{"title":"挪威法律和瑞典萨米人","authors":"T. Allen, Jan Mikael Lundmark","doi":"10.1163/15718107-bja10066","DOIUrl":null,"url":null,"abstract":"\nModern state boundaries often cut through territories currently or formerly occupied by indigenous peoples. In many cases, the unmitigated application of laws on movement across the border can interfere with the rights and way of life of an indigenous group. This paper considers recent legal developments in Canada and Norway concerning cross-border rights and claims. It highlights conflicts that have emerged between constitutional principles that are regarded as fundamental within the state and norms drawn from international law, and in particular the norms set by United Nations Declaration on the Rights of Indigenous Peoples. We focus on the constitutional jurisprudence on cross-border rights of indigenous peoples in Norway, and draw on the Canadian law as a means of demonstrating that the Norwegian approach is unduly restrictive. This, we argue, is primarily due to the preference of the Norwegian court for a paternalistic model of indigenous claims. We contrast this with the recent jurisprudence from the Canadian Supreme Court on cross-border claims, where the reasoning is closer to a model that gives priority to the recognition of indigenous rights, as required under the UN Declaration. The final section returns to Norway, to consider the impact of the European Convention on Human Rights (‘echr’) to Sami rights. The leading case is under review by the European Court of Human Rights, and accordingly the article asks whether the paternalist model will withstand the closer scrutiny against human rights standards.","PeriodicalId":34997,"journal":{"name":"Nordic Journal of International Law","volume":" ","pages":""},"PeriodicalIF":0.0000,"publicationDate":"2023-06-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":"0","resultStr":"{\"title\":\"Norwegian Law and the Swedish Sami\",\"authors\":\"T. Allen, Jan Mikael Lundmark\",\"doi\":\"10.1163/15718107-bja10066\",\"DOIUrl\":null,\"url\":null,\"abstract\":\"\\nModern state boundaries often cut through territories currently or formerly occupied by indigenous peoples. In many cases, the unmitigated application of laws on movement across the border can interfere with the rights and way of life of an indigenous group. This paper considers recent legal developments in Canada and Norway concerning cross-border rights and claims. It highlights conflicts that have emerged between constitutional principles that are regarded as fundamental within the state and norms drawn from international law, and in particular the norms set by United Nations Declaration on the Rights of Indigenous Peoples. We focus on the constitutional jurisprudence on cross-border rights of indigenous peoples in Norway, and draw on the Canadian law as a means of demonstrating that the Norwegian approach is unduly restrictive. This, we argue, is primarily due to the preference of the Norwegian court for a paternalistic model of indigenous claims. We contrast this with the recent jurisprudence from the Canadian Supreme Court on cross-border claims, where the reasoning is closer to a model that gives priority to the recognition of indigenous rights, as required under the UN Declaration. The final section returns to Norway, to consider the impact of the European Convention on Human Rights (‘echr’) to Sami rights. The leading case is under review by the European Court of Human Rights, and accordingly the article asks whether the paternalist model will withstand the closer scrutiny against human rights standards.\",\"PeriodicalId\":34997,\"journal\":{\"name\":\"Nordic Journal of International Law\",\"volume\":\" \",\"pages\":\"\"},\"PeriodicalIF\":0.0000,\"publicationDate\":\"2023-06-26\",\"publicationTypes\":\"Journal Article\",\"fieldsOfStudy\":null,\"isOpenAccess\":false,\"openAccessPdf\":\"\",\"citationCount\":\"0\",\"resultStr\":null,\"platform\":\"Semanticscholar\",\"paperid\":null,\"PeriodicalName\":\"Nordic Journal of International Law\",\"FirstCategoryId\":\"1085\",\"ListUrlMain\":\"https://doi.org/10.1163/15718107-bja10066\",\"RegionNum\":0,\"RegionCategory\":null,\"ArticlePicture\":[],\"TitleCN\":null,\"AbstractTextCN\":null,\"PMCID\":null,\"EPubDate\":\"\",\"PubModel\":\"\",\"JCR\":\"Q2\",\"JCRName\":\"Social Sciences\",\"Score\":null,\"Total\":0}","platform":"Semanticscholar","paperid":null,"PeriodicalName":"Nordic Journal of International Law","FirstCategoryId":"1085","ListUrlMain":"https://doi.org/10.1163/15718107-bja10066","RegionNum":0,"RegionCategory":null,"ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":null,"EPubDate":"","PubModel":"","JCR":"Q2","JCRName":"Social Sciences","Score":null,"Total":0}
Modern state boundaries often cut through territories currently or formerly occupied by indigenous peoples. In many cases, the unmitigated application of laws on movement across the border can interfere with the rights and way of life of an indigenous group. This paper considers recent legal developments in Canada and Norway concerning cross-border rights and claims. It highlights conflicts that have emerged between constitutional principles that are regarded as fundamental within the state and norms drawn from international law, and in particular the norms set by United Nations Declaration on the Rights of Indigenous Peoples. We focus on the constitutional jurisprudence on cross-border rights of indigenous peoples in Norway, and draw on the Canadian law as a means of demonstrating that the Norwegian approach is unduly restrictive. This, we argue, is primarily due to the preference of the Norwegian court for a paternalistic model of indigenous claims. We contrast this with the recent jurisprudence from the Canadian Supreme Court on cross-border claims, where the reasoning is closer to a model that gives priority to the recognition of indigenous rights, as required under the UN Declaration. The final section returns to Norway, to consider the impact of the European Convention on Human Rights (‘echr’) to Sami rights. The leading case is under review by the European Court of Human Rights, and accordingly the article asks whether the paternalist model will withstand the closer scrutiny against human rights standards.
期刊介绍:
Established in 1930, the Nordic Journal of International Law has remained the principal forum in the Nordic countries for the scholarly exchange on legal developments in the international and European domains. Combining broad thematic coverage with rigorous quality demands, it aims to present current practice and its theoretical reflection within the different branches of international law.