The Committee therefore urges the State party to t..ske effective steps (a) to investigate the circumstances of the death of Jean Miango Muiyo, (b) to bring to justice .ny person found to be responsible for his death, and (c) to pay compensation to his family.
March 1987 Th, Human Rights CQmmittee. e~tabliahed under article 28 of the International Covenant ~n Civil and PQlitical Rights. Meeting on 27 July 1988. Having cQDcluQad its consideration of communication No. 191/1985. submitted to the Committee by Ivan Xitok under the Optional Protocol to the International Covenant on Civil and Political Rights. AOopts L:'\e followingl ~a under article S, PAragraph 4, Qf tba OptiQoai-ProtQcol
The author of the communication (initial letter dated 2 December 1985 And subsequent letters dated 5 and 12 November 1986) is Ivan Kito~. a Swedist citizen of Sarni ethn '.c orIgin. born in 1926. He is represented by cOlonseI. He claims to be the victim of violations by the Government of Sweden of artic'es I and 27 of the Covenant.
It is stated that Ivan Kit~k belongs to a Sarni family which has been active in reindeer breeding for over 100 years. On th~s basis. the Author claims that he has inherited the "civil right" to reindeer breeding from his forefathers as well as the rights to land "lnd "".ter in Sorkaitum Sarni Village. It appears t.hat the author has been denied the exercise of these rights because he ia said to have lost his membership in the Sarni village (ltaamaby". {ol-merIy "l.appbylt). which under A 1971 Swedish statute is like a trade union w!l:.h a "closed shop" rule. A non-member cannot exercise Sarni rights to land and water. clai."1l'~d that the C~own arbit.rarily denies the immemorial rights of the Sarni minora&" and that Iven Kltok is the victim of such denial of rights.
With ~9spect to the exhausti~D of dumestic ~emedies, tne autlwr states that he has suught redress through all instances in Swednn, and thh~ the Regeringsratten (Highest Administrative Court of Sweden) decided against him 0" 6 Jane 1985. although two dissenting jUdges found for him and would have made him a member of the sMjeb,y.
The author st~tes that tbe sarne mattet' ha~ not been submitted for examination under auy other procedure of international i~vz3tig~tion or settlement.
By its decision of 19 March 1986. the Wor~in9 Group of the Human Rights Committee transmitted the r.o~nunication. under rule 91 of the provisional rules of p~ocedure, to the State pat'ty concerned, requesting information and observations relevant to the question of the admissibility of the eommunication. The Working Group alao requested the State party to pro,,-ide the Committee with the text of the relevant administrative and judicial decisions pertaining to the case, il'.cluding (a) the deuision of 23 January 1981 of the Linsstyrelsen, No~rbotten& liD (the relevant administrative authority), (b) the jUdgement of 17 May 1983 of the Xammarratten (Administ~ative Court of Appeal) and (c) tha judgem~nt of 6 June 1985 of the Regerinqsri~ten <Highest Administrative Court of Sweden) with dissenting opiniun,;. ..1' -_... the
By its suhni.ssion, da';:ed 12 September 1986. the ~tate party provided requested administrative and judicial decisiQns and observed as follows: "IVah Kitok has alleged breaches of articles 1 and 27 of the International Covenant on Civil and Political Rights. The GoverDmeut has understood Ivon Kitok's complaint under article 27 thus: that he - through Sweais~ legislation and as a result of Swedish court decisions - h~s been prevented from exercisicg his 'reindeer brer.ding rights' and consequently denied cbe right to enjoy ~be culture of the Semi. "With respect to the autllor's complaint under article 1 of the Covenant. the State party observes that it is uot certain whether Ivan ~ito~ claims that the Sarni as a people should have the right to self-determinlltion all set forth in ar.ticle 1. paragraph 1, or whether the complaint should b~ consinered to ~~ limited f:o paragra}'{~ 2 of that article. an allegation that tli.tl Sarni as ~ people have been denied the right freely to diBpose of their natural wealth und resources. However, as can be seen already from the material presenteo by l~an Kitok himself, the issue concerning the riqhts of the Sarni to land and water. and questions connected herdto. is a matter of immense complexity. Th~ matter has been the object of discussions. consideration dnd decisions ever since the Swedish Administration started to take interest in the areas in northern Sweden, .~ere the Sarni live. As a matter of fact, some of the issues with resper.t to the Sarni population are currently under consideration by the Samerattsutredningen (Swedish Cmnmission on Sarni Issues) appoin~ed by the Government in 1983. For the tim~ being, th~ Government refrains from further comments on this aspect of the applicatio~. Suffice it to say that. in the ..;;.'222-
