Babin Borys V., Dr. Hab. (Law), Professor, [email protected]
Institute of International Relations of Kiev State University named for Taras
Shevchenko
Rights of Indigenous Peoples of Ukraine in Conditions
of the Dignity Revolution and Foreign Occupation
Evolution of the Statute of the Indigenous Peoples of Ukraine in
Crimea as a Ground of Statute the Crimea
Considering the historical, legal, ethical
preconditions of application the international legal
mechanisms helps to protect and promote the rights of
indigenous peoples (IP) for specific ethnic groups in
Ukraine. Traditionally relevant issues is connected with
the Crimean Tatar People (CTP); while several other ethnic
groups of Ukraine may be qualified for the corresponding
status. These issues were exacerbated in a gradual of
curtailment the democratic freedoms in Ukraine and civil
society institutions in the 2010-2014, which led to the
Dignity Revolution and at the same time become a foreword
to the escalation of separatism and to the foreign
occupation of the Crimea, which is the historic homeland
of IPs of Ukraine.
CTP as a separate ethnic group live in the territory of
Ukraine at least from the thirteenth century, they have
political and legal development of the national state –
the Crimean Khanate (XV-XVIII cent.) and used religious
and cultural autonomy in the Russian empire in (XVIII-XX
cent.), which did not prevent the empire to squeeze out
gradually most of the CTP in abroad exile1. Modern
historians are unanimous in determining the identity of
ethnic genesis CTP in the Crimean Khanate; it is proved
that CTP have their own legal system based on Sharia and
customs (Tore) and used the traditional institutes of the
collective national property (Vakf)2.
Crimean Karaites (Karays) and Krymchaks emerged as
separate ethnic groups in the Crimea in the early Middle
Ages, they had the actual national-cultural autonomy
mechanisms in the Crimean Khanate, Russian Empire and the
Crimean Autonomous Soviet Socialist Republic (A.S.S.R., to
1945). In legal acts of the Crimean Khanate, the Russian
Empire, the Crimean A.S.S.R., the USSR and the Republic of
Crimea these ethnic groups were called as peoples and were
recognized as indigenous population; they had features of
collective state-legal status3. Non-numerous character of
these ethnic groups has led to their almost complete
annihilation because of Hitler's genocide against the1 Vozgrin V. Y. Historic Destinies of Crimean Tatars / Victor Y. Vozgrin. – M.
: Mysl`, 1992. – P. 76-108 (246 p.) [on Russian : Возгрин В. Е. Историческиесудьбы крымских татар / В. Е. Возгрин. – М. : Мысль. 1992. – 246 с.]
2 Babin B. V. Legal Statute of the Indigenous peoples of Ukraine / Borys V.Babin. – Donetzk : Kashtan, 2006. – P. 101-114 (312 p.) [on Ukrainian : Бабін Б.В. Правовий статус корінних народів України : моногр. / Б. В. Бабін. – Донецьк :Каштан, 2006. – 312 с.]
3 Achkinazy I. B. Krymchaks : Historic-Ethnographic Essay / I. V. Achkinazy. –Simferopol : Dar, 2000. – P. 24-28 (189 p.) [on Russian : Ачкинази И. В. Крымчаки:историко-этнографический очерк / И. В. Ачкинази. – Симферополь : Дар, 2000 – 189с.]
Krymchaks and the destruction by the USSR bodies the
religious authorities of both ethnic groups, which
contributed before to their national consolidation1.
Remnants of these ethnic groups, however, cheered the
national consciousness in the 1989-1992; measures which
had used then by the powers of the Crimean autonomy to
maintain their identity, led to the legal recognition of
these ethnic groups as a “Non-numerous Crimean Peoples.”
Sometimes offers appear to determine Gagauz2 and Urums3
as IPs of Ukraine.
Ethnic groups that have their own national states
(Belarusians, Jews, Poles, and others) or state-like
formations in the independent states (eg. Buryats,
Karakalpaks, etc.) can not be considered as IPs of Ukraine
and are the minorities, even if some relatively small part
of this ethnic group has an indigenous origin for1 Lebedeva E. I. Essays on History of Crimean Karaites-Turks / E. I. Lebedeva.
– Simferopol, 2000. – P. 58-84 (115 p.) [on Russian : Лебедева Э. И. Очерки поистории крымских караимов-тюрков / Э. И. Лебедева. – Симферополь, б.и., 2000 – 115с.]
2 Guboglo M. N. Little Turk-Language Peoples of the Balkan Peninsula (On Question of the Origin of Gagauses) : thesis on PhD dissertation on History / M. N. Guboglo. – M., 1967. – 26 p. ; Anikin N. V. Problems of Ethnic Identification of the Gagauses in Moldova : thesis on PhD dissertation on History / N. V. Anikin. – M., 2009. – 20 p. [on Russian : Губогло М. Н. Малые тюркоязычные народы Балканского полуострова (К вопросу о происхождении гагаузов) : автореферат дисс. ... канд. ист. наук / М. Н. Губогло. – М.,1967. – 26 с. ; Аникин Н. В. Проблемы этнической идентификации гагаузов Молдавии : автореферат дисс. ... канд. ист. наук : 07.00.07 – этнография, этнология и антропология / Н. В. Аникин. – М., 2009. – 20 с.]
3 Garkavetz O. Urums of Up-Azov: History, Language, Tales, Songs, riddles,proverbs, Writing Monuments / O. Garkavetz. – Alma-Ata, 1999. – 624 p. [onUkrainian : Гаркавець О. Уруми Надазов'я: історія, мова, казки, пісні, загадки,прислів'я, писемні пам'ятки / О. Гаркавець. – Алма-Ата : Український культурнийцентр, 1999 р. – 624 с.]
Ukrainian territory. Some ethnic groups of Ukrainian
nation (as Hutsuls) and of ethnic minorities (as Crimean
Armenians) can not be considered as IPs of Ukraine,
because they have no evidences that they are the separate
ethnic groups (peoples) and they aren’t the separate
nationality. In this context, a key issue is the
Ruthenians (Rusyns) problem; their ethnic genesis and
self-consciousness today indicate the possibility of their
existence as a separate people; in this case there is a
real prospect of recognition of Rusyns as IP of Ukraine.
However, historians proves the repeated attempts by
Muscovy State and the Russian Empire to destroy the CTP
and his state by methods similar to colonization by Russia
the regions of Asia. After the forced inclusion of the
Crimean Khanate to Russia in 1783 till 1802, CTP had
territorial autonomy in form of Tauride regional
government; till 1917, CTP had spiritual autonomy in
Russia. Reducing the share of CTP in Crimea's population
was connected with the seizure of their land by the
government and with number of Russian-Turkish wars of the
XIX cent., which resulted the mass the emigration of CTP
in Turkey1.
In 1917-1921 CTP sought to create a national self-
government, autonomy and even independence; particularly
in December 1917, Constitutive Kurultay proclaimed the1 Vozgrin V. Y. Ibid. – P. 156-202.
formation of the People's Republic of Crimean and adopted
the Crimean Tatar Ground Laws as the Constitution of this
republic. Numerical minority of CTP did not allowed to
defend them their own state; both the need to consider
national factor led to the declaration by Soviets in
October 1921 Crimean S.S.R. (later named the Crimean
A.S.S.R.)1.
Founded Crimean A.S.S.R. of 1921-1945 was looked by the
Soviets quite as the national autonomy of the CTP, as it
was evidenced by the order of its formation, official
languages and personnel policies. People’s Commissariat on
Nationalities of Russian S.F.S.R. recognized Crimean ASSR
as playing the CTP statehood role; it was declared two
official languages of autonomy (Russian and Crimean
Tatar); republic was led by ethnic Crimean Tatarian; CTP
were, on the end of 30 years the relative majority in the
autonomy’s government; in the official documents of that
period CTP recognized as indigenous population of the
republic opposing to the national minorities living in
Crimea2; Crimean Tatars and Karaites recognized as IP of
Crimea in academic journals of the period. In addition,
1 Guboglo M. N. Crimean Tatar National Movement. History. Problems.Perspectives / M. N. Guboglo, S. M. Chervonnaya. – M. : Nauka, 1992. – V. 1. – P.79-87 (330 p.) [on Russian : Губогло М. Н. Крымскотатарское национальное движение.История. Проблемы. Перспективы / М. Н. Губогло, С. М. Червонная. – М. : Наука,1992. – Т. 1. – 330 с.]
2 Crimean A.S.S.R. / Little Soviet Encyclopedia in 10 vol. – M., 1936. – V. 5.– P. 1012-1015. [on Russian : Крымская АССР // Малая Советская Энциклопедия: в 10томах. – М., 1936. – Т. 5. – С. 1012-1015.]
they repeatedly recognized as a separate nation in legal
acts of the Russian Empire, the U.S.S.R. and the Crimean
A.S.S.R.
Soviet practice of nation-building did not have cases
of territorial autonomous republics, because all the
soviet autonomies were seen as public education designed
to ensure (declaratively) the right to self-determination
of people or some peoples residing on this territory. All
Soviet national autonomy have national character
(sometimes they were multinational, as Dagestan A.S.S.R.
or binational as the Chechen-Ingush A.S.S.R.); impossible
to imagine that the Russian S.F.S.R. (that included
Crimean A.S.S.R. in 1921-1945) established the autonomous
republic in Crimea through the fact of residence in its
territory of ethnic Russians, even autochthon ones.
Deportation of CTP in May 1944 took place by order of
the People's Commissariat of Defence of U.S.S.R.; in June
1944 most of traditional national minorities (Bulgarians,
Armenians and Greeks) also were deported from the Crimea.
This illegal events led to the transformation of the
Crimean A.S.S.R. into the simple Crimean region of the
Russian S.F.S.R. Presidium of the Supreme Council of the
U.S.S.R. on June 30, 1945 adopted the Resolution approving
the Law preceded by the Russian S.F.S.R. on June 25, 1945
which directly convert transforming the Crimean ASSR into
the simple region (oblast) in connection with the
deportation of the CTP.
The formal lifting of restrictions from the CTP was in
the Decree of the Presidium of the Supreme Council of the
U.S.S.R. on September 5, 1967, when the Crimean region was
in the Ukrainian SSR for a long lime (since 1954). Soviet
policy toward the CTP in the years 1967-1989 was based on
the doctrine of pointlessness of their resettlement back
in Crimea with simultaneous recognition of their identity
as people and reproduction of cultural autonomy of CTP in
the Uzbek S.S.R. where the deported persons lived at.
Human Rights Movement of CTP in Soviet period
contributed some attention to this problem outside the
U.S.S.R. and consolidated this ethnic group on the basis
of consistent rejection of Soviet ideology and coherent
self-organization. However, the authorities of the U.S.S.R
and the Crimean region strongly opposed attempts to return
of CTP in Crimea, such returning became widespread in
1989, when such resistance in conditions of cracking the
Soviet system was impossible. This contributed to the
approval by the Supreme Council of the U.S.S.R. the
Declaration on November 14, 1989 at which the Soviet
normative acts on deportation of CTP were defined as
illegal and all formal and informal restrictions on
resettlement the CTP in Crimea were canceled1.
