10.1 Introduction

In the absence of an international human rights court, the Human Rights Committee’s (HRC or the Committee) monitoring state compliance with the International Covenant on Civil and Political Rights (ICCPR or the Covenant) is widely regarded as the United Nation’s (UN) most authoritative and lawlike human rights monitoring mechanism.Footnote ¹ Yet, surprisingly, little is known about how the Committee goes about creating its ‘jurisprudence’ on the communications that individuals initiate against states that have signed the ICCPR’s Optional Protocol.Footnote ² In particular, there is limited insight into how the Committee assesses the veracity of data submitted by the authors of communications, or how the Committee determines whether such data form reliable evidence.

This chapter sheds light on this issue by exploring how the Committee approached the evidence in two cases: Näkkäläjärvi et al. v. Finland (2018)Footnote ³ and Sanila-Aikio v. Finland (2018).Footnote ⁴ Both cases were ostensibly about the inclusion of new voters on the electoral roll of the Sámi Parliament, the highest political decision-making body on matters relating to the Sámi Indigenous people.Footnote ⁵ Underlying this issue were two more general questions: (1) Who is an Indigenous Sámi in Finland, and (2) in case of contestation, who has the authority to answer this question?

Two specific numbers – 93 and 512,000 – acquired special significance in the processing of the two communications. As for the first, ninety-three persons were added to the Sámi Parliament’s electoral roll by the Finnish Supreme Administrative Court (SAC or the Court) in 2015. In other words, in the eyes of this Court, ninety-three persons had satisfactorily proven that they fulfilled the legal criteria of being Sámi. The authors of Näkkäläjärvi et al. and Sanila-Aikio contested this, which led them to lodge a complaint before the HRC. As for the second number, the authors of Näkkäläjärvi et al. argued that, were the SAC to continue with the interpretive line it had adopted in regard to the ninety-three persons referred to above, more than half a million Finnish persons, out of Finland’s population of 5.5 million inhabitants, could be eligible to be included in the Sámi electoral roll, thereby significantly weakening Indigenous self-determination. The advanced figure of 512,000 new voters is as dramatic as it is inaccurate. In its examination of the two communications against Finland, the Committee nonetheless reproduced this figure without questioning its origin or reliability, thereby letting it acquire the status of an uncontested fact in the two communications’ aftermath.

The two numbers 93 and 512,000 are used in this chapter as analytical entry points to reflect on the processes of translation that distance evidence from Committee members as they deliberate on individual communications, such that the second enormous and dubious figure is allowed to develop a life of its own in the Committee’s proceedings. This leads us to raise broader questions regarding the evidentiary regimes of the HRC and the other UN treaty bodies (UNTBs), particularly their fact-checking abilities. The chapter also highlights the importance that intermediaries who act as counsel in communications hold for the Committee’s deliberations. It finally reflects on how the evidentiary regime of the HRC produces and supports certain subjectivities while downplaying and eliminating others, simultaneously inflicting harm on the eliminated subjectivities.

Both Sanila-Aikio and Näkkäläjärvi et al. v. Finland are connected to long-standing and still ongoing controversies around the Sámi people in Finland. These cases are also only the latest in a long list of communications that the Sámi people have submitted against the State of Finland to different UN bodies.Footnote ⁶ One type of controversy underlying these communications is connected to how the State of Finland and the wider society treat – or, rather, continue to oppress – the Sámi.Footnote ⁷ The other type is related to internal contestations within the Sámi community over who is regarded as belonging to the Sámi community.Footnote ⁸ Importantly, the latter controversy exists mainly – but not exclusively – between registered and non-registered members of the Sámi community. As our case studies illustrate, these contestations are anchored in the question of who is allowed to join the Sámi Parliament’s electoral roll, thereby being able to vote for and get elected to the Sámi Parliament.

We show how, in the Committee’s argumentation, the first type of controversy – general treatment of the Sámi by Finland – becomes dominant, whereas the second type – relating to internal tensions and power struggles within the Sámi community – is erased from view, being only fleetingly referenced in the communication dossiers. The invisibility of these internal tensions is linked to the dominant assumption within the human rights field that Indigenous peoples are internally united, giving rise in turn to an assumption that it would be possible for Indigenous peoples to elect a small number of representatives who would harmoniously and homogeneously convey their (uniform) views and interests to different political entities and/or other bodies. As this chapter shows, this is not the reality: the Sámi Parliament is full of differences in views, as is the case with any other people.

