European Court of Human Rights for the Protection of Arctic Indigenous Peoples' land rights PDF
Preview European Court of Human Rights for the Protection of Arctic Indigenous Peoples' land rights
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: 460 8000 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
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