Real prospects of restoring the Crimean Tatar statehood
and the Soviet government's desire to weaken the position
of a sovereign Ukrainian S.S.R. led to an escalation in
the Crimean separatist sentiments among the Russian-
speaking immigrants, who were settled in 1950-1980 in the
Crimea (previous Russian-speaking population of Crimea was
almost completely destroyed during the Soviet repressions
and World War II also as by the postwar famine).
Therefore, by the resolution of the Oblast Council of the
Crimean oblast on November 13, 1990 Temporal Provision on
the referendum and the procedure for its conduct in the
Crimean oblast of the Ukrainian S.S.R. were approved.
This Temporal Provision was designed to hold a
referendum on January 20, 1991, which submitted the
question about "reconstitution the Crimean A.S.S.R. as a
subject of U.S.S.R. and of Union Treaty”. Provision
indicated that such reconstitution is an implementation of
“the right of peoples of the Crimea on the self-
determination”; also the pointed resolution of November
13. 1990 contained a request to the authorities of five
1 Crimean Tatars: Company of the Civil Protest against Discrimination of theIndigenous Peoples of Crimea. Mejlis of the Crimean Tatar People. Legal-politicDepartment. Informational Service. – Simferopol, 2000. – P. 44-65 (106 p.) [onRussian : Крымские татары: кампания гражданского протеста против дискриминациикоренного народа Крыма. Меджлис крымскотатарского народа. Политико-правовой отдел.Информационная служба. – Симферополь: Б.и., 2000. – 106 с.]
Soviet republics (Ukrainian, Uzbek etc.) “to provide
necessary assistance to conduct a referendum among the
Crimean Tatars and other peoples deported from Crimean
region”.
Thus recognized certain political rights of CTP;
however, the referendum was held without the participation
of the deportees. After approval by referendum the pointed
question Supreme Council of Ukrainian S.S.R. without
waiting for decision of U.S.S.R. authorities adopted the
Law № 712-XII on February 12, 1991 “On the Restoration of
the Crimean A.S.S.R.” which transformed the statute of the
Crimean oblast of the Ukrainian S.S.R. 1. Soon after the
Resolution of the Supreme Council of the U.S.S.R. on March
7, 1991 № 2013-1 was adopted; it canceled the Decree of
the Presidium of the Supreme Council on June 30, 1945 for
conversion the Crimean A.S.S.R. to the oblast (but the law
of Russian S.F.S.R. on June 25, 1945 was not canceled)2.
However, the authorities of the newly created A.S.S.R.
were the former government (executive committee) of the
Crimean oblast; representatives of CTP in was not involved1 On the Restoration of the Crimean Autonomous Soviet Socialistic Republic :
Law of the Ukrainian S.S.R. on February, 12, 1991 № 712-XII [on Ukrainian : Провідновлення Кримської Автономної Радянської Соціалістичної Республіки : закон УРСРвід 12 лютого 1991 р. № 712-XII] ; URL : http://zakon4.rada.gov.ua/laws/show/712-12
2 On Cancel of the Legislative Acts in Connect to the Declaration of theSupreme Council of the U.S.S.R. on November 14, 1989 : resolution of the SupremeCouncil of the U.S.S.R. on March 7, 1991 № 2012-І [on Russian : Об отменезаконодательных актов в связи с Декларацией Верховного Совета СССР от 14 ноября1989 г. : постановление Верховного Совета СССР от 7 марта 1991 г. № 2012-І //Ведомости Верховного Совета СССР. – 1991. – № 23. – С. 653.]
this system. From the analysis of these documents should
be assumed that Russian separatists hoped to use the CTP
movement with its own purpose for secession from the
Ukrainian S.S.R. and then conclude with him a certain
model of cooperation.
However, a reconstitution the Crimean A.S.S.R. without
the participation of the CTP brought enough opposite
effect. In July 1991 Kurultay (Congress) of the CTP
objected to the appropriate state construction in Crimea
and formed a Mejlis as a representative body of the CTP1;
in December, 1991 this Mejlis approved the draft of the
Constitution of the Crimean Republic as a state of the CTP
and offered it to the public debate2.
After the relevant events pro-Russian authorities of
the Crimean A.S.S.R. refused from any cooperation with the
representative institutions of the CTP and took action for
the formation of Republic of Crimea, i.a. by approval on
May 6, 1992 its Constitution. Political rights of the CTP
were considered by that pro-Russian power not in terms of
the state building, but only in the context of the1 Declaration on the National Sovereignty of the Crimean Tatar People on June
28, 1991 / Documents of the Curultay June 26-30, 1991 [on Russian : Декларация о национальном суверенитете крымскотатарского народа от 28 июня 1991 г. / Документы Курултая 26-30 июня 1991 г.] ; URL : http://qtmm.org/public/images/ckeditor/file/quick-folder/dokumenty_1_sessii_2_kurultaya.doc.
2 Constitution of the Crimean Republic : project, adopted by the Mejlis of theCrimean Tatar People on December 29, 1991 // Guboglo M. N. Ibid. – V. 2 – P. 144-177 [on Russian : Конституция Крымской Республики. Проект, принят Меджлисомкрымскотатарского народа 29 декабря 1991 г. // Губогло М., Червонная С. Указработа. – Т. 2.– С. 144–177.]
restoration of the rights of deportees, with speculation
on the political rights of other deported groups (Germans,
Armenians, etc.). For example, electoral quotas for
deportees` representatives were set for elections to the
Supreme Council of Crimea by Crimean Law on October 14,
19931 and by the Law of Ukraine on April 6, 1995 – for the
local elections in Crimea2.
At the same time the Crimean authorities recognized
Karaites and Krymchaks as IP, obviously not having to
worry about any threats from the side of the ethnic groups
that were on the verge of extinction. Thus, the Council of
Ministers of the Crimean A.S.S.R. on January 21, 1991
recognized the Karaites and Krymchaks as a Non-numerous
Crimean Peoples and established a list of measures to
maintain their cultural identity3.
Ethnic legal processes that began after Ukraine gained
independence in 1991, were due to factors beyond
1 On Amendments to the Law of the Republic of Crimea “On Elections of theSupreme Council of Crimea” : Law of the Republic of Crimea on October 14, 1993 [onRussian : О дополнениях к Закону Республики Крым «О выборах Верховного СоветаКрыма»: Закон Республики Крым от 14 октября 1993 г. // Ведомости Верховного СоветаКрыма. – 1993. – № 5. – Ст. 220.]
2 On Specific of the Participation of Citizens of Ukraine, ConsideringDeported from Crimea, in Elections of the Deputes of Local Councils in AutonomousRepublic of Crimea on April 6, 1995 № 124/95-вр [on Ukrainian : Про особливостіучасті громадян України, з урахуванням депортованих з Криму, у виборах депутатівмісцевих рад в Автономній Республіці Крим: Закон України від 6 квітня 1995 р. №124/95-вр] ; URL : http://zakon4.rada.gov.ua/laws/show/124/95-вр
3 On Measures on Preserving the Cultural Heritage of Karaites and Krymchaks :resolution of the Council of Ministers of the Crimean A.S.S.R. on January 21, № 5[on Russian : О мерах по сохранению культурного наследия караимов и кримчаков :постановление Совета Министров Крымской АССР от 21 января 1992 г. № 5 // ВестникСовета Министров Крыма. – 1992. – № 1. – С. 6-11.]
multiculturalism Ukrainian people and entering into its
structure above non-titular ethnic groups that are
indigenous to the country of origin. These processes led
to adoption by Ukrainian parliament the Declaration of the
Rights of Nationalities, 1991 and to the application by
the Verkhovna Rada of Ukraine the Call for Citizens of
Ukraine of All Nationalities, 1991, with recognition by
those and many other acts the existence some “peoples”, as
a part of the Ukrainian People, including the CTP, and the
presence of the collective rights guaranteed by the state
for such ethnic groups.
After the politic decision of problem of the Crimean
autonomy, the Constitution of Ukraine, 1996 did not bound
the status of the Autonomous Republic of Crimea (ARC) with
CTP; Constitution of the ARC, 1998 also avoided to mention
on the grounds of autonomy statute (however, the status
of official languages of the ARC was fixed both for the
Russian and Crimean Tatar languages).
The development of the democratic social and legal
state institutions and civil society in Ukraine
objectively necessitated the providing of legal status of
IP Ukraine as an integral part of the multinational
Ukrainian people and created preconditions for their
development. So the Constitution of Ukraine, 1996 launched
a national constitutional institute of IPs. According to
Art. 11 of the Constitution of Ukraine, the state promotes
the development of ethnic, cultural, linguistic and
religious identity of all IPs of Ukraine; under its art.
92 rights of IPs should be determined by the laws of
Ukraine; Section 3 of art. 119 of the Constitution states,
that local state administrations provide on relevant
territory, in areas where IPs live, implementation of the
programs of their cultural development. However, the
similar rights were secured by the Constitution for the
national minorities.
Adding to the text of Constitution those norms of art.
11, 92 and 119 with the "IP" term become possible due to
the peculiarities of the process of adoption of the
Constitution in June 1996, in particular through
democratic discussion of amendments to the draft
Constitution within the framework of parliamentary
Constitutional commission. Alas, Ukraine has not passed
the legislation that would specify those provisions of the
Constitution. The rights of some ethnic communities living
in Ukraine can not be provided by the laws on national
minorities, including the historical, socio-cultural and
political factors that have resulted from their indigenous
origin.
According to the governmental draft of the Concept of
the State Ethnic Policy of Ukraine, IP – is autochthonous
ethnic community, which had the ethic genesis on the
territory in the boards of contemporary Ukraine and is an
ethnic minority in the composition of Ukrainian population
and does not have own state formation outside the
Ukrainian state. Some Laws of Ukraine approved in the
1990s, contain the term “IPs”, in particular the Law "On
Local State Administrations" on April 9, 1999 and the Law
“On the Supreme Council of the ARC” from January 10, 1998;
also we can point to the some regulations of the ARC on
period 1998-2003, that established de facto for CTP
special status.
In independent Ukraine representatives of the Karaites,
Krymchaks and Crimean Tatars required to be recognized as
IPs. Interestingly, the political movement of Ruthenians
(Rusyns) never applied to the idea of recognition of
Rusyns as IP. National movements Karaite and Crimean
Tatars have specific organizational forms. Thus, the CTP
national movement created a system of representative
bodies that represent the interests of a large part of
this ethnic group. These bodies are elected by democratic
procedures of the National Congress – Kurultay of the CTP,
by a representative body that it chooses - Mejlis of the
CTP and Mejlises system in administrative-territorial
units of Crimea and of some other regions of Ukraine;
these structures are active from 1991. Karaite ethnic
group has the also representative council – Ulu bolik
chosen Karaites National Congress in 2003. Unfortunately,
the actual extinction of Krimchaks makes no the real
respective of considering this ethnic group as a carrier
of the IP rights of in the future1.
Compliance of Karaites and Crimean Tatars to the
international requirements on the characteristics of IPs
is the basis for the recognition of IP of Ukraine,
through:
- the nascence and development of this IPs as separate
ethnic groups in Ukraine, their lack of own historical
country except Ukraine and absence of other state or
public education, with which they could connect their own
national identity (autochthon character of these ethnic
groups);
- the presence of indigenous` traditional territory of
residence (Crimea) in Ukraine, with whom this IPs have a
close organic historical and cultural communication;
- national, linguistic, cultural and religious identity
of this IPs;
- self-consciousness representatives of ethnic groups
indigenous peoples.