Basing our analysis on a close reading of the text of the views adopted by the Committee in the two cases, as well as indirectly drawing on Miia Halme-Tuomisaari’s ethnography of the CommitteeFootnote ⁹ and Reetta Toivanen’s ethnographic research with the Sámi,Footnote ¹⁰ we explain how the HRC reached outcomes that only considered and made visible the concerns of registered members of the Sámi people, thus leaving out those of non-registered Sámi. This is something that existing legal analyses of the two cases have not highlighted.Footnote ¹¹ From a perspective that takes into account the complexities of social worlds, we attempt to decipher how the HRC may let itself be swayed by dubious evidence, producing unfortunate outcomes. This leads us to make some observations about the way the evidentiary regime of the HRC generally works.

To date, most scholarly contributions on UNTBs have been written by legal scholars, many of whom are former treaty body members.Footnote ¹² This has resulted in a strong legalistic emphasis and an absence of more holistic analyses that take into account the complexities of social worlds. A similar gap exists in regard to how individual communications are processed, including what data are accepted as evidence in the Committee’s reflections. These observations also apply to our two selected case studies, which to date have been analysed from an exclusively legal angle. This chapter contributes to existing scholarship by building on the past two decades of anthropological work on international organisations and human rights.Footnote ¹³ Particularly important is existing – albeit limited – anthropological work on UNTBs, including the Committee on the Elimination of Discrimination against Women,Footnote ¹⁴ the Committee against Torture (CAT),Footnote ¹⁵ and the Committee on the Elimination of Racial Discrimination (CERD).Footnote ¹⁶ In addition, our chapter builds on the vast scholarship on the Sámi people,Footnote ¹⁷ as well as recent work on Indigenous peoples and their rights struggles.Footnote ¹⁸

Translation forms our broader theoretical lens for analysing the processes by means of which distinct pieces of information are accepted as forming facts in the HRC’s proceedings.Footnote ¹⁹ One part of the translation process is figurative and aesthetic, including formatting documents to comply with the logic and structure of UN style, including the ‘rubrics of classification and graphic elements such as paragraphs, tables, subtitles, fonts, margins, and bullets’.Footnote ²⁰ These aesthetic elements form surface graphics that ‘serve a range of semiotic functions’,Footnote ²¹ conferring legitimacy on the data submitted to the Committee as providing reliable information.Footnote ²² Another part of the translation takes place when UN secretariat staff compress broader case material into synthesised summaries shared with Committee members, thereby removing the original material from the Committee members’ reach when they are deliberating on the communications’ merits.Footnote ²³

A pivotal part of translation regards actual linguistic translation from one language to another, a process that likewise distances original data from Committee members. The general language of operations for the HRC, as well as UN human rights monitoring bodies in general, is English.Footnote ²⁴ This choice of language is neither always voluntary nor neutral: for example, NGO caucuses are typically held in English only because NGOs cannot afford translators. The shortage of resources reproduces the privileged position of the powerful English-speaking actors, emphasising their elite nature. Information provided by states parties to complement state reports in other languages may be overlooked, as resources do not permit the translation of all material. Thus, UN reality both reflects and strengthens the dominance of English as the lingua franca, reproducing the privileges and exclusions linked to its competence among different groups of actors participating in the sessions of the HRC and the other UNTBs. Yet, the original language of data and evidence that the Committee relies on is commonly in another language; in the cases at hand, it is Finnish. Only very few, or even none, of the relevant UN staff and HRC members likely have the necessary linguistic skills to examine documents in Finnish, which is neither an official UN language nor widely spoken worldwide. These observations raise the question: On the basis of what sources do Committee members receive information or form understandings on data that are not accessible to them, such as the ninety-three cases from the Finnish SAC that are at the core of the communications on Näkkäläjärvi et al. and Sanila-Aikio?

10.2 ‘The Closest to a Future World Court of Human Rights’: Introducing the Human Rights Committee

The HRC was founded in 1976 when the ICCPR entered into force, after having been opened for signature in 1966.Footnote ²⁵ The Committee has stabilised its position as one of the UN’s – and, by extension, the world’s – most authoritative human rights bodies. The Committee, together with the other nine UNTBs monitoring the main UN human rights covenants, including the ICESCR, CRC, CAT and CEDAW, has established itself today as forming the steady pulse of UN human rights monitoring that brings abstract human rights ideals to life.

