ACCESS TO LAND, ACCESS TO JUSTICE

THE DIVERGENCE OF LEGAL PROTECTION: CULTURAL PROTECTION FOR SAMI ACCESS TO LAND AND WATERS UNDER SWEDISH LAW IN LIGHT OF THE EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS

Abstract

The human rights and fundamental freedoms of the Swedish Indigenous Sami population are secured by both constitutional and international law. This makes both national and international legal norms relevant for Sami legal protection, but it raises the question of whether Swedish legal norms provide the Sami with effective and practical protection for their human rights and fundamental freedoms in line with international human rights law as prescribed in the European Convention for the Protection of Human Rights and Fundamental Freedoms. This thesis aims to provide an answer to this question. It does so by examining the level of protection of Sami human rights and fundamental freedoms at a national level in comparison with the protection the European Convention aims to ensure.
A comparison of the legal protection for cultural aspects of Sami private life under the Swedish legal system and under the European Convention is the ultimate purpose of this thesis. To better understand the contemporary context of Sami interests, a brief overview is provided of international instruments linked to Indigenous peoples. A thorough study is then carried out in two phases. The first phase examines the national protection of Sami interests in light of the historical context that underlies the Sami’s natural right to access land and waters to preserve their culture. The second phase examines jurisprudence from the European Court of Human Rights and Fundamental Freedoms with a focus on the right of respect for private life under Article 8 and the right to the peaceful enjoyment of possession under Article 1 of Protocol No. 1. The study reveals that the Swedish Constitution’s approach to the protection of cultural aspects of private life means it does not provide sufficient protection for the rights and fundamental freedoms secured by Article 8 of the European Convention.