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Denial of justice: the latest indigenous land disputes before the European Court of Human Rights and the need for an expansive interpretation of Protocol 1.

In its three latest decisions on indigenous land rights, the European Court of Human Rights (ECtHR) has afforded scant protection to indigenous peoples. Through an analysis of each case in terms of substantive and procedural law, this Article evaluates the challenges indigenous peoples face when pursuing their claims before the Court. 1 argue that the European Court's narrow interpretation of the "right to peaceful enjoyment of possessions" codified in Protocol 1 (Article 1) of the European Convention on Human Rights (ECHR) has failed to consider the importance of collective lands in securing the cultural survival of indigenous peoples, their economic well being, and their social and spiritual integrity. In contrast, other regional human rights systems have adopted a more progressive stance that conforms with prevalent international norms and standards. I propose that the Court adopt the evolving interpretation of Protocol 1 and consider non-European international legal instruments and the decisions of other human rights bodies in its jurisprudence. At a broader level, incorporating these standards and decisions into ECtHR decisions will contribute to the coherence and unity of international law on the rights of indigenous peoples.

     A. Global Instruments for the Protection of Indigenous
        1. The International Labor Organization (ILO)
           Conventions on Indigenous and Tribal Peoples
        2. The U.N. Standards on Indigenous Peoples Rights
     B. Regional Instruments for the Protection of Indigenous

     A. Introduction
     B. Substantive Law: The European Convention on Human
        Rights (ECHR) and Protocol 1 to the ECHR
     C. Rules of Procedure

      A. Hingitaq 53 and Others v. Denmark (2006)
         1. The Inughuit Overview
         2. Facts of the Case
         3. Analysis of the Issue Before the European Court of
            Human Rights
            a. Requirements of Admissibility
            b. Application of Protocol 1 to the Facts of the Case
            c. Critical Assessment
            d. Alternative International Mechanism of Protection
      B. Chagos Islanders v. the United Kingdom (2012)
         1. The Chagos Islanders Overview
         2. Facts of the Case
         3. Analysis of the Issue Before the European Court of
            Human Rights
            a. Requirements of Admissibility
               i. The European Court's Jurisdiction ratione loci
                  and its Application to the Instant Case
              ii. Critical Assessment
             iii. Alternative International Mechanisms of
              iv. Applicants' Victim Status.
               v. Critical Assessment
      C. Handolsdalen Sami Village and Others v. Sweden (2009)
         1. The Sami Overview
         2. Facts of the Case
         3. Analysis of the Issue Before the European Court of
            Human Rights
            a. Requirements of Admissibility
            b. Application of Protocol 1 to the Facts of the Case
            c. Critical Assessment
            d. Alternative International Mechanism of Protection




Europe is home to a number of minority groups, including indigenous peoples. Indigenous peoples, however, differ from other minorities in their special connection with their ancestral land and unique, longstanding traditions. Examples of European indigenous groups include the Sami of Northern Europe and the Nenets of Western Siberia in Russia. In total, Russia is home to more than forty different indigenous groups, mostly spread throughout the polar region. European indigenous groups are also found outside the continent, such as the Inughuit of Greenland and the Chagossians, formerly of the Chagos Islands, both of whom fall under the jurisdictions of European states. As of today, no formal treaty provides a definition of "indigenous peoples." International Labor Convention No. 169, however, identifies cultural distinctiveness, self-identification, and use of a particular territory as central elements in identifying indigenous peoples. (1) In this regard, the connection indigenous peoples maintain with ancestral lands is critical for their physical survival and the basis of their social, cultural, and economic activities. Therefore, international human rights norms and a number of international systems of protection provide legal recognition to indigenous peoples' lands. However, this protection varies from region to region, with some regional systems providing stronger protection than others.

In Europe, the European Convention on Human Rights (ECHR) extends protection to approximately 800 million people, (2) of whom indigenous peoples represent a minute fraction. Yet in 2004 alone, three separate applications were submitted to the European Court by indigenous peoples. These submissions were made by the Inughuit, the Chaggossians, and the Sami, and all three submissions sought to assert the land rights of indigenous peoples. No similar applications have been lodged since then, at least at the time of writing.

While recognizing the contributions of international mechanisms to the protection of indigenous peoples, this Article intends to consider the current level of protection afforded by the European system for the protection of human rights. Unfortunately, the European Court of Human Rights (ECtHR) has maintained a restrictive interpretation of the instruments it oversees when dealing with indigenous peoples' struggles to recover traditional lands, including use of surrounding territories and resources outside their communal lands. In this context, the ECHR, the main human rights treaty supervised by the ECtHR emphasizes individual rights and does not make any reference to indigenous peoples. Additionally, Protocol 1 to the ECHR, which is the only European human rights treaty that protects the right of property, recognizes the power of the state to take away property. The Court has interpreted such power broadly, without balance given to the collective rights of indigenous peoples to their lands. This approach persists even with ongoing international legal developments, including the adoption of the 2007 UN Declaration on the Rights of Indigenous Peoples (UNDRIP), which recognizes that "[i]ndigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired...." (3) I conclude that the Court has been ineffective in protecting indigenous peoples' right to communal lands as demonstrated by the cases under analysis.