Submission of individual communications is stipulated in the ICCPR’s first Optional Protocol, which has been ratified by 117 of the 173 states that have ratified the ICCPR.Footnote ²⁶ The views that the Committee issues on the basis of its deliberations on the communications’ merits are themselves legally non-binding on states.Footnote ²⁷ The submission criteria for individual communications illustrate a complex relationship to the law that characterises the Committee’s operations more generally.Footnote ²⁸ As the website of the UN Office of the High Commissioner for Human Rights (OHCHR) outlines, the basic idea of the UN individual complaints mechanism is its openness to any layperson from a ratifying country.Footnote ²⁹ In line with this idea, the formal submission guidelines stress that, in order to submit a communication, one need not be a lawyer or even be familiar with legal and technical terms. In practice, legal competence is paramount, both in order to get the communication deemed admissible and to get the Committee members to grasp the communication’s merits. Translation acquires importance here also: in order to become visible and thus admissible to the HRC, an issue needs to be ‘translated’ into ‘UN reality’.Footnote ³⁰

In regard to individual communications submitted to the Committee – as will be illustrated by our two case studies – this translation process entails identifying what kind of human rights violation has occurred specifically. It must also be identified how the individual rights of the applicant (denoted in Committee terms as the author) were violated under the ICCPR’s provisions.Footnote ³¹ Translation also entails the use of correct bureaucratic discourse. This discourse is often ‘impersonal and anonymous on the basis of lexical and semantic features: the prevalence of passive verbs, abstract nouns and the like’.Footnote ³² In our analysed cases, this translation process is significant for the authors’ attempts to construct a ‘collective agency from the agency of individuals’Footnote ³³ by claiming to represent all Sámi people – claims that the Committee overlooks in its emphasis on individual Covenant violations. In utilising the right bureaucratic discourse, legal competence is often crucial. Consequently, in practice, many authors – including Tiina Sanila-Aikio – have legal counsel representing them. For her, this counsel was a former member of the HRC who, on this experiential basis, had insider knowledge on how to make a communication visible and admissible for the Committee.Footnote ³⁴

The HRC discusses individual communications in sessions that are closed to outside observers. The only people present at the hearings are members of the Committee, relevant UN secretariat staff, interpreters and possibly Committee members’ interns. After deliberations, the Committee adopts views that are shared on the website of the OHCHR. To protect the authors, no exact transcripts of the Committee’s deliberations are shared with outsiders.

10.3 The Sámi and the Sámi Parliament: A Complex Question of Inclusion

The cases of Näkkäläjärvi et al. and Sanila-Aikio are the latest in a long list of communications that the Sámi Indigenous peoples have sent to the HRC and other UN monitoring bodies, such as the CERD. Despite the fact that the Finnish Government has strengthened the rights of the Indigenous Sámi people in Finland through several laws, the exercise of these rights continues to be severely hampered in practice – notably when it comes to the right to take part in decision-making on local and national levels.Footnote ³⁵ International human rights treaties, especially those that deal with minority rights, have long been relied upon by Sámi activists.Footnote ³⁶ Given that the European Court of Human Rights takes the view that the European Convention on Human Rights offers few legal bases to tackle cases concerning minority rights, European minorities – and Indigenous peoples especially – have put faith in the UN system. In terms of Article 27 of the ICCPR, the HRC has the legal grounds to receive Indigenous complaints in particular. The first decision by the HRC involving Sámi rights dates back to 1985 (Kitok v. Sweden)Footnote ³⁷ and was followed by nine communications from persons identifying as Sámi from the three Nordic countries (Finland, Norway and Sweden).Footnote ³⁸ Whereas none of these cases has been able to substantially promote self-determination, they have together contributed to strengthening recognition of the emerging rights of Indigenous peoples.

The Sámi are one of the peoples traditionally living in the Barents region in the Arctic. They share their living space with other local peoples who have lived in the territories for several generations and newcomers.Footnote ³⁹ Politically, the Sámi have worked together since 1956 in the Sámirád̵di̵ (Sámi Council, earlier the Nordic Sámi Council) to strengthen their voices vis-à-vis the majority states of Norway, Sweden and FinlandFootnote ⁴⁰ – and in recent decades, Russia as well – after a long period during which Sámi cultural rights and languages suffered under strong assimilation policies and practices.Footnote ⁴¹

While the majority of Sámi today live in Norway, approximately 10,000 live in Finland.Footnote ⁴² From a legal perspective, the status of the Sámi as an Indigenous People was acknowledged in the Constitution of Finland in 1995 section 17.Footnote ⁴³ In the same year, the Finnish Sámi Parliament was established by the Act on the Sámi Parliament.Footnote ⁴⁴ The cultural self-government body of the Sámi in Finland, the Sámi Parliament, deals with the living Sámi languages and Sámi cultures in Finland (Skolt Sámi, Inari Sámi and Northern Sámi). The scope of cultural self-determination is limited to language as well as culture revitalisation and maintenance, and the views expressed by the Sámi Parliament do not bind the Finnish Parliament. The Act on the Sámi Parliament defines the functioning and powers of the Parliament. Pursuant to section 5(1), the task of the Sámi Parliament is to ‘look after the Sámi language and culture, as well as to take care of matters relating to their status as an Indigenous People’. In matters pertaining to its tasks, the Sámi Parliament may take initiatives and make proposals to the authorities, as well as issue statements (section 5 (2)).

