1. Minorities and Minority Rights in Sweden
On 1 January 2010 a new Act on National Minorities and National Minority Languages[1] entered into force in Sweden. The new law is a response to the deficiencies that were found in Sweden’s implementation of its international obligations to protect national minorities and their languages.
The Swedish Constitution of 1974 provides in Art. 2(5) an obligation for the State to promote the preservation and development of a cultural life of ethnic, linguistic and religious minorities. However, this provision is considered to be only of a declaratory nature and may not be invoked by individuals or groups before courts.[2] In December 1999[3] the Swedish parliament ratified the Framework Convention for the Protection of National Minorities (‘Framework Convention’)[4] and the European Charter for Regional or Minority Languages (‘European Charter’).[5] In a declaration made with respect to the Framework Convention the Swedish parliament recognized Jews, Roma, Sami, Swedish Finns and Tornedalers as national minorities, a status they had long been denied in Sweden.[6] Furthermore, the recognition of the Sami as an indigenous people was underlined.[7] The languages of these groups, Yiddish, Romany Chib, Sami,[8] Finnish and Meänkieli, were equally recognized as national minority languages and a separate national minority policy was adopted by the government.[9] According to this policy the national minorities have a specific solidarity within the respective group, an own religion, a linguistic or cultural linkage, and a willingness to maintain their own, distinct identity.[10] They moreover strive towards protecting their own culture and language, which makes them a viable part of the Swedish society and the common heritage of Sweden.[11] Altogether around 500,000 people are, based on their own individual identification and ethnical connection, members of these groups. The goal of the Swedish policy of minority protection, including that applicable for the period between 1999-2009, has been to protect those groups, to strengthen their influence, and to support their minority languages. Yet despite the long tradition of protecting human rights and taking measures against discrimination, the Swedish government was relatively slow in implementing this protection.[12] For long minorities such as the Sami, Finns and Tornedalers, have been subjected to significant pressure to assimilate with the main Swedish culture.[13] This holds true for example with regard to the sole usage of Swedish in schools in the area of Tornedalen, shared between Sweden and Finland, where up until the 20th century the population spoke predominantly Finnish. In some schools children were even prohibited to speak their own language, and libraries financially supported by the government were not allowed to provide literature in Finnish.[14] Another example relating to the Sami were the so-called nomadic schools established by the government in the 1940’s, where the Sami language was substituted in favor of Swedish.
2. Sweden’s Obligations under International Law
(aa) The Framework Convention for the Protection of National Minorities
According to Art. 1 of the Convention the parties undertake to prohibit any discrimination based on the belonging to a national minority. Persons of such minorities shall have the right of equality before the law and of equal protection of the law, and parties are obliged to promote in all areas of economic, social, political and cultural life full equality between persons belonging to a national minority and those belonging to a majority. Parties moreover 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, such as language. Parties shall refrain from policies or practices aimed at assimilation of persons belonging to national minorities (Art. 5). Central, for the purpose of the present presentation, is the recognition that every person belonging to a national minority has the right to use freely and without interference his or her minority language, in private and in public, orally and in writing (Art. 10). States parties undertake to ensure the conditions which would make it possible to use the minority language in relations between those persons and the administrative authorities (Art. 10(2)). Also States Parties shall create the conditions necessary for the effective participation of persons belonging to national minorities in cultural, social and economic life and in public affairs, in particular those affecting them (Art. 15).
Implementation of the Convention is monitored by the Committee of Ministers of the Council of Europe (‘CoE’; Art. 24(1)). Sweden has submitted two reports on its implementation of the Convention (in 2001 and 2006), which were analyzed by the Advisory Committee under the Committee of Ministers (Art. 26). A third report is expected in 2011.
(bb) The European Charter for Regional or Minority Languages
The main objective of the European Charter is to protect Europe’s cultural wealth and traditions. For this purpose, regional or minority languages shall have a general protection (Art. 2 and Part II), whereas a more far reaching protection is provided for those regional or minority languages chosen by the States Parties in a separate declaration (Art. 3 and Part III). Sweden has in its declaration from 9 February 2000 decided that Sami, Finnish and Meänkieli (Tornedal Finnish) are such regional or minority languages to which the more far-reaching protection shall apply. Romani Chib and Yiddish are thus to be seen as non-territorial minority languages in Sweden and are granted the general protection under Part II of the Charter. The obligatory protection under Part II afforded to every regional or minority language builds on e.g. the recognition of the regional or minority languages as an expression of cultural wealth; the need for resolute action to promote regional or minority languages; the facilitation and/or encouragement of the use of regional or minority languages, in speech and writing, in public and private life; the provision of appropriate forms and means for the teaching and study of regional or minority languages at all appropriate stages (Art. 7). The protection granted under Part III, i.e. to Sami, Finnish and Meänkieli, encompasses e.g. to make available pre-school education in the relevant regional or minority languages, to make arrangements to ensure the teaching of the history and the culture reflected by the regional or minority language, to make available in the regional or minority languages the most important national statutory texts and to ensure that users of regional or minority languages may submit to administrative authorities oral or written applications and receive a reply in these languages.