Part I lays down the pertinent norms applicable to indigenous peoples under international law. The goal of this Part is to provide an overview of the development of international law designed to protect indigenous peoples, particularly their right to communal lands. I particularly emphasize the limitations on and obstacles to effective legal protection of indigenous peoples' lands. Part II focuses on the European system for the protection of human rights, including substantive and procedural rules as they pertain to indigenous peoples. Part III discusses the three latest applications lodged before the European Court, including analysis of their outcomes and the challenges indigenous peoples consequently confront in their efforts to move claims forward. This Part begins with the analysis of Hingitaq 53 and Others v. Denmark, a claim lodged in representation of the Inughuit, one of the smallest indigenous tribes in the world. The Inughuit have claimed the right to return to their ancestral lands in northern Greenland after being forcibly relocated as the result of an agreement signed between Denmark and the U.S. during the 1950s. This agreement gave the U.S. access to Greenland to establish an air base in the area claimed by the Inughuit as their ancestral lands. In The Chagos Islanders v. the United Kingdom, a claim was submitted by a group of Chagos Islanders against the UK due to their eviction from the Chagos Islands during the 1960s. The removal was the result of an agreement between the United Kington and the U.S. in which the UK agreed to lease the islands to the U.S. for defense purposes. As in Hingitaq 53, the Chagos Islanders claimed the right to return to their ancestral lands. Finally, in Handolsdalen Sami Village and Others v. Sweden, the Sami people of Sweden argued that grazing rights in private property, fundamental for the survival of reindeers and part of the Sami cultural identity, constituted a "possession" protected by Protocol 1 to the ECHR. These cases provide an invaluable opportunity to analyze the current scope of the right to peaceful enjoyment of possessions, particularly as it applies to indigenous land claims. I also refer to the decisions of other international human rights bodies concerning indigenous land rights for comparison.


A. Global Instruments for the Protection of Indigenous Peoples

Global agreements for the protection of indigenous land rights have been negotiated through two Inter-Governmental Organizations (IGOs): the International Labor Organization (ILO) and the United Nations. Both have played an instrumental role in the consolidation of global standards applicable to indigenous peoples' rights to ancestral lands, natural resources, and territories.

1. The International Labor Organization (ILO) Conventions on Indigenous and Tribal Peoples

The development of international law to protect human rights reaches both minorities and indigenous peoples. These two groups share common ground and, indeed, most indigenous peoples are minorities. However, international standards applicable to indigenous peoples are more developed and specialized than those applicable to minorities. Yet, only a few treaties for the special protection of indigenous peoples are in force today.

The international legal development for the protection of indigenous peoples began within the framework of the International Labor Organization, not the UN. The ILO was founded in 1919, with the goal of promoting humane conditions of labor as a way to guarantee social peace after World War I. (4) Because indigenous peoples are often subject to discrimination and marginalization, the ILO's scope of work included the situation of indigenous workers and the adoption of labor standards for their protection. (5) Convention No. 107 was adopted in 1957 as the first treaty to address indigenous groups' right to collective lands. (6) Though a significant step, this convention made "populations," rather than peoples, the beneficiaries of the treaty. (7) This strategic use of language was a reaction to the belief that the recognition of "peoples" right to collective lands would trigger demands for territorial secession by indigenous groups. On the other hand, Convention No. 107 also came under criticism for encouraging assimilation of indigenous groups into mainstream society, (8) which could eventually lead to the destruction of indigenous peoples' cultural identity. As international standards evolved through the work of the UN during the 1970s and 1980s, the need to revise and update Convention No. 107 became imperative. As a result, Convention No. 169 was adopted in 1989. Both Convention No. 107 and Convention No. 169 are regarded as the only existing treaties devoted exclusively to the protection of indigenous peoples today. (9)

Convention No. 169 goes far beyond the protection of labor rights; it recognizes fundamental human rights applicable to indigenous peoples. Similar to ILO Convention No. 107, Convention No. 169 acknowledges indigenous peoples' right to own and possess the lands that they traditionally occupy. In this regard, Convention No. 169 makes governments responsible for taking measures to identify such lands. (10) Furthermore, Convention No. 169 introduces the right of indigenous peoples to be consulted on any measure directly affecting them (11) and their right to use and manage surface natural resources found on their lands. (12) The Convention also provides guarantees in the event that relocation becomes necessary and only "as an exceptional measure." (13) While opening up the option of returning to their ancestral lands, Convention No. 169 specifies alternative measures in case returning is not possible. In essence, the state shall make available lands of similar "quality and legal status" or, if agreed upon by the indigenous peoples concerned, "compensation in money or in kind." (14) In any event, indigenous peoples have the right to additional compensation for any injury or loss suffered. (15) These recognitions by ILO Convention No. 169 link indigenous peoples' cultural survival to their ancestral lands.

Though Convention No. 169 is a legally binding treaty, it provides a weak enforcement mechanism. Alleged infractions of the Convention are dealt with by a special procedure for filing complaints, ending with a nonbinding recommendation issued by a committee and communicated to the government. The recommendations are sometimes made public by the ILO Governing Body. (16) Thus, the primary responsibility to fulfill ILO obligations rests with the state. Further, both Conventions have received low numbers of ratifications; as of today, only twenty-two countries have ratified Convention No. 169, and only four of these are European states. (17) The lack of ratification, however, does not necessarily signify a lack of international consensus on the matter. (18) Many nations refrain from ratification because they have wrongly interpreted the term "peoples" found in Convention No. 169 as implying the "right to secede" to form an independent state. (19) The confusion comes from the fact that international law recognizes that former colonies--also referred to as "peoples"--have the right to self-determination, which involves the establishment of an independent state. (20) However, the right of peoples to establish statehood was adopted to accelerate the process of decolonization during the 1960s and was not intended to apply to indigenous groups within the context of the ILO Convention 169.

Therefore, objections to the ILO Convention come from fear of the implications for territorial secession and not from disagreement with the argument that indigenous peoples per se have fundamental rights to their lands. It is also essential to keep in mind that the principle of territorial integrity of states is firmly rooted in international law. (21)

2. The U.N. Standards on Indigenous Peoples Rights

Within the UN, two instruments address the rights of indigenous peoples: the 1966 International Covenant on Civil and Political Rights (ICCPR) (22) and the 2007 UN Declaration on the Rights of Indigenous Peoples (UNDRIP).