1 Babin B. V. Ibid. – P. 203-212.
Features of these ethnic groups are inherent in the
national ethno-political situation (loss of specified
ethnic groups traditional forms of farming and nature, the
lack of a long tradition of existence of modern
representative institutions, a relative minority the CTP
in Crimea and absolute scarcity of Karaites), did not
allow Ukraine to decide the possibility of the
establishment the national-territorial autonomy in
traditional and modern territories of their residence of
to give them all natural resources and lands of Crimea to
the ownership. Even the formal final recognition of those
ethnic groups as IPs did not occur within 23 years of
independence of Ukraine.
At the same time Ukraine de facto perceived CTP as the
IP of Crimea, with appropriate political rights. To
provide organizational and financial forms of appropriate
assistance “deported” legal institute was used. As we know
the deportation of peoples was a form of mass repressions
historically, deportations widely used by the powers of
U.S.S.R. In particular, there was a deportation of the
Crimean Tatars, as their eviction of the Crimean A.S.S.R.,
conducted by central Soviet authorities in May 18-20, 1944
Supreme Soviet of the U.S.S.R. adopted a Declaration on
November 14, 1989 “On Recognizing as Illegal and Criminal
the Repressive Acts against the Peoples Who were
Resettlement by Force, and Protection of their Rights” so
term “deported peoples” was introduced to the legal
practice. Resolution of the Supreme Soviet of the U.S.S.R.
on March 7, 1991 repealed the soviet legislation on the
status of deportees that restricted their rights. On
October 9, 1992 a number of former Soviet countries signed
an Agreement on Issues Connected with Restoration of
Rights of Deported Peoples, National Minorities and
Peoples (Bishkek Agreement). This Agreement was ratified
by the Verkhovna Rada of Ukraine by Law № 3736-XII on
December 17, 1993, the ten-year term of the Agreement was
extended until 2013 by the Protocol on May 30, 2003.
Unfortunately, during the 2012-2013 Yanukovych regime did
not contribute to the possibility of another extension of
this Agreement, as it was evidenced in letter of the MFA
of Ukraine № 72/14-612/2-304 on February 1, 20131.
Bishkek Agreement condemned unequivocally “the
totalitarian practices of forced migration of peoples,
national minorities and individual citizens of the former
U.S.S.R.," as a crime, contrary to all-peoples humane
principles, and points out that “legislative and other
normative acts, adopted by former U.S.S.R., Soviet
republic and Soviet local governments and administration
1 Agreement on Issues Connected with Restoration of Rights of DeportedPeoples, National Minorities and Peoples on October 9, 1992 [on Ukrainian : Угодаз питань, пов’язаних з відновленням прав депортованих осіб, національних меншин інародів від 9 жовтня 1992 р.] ; URL : http://zakon4.rada.gov.ua/laws/show/997_090
officials on the forced migration of peoples, national
minorities and individual citizens of the former U.S.S.R.,
are illegal and not valid from their adoption”.
The preamble to the Bishkek Agreement confirmed “the
right of deported persons, minorities and peoples to
restore historical justice and return to their place of
residence of the time of deportation, knowing that this
provision of this right is interstate in nature and
requires for coordinated approaches both multilateral and
bilateral”. Bishkek Agreement provided for the deportees
who have voluntarily returned to their place of former
residence, political, economic and social rights and the
conditions for resettlement, employment, education,
national, cultural and spiritual development equal with
other citizens living on this territory. By implementing
these norms and the provisions the rights and legitimate
interests of citizens residing in the territories shall
not be limited – as was pointed in Agreement.
Recommendations of the Ukrainian parliamentary hearings
“Problems of the Legislative Regulation and Implementation
of the State Policy on the Ensuring the Rights of the
Deported Crimean Tatar people and Ethnic Minorities, who
Return Voluntarily to Ukraine” , approved by the Verkhovna
Rada of Ukraine on April 20, 2000 № 1660-III, stated the
duty and importance of the legal issues related to the
restoration of the rights of deported on ethnic grounds.
This resolution stated that “the historic homeland of the
Crimean Tatars in which they were formed as an ethnic
group, is located in the territory and under the
jurisdiction of the Ukrainian state, which should create a
set of political and legal conditions that ensure the
maintenance and development of the Crimean Tatars in
Ukraine and its equal participation in political, economic
and cultural life of the state” 1.
Aspects of the recognition of the Mejlis of the CTP de
facto were implemented in the Decree of the President of
Ukraine on April 7, 2000 № 573/2000, which approved the
Regulations on the Council of Representatives of the CTP,
according to this decree all the Mejlis members were the
members of this Council at the same time. We should also
point on the Prescript of the President of Ukraine dated
December 24, 2002 № 412/2002 on the Days of the Crimean
Tatar culture and on the Decree of the President of
Ukraine on August 26, 2010 № 873/2010, which approved the
new membership of the Council of Representatives of the
CTP. Unfortunately, this decree of Yanukovych government1 On the Recommendations of the Parliamentary Hearings "Problems of the
Legislative Regulation and Implementation of the State Policy on the Ensuring theRights of the Deported Crimean Tatar people and Ethnic Minorities, who ReturnVoluntarily to Ukraine : Resolution of Verkhovna Rada of Ukraine on April 20, 2000№ 1660-III [on Ukrainian : Про рекомендації парламентських слухань "Проблемизаконодавчого врегулювання та реалізації державної політики щодо забезпечення правкримськотатарського народу та національних меншин, які були депортовані ідобровільно повертаються в Україну : постанова Верховної Ради України від 20квітня 2000 р. № 1660-III] ; URL : http://zakon2.rada.gov.ua/laws/show/1660-14
withdrew from cooperation with Mejlis through the Council
of Representatives of the CTP (instead of Mejlis members
some NGO representatives were set to this Council without
the wide presentation of CTP interests), that not helped
to protect the rights of IPs of Ukraine.
Some local elements of restoration the rights of
deported on ethnic grounds are regulated by the acts of
Cabinet of Ministers of Ukraine, such as: the Procedure of
Providing for Deportees and their Families` Members who
have Returned to Ukraine, the Housing, Built or Purchased
through the Budget Funds, coordinated by the government
Resolution on December 17, 2003 № 1952; the Procedure of
Provision the Drinking Water to Places of Compact
Settlement of Deported Crimean Tatars and other
Nationalities in the ARC, and the Procedure of Payment the
Compensation Costs for Relocation and Transportation the
Luggage to the Deported Crimean Tatars and Persons of
other Nationalities and their Families` Members who have
Returned to Ukraine for Permanent Residence, determined by
the government Resolution on May 13, 2004 № 626.
The Law of Ukraine “On Restoring the Rights of Persons
Deported on Ethnic Grounds”, passed by parliament on June
24, 2004 under № 1872-IV and after vetoed by the President
of Ukraine – defines the deportation as “the forced
migration of peoples, minorities and persons from their
places of residence on the basis of decisions adopted by
the bodies of state government of the former U.S.S.R.” So
we may see that at least during 1991-2010 years the
Ukrainian authorities did not recognized CTP as IP de jure
but tried to promote their political, economic and social
adaptation and ensure their right to peace and development
of the property in the territories of historical habitat.
Such medial policy grounded not only on will of central
government authorities but on a threat of pro-Russian
separatism in Crimea as Russians community settled in
Crimea after deportation contradicted flatly to such
recognition.
Processes of Recognizing the Statute of Indigenous Peoples in
International Relations
Collective rights of IPs are the special institutions
of human collective rights with influence to the personal
human rights mechanisms. Legal institute of IP rights
originated in some national legal systems (USA, Canada,
etc.) and was subsequently developed at an international
level, especially in the framework of ILO, UN and its
relevant structures such as UN Permanent Forum on
Indigenous Issues (that is now the culmination of
attracting attention to the indigenous issues within the
international community).
First collective international act devoted to the
indigenous issues were the ILO Convention № 64 concerning
the Regulation of Written Contracts of Employment of
Indigenous Workers on June 27, 1939 (31 ratifications by
countries) and Convention № 65 concerning Penal Sanctions
for Breaches of Contracts of Employment by Indigenous
Workers on June 27, 1939 (33 ratifications) also as ILO
Recommendation № 58 concerning the Maximum Length of
Written Contracts of Employment of Indigenous Workers and
Recommendation № 59 concerning Labour Inspectorates for
Indigenous Workers, adopted on the same day.
Those acts used the category of indigenous worker and
pointed that he may belong to or assimilate to the
indigenous population of a dependent territory of to the
dependent indigenous population of the home territory of a
state1.
The ILO concept of indigenous issues was developed in
1957 when Convention concerning the Protection and
Integration of Indigenous and Other Tribal and Semi-Tribal
Populations in Independent Countries was adopted as the
first international legal instrument to protect the set of
IP rights (this act had 27 ratifications). This convention
pointed on the presence of special rights of the
1 ILO Convention № 64 concerning the Regulation of Written Contracts of Employment of Indigenous Workers on June 27, 1939 ; URL : http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO:12100:P12100_INSTRUMENT_ID:312209:NO
indigenous population, but considered as a key reason for
the acquisition of these rights not autochthon nature of a
particular ethnic group, but its isolation from the
achievements of modern civilization1. Such ILO approach2
contradicted to the ideas of conventions №№ 64 and 65 and
was rejected by UN later, but it is firmly entrenched in
Soviet and post-Soviet international legal doctrine.
Furthermore, this approach establishes the marginality
of indigenous population, which entails the denial of IPs`
subjectivity or propose their fictitious subjectivity3.
Additional in Russian doctrine the sign the indigenous
population was its non-numerous character; it is possible
to link with the fact that ethnic group, which is on the
traditional way of life, can not be numerous by any way.
At the same time we should not forget that the issue of
IPs intensified in the XX cent. not because of some
states` philanthropic considerations but across the
national movements of IPs, that were able not to survive
only in conditions of the domination of other groups, but
1 ILO Convention № 107 concerning the Protection and Integration of Indigenousand Other Tribal and Semi-Tribal Populations in Independent Countries on June 26, 1957 ; URL : http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO:12100:P12100_INSTRUMENT_ID:312252:NO
2 Indigenous peoples, living and working conditions of aboriginal populationsin independent countries : International Labour Office. – Geneva, ILO, 1953. – 45р.
3 Bennett G. Aboriginal Rights in International Law / Bennett Gordon. – L. :Royal Anthropological Institute, 1978. – Occasional Paper №. 37 – 88 р.
also to create a national elites and to access to modern
forms of social organization at least partially1.
The concept of “tribal” for IP was revised by ILO
itself, when ILO Convention № 169 concerning Indigenous
and Tribal Peoples in Independent Countries was adopted on
June 27, 1989. This act recognized the special rights
separately for IPs and for tribal people not identifying
these two various categories. Unfortunately, many post-
Soviet authors continued to interpret the rules of this
agreement as the identification of IPs and tribal peoples2.
Ukraine did not ratified the Convention ILO № 169 (as the
conventions №№ 64, 65 also)3.