States parties are to submit regular reports stating the progress of implementing the obligations under the charter, which are then examined by a committee of experts (Arts. 16-17).
(cc) Further Obligations under International Law
Additional protection follows from other instruments of international law ratified by Sweden, such as the ECHR, which is applicable law since 1995.[15] According to Art. 27 of the ICCPR, which is binding law for Sweden since 1971, persons belonging to e.g. linguistic minorities, shall not be denied the right to enjoy their own culture, to profess and to use their own language.[16] Sweden did not (as Finland but different from Norway) ratify the ILO Convention concerning Indigenous and Tribal Peoples in Independent Countries, due to problems regarding the ownership of land and water areas.[17]
(dd) Review of the Minority Protection under the European Charter
Monitoring by the CoE of the Swedish minority policy and implementation of international obligations has shown that Sweden has to tackle some organizational obstacles in order to improve the implementation of the international instruments. Criticism has in particular been uttered with regard to the following issues: Sweden ought to strengthen the access to education in regional or minority languages; Sweden should deal with structural and resource problems in the protection of national minority languages;[18] Sweden should take organizational steps to encourage the use of Sami, Finnish and Meänkieli in dealings with judicial and administrative agencies.[19] Most of these topics were already mentioned in the recommendations from 2003.[20]
(ee) Review of the Minority Protection under the Framework Convention
The two opinions from 2002[21] and 2007[22] on Sweden’s implementation of the Convention underline difficulties in the area of the development of minority policies due to frequent shifts in institutional responsibilities,[23] a lack of adequate data on national minorities,[24] and problems in the use of minority languages in individuals’ contacts with the (local) administration.[25] Furthermore the availability of minority language teaching remains too limited in the public education system and the participation of the Sami Parliament in setting out the goals for protecting the Sami minority and their language was considered insufficient.[26]
3. The Legal Reform from January 2010
Due to the abovementioned criticism in the reports by the CoE, the new legislation primarily seeks to remedy administrative obstacles and strengthen the possibility to use minority languages in the dealings with authorities, including courts. The new Act on National Minorities and National Minority Languages[27] replaces the current legislation, which stems from 1999, on the right to use Sami, Finnish and Meänkieli before courts and authorities.[28] One change is that the protection for all three languages is now regulated in one law and a general obligation (for the general public) is established to protect the minorities and to promote their minority languages. It should be noted that a similar obligation was also included in the new Swedish Language Law, which entered into force in July 2009 providing that Swedish is the main language in Sweden, and which refers to a special obligation on all Swedes to use and develop Swedish.[29]
The legislation was accompanied by the establishment of a special working group under the Government Offices (Regeringskansliet), which is to supervise and coordinate all aspects of minority protection conducted by the various governmental departments. Under the new Act on National Minorities, authorities are to promote the national minorities’ opportunities to preserve and develop their culture in Sweden, as well as children’s possibilities to develop a cultural identity and their minority language (§4). This was not part of the 1999-law.
A significant innovation is that the administrative areas where special minority language rights protection is provided are expanded from seven municipalities to 25 for Finnish and to 20 for Sami; the administrative area for Meänkieli is not expanded (§6). Even outside these administrative areas individuals have the right to use Finnish, Meänkieli or Sami in their dealings with administrative authorities, but only if their case can be handled by personnel proficient in the respective language (§9). This latter provision is, however, not equally extended to dealings with courts.
Where pre-school service is offered from the local authorities in the administrative areas of the three minority languages, care and education in that language must also be provided for (§17).
Whereas the Swedish Parliament and Government are to stipulate the comprehensive objectives for national language policy, the responsibility for developing the goals for the Sami language policy will hereafter be placed on the Sami Parliament. Similar contribution by a separate organ for the other two minority languages is not provided for. This is, however, justified by the special position of the Sami in Sweden.
