What can Indigenous Peoples learn from the Åland Land Acquisition Regime?

Rhodri C. Williams works on post-conflict rule of law issues with the International Legal Assistance Consortium in Stockholm and blogs on land and property rights on TerraNullius. He is a former guest researcher at the Åland Islands Peace Institute, an enthusiastic sommarålänning, and the beneficiary of a grant from the Åland Culture Foundation to research how Åland’s rules on land acquisition can help to provide lessons for emerging understandings of indigenous land rights.

Stockholm, May 2013

The autonomy regime enjoyed by the Åland Islands within Finland is an extraordinary political experiment that has withstood the test of time better than most of its kind. It has the authority of age, dating back to agreements brokered by the League of Nations during the interwar period. At the same time, the autonomy has not merely survived but thrived, having been progressively expanded in scope both during and after the Cold War. Perhaps most tellingly, Åland negotiated a path into the EU alongside Finland in 1994 that not only allowed it to retain the key features of its regime, but also endowed it with the confidence to negotiate hard for further arrangements seen as necessary to prevent its sub-national powers from being rolled over by the supra-national juggernaut in Brussels.

Having lived on Åland full time from 2004 to 2010 and made regular summer pilgrimages from Stockholm ever since, the place has made a deep impression on me and shaped my thinking about the rights and wrongs of minority protection. This is saying something as well, given that I was a skeptic on arrival. As an American raised on melting pot mythology and Brown vs. Board, my instinct was to believe that separate could neither be equal nor desirable. Moreover, having spent the previous five years as part of the international effort to stitch post-war Bosnia back together, I was painfully aware of the extent to which strategies based on entrenching group difference could feed conflict as easily as they could resolve it. But I was impressed from the start by two things about Åland.

First, Åland really did do a good job governing itself. Sure, there were things to complain about, but people got on with it and government delivered. Given that Åland was both tiny compared with other administrative units in the Nordic countries and relatively rich, the archipelago seemed like a textbook case for the subsidiarity-based efficiency arguments for decentralizing power. Second, Ålanders were incredibly interested in their own autonomy. Most outsiders I talk to have a hard time believing 27,000 people manage to support two daily newspapers that between them hardly have time for stories from beyond Kobba Klintar. The identity-based arguments for autonomy clearly applied as well – in other words, Åland has autonomy because Ålanders wouldn’t settle for less.

For reasons not entirely clear to myself, I have long been drawn to questions about land and property. I wrote a masters thesis in Geography long ago on the effect of East German housing policies after unification, and went on to work in Bosnia on the restitution of homes for families that had been forced to flee during the war.[1] As a consultant, I also focused on property issues in post-conflict countries such as Cambodia, Colombia, Cyprus, Liberia and Turkey. Some of my most recent work included an analysis of property conflicts in contemporary Libya.[2] However, even if my early consultancy career was focused on post-conflict countries, my life was being lived in one of Europe’s flagship autonomies. When I had the good fortune to be offered a guest-researcher position at the Åland Islands Peace Institute, I quickly began to realize how important land and property issues could also be in terms of protection and conflict prevention for minorities and indigenous peoples.

Among minority protection regimes, the Åland autonomy is unusual in having incorporated a right to exclude outsiders from acquiring land in the Åland Islands from the outset. In this sense, the Åland autonomy goes much further than the cultural autonomy enjoyed by the Swedish-speaking minority in the rest of Finland as well as many other territorial autonomies in Europe, which are characterized by a degree of self-government within a particular territory but enjoy less direct means to protect their land from demographic pressures from the majority population.

The control of land in the Åland Islands that is now, in effect, collectively exercised through governing bodies set up under the autonomy regime, goes conceptually beyond the bounds of minority rights as they are usually articulated at both the international and European regional levels. Such rights ordinarily focus on protection of the language, religious beliefs and cultural life of minorities. On the other hand, the Åland regime appears to be a distant reflection of the emerging field of indigenous peoples’ rights, which are based on the exercise of ‘internal self-determination’ and recognition of the indigenous as ‘peoples’ rather than a mere ‘minorities’. For instance, the 2006 UN Declaration on the Rights of Indigenous Peoples includes extensive guarantees of control over territorial homelands.[3]

It is generally understood that the Åland Islanders do not consider themselves to be an indigenous people, nor do they clearly fit the accepted criteria to be recognized as such. But the Åland autonomy does correspond to what many indigenous peoples demand in terms of territorial control, namely the right to limit the ability of outsiders to freely acquire land on Åland. Moreover, Åland has also had nearly a century to adapt the practical application of this land regime to the changing political and economic demands of self-government, as well as the outside factors such as the increasingly important role of the EU. As a result, the experience of the Åland Islanders in managing their own land may provide many practical insights that could be of use for indigenous peoples in proposing and managing rules to protect their traditional territories.

In fact, the main challenges that have arisen both on Åland and in states with developed protection regimes for indigenous peoples are similar. First and foremost, where such regimes allow restrictions on access to land, this not only has the intended effect of impeding encroachment but also restricts the rights of members of the protected communities to freely dispose over their property in a manner that would maximize both its economic value and its personal significance. Put very simply, a landowner on Åland cannot freely gift or bequeath their land to whoever they want to, unlike landowners in many other parts of the world.

The purpose of the research I am currently undertaking for the Åland Culture Foundation is twofold. First, I hope to present the application of the land rules on Åland as a source of both inspiration and caution for indigenous peoples. Second, and more broadly, I wish to examine the justifications, benefits and risks inherent in these types of land regimes

On the positive side, the justifications for (and benefits of) allowing some communities to exclude outsiders have never been better understood. From the perspective of human rights, there are justifications for creating exceptions to the ordinary rule that individuals should be free to decide where to live, at least within their own country. The most readily accepted justifications relate to the double dependency that indigenous peoples have with regard to their land, based on both economic dependence and cultural attachment. A third argument, which is increasingly accepted in practice, involves the proposition that exclusion of outsiders is a precondition for effective political participation of minority groups because it gives them bargaining power.

On the negative side of the balance, providing minority or indigenous communities with the right to exclude outsiders is not an easy fit with human rights. Such restrictions will not only be open to attack from outsiders (and particularly in the EU area where regional norms of freedom of movement are particularly far advanced) but also members within the community that may feel that their rights have been arbitrarily interfered with. In addition, such restrictions can prevent investment and lead to attempts to go around the law. This risk is reflected by current debates over legal but controversial means by which some non- Ålanders have recently been able to acquire long-term rights to vacation homes on Åland.

Minority land regimes also raise questions for the host states of autonomous territories such as Finland. First, these states are responsible for ensuring respect for human rights through their entire territory, even in situations where they have delegated competences to self-governing communities. As a result, if the Åland land regime was ever to be found to have caused a human rights violation, Finland would be left accountable for the effects of a legal process that it had no control over. A second issue is that states themselves no longer have complete freedom to exclude outsiders because of the increasing protection that human rights rules give to people who may not be citizens of the state where they live. A conceptual challenge in the future will involve answering the question why autonomous territories should be able to exclude outsiders if states are no longer completely free to do so.