With respect to au alleged violation of article 27, the State party "admits that the Sarni form an ethnic minor.ity in Sweden arad that persons belonging to thi. minority are entitled to protection under article 27 of the Covenant. Indeed, the Swedish Constitution goes somewhat further. Ch~pter 1, article 2, fourth paragraph, prescribesl 'The possibilities for ethnic, linguiltic or religious minorities to preserve and devrlop a cultural and locial life of their own should be promoted.' Chapter 2, article 15, prescribesl 'No law or other decree may imply discrimination against any citi.en on the groulld of his belonging to a minority on account of his race. skin colour or ethnic origin.' "The matter to be considered with regard to article 27 is whether Swedish le~islation and Swedish court decisions have resulted in Ivan ~itok being deprived of his right to carry out reindeer husbandry and, if this is the ('ase, whether this implies that article 27 has been violate~. The Government woul~, in this context, like to stress that I~an Kitok himself has observed before the legal instances in Sweden that the only quest:on at issue in hi. casa is the existance of such special reasons as enable the authorities to grant him admission as e member of the Sorka~tum Sarni community despite the Sarni community's refusal "The reindeer grazing legislation had the effect of dividing the Sarni population of Sweden into reindeer-herding and non-reindeer-herding Sarni, a di.tinction which is still very important. Reindeer herding is reserved for Sarni who are members of a Sarni village (.Dmob~), which is a legal entity under Swedish law. (The expression 'Semi community' is also used as an English translation of 'IDmeb~·.) Thase Sarni, today numbering about 2,500, also have certain other rights, for exarnple, as regards hunting and fishing. Other Sarni, however - the great majority, since the Sarni population in Sweden today numbers some 15,000 to 20,000 -. have no special rights under the pr.sent law. The.e other Sarni have found it more difficult to maintain their Sarni identity and many of them are today assimilated in Swedish society. Indeed, the majority of tt.~~ group does not evgn live within the area wher~ reindeer-herding Sarni livA. "The rules applicable on reindeer grazing are laid down in the 1971 Reindeer Husbandry Act [hereinafter the 'Act'). The ratio legis for this legislation is to improve the living conditions for the Sarni who hav~ reindeer husbandry as their primary income, and to ma~e the existence of relndeer husbandry safe for the future. There had been problems in achieving an income large enough to support a family living on reind~er husbandry. From the legislative history it appears that it waB considered a matter of general importance that reindeer husbandry be made more profitable. Reindeer hu~bandrv was considered necessary to protect and preset've the whole cultur. of the Sarni ••. "The new legislation led to a reorganization of the old existing Sarni villages into larger units. The Sami villages have their origin in the old ~, which originally formed the base of Sami society, consisting of a community of families which migrated seasonally from one hunting, fishing and trapping area to another, and which later on came to work with and follow a particular self-contained herd of reindeer from one seasonal grazing area to another. "Prior to the present legislation, the Sarni were organized in Sarni communities (las»byar). Decision to grant membership of these villages was made by the Landsstyrelsen (County Administrative Board). Under the present legislation, membership in a Sarni village is granted by the members of the Sarni village themselves. "A person who has been denied membership in a Sarni village can appeal against such a decision to the County Administrative Board. Appeals against the Board's decision in the matter can be made to the Kammarratten (Administrative Court of Appeal) and finally to the Regeringsratten (Highest Administrative Court of Sweden). "An appeal against a decision of a Sami community to refuse membership may, however, be granted only if there are special reasons for allowing such membership (see sect. 12, para. 2, of the 1971 Act). According to the legislative history of the Act, the County Administrative Board's right to grant an appeal against a decision made by the Sami community should be exercised very restrictively. It is thus required that the reindeer husbandry which the applicant inteads to carry out within the community be in an essential way useful to the community and that it be of no inconvenience to its other members. An important factor in this context is that the pasture areas remain constant, while additional members means more reindeers. "There seems to be only one previous jUdgement from the Regeringsratten concerning section 12 of the Reindeer Husbandry Act. However, the circumstances are not quite the same as in Ivan Kitok's case ••• "The case that Ivan Kitok has brought to the courts is based on the content of section 12, paragraph 2, of the Reindeer Husbandry Act. The Landsstyrelsen and the courts have thus had to make decisions only upon the question whether there were any special reasons within the meaning of the Act to allow Kitok membership in the Sarni community. The Landsstyrelsen found that there were no such reasons, nor did the Kammarratten or the majority of the Regeringsratten ••• -224- "Th" Government contends that Ivan Kitok in practice can still continue his reindeer husbandry, although he cannot e.ercise this right unde~ the seme safe conditions as the members of the Semi cOI,nunity. Thus, it cannot be said that he haA been prevented from 'enjoying his own culture'. I~or that reason the Government maintains that the complaint should be declared inadmissible as being incompatibl" with the Covenant."
