295 Custom, Legislation and Treaty As the Basis for Self

Custom, Legislation and Treaty as the Basis for Self-Government By Atle Grahl-Madsen* The Norwegian Parliament - Stortinget - adopted, in 1987, a law creating a repre- sentative Sami assembly - Sametinget. This assembly resembles the Finnish Com- mission for Sami Affairs (popularly called "The Sami Parliament"), established by government decree 1973. In early 1988, Stortinget amended the Constitution of Norway by adding a new § 110a, making it a duty of the State authorities to create conditions conducive for the Sami ethnic group to safeguard and develop its language, its culture, and its so- cial life - thus at long last taking cognizance of the fact that since time immemorial there have been two peoples living together within the borders of the Kingdom of Norway. In our third seminar at Guovdageaidnu 1985, the adoption of a Sami Conven- tion was suggested, that is to say a convention between the three Nordic states with Sami populations - Finland, Norway, Sweden - with elected commissioners of the Sami Nation, concerning the legal status of Sapmi - the Sami Nation - in general, its relationship to the suzerain states, and the creation of an autonomous Sami ter- ritory - Samieana. In a recent report, a Norwegian royal commission on Sami cultural and educa- tional matters proposed a treaty on Sami cultural matters to be concluded between Finland, Norway, and Sweden. It was not suggested that the Sami Nation should be a party to this treaty, which thus would mean just one more treaty in the long line of inter-state agreements - starting with the "Lapp Codicil" 1751- which, like the constitutional amendment, legislation and decrees, have been adopted over the heads of the Sami people. From these recent developments in our own local part of the world, we may infer that the status of a small nation and its relationship to the suzerain state (or states) may be established in four different ways: - by custom - by legislation - by treaty, and in the latter case either - by a treaty concluded between states for the benefit of a small nation, or - by a convention entered into by one or more states and representatives of the small nation. There are many examples of all these modes. The status of the Channel Islands - Jersey, Guernsey, Alderney, Sark - and of the Isle of Man, as well as their relationships with the United Kingdom, have been developed without the benefit of any written constitution or formal agreement, and are today soundly based on custom. * Professorin InternationalLaw, The University of Bergen. 295 The autonomous governments of Aland, Foroyar and Kalaallit Nunaat (Green- land) are based on acts of the respective state parliaments. But there is more to come. Aland - with its millennium-old Swedish-speaking population - became, by decision of the League of Nations, an autonomous part of the Republic of Fin- land. In addition, Aland's autonomy was cemented by a treaty between Finland and Sweden. The relationship between The Danish Realm and Foroyar has an important element of custom. A measure of Foroya autonomy and the existence of the Foroya assembly - Largtinget - were facts of life before the present Foroya Home Rule Act was enacted in 1948. Indeed, the Royal Assent, which is prefixed to the Act as a preamble, recog- nized the special position of Foroyar within the Realm, in respect of nationality, history, and geography, and it spells out that the Act was passed by the Da- nish Parliament - Folketinget - after being accepted by the Foroya Logting. Among other things, this makes it clear that Logtinget existed prior to the Home Rule Act, and that it indeed continues to exist independent of the enact- ment. Shetland, Orkney and the Western Isles (the Hebrides) also have charac- teristics of their own with respect to nationality, history, and geography, but they have long been and are still being administered as parts of Scotland. Their Island Councils are no autonomous governments, but merely local government organs, designated as "most-purpose authorities", established by the Local Government (Scotland) Act 1973. Treaties between states affecting third parties are no rarity. We have already mentioned the "Lapp Codicil", which was annexed to the Frontier Treaty between the Kingdoms of Norway and Sweden 1751. We could also mention the Peace of Kiel 1814, whereby the King of Denmark and Norway ceded his King- dom of Norway to the King of Sweden, and thereby separated Norway from her overseas dependencies - Foroyar, Iceland, and Kalaallit Nunaat (Green- land) - which henceforth became Danish colonies. Indeed, the principle of self-determination of peoples, advocated by the American President Woodrow Wilson as one of his "Fourteen Points", became to a modest degree part of international law by being incorporated into some of the provisions of the Peace Treaty of Versailles 1919. Today it has its base in provisions of the United Nations Charter 1945, as well as in the common Ar- ticle 1 of the Human Rights Covenants 1966. The various Human Rights instruments are actually agreements for the benefit of third parties - nationals and non-nationals of the contracting states. And the same goes for such specialized treaties as the Refugee Convention 1951 (with Protocol 1967), the Statesless Persons Convention 1954, etc. There are also numerous treaties between a small or dependent nation and an established state. Thus, when the white man expanded his dominion across the North American continent, a great number of treaties were concluded by the different American Indian Nations on the one hand, and representatives of the Great White Mother in London or the Great White Father in Washington DC on the other hand. 296 .

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