Minerallagen vs. Folkrätten. Mineralexploatering på bekostnad av samernas rättigheter

Detta är en Uppsats för yrkesexamina på avancerad nivå från Lunds universitet/Juridiska institutionen

Sammanfattning: Summary Sweden has repeatedly been criticized by the UN for not following international human rights law for indigenous peoples, in the case of Sweden, the Saami. The criticism include the Saami people's lack of influence on decisions affecting them. The mining industry is considered to be a major problem because of its big impact on the Saami culture and the swedish mineral-law gets critic because of it ́s lack of consideration of the Saami. In the government's mineral strategy there is a focus on maximizing the exploitation of mineral resources in Sweden. This provides an explanation of the Swedish regulations on mineral extraction. To understand why current law is still focused on exploitation despite the criticism I make a historical review of the regulation since the 1400s. A model developed by Duncan Kennedy is used as a theoretical basis. Historically there are red threads of arguments following the discussion about regulations of mineral exploitations. There has always been a focus on property rights, exploitation and stimulation. The roots of the Swedish arrogant attitude towards international law can be found in the view of the strong nation-state that was built up alongside the welfare state. Kennedy's theory is based on different legal cultures that spread across the world and thus also affected the Swedish legal thinking and the perception of Saami rights and position. Kennedy identifies three, in time overlapping periods, which all have influenced the Saami situation. The first, the classical period 1850-1914 , with its liberalism and free will was the foundation for much of the colonization of land that took place in the northern parts of Sweden. The second, the social period 1900-1968, where the nation-state became strong and created a vision of international law as a foreign institution, but also introduced a philosophy of assimilation that deeply affected the Saami situation. In the third period, 1945-2000, human rights has been the main keyword for global legal thinking. International law has grown stronger placing greater demands on human rights, especially for indigenous peoples. Here the Swedish politicians and laws have not kept up with developments. Among other things, the Convention for the Rights of Indigenous Peoples ILO 169 is not yet signed by Sweden. According to Kennedy ́s model, we are for the moment in transition to a new period and changes are to be expected. The question is whether the Swedish legislation can now leave some of its historical remains behind and develop a mineral legislation that takes the rights of the Saami as an indigenous people in Sweden into account.

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