The ICCPR provides international legal recognition for minorities and indigenous peoples. Although the ICCPR is not a comprehensive agreement devoted exclusively to indigenous rights, it became the first UN treaty with a provision on minority rights and indigenous peoples. Indeed, Article 27 recognizes the right of minorities to maintain their own culture, language, and religion, while Article 1 codifies the right of indigenous peoples to self-determination. The ICCPR provisions on minorities and indigenous peoples were, most certainly, a victory for the UN SubCommission on Human Rights, a UN subsidiary body composed of experts that have worked intensively on the matter since the 1950s. (23) While some UN treaties apply by extension to indigenous peoples, and in that sense are relevant to their protection, (24) the ICCPR is the only one that affords protection to indigenous peoples' right to collective lands through Article 27. Relatedly, the Human Rights Committee's General Comment 23, which interprets and clarifies Article 27 to the ICCPR, recognizes that the right of minorities to enjoy culture "may include such traditional activities as fishing or hunting and the right to live in reserves protected by law." (25) General Comments adopted by the Human Rights Committee (HRC) are viewed as the authoritative interpretations of the general provisions of the ICCPR.

UNDRIP is a non-binding instrument of the UN which codifies current developments of international law applicable exclusively to indigenous peoples. (26) The UN Economic and Social Council (ECOSOC) began working on the issue of protection for indigenous peoples in the early 1970s, resulting in the establishment of the Working Group on Indigenous Peoples (WGIP) in 1982. (27) The goal of the WGIP was to accelerate the process of identifying international standards of protection with the goal of adopting a Draft Declaration on the Rights of Indigenous Peoples. Intense negotiations with the participation of indigenous leaders and government representatives followed for more than two and a half decades within subsidiary organs of the UN. (28) As a result, the UNDRIP was adopted by an overwhelming majority of states within the General Assembly. (29) Unlike the ILO Convention No. 169, the UNDRIP incorporated the right to self determination. (30) Although the UNDRIP offers no definition, self-determination in the context of indigenous peoples' rights is commonly defined as the right to have a "degree of autonomy within the sovereign state." (31) The UNDRIP also reaffirmed indigenous peoples' rights to collective lands, territories, and surface natural resources they have traditionally used. (32) It also contemplated issues of forced removal or damage of traditional lands, as well as measures to be taken to compensate the victims in such situations (33) Even though UNDRIP is a comprehensive document on the rights of indigenous peoples, it does not have the full force of law, and thus, the ICCPR remains the only instrument within the UN affording legal protection to indigenous peoples' collective land rights.

The ICCPR has become one of the world's most ratified human rights treaties. The HRC was established as the quasi-judicial body entrusted with monitoring compliance of state parties with the ICCPR. All nations bound by the ICCPR are required to participate in the reporting system, but only those nations that accept the complaint mechanism allow individuals to challenge the state in a contentious proceeding for alleged violations of the ICCPR. The views of the HRC, not to be confused with judgments, contain the conclusions of investigations and measures to be taken by the state in case of breach of the ICCPR. Despite limits on enforceability, most nations tend to comply with the HRC's views. (34) The ICCPR has been ratified by all member states of the Council of Europe (COE), 47 total; except for the UK, Monaco, and Switzerland, all have accepted the complaint procedure established under the Optional Protocol to the ICCPR. (35) This complaint mechanism has been triggered on several occasions by indigenous peoples of Europe such as the Sami from Sweden, Norway, and Finland. (36) However, indigenous peoples face challenges when pursuing claims before the HRC. While the ICCPR protects the collective rights of peoples (Article 1) and minorities (Article 27), the structure of protection follows an "individualistic approach," as only individuals have access to the HRC. Moreover, only a victim can submit a complaint. (37) This means that land claims lodged on behalf of indigenous peoples require the HRC to identify each particular victim. Tribal groups and indigenous communities per se do not have standing before the HRC. (38) Similarly, Non-Governmental Organizations (NGOs) lack victim status.

Furthermore, and in spite of adoption of General Comment 23, the HRC has been inclined in some instances to afford protection to the public interest when states claim it conflicts with the land-related cultural rights of indigenous peoples. For example, the HRC has, in some cases, accepted limitations based on the argument that the challenged measure had a "limited impact" on the indigenous culture. (39) A further limitation for vindication of ancestral land rights "lies in the absence of any reference to the right of property ... in the ICCPR." (40) Moreover, the HRC has been criticized as ineffective for not adequately protecting human rights in general. (41) Thus, while the indigenous peoples of Europe enjoy the protection of the ICCPR, they confront procedural and substantive limitations. Instead, regional IGOs for the protection of human rights have generally proven to be more effective in protecting human rights.

B. Regional Instruments for the Protection of Indigenous Peoples

Human rights treaties adopted within regional forums have also extended protection to indigenous peoples. Regional treaties for the protection of human rights include the European Convention on Human Rights (ECHR), the American Convention on Human Rights (ACHR) and the African Charter on Human and Peoples' Rights (ACHPR). These treaties expand on the human rights standards set out in the 1948 Universal Declaration of Human Rights (UDHR), the milestone document that stipulated that individuals had inherent human rights. Each regional treaty incorporates regional human rights protection priorities and values while guaranteeing a similar set of civil and political rights. Unlike the ILO Conventions, these treaties have been widely ratified. However, regional attempts to develop a treaty for the specific protection of indigenous peoples have been unsuccessful. (42) Therefore, international human rights instruments are of critical importance in advancing the rights of indigenous peoples within each region.