Convention № 169 includes 22 states now, among them –
15 states of Latin America (Argentina, Bolivia, Brazil,
Chile, Colombia, Costa Rica, Dominican Republic, Ecuador,
Guatemala, Honduras, Mexico, Nicaragua, Paraguay, Peru,
Venezuela,); Denmark, the Netherlands, Norway, Spain, also
as Nepal, Fiji and the Central African Republic joined
1 Kingsbury B. Indigenous Peoples' and the International Community withParticular Reference to the Right of Self-Determination : Ph.D. dissertation /Benedic Kingsbury. – Oxford, University of Oxford, 1984. – 234 p.
2 Kryazhkov V. A. Indigenous Non-Numerous Peoples of North in the RussianLaw / V. A. Kryazhkov. – M. : Norma, 2010 – 560 p. ; Sokolovsky S. V. Concept“Indigenous Peoples” in Russian Science, Policy and Legislation / S. V. Sokolovsky// Ethnografichne Obozreniye. – 1998. – V. 3. – P. 74-89 [on Russian : Кряжков В.А. Коренные малочисленные народы Севера в Российском праве / В. А. Кряжков. – М. :Норма, 2010. – 560 с. ; Соколовский С. В. Понятие «коренной народ» в российскойнауке, политике и законодательстве / С. В. Соколовский // Этнографическоеобозрение. – 1998. – № 3. – С. 74-89.]
3 ILO Convention № 169 concerning Indigenous and Tribal Peoples in IndependentCountries on June 27, 1989 ; URL : http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO:12100:P12100_ILO_CODE:C169
this act. Therefore, we can confidently assert that the
Convention № 169 reflects primarily the compromise that
emerged between the IPs, governments and the rest of the
population of Latin America.
In parallel with the ILO in the last decades of the XX
cent. issue of IPs was watched by UN. Under its auspices
in 1970-1990 several studies of independent experts were
carried out; they become an important part of the
international legal doctrine and fostered the development
of the legal status of IPs. In 1982 on the grounds of
offers of the UN Special Rapporteur J.R. Martinez-Cobo1 the
UN Working Group on Indigenous Populations was set, the
task of which was to develop the international standards
on the rights of IPs, which resulted the adoption of the
UN Declaration on the Rights of Indigenous Peoples on
September 13, 2007 (after adoption this Working Group was
terminated).
1993 was proclaimed by the UN as International Year of
the World's IPs, and then under the auspices of the UN
Permanent Forum on Indigenous Issues was established
(since 2002), as an advisory body to UN ECOSOC and the UN
Expert Mechanism on the Rights of Indigenous Peoples was
formed. Also the UN Special Rapporteur acted on the
situation of human rights and fundamental freedoms of IPs
1 Martinez-Cobo J. R. Study of the problem of discrimination againstindigenous populations / J. R. Martinez-Cobo. – NY : United Nations, 1981. – 55 р.
(the modern name of the institution – UN Special
Rapporteur on the Rights of IPs). UN GA Resolution №
59/174 on December 20, 2004 approved the Second
International Decade of World's IPs (2005-2014), and GA UN
Resolution № 60/142 of 16 December 2005 approved the
Programme of Actions for the Second International Decade
and adopted the topic for the this Decade: “Partnership
for Action and Dignity”1.
We should point to the participation of certain ethnic
groups of Ukraine, in particular and above all - the
Crimean Tatars representatives in UN forums and structures
on issues of IPs since 1994. Recognition by the
international community of the rights of pointed ethnic
groups to participate in solving the problems of the IPs
of the world can not be considered as full and strait
recognition of the indigenous status of these ethnic
groups de jure, but it may, with certain reservations, be
regarded as their recognition and perception as IPs de
facto. We must add that the UN and the most of IPs`
organizations look on practice of such recognitions with a
large caution2.
Modern doctrine of international law proposed some
common signs of IPs as criteria for ethnic groups that may1 Rights of Indigenous Peoples : Resolution 67/153 adopted by the UN General
Assembly on 20 December 2012 [on the report of the Third Committee (A/67/454)] ;URL : http://daccess-ods.un.org/TMP/6731386.18469238.html
2 Cohen C. P. Human Rights of Indigenous Peoples / C. P. Cohen. – NY :Transnational Publishers 1998. – 341 p.
be implicated for IPs of Ukraine (the self-consciousness
of themselves as the IP and as the separate ethnic group,
a strong connection with traditional areas of residence,
non-state nature of ethnos, as the absence of state with
title nation that has full national affinity with this
ethnic group) 1. However, the last criterion is eroded in
recent decades because of the practice of some states
(first it is Canada) to give to the IPs the territorial
national autonomy with the attributes of statehood.
Draft of UN Declaration on the Rights of Indigenous
Peoples (DRIP), 2007 as the key international act to
protect the rights of IPs was developed during 25 years.
In 1993 DRIP project was first presented to the UN in
integral form, with approval by the UN Sub-Commission on
Prevention of Discrimination and Protection of Minorities,
then project went for a long discussion. Agreed with
dination consistent version of the DRIP was approved on
June 29, 2006 by UN Human Rights Council (30 states were
“for”; two – against, 12 – abstained and 2 did not vote).
After this statement was made by a vote of the UN GA,
where DRIP was approved by 144 votes “for”; four countries
voted “against” (these were Australia, Canada, New Zealand
and the United States), 11 countries abstained (including
1 Anaya S. J. Indigenous Peoples in International Law / S. James Anaya. – NY :Oxford University Press, 1996. – 408 р. ; Heinz Wolfgang S. Indigenouspopulations, ethnic minorities and human rights / W. S. Heinz. – Saarbrc̈ken :Breitenbach, 1991. – 316 р.
Ukraine, also: Azerbaijan, Bangladesh, Bhutan, Burundi,
Colombia, Georgia, Kenya, Nigeria, Russian Federation and
Samoa abstained from voting). Another 13 states were
absent during the vote, among them it is worth to mention
Israel, Romania, Montenegro and Central Asian countries
(Kyrgyzstan, Turkmenistan, Tajikistan and Uzbekistan).
Despite the lack of a binding obligation of the DRIP,
as the UN High Commissioner for Human Rights pointed,
states should “follow its spirit and implement its
principles”. DRIP received the key political and legal
significance, that even forced the states that voted
against its adoption to reconsider their decision soon
after. Such unusual procedure for UN states-“refusals” was
offered by Minister of Foreign Affairs of Bolivia in his
speech at the UN GA in 2008; such proposition caused the
whole favorable reaction of the international community1.
So in April, 2009 the Australian Government announced
its adherence to the DRIP, Canada joined this act
officially on November 12, 2010. The order of states`
accession to the UN declaration is an interesting
theoretic issue as in this case such act that is a
recommendation does not provide for a special procedure
for its accession. In these occasions, the joining of
Australia and Canada was decided by order of official1 Allen S. Reflections on the UN Declaration on the Rights of Indigenous
Peoples / S. Allen, A. Xanthaki. – Oxford : Hart Publishing, 2011. – 620 p.
statements of authorized representatives of their
governments, which then informed UN about it.
Interestingly, that for New Zealand official statement
for support the DRIP was made by the Minister of Maori
Affairs P. Sharpls in June 2009, but it was refuted
immediately by the government of New Zealand through a
formal refutation. However, in April, 2010 the same
minister again made the appropriate statement in UN; on
this time government has not refuted it. U.S. President B.
Obama in December, 2010 announced his intention to “sign a
Declaration” on official meeting with representatives of
U.S. IPs, but after that the U.S. Government gave any
official statements on this issue.
Except the states that voted “against” the DRIP in
2007, such statements on accession to the Declaration was
made by the governments of Colombia and Samoa, which
together with Ukraine abstained from voting the DRIP. It
is interesting that the corresponding step of Columbia in
April 2009 was caused by a situation of internal armed
conflict, as the government of this state sought to get
the support from IPs who made up 2.5 % of the population
of Colombia, to counter the war threats accordingly. The
Government of Colombia made a relevant statement after the
decision of the Constitutional Court of this state on the
needs to protect the rights of IP in January, 2009, which
obliged all responsible authorities to perform certain
actions.
Seventeen of the 46 articles of the DRIP relates to
cultures of IPs and to ways to protect and promote it by
encouraging the direct participation of IPs in decision-
making and giving them access to resources such as
education on their native language etc. Fifteen articles
of the DRIP concern the participation of IPs in decisions
that affect their lives, including real participation in
the democratic form of government power. The DRIP affirms
the right of IPs to self-determination and recognizes
their right to exist and their rights on the lands,
territories and resources.
The DRIP recognizes that IPs deprived of their means of
subsistence, are entitled to reasonable and fair
compensation. It is important that the DRIP recognizes, as
the unlawful, the discrimination of IPs, encourages the
full and effective participation of IPs in all public
decisions that affect them and their right to develop
separately, according to their own views on economic and
social development. The DRIP emphasizes that IPs have the
right to a decent life, to maintain and strengthen their
own institutions, cultures and traditions, and that they
have the right to develop in their chosen direction in
accordance with their needs and aspirations. The DRIP
referred to as the collective and individual rights, the
rights of IPs on culture and identity, rights to
education, health, work, own language etc.
According to the DRIP, IPs have the right to determine
the structures and to elect members to their institutions
in accordance with their own procedures. IPs also have the
right to determine the responsibilities of individuals in
relation to their communities. IPs have the right to
promote, develop and maintain their institutional
structures and their particular customs, spirituality,
traditions, procedures, practices and, where they exist,
legal systems or customs, in accordance with international
standards of human rights.
According to the Art. 38 of the DRIP states, in
consultation and cooperation with IPs, shall take
effective, including legislative measures, to achieve the
objectives of the DRIP. IPs have the right of access to
financial and technical assistance from States and through
international cooperation in order to exercise their
rights. IPs have the right to access and quick decisions
under fair procedures for resolving conflicts and disputes
with states or other parties, as well as to effective
remedies in the event of any violation of their individual
and collective rights. Such decisions take properly into
account the customs, traditions, rules and legal systems
of IPs and relevant international human rights (art. 39 of
the DRIP). Some of the IPs` rights, enshrined in the DRIP,
require new approaches to address global issues such as
development, decentralization and multicultural democracy.
In order to provide a deep respect for the identity of
IPs, countries will have to adopt a common part to
problems of IPs, which will require conducting effective
consultation and establishment of partnerships with IPs1.
It is necessary to specify that after the approval of
the DRIP in 2007 GA UN has addressed repeatedly the IPs`
issues in procedural acts. This is evidenced by UN GA
Resolutions № 65/198 on December 21, 2010, № 66/142 on
December 19, 2011, № 66/296 on September 17, 2012 and so
on. Thus, UN GA Resolution № 66/296 envisaged organizing a
high-level plenary meeting which was called by UN GA as
“World Conference on IPs”, which will be held on 22-23
September 2014 with the involvement of IPs.
UN GA Resolution № 67/153, adopted without a vote on
December 20, 2012, asked the governments and IPs to
organize international and regional conferences and other
themed events to facilitate preparations for the
Conference by three mechanisms UN, dealing with the IPs.
Interestingly, that Resolution № 67/153 recommended to
1 UN Declaration on the Rights of Indigenous Peoples : adopted by the UNGeneral Assembly Resolution 61/295 on September 13, 2007 [without reference to aMain Committee (A/61/L.67 and Add.1)] ; URL :http://www.un-documents.net/a61r295.htm
those States that have not ratified ILO Convention № 169,
1989, to do so; states also were asked to consider how to
support the UN DRIP; Resolution contained the greetings
for increased support of the DRIP by states. It proposed
to states to support the DRIP through consultation and
cooperation with IPs, and with appropriate measures,
including legislation1.