Ever since the Sámi Parliament was established, the question of who is entitled to vote in its elections – thereby raising the question of who is a Sámi – has remained the subject of fierce discussion and internal tensions.Footnote ⁴⁵ The core of the disagreement, very much simplified here for the sake of making the point, is partly between reindeer-herding Sámi, who settled in what is today Finland around 1860 due to the closing of Swedish and Norwegian borders, and those who were by then already settled in the uppermost parts of Finland and had mostly adopted the Finnish language due to the strong assimilation policies of schools and the Church.Footnote ⁴⁶

This history has created an internal division within the Sámi community between those who are registered Sámi, and thus enjoy the right to vote and get elected to the Sámi Parliament, and those who are non-registered.Footnote ⁴⁷ According to section 3 (a) of the Act on Sámi Parliament, ‘Sámi’ means a person who considers himself a Sámi, provided: (1) that heFootnote ⁴⁸ himself or at least one of his parents or grandparents has learnt Sámi as his first language; or (2) that he is a descendent of a person who has been entered in a land, taxation or population register as a mountain, forest or fishing Lapp; or (3) that at least one of his parents has or could have been registered as an elector for an election to the Sámi delegation or the Sámi Parliament.

Every four years – just before new elections – hundreds of persons approach the Parliament’s electoral committee (consisting of five Sámi with electoral rights) to apply for inclusion on the electoral roll. Each time, some applications succeed, while the majority are rejected. When an applicant is rejected by the Sámi Parliament, they can complain to the SAC, which serves as the appeals court with the authority to add applicants to the Sámi Parliament’s electoral roll.

Whereas judicial appeal is generally considered an essential element of a democratic system, the role of the SAC has been criticised by some Sámi activists as threatening Sámi self-governance. Most elected Sámi parliamentarians are of the view that individuals whom they do not recognise as Sámi must be kept off the electoral roll in order to prevent further assimilation. However, some individuals recently added to the electoral roll clearly cannot be said to have weak links to the Sámi community. A striking example is that the candidate parliamentarian who attracted the most votes in both the 2015 and 2019 elections had been added to the register by the SAC only in 2011.Footnote ⁴⁹ This illustrates that many Sámi voters strongly recognise as Sámi individuals whom the Parliament has refused to recognise and register.Footnote ⁵⁰

This state of affairs, which points to internal tensions within the Sámi community, forms the backdrop of the Näkkäläjärvi et al. and Sanila-Aikio cases. These cases arose from the Sámi Parliament’s elections of 2015, prior to which the SAC had added 93 persons (out of 181 appellants) to the Sámi electoral roll. An analysis of the argumentation used by the SAC in these decisions shows that there was a shift in reasoning in 2015: previous decisions by the Court had followed the Sámi Parliament’s lead in emphasising ‘group recognition’.Footnote ⁵¹ Accordingly, to be successful, an application needed to have the Sámi Parliament’s full support. In 2015, however, the Court shifted to what it called a ‘comprehensive’ approach more ‘sensitive to human rights’.Footnote ⁵² Under this approach, the Court assumed that the person appealing was a Sámi as long as one of the objective membership criteria laid down by law was fulfilled. If this was the case, the Court would accept the applicant’s self-identification as Sámi, rather than placing evidentiary weight on the lack of recognition by the Sámi Parliament.

This new approach had been adopted as a follow-up to a negative assessment by UN human rights monitoring bodies such as CERD and the Council of Europe’s Advisory Committee on the Framework Convention for the Protection of National Minorities.Footnote ⁵³ While it was aligned with the views of these expert bodies, it did not please the Sámi Parliament. Later, it also failed to satisfy the HRC. In 2015, when the Court approved 93 applications that had been rejected by the Sámi Parliament, a crisis ensued. Ms Sanila-Aikio and Mr Näkkäläjärvi (then, respectively, sitting and former presidents of the Finnish Sámi Parliament) each submitted a communication to the HRC. They did so not only in their own names but also in the name of the Finnish Sámi Parliament and all Sámi in Finland. Although one would have expected these complaints to have been approved by the Parliament, data collected by Toivanen suggest that the parliamentarians were not aware that the complaints were being prepared and lodged. Moreover, it transpired that the two complaints had arrived at the HRC independently of each other, without one complainant being aware of the other complaint.Footnote ⁵⁴

