ÅSA ELMEROT, Defining, Regulating and Balancing Rights: A Constitutional Law Study of Indigenous Peoples’ Rights to Land and Natural Resources in the Russian Federation, Juridiska institutionen, Uppsala universitet 2017. 298 s.
On the 15th of December 2017 Åsa Elmerot defended her thesis at Uppsala University. I had the honor and pleasure to serve as the opponent.
The actual text (excluding table of contents, listings, etc.) is 265 pages and consists of seven main chapters. In this review I will present Elmerot’s work according to her own structure. As the presentation of the main chapters will show, this is a very ambitious project. It covers Russian constitutional law, both general and specific, Russian federal law, Russian regional law, general international law, specific human rights law and specific indigenous peoples’ rights law.
After presenting the seven chapters I will make some general comments on my view of the overall quality of the thesis, and also address the question of the ambitions of the project are being met.
2 Subject Matter and Framework of the Study
The title already gives an indication on the subject matter. On page 21 the candidate defines the purpose closer. It is to “analyze the constitutional law protection of indigenous peoples’ rights to use land and natural resources in the Russian Federation.” She then points out that these rights are found both within international law and in the Russian Constitution.
According to the candidate, to fulfil the purpose of the study, three distinct research questions needs to be answered. These questions are fully described on page 22 in the thesis. With less nuances they can roughly be said to be:
1) The applicability and enforceability of international law in the Russian legal system (according to the Russian Constitution) 2) Indigenous peoples’ rights to land and natural resources within applicable international law 3) Protection of indigenous peoples’ use of land and natural resources through the constitutional protection of the right to property and the freedom of economic activity
The research questions are well formulated and accurate. But together also very broad. They could have been three separate theses. On pages 25–27 the method chosen to answer these questions are described. The candidate sees her own work as systematizing and analyzing “valid law”. This means valid as law in books; not as law in action. The goal is to analyze both Russian law and international law. Essentially, she describes her work as classical legal dogmatics (or a similar label, p. 26). The candidate then adds that the work (to some extent) is comparative. The
methodology for comparative research raises some questions that could have been addressed more in depth, but overall the candidate seem to be methodological aware.
The candidate then presents a theoretical analytical framework on pages 30–55. The construction of the framework builds on the writings of Robert Alexy, and to some extent also Ahron Barak (p. 33). In the thesis the framework is to be used as an “analytical model” for the principle of proportionality. The idea is good if completed as stated.
3 The Russian Legal System
Chapter 2 gives an overview over the Russian legal system. Explaining federalism and some questions on jurisdiction. The Chapter also introduces international law as a source of law within the Russian legal system (p. 76–79). And the candidate explains the role of the Constitutional Court (p. 94–99). The Chapter serves its purpose.
4 The Legislative Framework
Chapter 3 gives an overview of indigenous peoples’ rights to use land and natural resources according to federal and regional legislation. The main rights are usage rights to reindeer pasture, some hunting and fishing privileges. Within federal law, there is also a possibility to establish territories of traditional nature use (but not done yet). The Chapter also introduces and explains the concept of indigenous minority people according to the Russian Constitution Article 69. This special indigenous status is defined by certain criteria (among others — less than 50.000 people in the group), but is de facto fully dependent of official recognition by federal government (there is actually a list of recognized groups). The candidate explains this well, without making it more complex than necessary.
5 The Russian Constitution and International Law
Chapter 4 identifies and explains more thoroughly the status and role of international law in the Russian legal system. Both in regards of applicability and enforceability. After a brief view on the historical status of international law in Russia, a more in-depth analysis is given on the relevant articles in the Constitution. Also, besides Article 15, 17 and 69, there are many provisions concerning international law. Still, it is clear that these Articles (15, 17 and 69) contains the most significant references to international law. The rest of the Chapter discusses the meaning of these references, including the issue of self-executing treaties. While it is clear that some international law is directly applicable in the Russian legal system, the enforceability (real effect) is more questionable. However, one question is not addressed; the possibility of Article 69 being viewed as lex specialis in the field of indigenous peoples’ rights in Russian law, hereby excluding the use of other national and international law. The answer is probably no, but since this is a fundamental premise for the rest of the work, it should have been addressed here.
6 The Rights of Indigenous Peoples in International Law
Chapter 5 is an excursion into international law. Building on the conclusion of Chapter 4, the main purpose is to identify indigenous peoples’ rights that might be applicable in Russian law. The candidate ana-
lyzes the most relevant treaties of the UN-system (ICCPR, ICESCR and ICERD), The European Convention on Human Rights and a selection of customary international law. The main conclusion is that most of these rights are too vague and general to be enforceable in Russian courts. Possible exceptions are to some extent Article 27 in the International Covenant on Civil and Political Rights. Article 1 Protocol 1 and Article 8 in the European Convention on Human Rights and maybe some other elements through the principle of consistent interpretation. The candidate argues very well and convincing on these rights.
7 Indigenous Peoples and Constitutional Rights
Chapter 6 analyzes the possibility of ordinary constitutional protection of indigenous people’s rights as described in Chapter 3. The relevant constitutional rights are “The Protection of Property” and “Freedom of Economic Activity”. Besides describing these rights, the candidate in this Chapter takes full advantage of the theoretical framework; Defining, Regulating and Balancing Rights (p. 243–271). This includes an indepth analysis of the general rule on restriction of rights (Article 55 in the Constitution). Still, the analyses of the substantive rights (property protection and freedom of economic activity), may need some more work.
In the conclusions, the candidate reflects on the shortcomings of Article 69 (protection of indigenous minority peoples), and how that inspired to look into the potential protection of indigenous peoples’ rights through international law, and through ordinary constitutional law. In both cases, the outlook for substantial protection of indigenous peoples’ rights look quite weak, but still better than after the article that was supposed to protect indigenous people rights; namely Article 69.
9 General impression
The thesis is very well written. There are hardly any orthographic mistakes, and generally, the language is of high quality. The structure, maybe with the exception of Chapter 3, also works very well. There are some methodical issues that could be addressed further, but it does not seem to have had any severe negative effects on the content of the thesis. The overall impression is that Elmerot is methodical aware. I would in fact like to highlight that the reasoning and conclusions in general appear balanced and convincing.
I’m a bit critical to the value of the theoretical framework used. The idea is good, but it’s not utilized as much as it could have been. Only in Chapter 6, the added value is clear.
When it comes to the quality of the analyses of the substantial rights, I have already mentioned that this is a very ambitious project. I’m impressed with the candidate’s overview. Still I think that to some extent the width of the research questions, comes at the prize of fully understanding all the different rules and legal systems. I admit that my own competence does not cover all the fields of law that’s been addressed. But by analyzing those fields of law I have a more in depth understanding of, I can see that Elmerot still have more to learn. Honestly, I hope we all do.
Stig Harald Solheim