmental forestry areas" (luonnonmukainen metsänhoito), logging is
permitted. Another, third, category of forest areas remains unaffected by
the application of the Act.
2.3 An important consideration in the enactment of the Act, reflected in
section 1, is the protection of the Sami culture and particularly of
traditional Sami economic activities. Section 3, however, reveals that the
ratio legis of the Act is the notion and extension of State ownership to the
wilderness areas of Finnish Lapland. The authors note that the notion of
State ownership of these areas has long been fought by Samis. The
implication of section 3, in particular, is that all future logging
activities in the areas used by them for reindeer husbandry will be matters
controlled by different Government authorities. In particular, section 7 of
the Act entrusts a Central Forestry Board (metsähallitus) with the task of
planning both use and maintenance (hoito-ja käyttösuunnitelma) of the
wilderness area. While the Ministry for the Environment (ympäristöministeriö)
may either approve or disapprove the plans proposed by this Board, it cannot
amend them.
2.4 The authors indicate that the area used for herding their reindeers
during the winter months is a hitherto unspoiled wilderness area. The border
between the municipalities of Sodankylä and Inari nowadays divides this
wilderness into two separate herdsmen's committees. Under the Wilderness
Act, the largest part of the authors' reindeer breeding area overlaps with
the Hammastunturi Wilderness area; other parts do not and may therefore be
managed by the Central Forestry Board. Under preliminary plans approved by
the Board, only small portions of the authors' breeding area would be
off-limits for logging operations, whereas the major part of their areas
overlapping with the Hammastunturi Wilderness would be subject to so-called
"environmental forestry", a concept without a precise definition.
Furthermore, on the basis of separate decisions by Parliament, the cutting
of forests within the Hammastunturi Wilderness would not begin until the
approval by the Ministry for the Environment, of a plan for use and
maintenance. The Act, however, is said to give the Central Forestry Board
the power to start full-scale logging.
2.5 At the time of submission in 1990, the authors contended that
large-scale logging activities, as authorized under the Wilderness Act, were
imminent in the areas used by them for reindeer breeding. Thus, two road
construction projects were started in the authors' herding areas without
prior consultation with the authors, and the roads are said to serve no
purpose in the maintenance of the authors' traditional way of life. The
authors claimed that the roads were intended to facilitate logging
activities inside the Hammastunturi Wilderness in 1992 and, in all
likelihood, outside the Wilderness as early as the summer of 1991. The road
construction had already penetrated a distance of over 6 miles, at a breadth
of 60 feet, into the reindeer herding areas used by the authors. Concrete
sink rings have been brought on site, which the authors claim underline that
the road is to be built for all-season use by heavy trucks.
2.6 The authors reiterate that for the Lappi Herdsmen's Committee, the area
in question is an important breeding area, and that they have no use for any
roads within the area. For the Lappi Herdsmen's Committee, the area is the
last remaining natural wilderness area; for the Sallivaara Herdsmen's
Committee, the area forms one third of its best winter herding areas and is
essential for the survival of reindeers in extreme climatic conditions. As
to the disposal of slaughtered reindeers, the authors note that slaughtering
takes place at places specifically designed for that purpose, located close
to main roads running outside the herding area. The Sallivaara Herdsmen's
Committee already possesses a modern slaughterhouse, and the Lappi
Herdsmen's Committee has plans for a similar one.