We may add that Convention on Biological Diversity,
1992 in part “j” of Art. 8 mentioned on the knowledge,
innovation and practice of indigenous communities; this
treaty was ratified by Ukraine by Law on November 29, 1994
№ 257/94-ВР 2. This act is not connected strongly with
modern UN position on IPs` issues as it points on
traditional communities (not peoples) and use a “tribal”
approach.
The tragic events in the Crimea after the February,
2014 led to increased attention of UN institutions to the
problem of IPs in Ukraine. This is shown in a Statement of
IPs Participating in the 13th session of the Permanent
Forum on Indigenous Issues (of IPs` Cocus) on May 11, 2014
“On Emergent Situation Involving IPs of the Crimea”3. In1 Ibid. Resolution 67/153 adopted by the UN General Assembly on 20 December
2012 2 Kitzenko D. M. International Legal Statute of the Indigenous Peoples :
thesis of PhD dissertation, International Law / Denys M. Kitzenko. – Kyiv, 2003. –18 p. [on Ukrainian : Киценко Д. М. Міжнародно-правовий статус корінних народів :автореферат дис. ... канд. юрид. наук : 12.00.11 – міжнародне право / Д. М.Киценко. – К., 2003. – 18 с.]
3 About Urgent Situation of Indigenous Peoples of Crimea Statement ofIndigenous Peoples attending the 13th session of Permanent Forum on Indigenous
this Statement, a representative of the Foundation of
Research and Support of IPs of Crimea, stated that the
region that is “the homeland for the three indigenous
peoples – Crimean Tatars, Karay (Karaites) and Krymchaks”,
that were “deprived of their natural rights by both of the
parties to the conflict”. The application stated that the
IPs of Crimea neither initiated nor supported the Ukraine-
Russian conflict, but appeared as victims of this conflict
against their will.
The Statement pointed that all the legal steps taken by
Ukraine and Russia “looks like an attempt to use the CTP
in their bilateral opposition, as an additional factor,
and have no real intention to ensure the rights of IPs on
practice”. This document acknowledged that the legal
manipulations of the intent to avoid recognition and
respect for the rights of IPs – the Crimean Tatars,
Krymchaks and Karays and in Crimea, make them vulnerable
to any oppression by the dominant population and the
Russian government, which took control of the Crimean
territory.
By this Statement IPs of the world appealed to the UN
High Commissioner for Human Rights with the proposal to
organize a special international meeting on the situation
of IPs in Crimea. IPs by this Statement offered to the UN
Issues, 11.05.2014 ; URL : http://www.un.org/News/Press/docs/2014/hr5179.doc.htm
Special Rapporteur on the Rights of IPs made an offer to
visit the region to gather information and facts related
to the situation with IPs. Also they proposed to include a
delegation of IPs of Crimea in the number of required
participants for the forthcoming World Conference on IPs
in 2014.
By this Statement IPs of the world have suggested the
following to the Ukraine and Russia:
- to found exclusively peaceful and diplomatic efforts
to solve their dispute to stop any military action
conducted in Ukraine, and take the most preferred physical
security of IPs;
- to ensure the full participation of IPs of Crimea in
accordance with the concept of free, prior and informed
consent in the settlement of the conflict;
- to refrain from intimidation and harassment of
activists and organizations that protect the rights of IPs
of Crimea by methods of non-violence and public debate;
- to support officially the UN DRIP and use it as the
basis for their policies and legislation relating to the
Crimea and the IPs of Crimea;
- to recognize the right of persons belonging to IPs of
the Crimea, to keep their citizenship or modify it, or
have dual citizenship of their own choice, the opportunity
to come and stay in the Crimea from their exile without
any negative consequences for their civil, political,
economic, social and cultural rights in the Crimea.
The Statement of IPs contained an appeal to members of
the World Community of the IPs of the proposals:
- to emphasize their solidarity with the IPs of the
Crimea, who were in the position of hostages;
- to turn to our partners and governments to assist the
peaceful settlement of the Crimean crisis especially given
the presence of IPs in the region, and the need to
recognize and adhere their rights;
- to exchange and disseminate information on the
situation of IPs in the Crimea in order to improve it and
prevent the possible human rights violations and
bloodshed.
Indigenous issues were the subject of the monthly
Reports on the human rights situation in Ukraine provided
by the UN Office of the High Commissioner for Human
Rights, such as reports on April 15 and June 15, 2014. The
Report on April 15, raises the indigenous issues raised in
paragraphs 6, 11, 89, 97 and 103 of its narrative, as in
p. 3 and 19 of its recommendations1.
In particular, UN officials expressed the view that
“because of the promise of recognition the IP status from
the Ukraine” Crimean Tatars boycotted the “referendum” on1 Report on the Human Rights Situation in Ukraine, 15 April 2014 : Office of
the UN High Commissioner for Human Rights ; URL :http://www.ohchr.org/Documents/Countries/UA/Ukraine_Report_15April2014.doc
March 16, 2014; also they pointed on cases of
discrimination and violence against the Crimean Tatars as
an IP. UN OHCHR recommended to the “Crimean authorities”
to protect the rights of minorities and IPs in Crimea, in
particular – the rights of the Crimean Tatars. The UN
OHCHR Report stressed doubly on the role of the
international community and the UN for protecting human
rights, including the rights of IPs; authors of this
Report on April 15 recommended to ensure the inclusive and
equal participation the IP in public affairs and political
life and to develop mechanisms to enhance such
participation; to protect the rights of minorities and
IPs, in particular – the Crimean Tatars, in Crimea.
Similar requirements to ensure full and inclusive
participation of Crimean Tatars as the IP contained in the
UN OHCHR Report on June 15, 2014, which even included a
special unit "”Rights of IPs”. This section analyzes the
prohibitions contained by occupation authorities in Crimea
during event in memory of the 70th anniversary of the
deportation of CTP. Authors of this Report mentioned on
the provision of Security Service of Ukraine of documents
on deportation of the CTP to the Mejlis on May 29, 2014
and referred the acts of the occupation authorities of the
Russian Federation (RF) and of the “Crimean parliament”
that declared the partial installation of social security
for deportees1.
Current Threats to Indigenous Peoples of Ukraine in Conditions of
Russian Occupation
The occupation and subsequent annexation of Crimea (ARC
and Sevastopol) by RF held in February-March 2014, greatly
exacerbated the problem of the rights and interests of the
CTP as an IP of Ukraine. Under foreign occupation of the
Crimea, which grew into its annexation, the newly formed
government of Ukraine paid attention to the issue of IPs;
as their natural collective rights, which were not
officially recognized, but actually implemented by Ukraine
in Crimea, were rejected by the authority of RF and of
separatists “government” of the Crimea.
Therefore, the Ukraine Parliament adopted the draft of
Statement of Verkhovna Rada of Ukraine on the Guarantees
of the Rights of the CTP as a Part of the Ukrainian State
(proposed by p.d. P. Poroshenko), which was approved by
Resolution on 20 March 2014 р. № 1140-VII. The preamble to
the Statement contained a reference to the objectives and
principles enshrined in Arts. 3, 11, 15 of the
Constitution of Ukraine, in Art. 1 of the UN Charter and
in the UN International Covenant on Economic, Social and
Cultural Rights also as in the Vienna Declaration. 1 Report on the Human Rights Situation in Ukraine, 15 June 2014 : Office of
the UN High Commissioner for Human Rights; URL :http://www.ohchr.org/Documents/Countries/UA/HRMMUReport15June2014.pdf
We suggest that the Statement’s authors had in mind the
provision of part 2 of art. 1 of the UN Charter on the
development of "friendly relations among nations based on
respect for equal rights and self-determination of
peoples" referring to norms of the Art. 1 of the mentioned
Covenant, 1966 on the right of peoples to self-
determination1, also as provisions of the Constitution of
Ukraine on IPs and about that public life in Ukraine is
based on the basis of political diversity (parts 1, 4 of
Art. 3 of the Constitution of Ukraine) also as on the
state guarantees of freedom of political activity not
prohibited by the Constitution and laws of Ukraine (Art.
15).
The Statement pointed that Ukraine guarantees the
preservation and development of ethnic, cultural,
linguistic and religious identity of the CTP as an IP and
provides similar guarantees to all the national minorities
of Ukraine. At the same time Ukraine guaranteed protection
and realization of the inalienable right to self-
determination of the CTP as a part of a sovereign and
independent Ukrainian state. By this Statement Ukraine has
recognized the Mejlis of the CTP, as the executive body of
Kurultay of the CTP and as the highest representative body
of the CTP.1 International Covenant on Economic, Social and Cultural Rights : adopted by
UN General Assembly Resolution 2200A (XXI) of December 16, 1966 ; URL :http://www.ohchr.org/EN/ProfessionalInterest/Pages/cescr.aspx
By this Statement (point 4) Parliament of Ukraine has
declared its support for the UN DRIP; interestingly, that
in the initial version of the Statement’s draft Parliament
only had to charge the Cabinet of Ministers of Ukraine “to
begin the process of Ukraine’s accession” to this
Declaration (this should be explain by the uncertainty of
the procedure of accession to the DRIP).
Parliament also instructed the Cabinet of Ministers to
submit urgently the drafts of laws and other legal acts of
Ukraine that will define and confirm the status of the CTP
as an IP of Ukraine. Development of relevant projects
foreseen as matter in consultation with the Mejlis of the
CTP, “in close cooperation with the UN, OSCE, Council of
Europe in accordance with international law and standards
of human, IPs and national minorities` rights”. Verkhovna
Rada of Ukraine also instructed the Government of Ukraine
to develop the practical mechanisms for cooperation
between the state authorities of Ukraine and the Mejlis of
the CTP.
Also Ukraine strongly condemned in Statement any
attempt to limit the political and social rights, civil
liberties of Ukrainian citizens of different ethnicities
living in Crimea, in particular, Ukrainian, Russian,
Crimean Tatars, Armenians, Bulgarians, Greeks, Germans,
Karaites, Krymchaks observing as a result of
unconstitutional referendum in the ARC. The explanatory
memorandum to the draft of this Statement considered as
the legal basis for its approval the aforementioned
parliamentary resolution of 20 April 2000 р. № 1660-III,
which allegedly “pointed out the need to address issues
related to the restoration of rights of the CTP as an IP
of Ukraine, forcibly resettled from the Crimea”. This
memorandum directly recognized the approval of this
Statement as the response to the adoption of the
Resolution by the Supreme Council of ARC № 1702-6/14 "On
Conduction the All-Crimean Referendum” and to the next
events in the Crimea.
We must note that the Resolution № 1660-III and other
acts of Ukrainian legislation till March 2014 did not
recognize straightly the CTP as IP; this presumption
displayed indirectly. For example, the Decree № 1660-III
on Council of CTP attributed to the President of Ukraine
“to order to study the question of signing the ILO
Convention № 169”1.