A government ordinance issued in November 2009[30] provides detailed rules on implementing the new Act on National Minorities and makes substantial promises on extended financial support, but nevertheless makes this support subject to the availability of funds in the yearly budget (see e.g. §5 on financial support to the municipalities amending the administrative areas so far).
Finally, the new Act was accompanied by changes in the social security law,[31] which put an obligation on the affected municipalities to organize language proficiencies in the three minority languages if it is needed in the care of the elder (cf. §18 Act on National Minorities).
4. A Comparative View[32]
A brief look at the situations in Norway and Finland, the two Scandinavian countries with a much similar constellation of minority populations will help in the assessment of the Swedish efforts. The following will focus on the protection of the Sami.
In Finland the Framework Convention entered into force in October 1997 and the European Charter in November 1994. For the purpose of the latter Finland only pointed out Sami and Swedish as languages worth special protection. The Sami living in Finland have been recognized as an indigenous people since 1995, when a relevant provision was included in the constitution.[33] The national languages are Finnish and Swedish but the Sami, Roma ‘and other groups’ have the right to maintain and develop their language and culture. A Sami Language Act (first in force in 1992 and amended in 2004),[34] which applies to the Sami territories, provides that the Sami have the right to use their language when dealing with a court or other authority. This also expressly applies where an individual speaks the majority language.
In Norway the Framework Convention entered into force in March 1999 and the European Charter in November 1993. Sami, Kven,[35] and Romani were defined as minority languages. In Norway the protection of the Sami became effective as of 1988 when the constitution was amended to state the authorities’ responsibility to create the conditions enabling the Sami to preserve and develop their language and culture. This is a more far-reaching constitutional protection compared to Sweden, where the 1974 constitution merely provides that ‘[t]he right of the Sami population to practice reindeer husbandry is regulated in law.’[36] A Sami Act was adopted in Norway in 1987 giving the Sami more rights to preserve their culture, including the right to use their language before authorities in their territories.[37] The Swedish Sami language Act, mentioned above, was passed as late as in 1999 and was weaker as it merely called upon the authorities to ‘strive’ to use the Sami language with Sami speakers where the issue did not directly affect the person. This language has not been changed in the new law and instead now applies to all minority languages. The Finnish language act on the other hand goes further by not only protecting an individual’s language rights but to promote the usage of the minority language.[38]
5. Assessment
The most promising part of the new legislation on minorities is that it is part of an overall strategy/policy for the national minorities. The lack of any such policy has been the gravest deficiency in Sweden, as any legal protection would prove futile if the necessary political willpower, organizational structure and financial resources necessary to implement the laws would be lacking. It must thus also be seen as encouraging that the government rapidly allocated financial resources to implement the new policy. On the implementation stage it still remains questionable, however, if the legislative changes will achieve the desired effects. Still the law’s wording is weak at some points, indeed weaker than the respective laws in Norway and Finland, and leaves a far too extensive discretion to the local municipalities.
The very weak constitutional protection of the Sami and other minorities in Sweden must be seen in light of the relative insignificance of the constitution in the legal system as a whole. That this has created problems in an age of normative influence from Europe (ECHR and EC/EU law) has inter alia been underlined by the recurring problems relating to claimed ownership by the Sami of their traditional land and water areas.
[1] Lag (2009:724) om nationella minoriteter och minoritetsspråk.
[2] Åkermark, Sia Spiliopoulou, Steps towards a Minority Policy in Sweden, in: Trifunovska, Snežana (ed.), Minority rights in Europe (The Hague T.M.C. Asser Press 2001), at 103.
[3] See Prop. 1998/99:143, Nationella minoriteter i Sverige.
[4] Framework Convention for the Protection of National Minorities (opened for signature 1 February 1995, entered into force 1 February 1998) 2151 UNTS 243. The Convention entered into force in Sweden on 1 June 2000.
[5] COE ‘European Charter for Regional or Minority Languages’ (adopted 5 November 1992, entered into force 1 June 2000) CETS No 148. The Charter entered into force for Sweden on 1 June 2000.
[6] The status as a national minority gives a group special protection under the Framework Convention, other international instruments (e.g. Art. 14 ECHR) and under the applicable national legislation (see e.g. Art. 2 Instrument of Government).
[7] The first recognition in Sweden of the Sami as an indigenous people occurred in 1977, when the Swedish parliament discussed and approved various legislative proposals which presupposed this special status. See Nettheim, Garth (ed.), Indigenous Peoples and Governance Structures: A Comparative Analysis of Land Indigenous Peoples and Governance Structures: a Comparative Analysis of Land (Aboriginal Studies Press 2002), 221.