2.7 The authors further note that the area used by them for winter herding
is geographically a typical watershed highland, located between the Arctic
Sea and the Baltic. These lands are surrounded by open marshlands covering
at least two thirds of the total area. As in other watershed areas, abundant
snow and rainfalls are common. The winter season is approximately one month
longer than in other areas. The climate has a direct impact on the area's
environment, in particular the trees (birch and spruce), whose growth is
slow; the trees in turn encourage the growth of the two types of lichen that
constitute the winter diet for reindeers. The authors emphasize that even
partial logging would render the area inhospitable for reindeer breeding for
at least a century and possibly irrevocably, since the destruction of the
trees would lead to an extension of the marsh, with the resulting change of
the nutrition balance of the soil. Moreover, logging would merely add to
present dangers threatening the trees within the authors' herding area,
namely, industrial pollution from the Russian Kola district. In this
context, it is submitted that silvicultural methods of logging (that is,
environmentally sensitive cutting of forest areas) advocated by the
authorities for some parts of the wilderness area used by the authors would
cause possibly irreversible damage to reindeer herding, as the age structure
of the forest and the conditions for the lichen growth would change.
2.8 With respect to the requirement of exhaustion of domestic remedies, the
authors contend that the Finnish legal system does not provide for remedies
to challenge the constitutionality or validity of an Act adopted by
Parliament. As to the possibility of an appeal to the Supreme Administrative
Tribunal against any future administrative decisions based on the Wilderness
Act, the authors point out that the Finnish legal doctrine on administrative
law has been applied very restrictively in accepting legal standing on
grounds other than ownership. Thus, it is claimed that there are no domestic
remedies which the authors might pursue in respect of a violation of article
27 of the Covenant.
The complaint
3.1 The authors submit that the passage of the Wilderness Act jeopardizes
the future of reindeer herding in general and of their livelihood in
particular, as reindeer farming is their primary source of income.
Furthermore, since the Act would authorize logging within areas used by the
authors for reindeer husbandry, its passage is said to constitute a serious
interference with their rights under article 27 of the Covenant, in
particular the right to enjoy their own culture. In this context, the
authors refer to the views of the Human Rights Committee in cases Nos.
197/1985 and 167/1984, FNa as well as to ILO Convention No. 169 concerning
indigenous and tribal people in independent countries.
-------------------------------------------------------------------------------------------------------------------------------[FN1]
Official Records of the General Assembly, Forty-third Session, Supplement
No. 40 (A/43/40), annex VII.G, communication No. 197/1985 (Kitok v. Sweden),
views adopted on 25 July 1988, para. 9.8; and ibid., Forty-fifth Session,
Supplement No. 40 (A/45/40), annex IX.A, communication No. 167/1984
(Ominayak v. Canada), views adopted on 26 March 1990, para. 32.2.
-------------------------------------------------------------------------------------------------------------------------------
3.2 The authors add that over the past decades, traditional methods used for
reindeer breeding have decreased in importance and have been partly replaced
by "fencing" and artificial feeding, which the authors submit are alien to
them. Additional factors enabling an assessment of the irreparable damage to
which wilderness areas in Finland are exposed include the development of an
industry producing forest harvesting machinery and a road network for wood
transport. These factors are said to affect deeply the enjoyment by the
authors of their traditional economic and cultural rights.
3.3 Fearing that the Central Forestry Board would approve the continuation
of road construction or logging by the summer of 1991, or at the latest by
early 1992, around the road under construction and therefore within the
confines of their herding areas, the authors requested the adoption of
interim measures of protection, pursuant to rule 86 of the Committee's rules
of procedure.
The State party's observations
4.1 In its submission under rule 91 of the rules of procedure, the State
party does not raise objections to the admissibility of the communication
under article 5, paragraph 2 (b), of the Optional Protocol, and concedes
that in the present situation there are no domestic remedies which the
authors should still pursue.
4.2 The State party indicated that for the Hammastunturi Wilderness, plans
for maintenance and use currently in preparation in the Ministry of the
Environment would not be finalized and approved until the spring of 1992;
nor are there any logging projects under way in the residual area designated
by the authors, which does not overlap with the Hammastunturi Wilderness.
North of the Wilderness, however, minor "silvicultural felling" (to study
the effect of logging on the environment) began in 1990 and would be stopped
by the end of the spring of 1991. According to the Central Forestry Board,
this particular forest does not overlap with the area designated in the
communication. The State party added that south of the wilderness, the
gravelling of an existing roadbed would proceed in the summer of 1991,
following the entry into force of the Wilderness Act.