Shoul~ the Committee arrive at another opinion, the State party submits thata "As is evident from the legislation, the Reindeer Husbandry Act aims at protecting and preserving the Semi culture and reindeer husbandry as such. The conflict that has occurred in this case is not so much a conflict between Ivan Kitok a8 a Semi and the State, but rather between Kitok and other S&ni. As in every society where conflicts occur, a choice has to be made between what is considered to b~ in the general interest on the one hand and the interests of the individual on the other. A special circumstance here is that reindeer husbandry is so closely connpcted to the Semi culture that it must be considered part of the Semi culture itsolf. "In this caS8 the legislation can be said to favour the Semi community in order to mftke reindeer husbandry economically viable now and in the future. "rhe pasture areas for reindeer husbandry are limited, and it is simply not pOflsible to let all Semi e.ercise re.indeer husbandry without jeopardhing this objective and running th~ risk of endangering the existence of reindeer husbandry as such. "In this case it should be noted that ~t is for the Semi community to decide whether a person is to be allowe~ membership or not. It is only when the community denies membership that the matter can become a case for the C0urts. "Artl· 21 guarantees the right of persons belonging to minority groups to enjoy their own culture. However, although not explicitly provided for in the text itsolf, c;uch restrictions on the exercise of this right .•. must be considered justifi~d to the extent that they are n~cessary in a democratic society in view of public interests ot vital importance or for the protection of the rights and freedoms of others. In vie", of th~ intertists underlying the reindeer husbandry legislation and its very limited impact on Ivan Kitok's possibility of 'enjoying his culture', the Government submits that under all the circumstances tIe present case does not indicate the existence of a violation of article 27.
Commenting on the State party's .ubmi.sion under rule 91, the author, in submissionl dated 5 and 12 November 1986, contends that his allegations with re.pect t~ violations of articles I and 27 are well-founded.
With regard to article 1 of the Covenant, the author stateBI "The old Lapp villaCiJel mUlt be looked upon a. arlaII realnl., not Stutea, with their own borders and their CiJovernment and with the riCiJht to neutrality in war. Thia was the Swediah position durinCiJ the Vala reiCiJn and is well ••pre••ed in the royal letters by Gustavu8 Vala of 1526, 1543 and 1551. It ~as alia confirmed by Gustavus Adolphu8 in 1615 and by a royal judgement thnt year for Suondavare Lapp viIlaCiJe ••• "In Sweden there is no theory, al there is in some other countries, that the ling or the State was the first ownec of all land within the State'l bord.:~. In addition to that, there was no State border between Sweden and Norway until 1751 in Lapp areal. In Sweden there is the notion of allodial land rightl, meaning land rights e.isting before the State. Thele allodial land rights are acknowledged in the travaul preparatoirel of the 1734 law-book for Sweden, includinCiJ even Finnilh territory. "Sweden hal difficult}· in understanding Ki tok' s complaint under article 1. litok's position under article 1, paragraph 1, il that the Sem! people hal the right to self-determination ••. If the world Sarni population i. about 65,000, 40,000 live in Norway, 20,000 in Sweden, 4,000 to ~,~OO in Finland and the rest in the Soviet Union. The number of Swedi.h Sarni in the heartland. between the veget~tion-line and the Norwegian border i. not e.&ctly known, becau.e Sweden has denied the Sand the right to a cen.\I,8. If the number Is tentatively put at 5,000, this population in Swedish Semi lanc'~ .hou1d be entitled to the riCiJht to lelf-~etermination. The e.istence of Semi in other countries should not be allowed to diminish the rignt to .elf-determination of the Swedish Sarn!. The Swedish Sarni cannot have a le.ser right because there are Sarni in other countries ......