10.4 The SAC’s Decisions: Not Necessarily Flawed

The decisions by the HRC in both Näkkäläjärvi et al. and Sanila-Aikio suggest that the Finnish SAC’s argumentation was flawed, with the Court having relied on false evidence in its reasoning and demonstrated a lack of understanding of the Sámi culture and way of life. The views in Näkkäläjärvi et al. report that ‘in a majority of those [93] decisions, the Court stated explicitly that the person did not meet any of the objective criteria spelled out in section 3 of the Sámi Act]’.Footnote ⁵⁵ It adds that ‘[t]he Court resorted to the overall consideration of the person’s own “strong” opinion in considering himself or herself a Sámi and ignored the explicit requirement of meeting at least one of the objective criteria’.Footnote ⁵⁶ It states that ‘the Court accepted evidence that relied entirely on the State party’s public administration records, such as those of church registry offices and the provincial archives of the State, and that those documents are unreliable’.Footnote ⁵⁷ Further, it claims that the Court did not take ‘into account the international obligations of Finland, especially those under the Covenant’, also ignoring relevant observations by CERD.Footnote ⁵⁸

Echoing this description, the Committee’s view on Sanila-Aikio argues that ‘the Court failed to require satisfaction of at least one of the objective criteria in the majority of cases, instead applying an “overall consideration” and examining whether a person’s own opinion about considering themselves a Sámi was “strong”’.Footnote ⁵⁹ It continues by suggesting that the Court thereby ‘infringed on the capacity of the Sámi people to exercise, through the Sámi Parliament, a key dimension of Sámi self-determination in determining who is a Sámi’.Footnote ⁶⁰ It assesses that the Court based its views on an ‘expansive application’ of section 3 of the Act on the Sámi Parliament, which resulted in ‘arbitrariness and lawlessness’.Footnote ⁶¹

Finland’s responses to these observations suggest that the latter were based on significant inaccuracies. According to Finland, the Court had ‘thoroughly assessed the special status and rights of the Sámi people, also taking into account the obligations of Finland under the Covenant’.Footnote ⁶² In Finland’s opinion, ‘t]he SAC ha[d], in its case law, paid attention to the safeguarding of the rights of the Sámi Indigenous people and its obligations under the Covenant’, consulting the board of the Sámi Parliament as well as, ‘inter alia, articles 1, 2 (1), 25, 26 and 27 of the Covenant, and the UN Declaration on the Rights of Indigenous Peoples’.Footnote ⁶³ Finland also summarised how the Court had considered CERD’s concluding observations on Finland’s ninth, tenth, and seventeenth to nineteenth periodic reports.Footnote ⁶⁴

An analysis of the SAC’s ninety-three cases supports Finland’s defence, thus showing Näkkäläjärvi et al. and Sanila-Aikio to have been misguided in having found the Court’s rulings arbitrary and overlooking relevant criteria of Article 3 of the Sámi Act. The appellants had always provided the Court with proof of at least one objective fact required by Article 3 of the Sámi Act. Often, this fact was an archival statement about their Sámi ancestry.Footnote ⁶⁵ Additionally, in most cases, the appellants could show that they satisfied the linguistic criteria of the Sámi Act (para 3.1).Footnote ⁶⁶

Thus, contrary to what Näkkäläjärvi et al. and Sanila-Aikio claim and the HRC concluded, the Court did consider the history of the Sámi people in these ninety-three cases.Footnote ⁶⁷ This consideration includes the historical reasons why people may have been removed from the relevant personnel registries, such as moving to another Nordic country or having been prevented by the Finnish authorities from using Sámi as their first language.Footnote ⁶⁸ Importantly, in a strong statement for Sámi self-determination, the SAC argued that the consequences of such assimilationist history should not be allowed to affect present-day decision-making.

In sum, Näkkäläjärvi et al. and Sanila-Aikio contain misleading information about the SAC’s decisions.Footnote ⁶⁹ All of the ninety-three persons accepted by the SAC had not only been able to produce proof of their descendancy as Sámi, but actually enjoyed group recognition. In the elections that followed in 2015 and 2019, several of them were elected as members of the Sámi Parliament.Footnote ⁷⁰ What the ninety-three cases poignantly demonstrate is the extent of the internal tensions within the Sámi community about who is considered a Sámi and who is not.

10.5 The Extravagant Number of 512,000 New Voters: Getting the Facts Wrong

These words are part of the individual opinion expressed by HRC member Olivier de Frouville in Sanila-Aikio.Footnote ⁷² De Frouville concurred with the Committee’s view that Finland had violated Article 25, read alone and in conjunction with Article 27 of the ICCPR. The purpose of his opinion was to explain why the complaint had been declared admissible, despite its author not having been personally involved in any of the ninety-three cases ruled upon by the SAC – a reasoning which also applied in Näkkäläjärvi et al., where the authors had also had no personal involvement in the court cases.