4.3 The State party contends that the communication is inadmissible under
article 3 of the Optional Protocol, as incompatible with the provisions of
the Covenant. In particular, it argues that the plans of the Central
Forestry Board for silvicultural logging in the residual area outside the
Hammastunturi Wilderness are not related to the passage of the Wilderness
Act, because the latter only applies to areas specifically designated as
such. The authority of the Central Forestry Board to approve logging
activities in areas other than those designated as protected wilderness is
not derived from the Wilderness Act. Accordingly, the State party denies
that there is a causal link between the measures of protection requested by
the authors and the object of the communication itself, which only concerns
enactment and implementation of the Wilderness Act.
4.4 The State party further contends that the envisaged forestry operations,
consisting merely of "silvicultural logging" and construction of roads for
that purpose, will not render the areas used by the authors irreparably
inhospitable for reindeer husbandry. On the contrary, the State party
expects them to contribute to the natural development of the forests. In
this connection, it points to a report prepared for the Ministry for
Agriculture and Forestry by a professor of the University of Joensuu, who
supports the view that timber production, reindeer husbandry, collection of
mushrooms and berries and other economic activities may sustainably coexist
and thrive in the environment of Finnish Lapland. This report states that no
single forest or land use can, on its own, fulfil the income and welfare
needs of the population; forest management of the whole area, and
particularly Northern Lapland, must accordingly be implemented pursuant to
schemes of multiple use and "strict sustainability".
4.5 The State party submits that the authors cannot be considered "victims"
of a violation of the Covenant, and that their communication should be
declared inadmissible on that account. In this context, the State party
contends that the ratio legis of the Wilderness Act is the very opposite
from that identified by the authors: its intention was to upgrade and
enhance the protection of the Sami culture and traditional nature-based
means of livelihood. Secondly, the State party submits that the authors have
failed to demonstrate how their concerns about "irreparable damage"
purportedly resulting from logging in the area designated by them translate
into actual violations of their rights; they are merely afraid of what might
occur in the future. While they might legitimately fear for the future of
the Sami culture, the "desired feeling of certainty is not, as such,
protected under the Covenant. There must be a concrete executive decision or
measure taken under the Wilderness Act", before anyone may claim to be the
victim of a violation of his Covenant rights.
4.6 The State party further argues that passage of the Wilderness Act must
be seen as an improvement rather than a setback for protection of the rights
protected by article 27. If the authors are dissatisfied with the amount of
land protected as wilderness, they overlook the fact that the Wilderness Act
is based on a philosophy of coexistence between reindeer herding and forest
economy. This is not only an old tradition in Finnish Lapland but also a
practical necessity, as unemployment figures are exceptionally high in
Finnish Lapland. The Act embodies a legislative compromise trying to balance
opposite interests in a fair and democratic manner. While the Government
fully took into account the requirements of article 27 of the Covenant, it
could not ignore the economic and social rights of that part of the
population whose subsistence depends on logging activities: "one cannot do
without compromises in a democratic society, even if they fail to satisfy
all the parties concerned".
4.7 Finally, the State party notes that the Covenant has been incorporated
into domestic law, and that, accordingly, article 27 is directly applicable
before the Finnish authorities and judicial instances. Thus, if, in the
future, the Ministry of the Environment were to approve a plan for forest
maintenance and care which would indeed endanger the subsistence of Sami
culture and thus violate article 27, the victims of such a violation could
submit a complaint to the Supreme Administrative Court.