That is why the Statement on March 20, 2014 has the
historical character; implementation of the Statement was
done by Ukraine on the international scene during the
regular annual session of the UN Permanent Forum on
1 Ibid. Resolution of Verkhovna Rada of Ukraine on April 20, 2000 № 1660-III[вказ. вище постанова Верховної Ради України від 20 квітня 2000 р. № 1660-III] ;URL : http://zakon2.rada.gov.ua/laws/show/1660-14
Indigenous Issues in May 20142. Permanent Mission of
Ukraine to the UN organized event of support for the CTP
in Crimea during the forum; on May 13, 2014 the
representative of Ukrainian mission made the formal
announcement on a Forum for support by Ukraine the UN
DRIP. We should add that this announcement was made on
behalf of the Government of Ukraine; it managed to get rid
of ambiguity designed to that fact that usually unilateral
acts of states, as their international solutions, are
issued from national Government (as it was made by
Australia, Columbia, Canada and New Zealand governments
for DRIP issue), not the Parliament.
Relevant adverse events in Crimea contributed to
approval some regulations, especially the Law of Ukraine
on April 15, 2014 р. № 1207-VII “On Ensuring the Rights
and Freedoms of Citizens and Legal Regime for the
Temporarily Occupied Territory of Ukraine”. The preamble
of the Act the basis declared the “protection and full
realization of national, cultural, social and political
rights of citizens of Ukraine, including IPs and national
minorities” as the ground of the humanitarian, social and
economic policy in relation to the population of
temporarily occupied territory. This design suggests that
Ukraine thus considers the collective rights of IPs as a2 Permanent Forum on Indigenous Issues Thirteenth Session 3rd & 4th Meetings
(AM & PM) ; UN Economic and Social Council, HR/5179 ; URL :http://www.un.org/News/Press/docs/2014/hr5179.doc.htm
form of exercising the rights of citizens of Ukraine,
which is not perfect in terms of some theoretical
considerations, according to which collective rights may
be considered as human rights but not as the rights of
citizen.
However, this configuration let us to suggest that the
rights of IPs of Ukraine in Crimea are covered by the
rules of parts 1, 3 of Art. 5, parts 1, 2 of Art. 17 of
this Law, under which Ukraine is taking all necessary
measures to guarantee the rights and freedoms of man and
citizen foreseen by the Constitution and laws of Ukraine,
by international treaties, to all the citizens of Ukraine
who live in the temporarily occupied territory. Thus the
responsibility for the violation of such rights in the
temporarily occupied territory relies on Russia as on the
state-occupier in accordance with the norms and principles
of international law1.
According to the rules of Law № 1207-VII in case of
violation of its provisions, state bodies of Ukraine
should use the mechanisms provided by the laws of Ukraine
and international law, to protect the peace, security,
human rights, freedoms and legitimate interests of
citizens of Ukraine who are located on the temporarily1 On Ensuring the Rights and Freedoms of Citizens and Legal Regime for the
Temporarily Occupied Territory of Ukraine : Law of Ukraine on April 15, 2014 №1207-VII [on Ukrainian : Про забезпечення прав і свобод громадян та правовий режимна тимчасово окупованій території України : Закон України від 15 квітня 2014 р. №1207-VII] ; URL : http://zakon4.rada.gov.ua/laws/show/1207-18
occupied territory. Also, Ukraine is obliged to take all
possible measures, including prescribed by international
law, to restore rights and freedoms of man and citizen
disturbed as a result of the occupation. It should be
added that the DRIP, of course, can be regarded as a
collection of relevant norms of international law that can
be applied by Ukraine to implement the requirements of the
Law № 1207-VII. Also norms of part 7 of Art. 5 of the Law
№ 1207-VII, under which responsibility for the protection
of cultural heritage in the temporarily occupied territory
relies on Russia as on the state-occupant, according to
the norms and principles of international law, must
certainly be disseminated on the cultural heritage of the
indigenous peoples of Ukraine.
Also adverse events in the Crimea Ukraine caused the
Law on April 17, 2014 № 1223-VII “On Restoration of the
Rights of Persons, Deported on Ethnic Grounds” In this act
there is no the term “IP”; il mention both deported
peoples and the CTP; it may be explained by the universal
character of the document trying to cover all the criminal
Soviet deportation on a national basis. The Law № 1223-VII
defines deportation as forced migration of peoples,
minorities and persons on a national basis from their
permanent residence on the grounds of decisions taken by
public authorities or former U.S.S.R. of its union
republics. In Art. 3 of this Law Ukraine recognized the
deportation on the basis of decisions taken by the
government of the former U.S.S.R. and the union republics,
as the illegal and criminal. However, Ukraine did not
noticed in this Law about acts of U.S.S.R. authorities on
the rehabilitation of the former Soviet deportees, violent
displaced from their places of residence and on
restoration of their rights.
This Law № 1223-VII was a continuation of a
paternalistic approach to the deportees, who reigned in
Ukraine, as a welfare state since 1990; however, it is de
facto fixed some rights of the deported CTP – on the
voluntary return to Ukraine, on the adaptation and
integration into Ukrainian society; on the preservation
and development of ethnic, cultural, linguistic and
religious identity; on the return to historic names of
settlements that have been renamed in the U.S.S.R. in
connection with deportation. The relevant rights are named
in Law № 1223-VII as the guarantees to deported persons
whose implementation should not restrict the rights and
legitimate interests of other citizens residing in those
territories1.
1 On Restoration of the Rights of Persons, Deported on Ethnic Grounds : Law ofUkraine on April 17, 2014 № 1223-VII [on Ukrainian : Про відновлення прав осіб,депортованих за національною ознакою : Закон України від 17 квітня 2014 р. № 1223-VII] ; URL : http://zakon4.rada.gov.ua/laws/show/1223-18
We should also point on the Decree of the President of
Ukraine on May 16, 2014 № 472/2014 “On the Day of Struggle
for the Rights of the CTP” approved before the 70th
anniversary of Crimean Tatars deportation. This act stated
that seventy years after deportation due to the actions of
the totalitarian regime of the former U.S.S.R. the CTP
faced the threat of discrimination at own homeland.
Therefore, “in order to support the struggle of citizens
of Ukraine – Crimean Tatars for the realization of their
rights as IP in Ukraine” Decree established the May, 18 as
the day for the rights of the CTP1.
It is worth to point also on the alternative draft of
the Resolution of the Verkhovna Rada of Ukraine on
November 5, 2013 р. № 3539 introduced by the p.d. V.
Yavorivsky, which supposed to form the 70-th anniversary
since the deportation of Crimean Tatars and other
nationalities from Ukraine and to carry out the
appropriate measures; among responsible contractors were
provided a number of public authorities2. We may point also
1 On the Day of Struggle for the Rights of the Crimean Tatar People : Decreeof the President of Ukraine on May 16, 2014 № 472/2014 [on Ukrainian : Про Деньборотьби за права кримськотатарського народу : Указ Президента України від 16травня 2014 р. № 472/2014] ; URL : http://zakon4.rada.gov.ua/laws/show/472/2014
2 On the 70th Anniversary since the Deportation of Crimean Tatars and otherNationalities from Ukraine (Autonomous Republic of Crimea) : Draft resolution ofthe Verkhovna Rada of Ukraine on November 5, 2013 № 3539, introduced by p.d. V.A.Yavorivsky [on Ukrainian : Про 70-ті роковини з часу депортаціїкримськотатарського народу та осіб інших національностей з території України(Автономна Республіка Крим) : проект постанови Верховної Ради України від 5листопада 2013 р. № 3539, внесений н.д. В.О. Яворівським] ; URL :http://w1.c1.rada.gov.ua/pls/zweb2/webproc34?id=&pf3511=48927&pf35401=281399.
on the draft laws on status of IPs of Ukraine, introduced
to Parliament in March 2014, those are: the draft “On
Restoring the Rights of IPs of Ukraine Forcibly Resettled
from the Crimea” № 4434 on March 13, 2014, submitted by
deputee G. Moskal and the draft “On the Rights of IPs of
Ukraine» № 4501 on March 20, 2014, submitted by deputies
V. Karpuntsov, O. Prodan, R. Pavlenko, T. Corner and I.
Heraschenko.
It should indicate that the project № 4434 was made by
analogy with a number of bills, including governmental,
previously proposed to solve the deported problem1;
actually the category of “deportees” in text was replaced
by the category of “IPs”; most of the rules of the project
was devoted not determine the status of IPs but to
establish the competence of public authorities to organize
their return and resettlement in Ukraine; project
concerned exclusively the CTP (without notices about
Karaites and Krymchaks) 2. These circumstances led to the
rejection of the Bill by the Parliamentary Committee.
1 On Restoration of the Rights of Persons, Deported on Ethnic Grounds : Draftlaw of Ukraine on September 11, 2008 № 3142 [on Ukrainian : Про відновлення правосіб, депортованих за національною ознакою : проект Закону України № 3142 від 11вересня 2008 р.] ; URL : http://gska2.rada.gov.ua/pls/zweb_n/webproc4_1?id=&pf3511=33290
2 On the Restoration of the Rights of the Indigenous People of Ukraine,Forcibly Resettled from the Crimea : Draft law of Ukraine on March 13, 2014 № 4434introduced by p.d. G.G. Moskal [on Ukrainian : Про відновлення прав корінногонароду України, примусово переселеного з території Криму : проект Закону України №4434 від 13 березня 2014 р., внесений н.д. Г.Г. Москалем] ; URL :http://w1.c1.rada.gov.ua/pls/zweb2/webproc34?id=&pf3511=50220&pf35401=293990
Draft Law № 4501, was proposed by a pointed democracy
deputies’ group, is more sophisticated and high-quality
document that puts the purpose of determining the rights
of IPs in Ukraine and the characteristics of their
implementation. In fact, this draft is the maximum
possible implementation of norms of the UN DRIP; it
displays the list of the rights of IPs set in the DRIP.
Therefore, this approach of its authors, provided with
official the acknowledgment by Ukraine the significance of
this DRIP should be considered as productive. According to
Art. 1 of the draft of this law IPs of Ukraine – Is the
autochthonous ethnic community, which is densely populated
and descent from the territory held within the state
border of Ukraine, which is an ethnic minority in the
population of Ukraine and does not have own state
formation outside Ukraine. Project proposes to determine
the Crimean Tatars, Karaites, Krymchaks as IPs Ukraine
“compactly residing in ARC – an integral part of Ukraine”1.
This article (the other provisions of the draft
regulations is the transfer of the UN DRIP) actually was
borrowed by its authors from the draft of the Concept of
1 On the Rights of the Indigenous Peoples of Ukraine : Draft law of Ukraine onMarch 20, 2014 № 4501 introduced by p.d. V.V. Karpuntzov, O.P. Prodan, R.M.Pavlenko etc. [on Ukrainian : Про права корінних народів України : проект ЗаконуУкраїни № 4501 від 20 березня 2014 р., внесений н.д. В.В. Карпунцовим, О.П.Проданом, Р.М. Павленком та ін.] ; URL :http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=50327
National Ethnic Policy of Ukraine, and causing a number of
observations; as the issue of ethnic genesis is difficult
to be connected with certain territory inside the modern
state borders; in addition, Karaites and Krymchaks now
live scattered across Ukraine not in Crimea mostly. Also
we must not forget that the traditional territory of
residence of the Crimean Tatars in Ukraine, except ARC, is
Sevastopol (also for Karaites) and areas of Kherson and
Zaporizhzhya obtasts. During parliamentary consideration
of this draft Verkhovna Rada of Ukraine sent the project №
4501 for revision and proposed to consider suggestions of
project № 4434, rejected by the parliamentary committee.