[8] Sami is not one language but instead a group of languages spoken by approximately 20,000-30,000 people and related to Finnish. Cf. Moyers, Anna, Linguistic protection of the indigenous Sami in Norway, Sweden, and Finland, Transnational Law & contemporary problems, 15 (2005)
[9] With its own funding secured in the annual budget. For more information see the Swedish Government’s Human Rights Website.
[10] Prop. 2008/09:158, Från erkännande till egenmakt – regeringens strategi för de nationella minoriteterna, 14.
[11] Id.
[12] This is particularly exemplified by the status of the Sami: It took until 1977 for the Swedish Parliament to recognize the Sami as the indigenous people and not merely a minority. Only in 1993 was the Sami Parliament in Sweden set up. Five years later the Sami received an apology from the Swedish government for the oppression that they were met with by the Swedish state.
[13] See (with further refernces) SOU 2005:40, Rätten till mitt språk – förstärkt minoritetsskydd, 43.
[14] These restrictions were only gradually lifted, the example on the libraries only in 1957.
[15] E.g. Art. 14 ECHR: prohibition of discrimination on grounds such as national or social origin, association with a national minority. COE ‘Convention for the Protection of Human Rights and Fundamental Freedoms’ (signed 4 November 1950, entered into force 3 September 1953) 213 UNTS 221.
[16] International Covenant on Civil and Political Rights (adopted 19 December 1966, entered into force 23 March 1976) 999 UNTS 171.
[17] Convention concerning Indigenous and Tribal Peoples in Independent Countries (adopted 27 June 1989, entered into force 5 September 1991) (1989) 28 ILM 1382. The central part of ILO Convention 169 sets out the provisions maintaining that indigenous peoples (e.g. the Sami) are entitled to own and use their traditional land and water areas, as well as the natural resources in and occasionally under these areas (cf. e.g. Art. 14).
[18] Para. 2 Recommendation RecChL(2006)4 of the Committee of Ministers.
[19] Id., para. 5.
[20] See para. 1 Recommendation RecChL(2003)1 of the Committee of Ministers.
[21] Opinion on Sweden, adopted on 25 August 2002, ACFC/INF/OP/I(2003)006.
[22] Second Opinion on Sweden, adopted on 8 November 2007, ACFC/OP/II(2007)2006.
[23] The closing of the Integration Board, dealing inter alia with anti-discrimination issues, the consideration to replace four different ombudsmen with one central one, and the stopping of funding the Centre against Racism, which was established in 2004 with the help of the government.
[24] Authorities in Sweden did not collect any data on national minorities, see para. 33 Second Opinion on Sweden.
[25] This state of affairs is caused by various factors, including limited language capacity amongst most of the authorities concerned, delays that the use of a minority language can cause as well as insufficient awareness of minority rights within the relevant administration, see para. 104 Second Opinion on Sweden.
[26] See also the continuing problem expressed by a number of court cases in which land owners have challenged winter grazing rights of Sami in the areas. These court cases, the costs of which are not covered by the State, have in turn required significant resources and continued to cause heavy financial burdens for the Sami villages concerned and even harm inter-ethnic relations in the areas at issue; see para. 67 Second Opinion on Sweden.
[27] Lag (2009:724) om nationella minoriteter och minoritetsspråk.
[28] Lag (1999:1175) om rätt att använda samiska hos förvaltningsmyndigheter och domstolar; Lag (1999:1176) om rätt att använda finska och meänkieli hos förvaltningsdomstolar och domstolar.
[30] Förordning (2009:1299) om nationella minoriteter och minoritetsspråk.
[31] Lag (2009:726) om ändring i socialtjänstlagen (2001:453).
[32] See Nationella minoriteter och minoritetsspråk, Rapport från Konstitutionsutskottet 2004/05:RFR3.
[33] Section 17 of the Constitution.
[34] Sámi Language Act (1086/2003).
[35] Kven is seen as a mutually intelligible dialect of the Finnish language, and grouped together with the Peräpohjola dialects, such as Meänkieli, spoken in Torne Valley in Sweden.
[36] Art. 20 The Instrument of Government, SFS 1974:152. Cf. above Fn 7.
[37] Act of 12 June 1987 No. 56 concerning the Sameting (the Sami parliament) and other Sami legal matters (the Sami Act).
[38] E.g. according to Chapter 2 Section 4 Sámi Language Act (1086/2003): ‘An authority must not restrict or refuse to enforce the linguistic rights provided in this Act on the grounds that the Sámi knows also some other language, such as Finnish or Swedish.’
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