By the same token, mechanisms and proceedings to handle claims for treaty violations were implemented within each region. Supervisory organs with power to adjudicate disputes are central to the systems of protection. Such organs include the European Court of Human Rights, the Inter-American Court of Human Rights, the Inter-American Commission on Human Rights, the African Commission on Human and Peoples' Rights, and the African Court on Human and Peoples' Rights. Because the treaties these bodies supervise each recognize the right to property, they have all dealt with indigenous land rights disputes. However, each forum has afforded a different degree of protection to indigenous peoples' traditional lands.

The Inter-American system for the protection of human rights--the Inter-American Commission and the Inter-American Court of Human Rights--has had a leading role in the protection of indigenous peoples' land rights. Since the landmark decision in The Mayagua (Sumo) Azoas Tingni Community v. Nicaragua (2001), the Inter-American Court has consistently interpreted the American Convention on Human Rights to afford protection to the individual and collective rights of property. Although the American Convention emphasizes the individual right to property by declaring that "everyone has the right to property," this language has been interpreted to afford strong protection to collective land rights as well. The American Declaration of the Rights and Duties of Man's right to property provision has been interpreted in a similar way. Both the ILO Convention No. 169 and UNDRIP have significantly influenced these interpretations of the American Convention and the Declaration, and have been central to the jurisprudence of the Inter-American system.

Importantly, the African Commission and Court, the youngest of all the regional human rights bodies, have followed the Inter-American system's approach and have relied on its jurisprudence when interpreting Article 14 of the African Charter on Human and Peoples' Rights, which concerns the right to property. In contrast, the European system has had a regressive stance on the interpretation of Protocol 1 (Article 1) and has granted the state a wide margin of discretion to determine issues of property domestically.


A. Introduction

Headquartered in Strasbourg, France, the Council of Europe (COE) is an association of forty-seven European states created for the promotion and protection of human rights in the region. All COE members are bound by the ECHR and subject to the compulsory jurisdiction of the European Court of Human Rights, the judicial organ of the COE. In addition to the ECHR, more than 200 conventions and protocols have been adopted by the COE. Most relevant for this Article is the 1995 Framework Convention on National Minorities (FCNM). The FCNM has become one of the few existing treaties granting special protection to national minorities and, by implication, to indigenous peoples.

In Europe, states made particular efforts to afford international legal protection to minorities. The aftermath of World War I led to a proliferation of minorities in Europe due to changes in national borders, the collapse of the major empires, and the creation of new states. (43) As a result, the Permanent Court of International justice (PCI]) established the first international mechanisms of minority protection, giving European minorities the right to approach the Secretariat with their complaints against host states. (44) However, it was not until after WWII that the European region began to pay attention to the situation of minorities and their protection, (45) and minorities had to wait until the mid-1990s to see the FCNM finalized.

The FCNM recognizes that: "The Parties undertake to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture, and to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage." (46) Arguably, this provision could be interpreted as protecting the land rights of indigenous peoples, since the notion of lands is closely intertwined with indigenous peoples' cultural heritage. However, the FCNM has not had the impact one might have anticipated. There are several reasons for this. First, the FCNM is "not linked to the jurisdiction of the [European] Court," (47) which means that the Court is unable to hear claims brought under the Convention. Second, domestic courts are prevented from enforcing the FCNM unless state parties adopt implementing legislation. (48) In addition, the FCNM has been subject to reservations that have allowed states to exclude important provisions. (49) The FCNM did create the Advisory Committee, a monitoring organ that supervises the situation of minorities within state parties (thirty-nine as of today),50 while opening channels of communication with governments. However, this organ does not have adjudicatory power to deal with claims of minority or indigenous peoples.

In contrast, the European Court of Human Rights is tasked with overseeing the enforcement of the 1950 European Convention on Human Rights and a set of additional international agreements, all of which are of fundamental importance for the protection of human rights in Europe. As a result, the ECtHR has made the most consequential decisions for the protection of human rights in Europe.

B. Substantive Law: The European Convention on Human Rights (ECHR) and Protocol 1 to the ECHR

Following the trend set by the UDHR, the ECHR is essentially designed to protect a range of individual rights, not collective rights. Therefore, neither minority groups nor indigenous peoples, as a collective unit, are protected by the ECHR. In spite of this, the general provisions of the ECHR extend protection to members of such groups. Article 14, for example, prohibits discrimination based on race or language, and is of special importance for minorities, as they are most frequently discriminated against on such grounds. (51) One's association or membership with a "national minority" is also protected from discrimination under Article 14. However, the ECHR does not protect the right to property, which is of particular importance for indigenous peoples who are often dispossessed of ancestral lands.

Furthermore, the European Court oversees a number of optional protocols that expand and supplement the list of rights protected by the ECHR. Protocol 1 to the ECHR, adopted in 1952, protects the right to property by providing that every natural or legal person has the right to "the peaceful enjoyment of his possessions." (52) Possession and property share the same definitional content in the view of the Court. (53) The term "possessions" has been broadly interpreted to include tangible as well as intangible goods. (54) Additionally, the European Court is not limited to affording protection to individual property rights. Instead, as will be illustrated by the cases presented, collective property rights also fall within the subject matter jurisdiction of the Court. Article 1, however, empowers the state to take away private property in the public or general interest, a measure known as expropriation. Particularly, Article 1 establishes that: "No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law." (55)

Although this provision does not make explicit reference to expropriation, the European Court has established that Article 1 applies to: "formal (or even de facto) expropriation, that is to say, the act whereby the State lays hands--or authorises a third party to lay hands on a particular piece of property for a purpose which is to serve the public interest. This interpretation is confirmed by the "Travaux preparatoires" for Article 1 of the First Protocol." (56) Furthermore, the Court determines on a case-by-case basis whether interference with private property rights amounts to expropriation. (57)