As RF as state-occupier watch today the Crimea
territory as its own, RF has extended there its own
national legislation. Therefore, it is necessary to
examine separately the legislation of the RF on indigenous
issues. Imperial nature of Russian state contributed to
the compilation of original solutions to the problem of
the legal status of indigenous non-titular population of
Russia. Historical background of this providing was the by
so-called “inorodetz” law in imperial period; after the
revolution in 1917 the Russian S.F.S.R. and the U.S.S.R.
borrowed the relevant institutions to decide the issues of
the status of the indigenous inhabitants of the North,
Siberia Far East of the Russia; other peoples received the
status of titular nations of autonomous republics, or were
assimilated during the XX cent. to the loss of political
and cultural identity.
Current legal regulations of the RF, including federal
laws and laws of the federation subjects, which now
regulate the legal status of IPs of Russia, were approved
under the banner of the provisions of Art. 69 of the
Constitution, 1993, under which the RF guarantees the
rights of non-numerous indigenous peoples “in accordance
with universally recognized principles and norms of
international law and international agreements of the RF”.
In furtherance of these provisions of the Constitution
some federal law was approved: “On Guarantees of the
Rights of Non-Numerous Indigenous Peoples of the RF” on
April 30, 1999 № 82-ФЗ, “On General Principles of
Organization of Communities of Indigenous Non-Numerous
Peoples of the North, Siberia and Far East of the RF” on
July 20, 2000 № 104-ФЗ and “On Territories of Traditional
Nature Use of the Indigenous Peoples of the North, Siberia
and Far East of the RF” on May 7, 2001 № 49-ФЗ1.1 On Guarantees of the Rights of Indigenous Non-Numerous Peoples of the RF :
the Federal Law of April 30, 1999 № 82-ФЗ ; On Territories of Traditional NatureUse of the Indigenous Peoples of the North, Siberia and Far East of the RF :Federal Law May 7, 2001 № 49-ФЗ ; On General Principles of Organization ofCommunities of Indigenous Non-Numerous Peoples of the North, Siberia and Far Eastof the RF : Federal Law of July 20, 2000 № 104-ФЗ [on Russian : О гарантиях правкоренных малочисленных народов РФ : Федеральный закон от 30 апреля 1999 г. № 82-ФЗ; О территориях традиционного природопользования коренных малочисленных народовСевера, Сибири и Дальнего Востока РФ : Федеральный закон от 7 мая 2001 г. № 49-ФЗ ; Об общих принципах организации общин коренных малочисленных народов Севера,Сибири и Дальнего Востока РФ : Федеральный закон от 20 июля 2000 г. № 104-ФЗ] ;
Some importance for determining the status of IPs in
the RF and with such acts as a List of Places of
Traditional Residence and Traditional Economic Activities
of Non-numerous Indigenous Peoples of the RF, approved by
the Government of the RF on May 8, 2009 № 631-p and the
Concept of Sustainable Development of the Non-Numerous
Indigenous Peoples of the North, Siberia and the Far East
of the RF, approved by the Russian Government on February
4, 2009, № 132-p. These acts of Russian legislation
provides a wide range of collective (ethnic) rights for
non-numerous IPs, but do not recognize the existence of
IPs` rights to political self-determination and limit the
rights of collective ownership on traditional areas of
residence and coherent natural sources for the IPs. Legal
doctrine of the RF recognize the ethnos as IP, according
to autochthon factors and historic grounds, but also with
non-numerous criterion by which IP can be recognized only
if its representatives are no more then 50,000 persons,
and with condition of preserving the traditional forms of
their lifestyle1.
URL : http://constitution.garant.ru/act/right/180406 ;http://base.garant.ru/12122856 ; http://base.garant.ru/182356
1 Kryazkov V. A. Ibid., Ananydze F. R. Indigenous Peoples and Peoples` Righton Self-Determination / F. R. Ananydze // Vestnyk Rossiyskogo Universiteta DruzbyNarodov. – Series “Law”. – 2001. – V. 2. – P. 66-75 [on Russian : Кряжков В. А.Указ. работа ; Ананидзе Ф. Р. Коренные народы и право народов на самоопределение /Ф. Р. Ананидзе // Вестник Российского университета дружбы народов. – Серия:Юридические науки. – 2001. – № 2. – С. 66-75.]
Such conditions do not allow for a number of ethnic
groups in RF to obtain the status of IP – in cases of
excess of quantity of their representatives of 50000
persons or in cases of rejection (even partial) of the
traditional way of life in terms of modern urbanization.
Therefore, in particular, CTP can not get the status of
the IP of RF from occupying power and to use it to protect
their collective rights and interests (as there is
approximately 250000 Crimean Tatars in Crimea).
We should add that the government of the RF sets out an
exhaustive list of non-numerous IPs living in Russian own
territory; first the United List of Non-Numerous IPs of RF
was approved by the Government RF on March 24, 2000 № 255;
abut after the List of IPs of the North, Siberia and Far
East of the RF was approved by the Governmental Prescript
on April 17, 2006 № 536-p. Interestingly, that this List
was amended several times (some ethnic groups were
included and some – excluded without any official
explanation); today this List includes 40 ethnic groups,
of which only 2 (Sami and Vepses) are living in the
European part of RF. During 2009-2011 Russian Government
excluded from List such European nations of RF, as
Besermyans, Vod`, Izhors and Seti; we can assume that the
Sami is still in the List because of their cross-border
status and Vepses – because of ethnic origin of V. Putin.
We must add that the right of a state to determine
which ethnic group is the IP in general is ambiguous (as
it borders on the restriction of the right to self-
consciousness), but this competence of state does not
include any way the possibility of cancellation of such
recognition of ethnic group as IP because of some
subjective factors. Also, noticed Federal law on April 30,
1999 № 82-ФЗ gave special competence to the State Council
of the Republic of Dagestan to establish a separate list
of Republican’s IPs, to determine their quantity and other
characteristics – because of the “unique ethnic
composition of the population of the Republic of Dagestan
by the number of peoples residing in its territory”. List
of IPs of the Republic of Dagestan was approved by the
republican State Council on October 18, 2000 № 191, and
soon was adopted by central authorities of the RF.
Interestingly, that among the 14 IPs of Dagestan this List
was attributed ethnic Russians.
After the attention to the problem of IPs in Crimea its
separatist authorities decided to implement the pointed
legislation of the RF on the Non-Numerous IPs on the
Karaites and Krymchaks. This step has political importance
but on practice it may be seen clearly that less than 100
of assimilated Krymchaks and some hundreds of Karaites are
not looked by separatist regime also as by authorities of
RF as threat. So the SCRC adopted Resolution on June 25, 2014 № 2254-6/14“On Making Representation to the Government of the RF “On the Inclusion the
Crimean Karaites and Krymchaks into the Unified List of Indigenous Non-Numerous
Peoples of the RF”. This Representation recognized that in a multi-ethnic
community of Crimea special position is occupied by non-numerous IPs – Crimean
Karaites and Krymchaks, which formed historically precisely on this territory and
have a complex and multi-layered ethnic genesis, own ethnic identity, cultural
identity and religious independence1. This resolution of separatist powers was the
ground for a project of the Resolution of the Government of the RF that was
officially proposed for a public discussion for June 27 – August 18, 2014 on
governmental web-site but still is not adopted.
The “non-governmental” organizations that today
“unites” officially IPs of the RF, is the Association of
IPs of the North, Siberia and Far East of RF. This
association is actually a tool of influence of federal
authorities as on the IPs themselves, so on the
international structures formed on the problems of IPs.
Despite the active participation of international
organizations in the UN system on indigenous issues, RF as
the state does not use the rules of international
instruments for addressing the issues of IPs residing in
RF; RF did not join the DRIP.
It is necessary to point out that the official attitude
of the RF to the population of ARC and Sevastopol is1 On Making Representation to the Government of the RF “On the Inclusion the
Crimean Karaites and Krymchaks into the Unified List of Indigenous Non-NumerousPeoples of the RF” : Resolution of the SCRC on June 25, 2014 № 2254-6/14 [OnRussain : О внесении представления в Правительство Российской Федерации «Овключении в Единый перечень коренных малочисленных народов Российской Федерациикрымских караимов и крымчаков» : постановление Государственного Совета РеспубликиКрым от 25 июня 2014 г. № 2254-6/14] ; URL :http://regulation.gov.ru/project/17036.html?point=view_project&stage=1&stage_id=6158
defined by the doctrine of the existing the “multinational
people of RF”, and by approaches that have been
distributed in the environment in pro-Russian part of
Crimeans. This is proved by the provisions of so-called
“Treaty between the RF and the Republic of Crimea on
Acceptance the Republic of Crimea to the RF and the
Formation of New Subjects of RF” on March 18, 2014.
This act was based the Russian annexation of the Crimea
by “free and voluntary will of the Peoples of the Crimea
on All-Crimean referendum held in ARC and Sevastopol City
on March 16, 2014, during which the peoples of Crimea
agreed the decision on reunification with Russia on the
rights of subject of the RF”. The thesis on the “Peoples
of the Crimea” is also being in the Art. 3 of this
“Treaty”, under which RF guarantees to all the Peoples
“residing in the Republic of Crimea and Sevastopol city of
federal significance”, the right to preserve their native
language and on creating the conditions for its study and
development. In part 2 of this article “Treaty” states
that the state languages of the Republic of Crimea are
Russian, Ukrainian and "Crimean-Tatar" language. It should
be added that the word "Crimean Tatar" is used in modern
Russian official vocabulary with a hyphen (not correct
“krymskotatarsky” but “krymsko-tatarsky”); ascertain the
reason for this is impossible, but we must assume such use
through traditional perception by Russia the Crimean
Tatars as a link of mythical "all-Tatar” ethnos; hyphens
in the name of the people points on it according to this
concept.
It is necessary to point out that the implementation of
the right on self-consciousness by IPs of Ukraine under
occupation is complicated by the anti-humane Russian
propaganda, by quasi-historic “scientific” theories, which
are used by the occupation authorities in order to prove
the “non-indigenous”, “inferiority” of the IPs, to distort
their history. Unfortunately, relevant efforts were
performed before by some state authorities and officials
of Ukraine and ARC, especially during the government of
Yanukovych (though less often and rigid).
This situation is duplicated in the Resolution of the
Supreme Council of ARC “On the Independence of the Crimea”
on March 17, 2014 № 1745-6/14 which indicated on the
“direct expression of the Peoples of the Crimea on a
referendum” which "showed that the Peoples of the Crimea
were in favor of joining within the Russia, and therefore,
for withdrawal from the Ukraine and for establishing an
independent state”.
Interestingly, this model of “Peoples of the Crimea” is
discarded as useless, in the so-called “Constitution of
the Republic of Crimea" (CRC) approved by the Supreme
Council of ARC naming itself now as the “State Council of
the Republic of Crimea” (SCRC), on April 11, 2014. The
preamble of CRC has referred to "the will of the
multinational People of the Republic of Crimea”; Art. 2 of
CRC stated that “the source of power in the Republic of
Crimea is in its People, which is the part of the
multinational People of the RF”. However, part 2 of art. 5
of the CRC stated that land and other natural resources
are the basis of “life and activities of Peoples living in
the Republic of Crimea”; in part 4 of art. 37 CRC stated
that “the Republic of Crimea creates and provides the
equal opportunities for conservation and development of
cultures of all peoples living in it”; in point 4 of art.
