E/C.12/76/D/251/2022 E/C.12/76/D/289/2022 Annex [English only] Individual opinion of Committee member Ludovic Hennebel (concurring) 1. I fully concur with the conclusions reached by the Committee in its determination of the case, finding significant violations of the Sami people’s rights under the International Covenant on Economic, Social and Cultural Rights, in particular their rights to self-determination, cultural participation and an adequate standard of living, as set out in articles 1, 11 and 15 of the Covenant. However, I wish to emphasize that the exclusion of self-determination from justiciable rights, as seen in the jurisprudence of the Human Rights Committee, must be reconsidered. Self-determination is an autonomous and enforceable right, crucial for Indigenous Peoples, and its full justiciability must be affirmed. 2. As recently recalled by both the Human Rights Committee – whose recent jurisprudence ushers in a paradigm shift 1 – and the African Commission on Human and Peoples’ Rights, 2 the right to self-determination is a cornerstone of modern international human rights law, enshrined in common article 1 of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. This right guarantees that the Sami, as an Indigenous People, can freely pursue their economic, social and cultural development, which inherently includes the right to manage and control their traditional lands and resources. The link between self-determination and land is crucial: without access to their lands, Indigenous Peoples cannot exercise their right to self-determination effectively. States must protect Indigenous Peoples’ rights to their lands, territories and resources to prevent the erosion of their way of life and identity. 3 3. In the present case, the violation of the right of the Sami to self-determination stems directly from the State party’s failure to implement a meaningful process for free, prior and informed consent. Free, prior and informed consent is not a mere procedural formality; it is a substantive right essential for allowing Indigenous Peoples to participate in decisions affecting their lands, which are fundamental to their cultural and economic survival. 4 The control over land is not only an economic matter but also a core component of self-determination, as it allows Indigenous Peoples such as the Sami to maintain their cultural heritage, livelihoods and identity. 4. For the Sami, reindeer herding is intimately connected to their land and is central to their cultural identity.5 The Committee on Economic, Social and Cultural Rights, like other human rights bodies, has previously acknowledged that the cultural rights of Indigenous Peoples are inextricably tied to their access to and control over their traditional lands and resources. Without sustainable access to these lands, the ability of the Sami to exercise 1 2 3 4 5 18 Roy et al. v. Australia (CCPR/C/137/D/3585/2019), paras. 7.2 and 7.3. Even though the Human Rights Committee does not take the step of affirming the justiciability of article 1 of the International Covenant on Civil and Political Rights, its jurisprudence is remarkable and signals real progress towards a direct protection of self-determination. Minority Rights Group International and Environnement Ressources Naturelles et Développement (on behalf of the Batwa of Kahuzi-Biega National Park, DRC) v. Democratic Republic of Congo (DRC), Communication No. 588/15, Decision, 2022, paras. 188 ff. Committee on the Elimination of Racial Discrimination, Ågren et al. v. Sweden (CERD/C/102/D/54/2013), para. 6.6; and Human Rights Committee, general comment No. 23 (1994), para. 9. See also Human Rights Committee, Oliveira Pereira et al. v. Paraguay (CCPR/C/132/D/2552/2015), para. 8.6; Poma Poma v. Peru (CCPR/C/95/D/1457/2006), para. 7.2; and Roy et al. v. Australia, para. 8.3. See Inter-American Court of Human Rights, Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgment, 31 August 2001; Saramaka People v. Suriname, Judgment, 28 November 2007; Kichwa Indigenous People of Sarayaku v. Ecuador, Judgment, 27 June 2012; and Kaliña and Lokono Peoples v. Suriname, Judgment, 25 November 2015. Human Rights Committee, Sara v. Norway (CCPR/C/141/D/3588/2019), para. 10.3. GE.24-18518