Admissibility considerations
5.1 During its forty-second session, in July 1991, the Committee considered
the admissibility of the communication. It noted that the State party had
raised no objection with regard to the admissibility of the communication
under article 5, paragraph 2 (b), of the Optional Protocol. It further took
note of the State party's claim that the authors could not claim to be
victims of a violation of the Covenant within the meaning of article 1 of
the Optional Protocol. The Committee reaffirmed that individuals can only
claim to be victims within the meaning of article 1 if they are actually
affected, although it is a matter of degree as to how concretely this
requirement should be taken. [FN2]
-------------------------------------------------------------------------------------------------------------------------------[FN2]
Ibid., Thirty-sixth Session, Supplement No. 40 (A/36/40), annex XIII,
communication No. 35/1978 (Aumeeruddy-Cziffra v. Mauritius), views adopted
on 9 April 1981, para. 5; and ibid., Thirty-seventh Session, Supplement No.
40 (A/37/40), annex XIV, communication No. 61/1979 (Hertzberg v. Finland),
views adopted on 2 April 1982, para. 9.3.
-------------------------------------------------------------------------------------------------------------------------------
5.2 Inasmuch as the authors claimed to be victims of a violation of article
27, both in respect of expected logging and road construction activities
within the Hammastunturi Wilderness and ongoing road construction activities
in the residual area located outside the Wilderness, the Committee observed
that the communication related to both areas, whereas parts of the State
party's observations could be read in the sense that the communication only
related to the Hammastunturi Wilderness.
5.3 The Committee distinguished between the authors' claim to be victims of
a violation of the Covenant in respect of road construction and logging
inside the Hammastunturi Wilderness and such measures outside the
Wilderness, including road construction and logging in the residual area
south of the Wilderness. In respect of the former areas, the authors had
merely expressed the fear that plans under preparation by the Central
Forestry Board might adversely affect their rights under article 27 in the
future. This, in the Committee's opinion, did not make the authors victims
within the meaning of article 1 of the Optional Protocol, as they were not
actually affected by an administrative measure implementing the Wilderness
Act. Therefore, this aspect of the communication was deemed inadmissible
under article 1 of the Optional Protocol.
5.4 In respect of the residual area, the Committee observed that the
continuation of road construction into it could be causally linked to the
entry into force of the Wilderness Act. In the Committee's opinion, the
authors had sufficiently substantiated, for purposes of admissibility, that
this road construction could produce effects adverse to the enjoyment and
practice of their rights under article 27.
5.5 On 9 July 1991, accordingly, the Committee declared the communication
admissible in so far as it appeared to raise issues under article 27 of the
Covenant.
5.6 The Committee also requested the State party to "adopt such measures, as
appropriate, to prevent irreparable damage to the authors".
The State party's request for review of the admissibility decision and the
authors' reply
6.1 In its submission under article 4, paragraph 2, dated 10 February 1992,
the State party notes that the Committee's acceptance, in the decision of 9
July 1991, of a causal link between the Wilderness Act and any measures
taken outside the Hammastunturi Wilderness has changed the substance of the
communication and introduced elements in respect of which the State party
did not provide any admissibility information. It reiterates that in
applying the Wilderness Act, Finnish authorities must take into
consideration article 27 of the Covenant, "which, in the hierarchy of laws,
is on the same level as ordinary laws". Samis who claim that their Covenant
rights were violated by the application of the Act may appeal to the Supreme
Administrative Court in respect of the plan for maintenance and care of the
Wilderness area approved by the Ministry of the Environment.
6.2 In respect of the activities outside the Hammastunturi Wilderness (the
"residual area"), the State party submits that article 27 would entitle the
authors to take action against the State or the Central Forestry Board
before the Finnish courts. Grounds for such a legal action would be concrete
measures taken by the State, such as road construction, which in the
authors' opinion infringe upon their rights under article 27. A decision at
first instance could be appealed to the Court of Appeal, and from there,
subject to certain conditions, to the Supreme Court. The provincial
government could be requested to grant provisional remedies; if this
authority does not grant such a remedy, its decision may be appealed to the
Court of Appeal and, subject to a re-trial permit, to the Supreme Court.