With respect to article 27 of the Covenant, the author statesl "The 1928 law was unconstitutional f.lnd not consistent with international law or with Swedish civil law. The 1028 statute said that 8 non-Iamlb~-memb.r like Ivan litok had reir.Jeer breeding, hunting and fishing rights but was not entitled to use thOle rights. Thi8 is a most extraordinary statu~e, forbiddinCiJ a person to use civil rights in his possession. The idea was to make room for the Semi who had heen displaced to the north, by reducing the number of Sarni who could ule their inherited land and water rights .••• "The result is that there are two categories of Semi in the Semi heartland. in the north of Swedon between the vegetation-line of 1073 and the NorwegIan 1751 border. One category Is the full SemI, I.e., the village Semil the other i. the half-Semi, i.e., the non-village Semi living in the Semi village area, having land and water rights, but prohibited by statute to ule "The important thinCjJ for th~ Sarni people is solidarity arnong the people (fglksolidaritet) and not industrial solidarity (nAring8801idaritet). This was Lhe qreilt appeal of the Sarni leaders, Gustaf Park, IS1ael RuonCjJ and others. Sw~den has tried hard, however, to promot~ indu8trial solidarlty among the Swedish Sarni and to divide them into full Sarni and half-Sarni ••• It is characteristic that the 1964 Royal Committee wanted to call the Lapp villaCjJe 'reindeer village' (r'nbY) and wanted to make the ronby an entirely economic association with Increasing voting power for the big reindeer owners. This has also been achi.ved in the pres~nt som.by, where members get a new vote for every extra 100 reindeer. It is because of this organisation of the voting power that Ivan Kitok was not admitted into his fatherland Sorkaitum Lappby. "Among the approximately 3,000 non-somoby members who are entitled to carry out reindeer fa1'ming and live in Swedish Sarni heartland thtare are only a few today who are Joterested in taking up reind.er farming. In order to maintain the Sarni ethnic-linguistic minority, it is, however, very important that such Sami are encouraged to join the Jiarnehy."
In conclusion, it is stated that the author, as a half-Sarni, "cannot flmjoy his own culture because his reindeer-farming, hunting and fishing rights can be removed by an undemocratic graduated vote and as a half-Sarni he is forced to pay 4,000 to 5,000 Swedish krona annually as a fee to the Sorkaitum a.omJIkY. auociation that the full Sarni do m t pay to that associ8tion. This is a stigma on half-Sarni."
Before considering any claims contained in a communication, the Human Rights Committee must, in accordance with rule 87 of its proviGional rules of procedure, decide whether or not it is admissible under the Optional Protocol to the Covenant.
With regard to the State party's submission that the communication should be declared inadmissible as incompatibl~ with article 3 of the Optional Protocol or as "manife.tly ill-founded", the Committee observed that the author, a8 an individual, could not claim to be the victim of a violation of the right of self-determination en.hrined in article I of the Covenant. Whereas the Optional Protocol provides a recourse procedure for individuals claiming that their rights have been violated, article I of the Covenant deals with rights conferred upon peoples, as such. However, with regard to article 27 of the Covenant, the Committee observed that the author had made a reasonable effort to .uhstantiate his allegations that he wos the victim of a violation of his right to enjoy tho sarne rights enjoyed by other member's of the Sarni community. Therefore, it decided that the issues before it, in particular the scope of article 27, should be examined with the merits of the case.
The Committee noted that both the author and the State party had already made extensive submissions with regard to the merits of the case. However, the Committee deemed it appropriate at that juncturn to limit itself to the procedural requirement of deciding on the admissibility of the communication. It noted that, it the State party should wish to add to its earlier submission within six months of the transmittal to it of the decision on admissibility, the author of the communication would be given Bn opportunity to comment thereon. If no further 8ubmissions were received from the State party under article 4, parugraph 2, of the Optional Protocol, the Committee would proceed to adopt its final views in the light of the written information already submitted by the parties.
On 25 March 1987, the Committee therefore decided that the communication was admissible in so far as it raised issues under article 27 of the Covenant, and requested the State party, should it not intend to make a further submission in the case under article 4, paragraph 2, of tha Optional Protocol, to so inform the Committee, so as to permit an early decision on the merits.
By a note dated 2 September 1987, the State party informed the Committen that it did not intend to make a further ~ubmission in the case. No further submission has been received from the author.