When the Court investigates the state for alleged violations of the right to peaceful enjoyment of possessions, the question of proportionality "between means employed and the aim sought to be realized" (58) is central to the analysis. That is to say, the Court verifies whether a "fair balance" was struck between the protection of the individual's fundamental rights and the public interest to be served. (59) If the proportionality requirement is not satisfied, the Court would likely find that the state party violated Protocol 1. (60) Moreover, expropriation according to Protocol 1 must be carried out in line with the conditions provided by law. According to ECtHR case law, this provision suggests that there must be a proper procedure in place to prevent arbitrary decision-making and to ensure that the state pays reasonable compensation. (61) Consequently, certain conditions must be met when considering the legality of expropriation. (62)

As an additional comment, a wide margin of appreciation is granted to the state to determine the terms and amount of compensation due in cases of expropriation. (63) Similarly, the state retains broad discretion in determining its general or public interest goals, unless that decision is clearly "without reasonable foundation." (64) Interestingly, Article 1 provides that deprivation of property must be carried out in accordance with the general principles of international law, which include the right to prompt, adequate, and effective compensation. However, these standards apply only to non-nationals. (65) The travaux preparatoires of Protocol 1 support this interpretation. (66) Finally, Article 1 is not limited to issues of expropriation. It also regulates situations in which the state "controls" the use of property, as this may amount to an interference with the peaceful enjoyment of possessions. (67)

Expropriation, however, does not comport with indigenous peoples' enjoyment of their internationally recognized land rights. Because Protocol 1 does not make reference to indigenous peoples, the European Court's interpretation becomes fundamental in determining the extent of protection afforded. In this vein, an analysis of the Court case law dealing with indigenous land claims reveals that the Court disregards the significance of indigenous peoples' relationship with their lands when examining expropriation cases. (68) It also grants the state a wide margin of appreciation to determine what is in the public interest of the state and finds that monetary damages constitute a fair compensation for indigenous peoples dispossessed of their lands. On the contrary, the Inter-American Commission and Court of Human Rights as well as the African Commission on Human and Peoples' Rights, while recognizing the power of the state to take away property, manage to find a balance between the public interest and the interests of indigenous peoples to enjoy their cultural rights. In this sense, the Inter-American and African systems recognize that the physical and cultural integrity of indigenous peoples depends on their access to traditional lands, and that without access to lands their religious identity and traditional values would be extinguished. Clearly, the European system's standards for evaluating the lawfulness of expropriation are ineffective when applied to indigenous peoples' land claims.

It is important to add that a number of treaties complement the ECHR and are relevant to the protection of indigenous peoples. (69) Nonetheless, Protocol 1 is the only treaty affording protection to property rights. Other than Monaco and Switzerland, Protocol 1 is binding on all other members of the COE. (70)

C. Rules of Procedure

Concerning the Court's contentious jurisdiction, individuals have been granted direct access to the Court since 1998, when the European Commission of Human Rights (originally the first organ to investigate claims) was deactivated. The ECHR provides that "any person, group of individuals, or Non-Governmental Organization (NGO) claiming to be the victim of an [ECHR] violation" can submit their application before the Court. (71) The right of submission is, therefore, limited to the victim. The same procedural rule applies to claims arising under Protocol 1 (Article 1) since it is considered an integral part of the ECHR. (72) While the ECHR provides for the participation of NGOs, the requirement of victim status represents a fundamental limitation. (73)

In order to prove status as victims, it must be shown that the challenged measure has an actual or potential negative effect on the applicant(s). Disputes involving indigenous lands are commonly submitted to the Court by a group of individuals or NGOs representing the interests of indigenous peoples that must be accorded victim status. Proving victim status is particularly difficult for indigenous groups who generally prefer to be represented by NGOs, since they often exert more influence and power especially in disputes with the state. (74) To be entitled to victim status, the NGOs must prove that the challenged measure adversely affects their objectives, missions, or goals recognized under the law. This standard can be too onerous for many NGOs to meet. (75)

Other procedural grounds of admissibility include exhaustion of domestic legal remedies since national authorities are given the primary responsibility to guarantee observance of the ECHR. Applicants generally have a six-month time limit to lodge their application after exhausting local remedies. Once the application is submitted, applicants are prevented from utilizing alternative international procedures of redress. The Court also considers grounds of admissibility specifically related to its jurisdiction. First, subject matter jurisdiction (or jurisdiction ratione materiae) requires that the particular right a victims claims was violated must be protected by the ECHR or additional protocols. Second, personal jurisdiction (or jurisdiction ratione personae) requires that the alleged violation be imputable to the state for either action or inaction. It also requires that the application be submitted by the victim, who can be a NGO, an individual, or both. Third, territorial jurisdiction (or jurisdiction ratione loci), which is the authority of the Court to investigate events that take place within the state's own territory, must apply. The Court can also investigate acts taking place outside the territory of the Contracting Party, but only in exceptional cases. Finally, temporal jurisdiction (or jurisdiction ratione temporis) requires that the Convention and additional protocols be in force for the state concerned when the event occurred. The case will be declared inadmissible if any of the above grounds are not met. If the application is admissible, a trial on the merits is held. However, even if the case meets all requirements of admissibility, it can be declared inadmissible without holding a hearing on the merits if the Court determines that the case is manifestly ill-founded, for example, due to the clear absence of any ECHR violations. (76)

Despite the procedural obstacles, such as victim status and issues of extraterritoriality, the preference of indigenous peoples for the European Court over the alternative body, the HRC, might be explained by the Court's power to issue enforceable judgments, its capacity to work as a full time institution, and its competence to receive applications from NGOs. (77) In fact, two of the three cases reviewed in this paper were submitted by NGOs. The rules of procedure of the European Court are certainly more advantageous than those of the HRC, even though neither has consistently upheld the land rights of indigenous peoples the way other regional bodies have.