6.3 The State party adds that the fact that actions of this type have not
yet been brought before the domestic courts does not mean that local
remedies do not exist but merely that provisions such as article 27 have not
been invoked until recently. Notwithstanding, the decisions of the higher
courts and the awards of the Parliamentary Ombudsman in the recent past
suggest that the impact of international human rights treaties is
significantly on the increase. While the authors do not own the contested
area, the application of article 27 gives them legal standing as
representatives of a national minority, irrespective of ownership. The State
party concludes that the communication should be deemed inadmissible in
respect of measures taken outside the Hammastunturi Wilderness on the basis
of article 5, paragraph 2 (b), of the Optional Protocol.
6.4 Subsidiarily, the State party reaffirms that current road construction
activities in the "residual areas" do not infringe upon the authors' rights
under article 27. It observes that the authors do not specify that the
construction has caused real damage to reindeer husbandry. In this context,
it observes that:
"the concept of culture in the sense of article 27 provides for a certain
degree of protection of the traditional means of livelihood for national
minorities and can be deemed to cover livelihood and other conditions in so
far as they are essential for the culture and necessary for its survival.
The Sami culture is closely linked with traditional reindeer husbandry. For
the purposes of ... article 27 ... it must be established, however, in
addition to the aforementioned question of what degree of interference the
article [protects] against, whether the minority practices its livelihood in
the traditional manner intended in the article".
As Sami reindeer husbandry has evolved over time, the link with the natural
economy of old Sami tradition has been blurred; reindeer husbandry is
increasingly practised with help of modern technology, for example, snow
scooters and modern slaughterhouses. Thus, modern reindeer husbandry managed
by herdsmen's committees leaves little room for individual, self-employed,
herdsmen.
6.5 The State party further denies that prospective logging in areas outside
the Wilderness will infringe upon the authors' rights under article 27:
"there is no negative link between the entry into force of the Wilderness
Act and logging by the Central Forestry Board outside the wilderness area.
On the contrary, enactment of the law has a positive impact on logging
methods used in the residual areas". The State party explains that under the
Act on Reindeer Husbandry, the northernmost State-owned areas are set aside
for reindeer herding and shall not be used in ways that impair reindeer
husbandry. The Central Forestry Board has decided that highlands (above 300
metres altitude) are subject to the most circumspect forestry. In Upper
Lapland, a land and water utilization strategy approved by the Central
Forestry Board that emphasizes the principle of multiple use and
sustainability of resources applies.
6.6 It is recalled that the area identified in the authors' initial
complaint comprises approximately 55,000 hectares (35,000 hectares of the
Hammastunturi Wilderness, 1,400 hectares of highlands and 19,000 hectares of
conservation forest. Out of this total, only 10,000 hectares, or 18 per
cent, are set aside for logging. The State party notes that "logging is
extremely cautious and the interests of reindeer husbandry are kept in
mind". If one considers that logging is practised with strict consideration
for the varied nature of the environment, forestry and land use in the area
in question do not cause undue damage to reindeer husbandry. Furthermore,
the significant increase in the overall reindeer population in Finnish
Lapland over the past 20 years is seen as a "clear indication that logging
and reindeer husbandry are quite compatible".
6.7 In respect of the authors' claim that thinning of the forests destroys
lichen (lichenes and usnea) in the winter herding areas, the State party
observes that other herdsmen have even requested that such thinning be
carried out, as they have discovered that it alters "the ratio of top
vegetation to the advantage of lichen and facilitates mobility. The purpose
of [such] thinning is, inter alia, to sustain the tree population and
improve its resistance to airborne pollution." Furthermore, according to the
State party, lichen is plentiful in the highland areas where the Central
Forestry Board does no logging at all.