Against this background, it was unexpected that these communications would be considered admissible: usually the author of a complaint before the HRC has been a party to the domestic case which they challenge before the HRC for having failed to respect their rights under the ICCPR. Sanila-Aikio’s and Näkkäläjärvi et al.’s communications were differently anchored: their authors argued that the outcome of the cases through which ninety-three persons were added to the electoral roll of the Finnish Sámi Parliament amounted to a violation of their rights as Sámi. De Frouville’s quoted statement suggests that this mechanism could be reproduced over and over again, potentially resulting in over half a million non-Sámi people motivated by anti-Sámi economic interests being given access to the Sámi Parliament. The question arises: What is the source of this statement?

The figure ‘512,000’ is first mentioned by Näkkäläjärvi et al.’s authors in submissions summarised by the Committee as follows:

The figure is then repeated in de Frouville’s view to illustrate the threat of forced assimilation that new members of the electoral roll pose for the Sámi:

The figure re-appears a third time as the Committee summarises the merits of the communication, stating that the SAC’s decisions to include new people in the electoral roll could, ‘at least theoretically, lead to the inclusion of 512,000 non-Sámi persons on the electoral roll of the Sámi Parliament’.Footnote ⁷⁵ This is connected to the alleged existence of ‘many anti-Sámi organizations’ which are said to be ‘offering to assist ethnic Finns with applying and eventually appealing to the SAC’, which is in turn explained by a possible ‘economic interest in including a high number of non-Sámi individuals on the electoral roll to ensure the Sámi Parliament’s acceptance of large-scale projects in the areas of mining, mass tourism and infrastructure’.Footnote ⁷⁶

As already noted, Olivier de Frouville also relies on the potential 512,000 new voters in his individual opinion in Näkkäläjärvi et al. to clarify why the case deserved to be declared admissible. To him, this figure is the primary reason why the authors’ rights could be considered to be potentially violated at admissibility stage, despite the absence of a direct infringement of their rights.Footnote ⁷⁷ De Frouville appended a similar individual opinion in Sanila-Aikio, thus repeating the figure, even though it had not been mentioned by either Ms Sanila-Aikio or her counsel.

It is as if the figure of 512,000 acquires solidity in the life of these two communications through being repeated as a litany. Noteworthily, however, the original source for this number is nowhere to be found in the text of the Committee’s views. The reference to a ‘study by a mathematician’ is not accompanied by any further information as to where this study was published or conducted, nor by whom exactly – the mathematician remains unnamed. Nowhere in their texts do the views suggest that the Committee entertained any doubt regarding the veracity of this figure, despite it being extremely large, given that Finland counts no more than circa 5.5 million inhabitants. It remains entirely unclear what this figure in the Committee’s view is based on, even when it is repeated in the documents as if representing an unquestioned, objective fact.

In fact, the figure appears to be a gross exaggeration also with reference to the number of people who have actually applied to be added to the electoral roll in the last twenty-five years. The very first elections of the Finnish Sámi Parliament took place in 1999. At that time, the electoral roll had counted 5,121 Sámi persons.Footnote ⁷⁸ When their children became adults, they were automatically added to the roll, representing an increase of 436. The same year, another 1,128 people applied for inclusion in the Sámi electoral roll. The Sámi Parliament’s electoral committee accepted 100 of these applications. Of the 1,028 rejected, 765 applied for a review, which resulted in twenty-five being granted enrolment. Of the 740 rejected at the review stage, 726 appealed to the government of the Sámi Parliament, which accepted one application. Then 712 people appealed to the Sámi Parliament’s general meeting, which granted enrolment to twenty-six applicants. Finally, 656 complained to the SAC.

The SAC granted enrolment to seven applicants because of evidence that one of their grandparents had spoken Sámi as their first language. In sum, out of the 1,128 applications for electoral enrolment prior to the 1999 elections, 159 eventually were accepted and 969 rejected.Footnote ⁷⁹ Numbers remained small in subsequent years. In 2011, the SAC requested the Sámi Parliament to add four applicants who had previously been refused. In 2015, 800 persons applied to be added to the electoral roll, of whom 483 were accepted, mostly because they were adult children of persons who were already members. The 201 persons who applied to the Sámi Parliament for a review were all rejected, mostly on the grounds that the Sámi community did not recognise any of the individual applicants to be Sámi. Of these, 182 persons appealed to the SAC, which added 93 of them to the electoral roll.

This overview of the reality of people seeking to be added to the electoral roll of the Finnish Sámi Parliament shows no signs of either the potential snowball effect mentioned repeatedly in Näkkäläjärvi et al. and Sanila-Aikio, or a sudden rise in the number of applicants. The numbers given above indicate that hundreds of people – not thousands, let alone hundreds of thousands – have sought inclusion in the Sámi electoral registry. From this perspective, it appears Näkkäläjärvi et al.’s authors may have used the striking figure of 512,000 new potential voters as a scare tactic, which would have served to capture the Committee members’ attention, but without it being properly anchored in empirical reality or substantiated by evidence.