83 CRC sets on the preservation and development of ethnic
and cultural diversity of the “Peoples of the RF residing
in the Republic of Crimea”, but also states the
“protection of national minorities”. CRC adopts the
Crimean official languages in part 1 of art. 10 as the
Russian, Ukrainian and Crimean Tatar ones.
It should be considered as interesting the Decree of
President of RF on April 21, 2014 № 268 “On Measures for
the Rehabilitation of Armenian, Bulgarian, Greek, Crimean
Tatar and German Peoples and State Support of Their
Recovery and Development” 1. Obviously this act was adopted1 On Measures for the Rehabilitation of the Armenian, Bulgarian, Greek,
Crimean Tatar and German Peoples and the State Support of their Revival andDevelopment : Decree of the President of the RF on April 21, 2014 № 268 [on
in response as the “response” to the Law of Ukraine on
April 17, 2014 № 1223-VII on the restoration of the rights
of deported persons (because otherwise the decree was
suitable to be approved before or on the day of
deportation (May, 18), not after the anniversary).
This act mentioned in the preamble on the “restoration
of historical justice, the elimination of the consequences
of illegal deportation from the territory of the Crimean
A.S.S.R. Armenian, Bulgarian, Greek, Crimean Tatar and
German Peoples” and on the “formerly allowed violations of
their rights”. However, this decree did not
“rehabilitated” those “peoples” officially (it only
pointed on the illegality of deportation); in fact the
content of Decree was reduced to some abstract orders for
the Russian government on “a set of measures to restore
historical justice, political, social and spiritual
revival” of these ethnic groups; on “promotion the
establishment and development of national-cultural
autonomies, other associations and organizations” of these
groups; on contribution to the public authorities of the
Republic of Crimea and Sevastopol City for conducting
events marking the 70th anniversary of deportation; on
including measures for national cultural and spiritual
Russian : О мерах по реабилитации армянского, болгарского, греческого, крымско-татарского и немецкого народов и государственной поддержке их возрождения иразвития : Указ Президента Российской Федерации от 21 апреля 2014 г. № 268] ;URL : http://www.rg.ru/2014/04/21/reabilitaciya-site-dok.html
revival of these groups to the Federal target program of
social and economic development of the Republic of Crimea
and Sevastopol City till 2020.
Attempts to “dissolve” the problem of CTP by fact of
deportation of the other groups (Armenians, Germans, etc.)
are traditional for pro-Russian forces in the Crimea since
1989 at the same time this attempt has no actuality at
least due to the fact that among the 280 thousand
deportees, who returned to Ukraine (as it officially
mentioned as minimum in the Parliamentary Resolution №
1660-III) 270 thousand were the Crimean Tatars. Moreover,
as historians and authors of Resolution № 1660-III
ascertain rightly only Crimean Tatars were deported from
Crimea as a whole ethnic group. In general, it is
difficult to imagine the events of the “rehabilitation of
the German people” by the government of the RF, including
at least the fate of the German East Prussia. Also the
desire of the authorities of the RF to take appropriate
measures to Armenian, Bulgarian, Greek peoples is absurd –
as Russia not even asked for the positions of powers and
societies of their own national states on such “measures”.
The Decree № 268 received a negative evaluation from
the community of the IPs of the world; so, in the watched
IPs` Statement on May 11, 2014 at UN Permanent Forum on
Indigenous Issues they pointed that specified Decree
“ignores the recognition of CTP as an IP and equates it
with settlers from Europe, located in the Crimea in the
XIX cent., as a component of the displacement policy to
the IP – the Crimean Tatars”. This Statement defined
Decree № 268 as a waiver of recognition de-jure of the
rights of the Crimean Tatars as an IP”; it stated that
“the content of the decree is very weak and is very far
from the norms and principles established by international
law for IP and from the good practices for their
implementation”1.
The implementation of current Russian policy on Crimean
national issues may be seen in the draft of “Law of the
Republic of Crimes” extended by the Crimean deputes L.
Bezaziyev and E. Gafarov on May 21, 2014 р. № 1520/30-10
“On Some Guarantees of the Rights of the Peoples,
Extrajudicially Deported on a National Sign in 1941-1944
from the Crimean A.S.S.R.” This draft even did not points
on the illegality of deportation but mentions only about
the “social protection measures” for repatriated. It is
worth to recall that the U.S.S.R. practice foreseen the
shot as a “highest social protection measure”. The draft’s
authors also offer to propose for the repatriated:
- the reimbursement of expenses for relocation and
transportation the luggage to the Crimea; 1 On Urgent Situation of Indigenous Peoples of Crimea Statement of Indigenous
Peoples attending the 13th session of Permanent Forum on Indigenous Issues,11.05.2014 ; URL : http://www.un.org/News/Press/docs/2014/hr5179.doc.htm
- providing one-time financial assistance to complete
the construction of separate housing;
- the provision the housing or land for construction of
separate housing;
- other Soviet-like measures of social support (such as
priority telephone installation or preferential provision
by the manufactured goods)
- one-time financial assistance of 30 minimum wages.
It is necessary to point out that mostly all of these
“social protection measures” for the deported CTP
contained in the normative acts and organizational
practice of Ukraine in 1992-2010 and were even realized
more or less, so the probosed draft even in conditions of
its approval would be purely propagandist and will not
impact on real situation. On August 2014, this document
was approved in first reading only (Resolution of the SCRC
on June 4, 2014 № 2203-6/14) 1.
Interestingly, that there is no any observed attempt in
the RF to extend on the CTP the Law of the Russian
S.F.S.R. on April 26, 1991 № 1107-1 “On the Rehabilitation
of the Repressed Peoples”, which is still in force in the1 On the Draft Law of the Republic of Crimea "On Some Guarantees of the Rights
of the Peoples Who were Extrajudicially Deported on a National Sign in 1941-1944from the Crimean Autonomous Soviet Socialist Republic” : Decision "of the StateCouncil of the Republic of Crimea" on June 4, 2014 № 2203-6/14 [on Russian : Опроекте закона Республики Крым «О некоторых гарантиях прав народов,депортированных во внесудебном порядке по национальному признаку в 1941–1944 годахиз Автономной Крымской Советской Социалистической Республики» : постановление«Государственного совета Республики Крым» от 4 июня 2014 г. № 2203-6/14] ; URL :http://www.rada.crimea.ua/ua/app/3449
RF. It is this act all repressed peoples of the Russian
S.F.S.R. were rehabilitated; all the repressive acts
against these people was declared as illegal and criminal
(let us remind that CTP was residing in Crimean A.S.S.R of
the Russian S.R.S.R. in 1921-1944). Art. 2 of this Law
defined, as the repressed people, the nation, nationality
or ethnic group and other historical cultural and ethnic
entities of men (such as Cossacks), for which the state
level policy of slander and genocide conducted on the
grounds of ethnic or other affiliation that was
accompanied by their forced relocation, by the abolition
of their national-state formations, by the mixing the
national-territorial boundaries, by setting the regime of
terror and violence in places of special settlements1.
Traditionally (before 2014), Russian and Ukrainian
legal doctrines pointed that this act does not apply the
CTP because of a finding their historical motherland from
1954 under the jurisdiction of the Ukrainian S.S.R. and
Ukraine (regions of forced settlements of CTP in Central
Asia also were not under the jurisdiction of the Russian
S.F.S.R). However, the act of deportation (repressive act)
against the CTP took place in 1944 when Crimea and CTP
were under the jurisdiction of the Russian S.F.S.R., so
1 On Rehabilitation of Repressed Peoples : Law of the Russain S.F.S.R on April26, 1991 № 1107-1 [on Russian : О реабилитации репрессированных народов : ЗаконРСФСР от 26 апреля 1991 г. № 1107-1] ; URL :http://www.lawrussia.ru/texts/legal_689/doc689a267x252.htm
the Law on April 26, 1991 № 1107-1 is certainly includes
the CTP onto its object of regulation. Law № 1107-1 has no
effect on the territory of Ukraine; at the same time, if
RF extended its jurisdiction in the Crimea since March 18,
2014 as an occupying power, it has to fulfill the
specified own Law № 1107-I on the CTP - or to cancel or
change this law officially.
The key norms of the Law № 1107-1, in addition to the
recognition of the Soviet genocide against the CTP, are
situated in the art. 3, which determines the
rehabilitation of repressed peoples as the recognition of
their right to restore the territorial integrity of that
existed before “unconstitutional policy of violent
redrawing of borders”, including the restoration of the
national-state entities that “have developed their
abolition” as well as the compensation the damage to the
repressed, caused by the state. It is necessary to point
out that these rules require the power of RF, among other
things, to recreate the Crimean A.S.S.R. is in the format
in which it existed before 1945, not as an abstract
“Republic of Crimea”, where, according to the CRC live
some nameless peoples, but as national subject of the RF.
By the way, Ukrainian S.S.R. reconstituted the Crimean
A.S.S.R. in 1991 “within the territory of the Crimean
oblast as part of the Ukrainian S.S.R.” by the Law on
February 12, 1991 № 712-XII. Therefore, paradoxically, but
any state entity that exists in the Crimea under Ukrainian
or Russian (occupational) jurisdiction must continue the
subjectivity of Crimean A.S.S.R. of 1921-1945, as of
national autonomous state of the CTP - on the law of the
Russian S.F.S.R. on April 26, 1991 № 1107-1 or to the Law
of the Ukrainian SSR № 712-XII (according to the position
of Ukraine and the rest of the civilized countries of the
world).
Conclusions
The problem of IPs is based on global issue of the
status of peoples as carriers of a number of collective
rights. The specificity of IPs is caused by practical
impossibility to implement the sovereignty of such peoples
through the formation the national independent state. The
issue of IPs' rights aggravated under conditions of
assault by countries of their residence on property,
ethnic identity and political structure of IPs. Political
and legal fate of IPs of Ukraine, now living in the
occupied Crimea is a striking example of those processes.
Collective political, economic, social and cultural
rights of IPs are recognized by the world community
through the UN DRIP, 2007, which became a huge document of
political and legal power. Legal status and actual
situation for IPs of Ukraine – Crimean Tatars, Crimean
Karaites and Krymchaks – is connected with the tragic
history of their historic homeland. Ukraine since 1991
recognized the rights of this IPs de facto; recognition of
his status for CTP and adherence to the DRIP, 2007 was
done by Ukraine de jure in 2014 after the occupation of
the Crimea by RF.
Occupation authorities of RF in Crimea does not
recognize legal status of Crimean IPs, especially for the
CTP; its protection, restoration and realization are the
actual matter for Ukraine and for the whole international
community also. Ukraine must recognize the Krymchaks and
Karaites as the IPs ()with the procedure in analogy for
Statement on CTP statute on March 20, 2014) and adopt the
Law on the status of IPs with fixing in it the
prescriptions of the UN DRIP on the principles of
subsidiarity. Ukraine must use the UN mechanisms and
international non-governmental IPs` mechanisms for the
protection of the rights of own IPs in the occupied
territories of Ukraine; also Ukraine should protect the
rights of IPs of the RF in conditions of revival the
Russian imperialism.
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