6.8 The State party notes that Sami herdsmen own or co-own forests.
Ownership is governed by a variety of legislative acts; the most recent, the
Reindeer Farm Act and Decree, also applies to Sami herdsmen. According to
the State party, the authors own reindeer farms. Thinning of trees or
logging of private forests is governed by the Private Forests Act. According
to the Association of Herdsmen's Committees, the income derived from logging
is essential for securing the herdsmen's livelihood, and, furthermore,
forestry jobs are essential to forest workers and those Sami herdsmen who
work in the forests apart from breeding reindeer. In the light of the above,
the State party reaffirms that planned logging activities in the area
identified by the complaints cannot adversely affect the practice of
reindeer husbandry, within the meaning of article 27 of the Covenant.
7.1 In their comments, dated 25 March 1992, on the State party's submission,
the authors contend that the State party's reference to the availability of
remedies on account of the Covenant's status in the Finnish legal system
represents a novelty in the Government's argumentation. They submit that
this line of argument contrasts with the State party's position in previous
Optional Protocol cases and even with that put forth by the Government at
the admissibility stage of the case. The authors argue that while it is true
that international human rights norms are invoked increasingly before the
courts, the authorities would not be in a position to contend that Sami
reindeer herdsmen have locus standi in respect to plans for maintenance and
use of wilderness areas, or in respect of road construction projects in
state-owned forests. Not only is there no case law in this respect, but
Finnish courts have been reluctant to accept standing of any others than the
landowners; the authors cite several judgements in support of their
contention. [FN3]
-------------------------------------------------------------------------------------------------------------------------------[FN3]
See, for example, judgement of 16 April 1992 of the Supreme Administrative
Court in the Angeli case.
-------------------------------------------------------------------------------------------------------------------------------
7.2 Inasmuch as the alleged direct applicability of article 27 of the
Covenant is concerned, the authors claim that while this possibility should
not theoretically be excluded, there is no legal precedent for the direct
application of article 27. The State party therefore wrongly presents a
hypothetical possibility as a judicial interpretation. The authors reaffirm
that no available and effective remedies exist in relation to road
construction and other measures in the "residual area", which consists
exclusively of state-owned lands. The Government's reference to the fact
that the Covenant is incorporated into the domestic legal system cannot be
deemed to prove that the domestic court practice includes even elementary
forms of the approach now put forth by the State party, for the first time,
to a United Nations human rights treaty body.
7.3 The authors challenge the State party's assessment of the impact of road
construction into the area designated in their communication on the
enjoyment of their rights under article 27. Firstly, they object to the
State party's interpretation of the scope of the provision and argue that if
the applicability of article 27 depended solely on whether the minority
practices its "livelihood in the traditional manner", the relevance of the
rights enshrined in the provision would be rendered nugatory to a large
extent. It is submitted that many indigenous peoples in the world have, over
time and owing to governmental policies, lost the possibility to enjoy their
culture and carry out economic activities in accordance with their
traditions. Far from diminishing the obligations of States parties under
article 27, such trends should give more impetus to their observance.
7.4 While Finnish Sami have not been able to maintain all traditional
methods of reindeer herding, their practice still is a distinct Sami form of
reindeer herding, carried out in community with other members of the group
and under circumstances prescribed by the natural habitat. Snow scooters
have not destroyed this form of nomadic reindeer herding. Unlike Sweden and
Norway, Finland allows reindeer herding for others than Samis; thus, the
southern parts of the country are used by herdsmen's committees, which now
largely resort to fencing and to artificial feeding.
7.5 As to the impact of road construction into their herding area, the
authors reiterate that it violates article 27 because:
(a) Construction work already causes noise and traffic that has disturbed
the reindeer;
(b) The two roads form "open wounds" in the forests with, on the immediate
site, all the negative effects of logging;
(c) The roads have changed the pattern of reindeer movements by dividing the
wilderness, thereby making it far more difficult to keep the herd together;
(d) Any roads built into the wilderness bring tourists and other traffic,
which disturb the animals;
(e) As the Government has failed to provide reasonable justifications for
the construction of the roads, their construction violates the authors'
rights under article 27, as a mere preparatory stage for logging within
their area.