Näkkäläjärvi et al. and Sanila-Aikio misrepresent the basis on which the SAC accepted the applications of ninety-three persons in 2015, including the level of detail into which the Court went in its consideration of Sámi identity. The Committee’s views in these two cases also downplay how the Court considered the ICCPR and other relevant international covenants and standards related to Indigenous rights. In addition, our discussion above makes it clear that the HRC either did not get the correct information or did not notice the red flags that marred the whole process, starting with the fact that each applicant said they were acting in the name of the Sámi Parliament and Sámi peoples in general, but did not know about the other’s complaint.

The figure 512,000 further illustrates problems with the factual basis upon which these communications were decided. Neither view has an appendix listing the evidence that was submitted. In Näkkäläjärvi et al., the Committee simply states: ‘The Committee has considered the communication in the light of all the information made available to it by the parties, in accordance with article 5(1) of the Optional Protocol.’Footnote ⁸⁰ The result is that, despite the number 512,000 finding no support upon empirical inquiry, the Committee ends up reproducing it as an uncontested fact, without questioning it or seeking evidence to substantiate it. By repeating the figure in both communications, the Committee increases the figure’s weight as an objective fact. This outcome gives rise to the impression that once material enters the Committee’s system and is accepted as part of the proceedings, there is no further discussion on the reliability of evidence. Any assessment as to the reliability of a particular piece of evidence is conducted at an early stage in a communication’s life cycle, which explains how the idea of 512,000 potential new Sámi voters was able to become a fact without any grounding.

10.6 Translating into Distance

How can the Committee have got the facts so wrong in these two cases? We would suggest the answer to this question must be found in processes of translation, understood both in its literal sense and more metaphorically. First, it must be noted that the ninety-three court cases from the SAC were not available for inspection by the Committee members, as the Finnish-language decisions have not been officially translated into English. What one finds instead is a summary of three of the ninety-three cases in the Committee’s views on Sanila-Aikio. Thus, when the Committee deliberated on its views, it did so without direct access to the cases as primary sources. Subsequently, in its deliberations, the Committee was reliant on how the SAC cases were summarised for the Committee by the authors of Näkkäläjärvi et al. and Sanila-Aikio. Further, the Committee members had to depend on the summaries of the communications prepared by UN secretariat staff and had no means of looking behind what is included in the background dossier.

These cases reveal that in its argumentation, the Committee places familiar emphasis on the prevailing narrative within the human rights field of states attempting to restrict the rights of Indigenous peoples while simultaneously diminishing their autonomy and possibly pushing for forced assimilation.Footnote ⁸¹ The Committee also builds on a familiar narrative of the internal unity and harmony of Indigenous communities, which are connected to nature but outside politics.Footnote ⁸² By extension, the tensions that these communications capture are cast as existing solely between the unified Sámi peoples and the dominant population as represented by the State, and internal controversies within the Sámi community are erased from view.Footnote ⁸³

This outcome legitimises the power of those segments of the Sámi people which have the majority in such institutions as the Sámi Parliament, and by extension have the authority to decide who is included in the Sámi electoral roll and who is excluded. This result distorts reality and further marginalises those Sámi people who are already marginalised, due to having been denied the status of registered Sámi by those members of the Sámi people who have the power to make these decisions within the Sámi Parliament.Footnote ⁸⁴ These two communications are deeply detrimental to those Sámi who are marginalised in internal power struggles due to having been denied the status of registered Sámi voters.Footnote ⁸⁵

The relevant question for our argument is: How is it possible that the HRC took so many misleading arguments as legal facts and was not in a position to verify the information received? One of the biggest reasons is that in the HRC, there are only two parties: the individual and the member state. In the cases of Näkkäläjärvi et al. and Sanila-Aikio, the ninety-three Sámi whose electoral rights both communications were complaining about could not submit any communication of their own, not having any recognisable legal status or ongoing controversy vis-à-vis the State of Finland. In principle, before the results of these two communications were published, they did not even know that their voting rights were being disputed at the HRC,Footnote ⁸⁶ and were not able to correct flawed information shared by the authors of Näkkäläjärvi et al. and Sanila-Aikio.