It is important to begin with the assertion that both the (now deactivated) European Commission and the ECtHR have granted limited protection to indigenous peoples when they have acted under Protocol 1. (78) Since its decision in G. and E. v. Norway (1983), in which the Commission made clear that the "Convention does not guarantee specific rights to minorities," (79) there has been an evolution in the interpretation of Article 1. As pointed out by Professor Timo Koivurova, the European Commission progressively accepted the notion that traditional activities, such as fishing, can fall within its subject matter jurisdiction in reference to Protocol 1 (Article 1). (80) This is illustrated in Konkama and 38 Other Sami Villages v. Sweden (1996). (81) In a subsequent case, Halvar From v. Sweden (1998), the Commission recognized that hunting rights are "important parts of [the Sami] culture and way of life." (82) Therefore, some of the cases on indigenous lands have dealt with the issue of "rights" as a possession, (83) while others have evolved around the notion of "lands" as a possession. (84) A restrictive interpretation of Protocol 1, however, has contributed to the dismissal of most cases. (85)

In spite of the track record of the Court, three separate land claims were lodged in 2004. The three latest applications gave the European Court the opportunity to test, once again, the interpretation of Protocol 1 as it applies to indigenous peoples' right to communal lands. Two of them, Hingitaq 53 and Others v. Denmark (2006) and Chagos Islanders v. the United Kingdom (2012), depict the struggle of indigenous peoples to return to their ancestral lands. (86) Handolsdalen Sami Village and Others v. Sweden (2009) represents an attempt to obtain recognition from national authorities, and later from the European Court, of use fructuary rights on private lands as a means of cultural livelihood. (87) All three applications were dismissed.

A. Hingitaq 53 and Others v. Denmark (2006)

1. The Inughuit Overview

This claim was submitted by the Inughuit of Greenland as a result of their forced relocation during the 1950s. The Inughuit, also known as the Thule Tribe, are an indigenous group in Greenland. Approximately 89% of the population in Greenland is Inuit; (88) however, only a small percentage claim to be Inughuit. (89) In fact, the Inughuit are one of the smallest indigenous groups in the world. (90) While the Inuit are located primarily in the far reaches of the Arctic, the Inughuit are concentrated in Northwestern Greenland in the Thule area. Uummannaq is identified as their ancient settlement. (91)

The Inughuit are "distinct" from, but closely related to, the larger community of Inuit. (92) The Inughuit self-identify as a people and retain their own oral traditions, which are central to their culture. (93) Moreover, they maintain their own dialect, Inuktun. Unlike the other Inuit, the Inughuit "have maintained ... their ancient way of life, using kayaks and harpoons to hunt narwhal and travelling by dog-sled in winter." (94) In the eighteenth century, the Danish began colonizing Greenland; however, the Thule region remained unaffected until the early 1900s. To protect the Inughuit from the negative impact of colonization and preserve their way of life, the Hunters' Council was established in 1928 to represent the interests of the local people. (95) The strategic location of Greenland, between the US and the Soviet Union, and its potential military use during the Cold War aroused the interest of the US in this particular island.

2. Facts of the Case

The dispute in the case arose in 1951, in the context of the U.S. and Denmark Defense Agreement. Pursuant to this agreement, Denmark granted unfettered access to the United States to establish an air base in the Thule District. With the establishment of the base, the Inughuit claimed that their abilities to hunt and fish in the area were restricted and that the environment was negatively impacted. In 1953, Denmark permitted the U.S. to expand the air base across the entire Thule District. (96) As a result, the Inughuit were given only a few days to leave their homes and travel to another site. The majority of the tribe relocated to Qaanaaq, more than 100 km away from Uummannaq. (97) The Tribe claimed that fewer resources and animals existed in Qaanaaq, in addition to the fact that their economy was based on the knowledge of Uummannaq's "ocean currents, animal migration patterns, whale movements, and other environmental features required for survival." (98) As such, the tribe claimed to have suffered a great injury.

The first attempt to seek redress was carried out by the Hunters' Council in 1959, when they submitted a claim to the Ministry of Greenland. The case file, however, dubiously disappeared and the Ministry of Greenland failed to make a decision. (99) Then, in 1985, the Inughuit submitted another claim for compensation through the municipality, resulting in new houses being built for the tribe in Qaanaaq. In addition, the size of the Thule Air Base was reduced to satisfy civilian traffic. (100) It was not until 1996, however, that the Inughuit claimed the right to return to the Thule District for the first time before the High Court of Eastern Denmark. They also claimed the right to be compensated for the injuries sustained during the eviction, including loss of hunting and fishing opportunities since 1953, the longer distances required for hunting, and the decrease in the fox population. In its 1999 judgment, the High Court ruled that even though the Inughuit constituted a "people" within the meaning of the ILO Convention No. 169, the finding was indisputable that the base had been legally established and that, consequently, the tribe had been expropriated. (101) The Court awarded compensation to the entire tribe that considered the circumstances of the eviction, loss of hunting and fishing rights, and the delay in having their claims heard, as efforts had been made to gain a judgment since the late 1950s. No individual compensation was granted for material damages, as the tribe had received houses and supplies from the government since the 1950s. However, non-pecuniary damages were awarded to each member of the tribe. Unsatisfied with the High Court's decision, the tribe appealed to the Supreme Court, requesting both an increase in compensation and the right to return to the Thule District. In its 2003 judgment, the Supreme Court upheld the decision of the High Court, based on the fact that the air base had been legally established. (102)