7.6 Concerning the State party's assessment of logging operations in the
areas designated by the communication, the authors observe that although the
area in question is a small part of the Sami areas as a whole, logging
within that area would re-start a process that lasted for centuries and
brought about a gradual disintegration of the traditional Sami way of life.
In this context, it is noted that the area in question remains one of the
most productive wilderness areas used for reindeer herding in Finnish
Lapland.
7.7 Still in the context of planned logging operations, the authors submit
the reports of two experts, according to which: (a) under certain
conditions, reindeer are highly dependent on lichens growing on trees; (b)
lichen growing on the ground are a primary winter forage for reindeer; (c)
old forests are superior to young ones as herding areas; and (d) logging
negatively affects nature-based methods of reindeer herding.
7.8 The authors insist that the area designated in their communication has
remained untouched for centuries, and that it is only in the context of the
coming into force of the Wilderness Act that the Central Forestry Board
began its plans for logging in the area. They further contend that if it is
true, as claimed by the State party, that highlands (above 300 metres) are
in practice free of Board activity, then their herding area should remain
untouched. However, the two roads built into their area partly run above the
300 metre mark, which shows that such areas are well within the reach of
Board activities. In this context, they recall that all of the area
delineated in their complaint is either above the 300 metre mark or very
close to it; accordingly, they dismiss the State party's claim that only
1,400 hectares of the area are highlands. Furthermore, while the authors
have no access to the internal plans for logging in the area drawn up by the
Central Forestry Board, they submit that logging of 18 per cent of the total
area would indeed affect a major part of its forests.
7.9 As to the alleged compatibility of intensive logging and practising
intensive reindeer husbandry, the authors note that this statement only
applies to the modern forms of reindeer herding using artificial feeding.
The methods used by the authors, however, are traditional, and for that the
old forests in the area designated by the communication are essential. The
winter of 1991-1992 demonstrated how relatively warm winters may threaten
traditional herding methods. As a result of alternating periods with
temperatures above and below zero degrees centigrade, the snow was, in many
parts of Finnish Lapland, covered by a hard layer of ice that prevented the
reindeer from getting their nutrition from the ground. In some areas without
old forests carrying lichen on their branches, reindeer have been dying from
hunger. In this situation, the herding area designated in the communication
has been very valuable to the authors.
7.10 In several submissions made between September 1992 and February 1994,
the authors provide further clarifications. By submission of 30 September
1992, they indicate that the logging plans of the Central Forestry Board for
the Hammastunturi Wilderness are still in preparation. In a subsequent
letter dated 15 February 1993, they indicate that a recent decision of the
Supreme Court invalidates the State party's contention that the authors
would have locus standi before the courts on the basis of claims brought
under article 27 of the Covenant. This decision, which quashed a decision of
the Court of Appeal granting a Finnish citizen who had been successful
before the Human Rights Committee compensation, [FN4] holds that the
administrative, rather than the ordinary, courts are competent to decide on
the issue of the complainant's compensation.
-------------------------------------------------------------------------------------------------------------------------------[FN4]
Official Records of the General Assembly, Forty-fourth Session, Supplement
No. 40 (A/44/40), annex X.J, communication No. 265/1987 (Antti Vuolanne v.
Finland), views adopted on 7 April 1989.
-------------------------------------------------------------------------------------------------------------------------------
7.11 The authors further indicate that the draft plan for use and
maintenance of the Hammastunturi Wilderness was made available to them on 10
February 1993, and a number of them were going to be consulted by the
authorities before final confirmation of the plan by the Ministry for the
Environment. According to the draft plan, no logging would be carried out in
those parts of the Wilderness belonging to the area specified in the
communication and to the herding areas of the Sallivaara Herdsmen's
Committee. The same is not, however, true for the respective areas of the
Lappi Herdsmen's Committee; under the draft plan, logging would be carried
out in an area of 10 square kilometres (called Peuravaarat) situated in the
southernmost part of the Hammastunturi Wilderness and within the area
specified in the original communication.
