Paper short abstract:

This paper discusses legal positivism and norm collisions, by examining the Sámi case. It examines how domestic law relates to customary indigenous law and whether courts set aside positivistic, written laws of the majority in favour of unwritten customary laws of the indigenous population.

Paper long abstract:

Contemporary international law recognizes the importance of indigenous customary laws. Article 8 of the (legally binding) ILO Convention No. 169 upholds the substantive right of indigenous peoples to retain their own customs and customary laws and holds that "[i]n applying national laws and regulations to the peoples concerned, due regard shall be had to their customs or customary laws". Moreover, Articles 27 and 34 of the (legally non-binding) United Nations Declaration on the Rights of Indigenous Peoples recognize indigenous peoples' laws. Art. 34 gives, inter alia, indigenous peoples the right to maintain their juridical systems or customs, in accordance with international human rights standards. This paper focuses on the indigenous Sámi people and discusses legal pluralism, norm hierarchies, and tensions that are created when customary indigenous law conflicts with statutory domestic law, especially before national courts.

In foregrounding the obligations of States under international law, this paper consists of two interrelated strands. The first is a legal one that asks how juridical indigenous custom is dealt with before domestic courts of law and how the different legal systems relate to each other. The second is an anthropological one that examines how the Sámi experience the judicial in- or exclusion of their own customary rules by the majority courts. The paper discusses norm collisions that can arise when unwritten Sámi customary law that protects collective rights contradicts with written norms of the majority that protect individual rights.