3. Analysis of the Issue Before the European Court of Human Rights

Applicants challenged Denmark before the European Court of Human Rights, arguing that dispossession of their aboriginal lands violated the right to a peaceful enjoyment of possessions under Protocol 1, as well as their rights to privacy and family life, fair trial, and effective remedy of the ECHR. (103)

a. Requirements of Admissibility

The European Court began by assessing the requirements of admissibility. In the present case, two applicants were identified: Hingitaq 53 and a group of Inughuit. Concerning the determination of the applicants' victim status, they were regarded victims, as they were each directly affected by the eviction. In particular, Hingitaq 53, an NGO, was entitled to victim status since it represented the "interests of relocated Inughuit ... and their descendants." (104) Hingitaq 53 (which means "those expelled in 1953") was an NGO specifically created by 600 Inughuit to bring the complaint before Danish courts and later before the European Court. (105)

Other requirements of admissibility specifically related to the European Court's jurisdiction were verified. First, in regard to the Court's subject matter jurisdiction, the Inughuit's communal lands in the Thule District were regarded a possession within the purview of Protocol 1 (Article 1). Second, the Court asserted its territorial jurisdiction since the alleged violations took place in Greenland, which is part of the (metropolitan) territory of Denmark. (106) Third, in terms of personal jurisdiction, the eviction of the Inughuit was directly attributable to the state. However, the Court determined that it lacked temporal jurisdiction, as the construction of the air base and the removal of the tribe took place at a time neither the ECHR nor Protocol 1 were in force for Denmark. In fact, Denmark ratified the ECHR and Protocol 1 shortly after the events giving rise to the present claim. (107) It was consequently reaffirmed, in line with the Court's jurisprudence, that deprivation of property is an "instantaneous act" and thus lacks continuing effects. (108) However, since applicants had also claimed that the proceedings before the High Court and the Supreme Court, which resulted in the 1999 and 2003 judgments concerning the issue of expropriation, violated their right to a fair trial and effective remedies, the European Court's jurisdiction ratione temporis was upheld. (109)

b. Application of Protocol I to the Facts of the Case

The European Court then considered the legality of the expropriation. More specifically, the Court evaluated whether the Danish rulings on expropriation violated the Inughuit's right to peaceful enjoyment of possessions. The Court found that the tribe had an existing possession prior to the establishment of the air base and that, as a result of the domestic court's judgments, the applicants had been dispossessed of their lands in the Thule District. Central to the Court's analysis was whether interference in the applicants' right to peaceful enjoyment of possessions struck a fair balance between the general interest of the community and the need to protect the individual's fundamental rights. The Court found that the expropriation was not an arbitrary measure due to the need to satisfy a public interest, which at the relevant time was considered by the state to be "legal and valid." (110) That is to say, the circumstances of the Cold War had justified Denmark's decision to take away property. The Court also found that the applicants had received compensation for all damages or losses resulting from the eviction. (111) Consequently, a fair balance had been struck between the interests at stake. (112) As the preliminary investigation did not find appearance of violation of Protocol 1, the Court rejected the application in application of art. 35. (113) All other complaints made by the applicants were also rejected because the facts did not disclose a breach of the ECHR. (114)

c. Critical Assessment

An analysis of the outcome suggests that international standards of protection, such as the right of indigenous peoples over their ancestral lands and the right of return, were disregarded by the European Court. The ILO Convention No. 169, Article 16 Sec. 3 provides that: "Whenever possible, these peoples shall have the right to return to their traditional lands, as soon as the grounds for relocation cease to exist." (115)

The above-referred standard was, regrettably, also set aside at the domestic level. Denmark ratified ILO Convention No. 169 in 1996, which, even though it was not in force at the time of the expropriation, had full effect for Denmark at the time the judgments were issued. (116) Since enforceability of the ILO Convention is ultimately the responsibility of the state itself, the Supreme Court denied the Inughuit's right to return by refusing to accept that they constituted a "distinct" indigenous group from the Inuit within the meaning of the ILO Convention. (117) According to the Danish judgment of 2003, the Inughuit were not entitled to return to the Thule District because Greenland "as a whole" was regarded as their homeland. (118)

As previously noted, when the case reached the European Court, the claim was dismissed without considering the question of whether the Inughuit had the right to return to Uummannaq. The question of whether the Inughuit could be regarded as a people was never discussed. The Court thus ignored the important criteria for the identification of indigenous peoples laid out in the ILO Conventions, namely self-identification and cultural distinctiveness. (119) The European Court's lack of reliance on the broader spectrum of international law diminished the Inughuit's legal protection. Other regional human rights bodies, on the contrary, when confronted with the question of whether a particular group qualifies as an indigenous people, tend to seek guidance from international law and the decisions of international bodies. (120) Notably, the UN Committee for the Elimination of Racial Discrimination (CERD) recognizes the Inughuit as a "separate" indigenous group. (121)

One can also contend that the initial grounds for relocation ceased to exist with the expiration of the Cold War. The decline of the strategic importance of the Thule Air Base is evidenced by the "2003 Memorandum of Understanding between the U.S. and Denmark" laying out the "relinquishment of Dundas [Uummannaq] from the Thule defense area." (122) This instrument could have been significant for indigenous rights had the European Court decided to reexamine the existence of a valid general interest that could reopen the option of return. It is important to add that the European Court has held that it retains the power to review the decision of the national authorities and "to make an inquiry into the facts with reference to which the national authorities acted." (123) In spite of this, the Court's jurisprudence suggests that a wide margin of discretion is generally granted to the state in determining its national interest priorities. In James and Others v. the United Kingdom, the European Court asserted:
   Because of their direct knowledge of their society and its needs,
   the national authorities are in principle better placed than the
   international judge to appreciate what is "in the public interest."
   Under the system of protection established by the Convention, it is
   thus for the national authorities to make the initial assessment
   both of the existence of a problem of public concern warranting
   measures of deprivation of property and of the remedial action to
   be taken. (124)

As a result, the European Court did not question Denmark's decision to maintain the expropriation measure.