7.12 In submissions of 19 October 1993 and 19 February 1994, the authors
note that negotiations on and preparation of a plan for use and maintenance
of the Wilderness still have not been completed, and that the Central
Forestry Board still has not made a final recommendation to the Ministry for
the Environment. In fact, a delay until 1996 for the finalization of the
maintenance plan is expected.
7.13 The authors refer to another logging controversy in another Sami
reindeer herding area, where reindeer herdsmen had instituted proceedings
against the Government because of planned logging and road construction
activities in the Angeli district, and where the Government had argued that
claims based on article 27 of the Covenant should be declared inadmissible
under domestic law. On 20 August 1993, the Court of First Instance at Inari
held that the case was admissible but without merits, ordering the
complainants to compensate the Government for its legal expenses. On 15
February 1994, the Court of Appeal of Rovaniemi invited the appellants in
this case to attend an oral hearing to take place on 22 March 1994.
According to counsel, the Court of Appeal's decision to grant an oral
hearing "cannot be taken as proof for the practical applicability of article
27 of the Covenant as basis for court proceedings in Finland, but at least
it leaves [this] possibility open".
7.14 In the light of the above, the authors conclude that their situation
remains in abeyance at the domestic level.
Post-admissibility considerations
8.1 The Committee has taken note of the State party's information, provided
after the decision on admissibility, that the authors may avail themselves
of local remedies in respect of road construction activities in the residual
area, based on the fact that the Covenant may be invoked as part of domestic
law and that claims based on article 27 of the Covenant may be advanced
before the Finnish courts. It takes the opportunity to expand on its
admissibility findings.
8.2 In their submission of 25 March 1992, the authors concede that some
Finnish courts have entertained claims based on article 27 of the Covenant.
From the submissions before the Committee it appears that article 27 has
seldom been invoked before the local courts or its content guided the ratio
decidendi of court decisions. However, it is noteworthy, as counsel to the
authors acknowledges, that the Finnish judicial authorities have become
increasingly aware of the domestic relevance of international human rights
standards, including the rights enshrined in the Covenant. This is true, in
particular, for the Supreme Administrative Tribunal and increasingly for the
Supreme Court and the lower courts.
8.3 In the circumstances, the Committee does not consider that a recent
judgement of the Supreme Administrative Tribunal, which makes no reference
to article 27, should be seen as a negative precedent for the adjudication
of the authors' own grievances. In the light of the developments referred to
in paragraph 8.2 above, the authors' doubts about the courts' readiness to
entertain claims based on article 27 of the Covenant do not justify their
failure to avail themselves of possibilities of domestic remedies which the
State party has plausibly argued are available and effective. The Committee
further observes that according to counsel, the decision of the Court of
Appeal of Rovaniemi in another comparable case, while not confirming the
practical applicability of article 27 before the local courts, at least
leaves this possibility open. Thus, the Committee concludes that an
administrative action challenging road construction activities in the
residual area would not be a priori futile, and that the requirements of
article 5, paragraph 2 (b), of the Optional Protocol have not been met.
8.4 The Committee takes note of counsel's comment that a delay until 1996 is
expected in the finalization of the plan of the Central Forestry Board for
use and maintenance, and understands this as an indication that no further
activities in the Hammastunturi Wilderness and the residual area will be
undertaken by the State party while the authors may pursue further domestic
remedies.
9. The Human Rights Committee therefore decides:
(a) That the decision of 9 July 1991 is set aside;
(b) That the communication is inadmissible under article 5, paragraph 2 (b),
of the Optional Protocol;
(c) That this decision shall be communicated to the State party, to the
authors and to their counsel. |
|