Translating felt injustices into the language of international human rights shifts their meaning.Footnote ⁸⁷ As was already noted, such monitoring mechanisms as individual complaints have ‘the capacity “to make things come into being”’.Footnote ⁸⁸ Yet, as our case studies have illustrated, such processes also ‘hide as much as [they] reveal’.Footnote ⁸⁹ In translating real life events into human rights violations recognised as falling within the scope of the ICCPR, intermediaries acquire an important role. Intermediaries can be the claimants themselves, but more importantly, they are often individuals who know the Committee’s jurisprudence well, such as former Committee members, as was the case in Sanila-Aikio. This raises the question of whether this complaint mechanism is open to everyone, or whether, due to its evidentiary regime, it ends up only being genuinely accessible for those who are skilled in translation.

A close reading of these communications illustrates how the accompanying translation processes can translate an argument, or a number, into an uncontested fact. Yet, these translation processes are not neutral, but instead assume a decisive role in creating narratives about contested situations while simultaneously seeking to legitimise these narratives.Footnote ⁹⁰ Strikingly, the communications contain information that is presented as uncontested fact but without substantiating the information in any way, such as offering a source to assess its veracity. A perfect illustration of this is the repeated mention of 512,000 new voters which the SAC rulings could have possibly made a reality.

The consequences of the HRC’s views regarding these two cases were devastating for the ninety-three persons, their children and future generations. This is illustrated by the aftermath of the communications: following the HRC’s views, the Sámi Parliament in the elections of 2023 unilaterally decided to exclude these people from the electoral register. The Finnish SAC had to once again decide on complaints by these persons. Accordingly, the timetable became too tight for these persons, including the top candidate of the two last elections, to run for election.Footnote ⁹¹

These events reveal how assessments of what constitutes a fact acquire important consequences in real life, even if the Committee’s views are not legally binding. This is communicated by a letter dated 21 February 2023 that the Sámi Parliament sent to all those persons who had been added to the electoral roll by the SAC: ‘In the view of the decisions and views by the UN committees on Human Rights and CERD, the electoral body of the parliament cannot consider that the decisions by the Finnish SAC are still valid for the elections 2023. The persons listed in the annex (not public) can, in case they wish, appeal this decision to the Sámi Parliament. The electoral committee of the Sámi Parliament promises to review the appeals objectively and lawfully.’Footnote ⁹²

10.7 Conclusion

In this chapter, we have combined two different kinds of ethnographic research – research on the HRC and research on Sámi rights struggles – with the aim of explaining what kind of information may be considered as fact in the HRC’s individual communications procedure. Both Näkkäläjärvi et al. and Sanila-Aikio deal with the same issue – namely the self-determination of the Finnish Sámi to decide upon their membership through the involvement of an appeals court, the SAC. After struggling with the issue of admissibility, the HRC still found the existence of a Covenant violation. In doing so, the Committee relied on evidence that our analysis shows mischaracterised the actions of SAC. The Committee further went on to cite the dubious figure of 512,000 possible new voters as substantiation for individual violations, even though this figure has no concrete basis in reality.

Together, our case studies raise numerous compelling questions that call for further inquiry. What happened behind the scenes in these communications, which resulted in these outcomes? What roles were played by the authors’ representatives, one of whom was a former Committee member and thus an insider to the Committee’s operations? On the basis of these two case studies, what kind of broader conclusions can be drawn regarding the Committee’s evidentiary regime?

It should also be noted that conducting rigorous analysis on such complex communications requires vast and specific expertise. In the present case, this has not only included ethnographic knowledge of the Committee’s operations and Sámi rights struggles, but also the competence that we – this chapter’s authors – have in the Finnish language. Only this combination of expertise has enabled us to look behind the written materials of these two communications, going all the way back to the original ninety-three court cases, which were distanced from the Committee members in the cases’ written dossiers. Individual members of the HRC, primarily being experts in international human rights law in general and the ICCPR more specifically, understandably cannot have similar expertise for every communication that they process. Also, realistically, both Committee members and UN secretariat staff work under severe time constraints. This is an additional reason why data, such as ninety-three court cases, can become distanced; there is simply not enough time to read vast amounts of data, even if the individuals possessed the needed linguistic skills to do so.

Of necessity, Committee members have to rely on distinct techniques for assessing the veracity of data and arriving at their final conclusions. In doing so, they need to assess the reliability of the authors, as well as the comprehensiveness with which the UN secretariat has prepared the background dossiers. As these case studies illustrate, this approach may lead to outcomes that erase internal tensions from view. The same applies to such marginalised subjectivities as non-registered Sámi, as seen in our case studies. These outcomes may result in different kinds of human rights violations that the current monitoring framework focusing only on the relationship of states and communication authors – in this case, registered members of the Sámi people – is ill-equipped to address. We hope that our case studies and analysis may contribute to a nuanced debate on the evidentiary regimes of the HRC, as well as other international monitoring mechanisms, by generating new kinds of insights concerning their blind spots and unexpected consequences.