The Human Rights Committee has considered the merits of the communication in the light of all the information made available to it by the parties, as provided in article 5, paragraph 1, of the Optional Protocol. The facts of the case are not in dispute.
The main question before the Cownittee is whether the author of the communication is the victim of a violation of article 27 of the Covenant because, as he alleges, he is arbitrarily denied immemorial rights granted to the Sarni community, in particular, the right to membership of the Sarni community and the right to carry out reindeer husbandry. In deciding whether or not the author of the communic&tion has been denied the right to "enjoy [his] own culture", as
The regulation of an economic activity is normally a matter for the State alone. However, where that activity is an essential element in the culture of an ethnic co~unity, its application to an individual may fall under article 21 of the covenant, which providesl "In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language."
The Committee observes, in this context, that the right to enjoy one's own culture in community with the other members of the group cannot be determined iu-ab.traclo but has to be placed in context. The Committee is thus called upon to consider statutory restrictions affer-ting the right of an ethnic Semi to membership of a Semi vi~lage.
with regard to the State party's argument that the conflict in the present case is not 80 much a conflict between the author as a Semi and the State party, but l'ather between the author and the Semi community (see para. 4.3 above), the Committee observes that lhe State party's responsibility has been engaged, by virtue of the adoption of the Reindeer Husbandry Act of 1911, and that it is therefore State actIon that has been challenged. As the State party itself points out, an appeal against a decision of the Sarni community to refuse membership can only be granted if there are special reasons fOI allowing such membershipl furthermore, the State party acknowl dges that th_ right of the Landsstyrelsen to grant such an appeal should be exercised very restrictively.
According to the State party, the purposes of the Reindeer Husbandry Act are to restrict the number of reindeer breeders for economic and ecological reasons and to secure the preservation and well-being of the Sarni minority. Both partie~ agree that effective measures are required to ensure the future of reindeer breeding and the livelihood of those for whom reindeer farming is the primary source of in(~ome. The method selected by the State party to secure these objectives is the limitation of the right to engage in reindeer breeding to members of the Sarni villages. The Committee is of the opinion that all these objectives and measures are reasonable and consistent with article 27 of the Covenant.
The Conmittee has none the les8 had grave doubts as to whether certain provisions of the Reindeer Husbandry Act, and their application to the author, are compatibl~ ~ith article 27 of the Covenant. Section 11 of the Reindeer Husbandry Act provides thatl "A member of a Semi community iSI "1. A porson entitled to engage in reindeer husbandry who participates in reindeer husbandry within the pasture area of the community. "3. A person entitled to engage in reindeer husbandry who is the husband or child living at home of a member as qualified in .ub.ectlon 1 or 2 or who is the survivin'iJ husband or minor child of a decea.ed member." Section 12 of the Act provides thata "A Semi community may accept as a member a perlon entitled to engage in reindeer husbandry other than as specified in .ection 11, if he intends to carry on reindeer husbandry with his own reindeer within the pasture area of the community. "If the applicant should b~ refused membership, the L~~~sstyrelsen may grant him membership, if special reasons should e.ist."
It can thus be sften that the Act provides certain criteria for participation in the life of an ethnic minolity whereby a perlon who il ethuically a Semi can be held not to be a Semi for the purposes of the Act. The Committee has been concerned that the ignoring of objective ethnic criteria in determining membership of a minority, and the application to Mr. Kitok of the designated rules, may have been disproportionate to the legitimate ends sought by the legislation. It hal further noted that Mr. Kitok has always retained some links with the Sami community, always living on Semi lands and seeting to return to full-time reindeer farming as soon as it became financially possible, in his particular circumstances, tor him to do so.
In resolving this problem, in which there is an apparent conflict between the legislation, which seems to protect the rights of the minority as a whole, and its application to a single member of that minority, the Committee hal been guided by the (atio decidendi in the Lovelace case (No. 24/1977, LavalGe. v. ConadA), ii/ namely, that a re.triction upon the right of an individual member o( a minority must be shown to have a reasonable and objective justifIcation and co De necessary for the continued viability and welfare of the minority as a whole. After a careful review of all the elements involved in this case, the Committee i. of the view that there is no violation of article 27 by the State party. In this conte.t, the Committee notes that Mr. Kitok is permitted, albeit not as of right, to graze and farm his reindeer, to hunt and to fish.
December 1985 (date of initial let.ter) I2.At.tL.Q~ decisioDQJLAdmissibiU.tyz 25 March 1987