A year after the European Court's judgment was released, the (2007) UNDRIP was adopted. The Declaration provides in Article 10 that: "Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return." (125) The Inter-American Court of Human Rights has clarified, in this regard, that the right to return may expire. It has held, however, that indigenous peoples retain the right to return as long as the spiritual and cultural connection with their ancestral lands exists. (126) The Court has further stated that indigenous peoples that were prevented for "reasons beyond their control" from practicing their traditional activities, which hindered them from keeping such a "spiritual and cultural connection," retain the right to return. (127) The Inughuit--comprised of no more than 800 people today--remain concentrated in northwestern Greenland; Qaanaaq is the largest settlement. (128) Although away from their traditional lands, they maintain many of their ancient practices and struggle to return. (129)

Concerning the issue of compensation, the European Court regarded the "alternative land" (Qaanaaq), substitutive housing, and the money awarded to the Inughuit as reasonable compensation. That said, it cannot be regarded as an effective remedy for indigenous peoples when, as argued, returning to ancestral lands is feasible. Furthermore, even if the national interest of the state is to prevail, international standards recognize that land of "similar quality" shall be granted to indigenous peoples. Unlike Uummannaq, the Inughuit claimed that Qaanaaq was far from the region where foxes, seals, walrus, and polar bears were hunted, "although the new areas were rich in narwhales, so that starvation was avoided for most of the population." (130) Although monetary compensation was awarded, the fact remains that the alternative lands granted to the Inughuit did not meet the recognized international standards. By way of contrast, the Inter-American Court has held that when return to ancestral lands is not possible, the selection of the alternative lands, compensation, or both, is not left to the discretion of the state. It has emphasized that "there must be a consensus with the indigenous peoples involved, in accordance with their own mechanism of consultation, values, customs and customary law." (131) In essence, the European Court's analysis failed to consider the significance of lands for the physical and cultural survival of indigenous peoples.

As previously noted, other regional human rights bodies have not hesitated to rely on a wide range of human rights treaties and soft law, including the conclusions of subsidiary and monitoring organs of the UN, in their analysis of the right to property when adjudicating cases on indigenous land rights. The African Commission on Human and Peoples' Rights, in the Endorois case (2009) for example, was confronted with the issue of eviction of the Endorois from their ancestral lands as a result of the creation of a game reserve for conservation purposes by the Government of Kenya. (132) After finding that "the encroachment on Endorois land was not proportional to any public need and not in accordance with national and international law," the Commission ordered the lands to be restituted. (133) In this particular case, Kenya's Constitution did not recognize collective rights; Kenya withheld approval of the UNDRIP; and Kenya was not a party to the ILO Convention No. 169. (134) Yet, the Commission recognized the Endorois' right to return to ancestral lands under Article 14 of the African Charter on Human and Peoples' Rights. Article 14 provides: "The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws." The jurisprudence of the Inter-American Court of Human Rights was fundamental in the African Commission's analysis in the Endorois case. (135) It must be acknowledged, however, that the African Commission is authorized by Article 60 of the Charter to consider international human rights law in making its determinations. Although the ECHR contains no similar provision, this omission should not preclude the Court from recognizing a similar standard, especially when interpreting the right to property provision.

In another case, Mayagua (Sumo) Awas Tingni Community v. Nicaragua (2001), the Inter-American Court of Human Rights interpreted the American Convention on Human Rights as a living document. Central to the analysis was whether Article 21 of the American Convention protected the right to communal lands. Article 21 provides: "Every one has the right to the use and enjoyment of his property." The Court found that protection of communal lands was afforded "through an evolutionary interpretation of international instruments for the protection of human rights, taking into account applicable norms of interpretation and pursuant to article 29(b) of the Convention--which precludes a restrictive interpretation of rights." (136) The same approach was followed in the Sawhoyamaxa Indigenous Community case, in which the Court relied on Convention No. 169 in interpreting Article 21. (137) In a subsequent case, Saramaka v. Suriname (2007), the Court also adopted an expansive interpretation in a manner consistent with international law. The case arose after the government granted logging and mining concessions to private companies in traditional territory without consulting the people concerned. (138) In interpreting Article 21, the Court considered both the ICCPR and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Suriname is party to both. (139) The Court concluded that the Saramaka people's rights to lands and natural resources had been violated. (140) Even though this analysis was restrictive in that it only considered the international obligations explicitly accepted by Suriname, it upheld the Inter-American Court's practice of relying on international law beyond that recognized by the Inter-American system. (141)

An additional but no less important aspect is the rules of treaty interpretation under the Vienna Convention on the Law of Treaties (1969), which provides that a treaty shall be interpreted in accordance to its "object and purpose." (142) Adhering to this rule of interpretation in decisions on Protocol 1 would include the protection of the human rights of indigenous peoples. Furthermore, the Inter-American Court has held that when interpreting a treaty, it considers "the system of which it is part," (143) which encompasses the full spectrum of international law. This method of interpretation is consistent with Article 31 (3) of the Vienna Convention, which provides that a treaty shall be interpreted in reference to "any rules of international law applicable in the relations between the parties." Thus, in several ways, the European Court's interpretation of Protocol 1 failed to take into account the international standards in its 2006 ruling.
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Title Annotation:Introduction through III. The Latest European Court of Human Rights' Rulings on Indigenous Land Rights A. Hingitaq 53 and Others v. Denmark (2006) 3. Analysis of the Issue Before the European Court of Human Rights c. Critical Assessment, p. 1-30
Author:Gismondi, Giovanna
Publication:Yale Human Rights and Development Law Journal
Date:Jan 1, 2016
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