The Crimean Tatar Resource Center translated the law of Ukraine On the Indigenous Peoples of Ukraine into English, Spanish, French and sent it to the world’s leading experts in the field of indigenous peoples’ rights. CTRC will present a series of publications with expert opinions of specialists.
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We would like to present you with a comment by Oliver Loode, Managing Director of the Uralic Center, Member of the United Nations Permanent Forum on Indigenous Issues (UNPFII), 2014-2016.
Original text in English
First of all I would like to congratulate the Verkhovna Rada for adopting the Law on the Indigenous Peoples of Ukraine. This is Ukraine’s most significant legislative and political step towards securing the human rights of Ukraine’s Indigenous peoples since March 2014, though Ukraine is still at the beginning of this process that will culminate with the liberation of Crimea from the ongoing illegal occupation by the Russian Federation.
My overall assessment of the law, when evaluating it against the guiding principles and specific articles of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is that while the law definitely recognises and promotes the rights of Indigenous peoples of Crimea – inalienable part of Ukraine – it is less clear whether and how other ethnic groups that would meet the general criteria for Indigenous Peoples as laid out it in Article 1 could apply for recognition as Indigenous peoples of Ukraine. I have also reservations about whether the Verkhovna Rada has properly understood the meaning of the term „self-determination“ in the context of its Indigenous peoples, and in particular, with regard to their representative institutions.
In Article 1, there is a certain tension between the general criteria of Ukraine’s Indigenous peoples in Article 1.1, and the very concrete and closed-ended list of three Indigenous peoples (Crimean Tatars, Karaites and Krymchaks) as laid out in Article 1.2.
Namely, does the listing of three three Indigenous peoples mean that all of them meet the general criteria of 1.1? For example, is there convincing evidence of Krymchaks’ and Karaites’ self-awareness or self-identification as Indigenous peoples of Ukraine? And more generally, has the list of three Indigenous peoples been reached as a result of a comprehensive analysis of all potential ethnic groups of Ukraine that could meet the criteria of 1.1? As one example, what is the analytical reason for including in the list Karaites but not Rusyns, i.e., in what sense are the latter conceptually different, in line with the general criteria of Article 1.1?
If, on the other hand, the current closed list of three Indigenous peoples could theoretically be extended to other groups, the law could make explicit references that such a process is possible, thus offering a legislative opening or roadmap for potential candidates of IP status in Ukraine.
My other concerns relate to the way how the law understands (or does not sufficiently understand) the notion of Indigenous self-determination.
Whereas Article 2 states that „Indigenous peoples of Ukraine have the right to self-determination in Ukraine“, this is a questionable statement as the right to self-determination cannot be limited territorially, because it is a fundamental collective human right. However, in line with UNDRIP Article 46, exercise of the right to self-determination by Indigenous peoples cannot violate the territorial integrity of states, which is why the addition „in Ukraine“ is not really adding much and there should be nothing for Ukraine to fear if this addition were dropped.
However, the law does reflect a more restrictive, and a more „top-down“ understanding of the right to self-determination than what is envisioned in UNDRIP.
For example, Article 2.2. states that Indigenous peoples may establish „representative bodies, which are formed and operate within the Constitution and laws of Ukraine. In comparison, UNDRIP Article 18 states that „Indigenous peoples have the right to participate in decision-making /…/, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.“ But what if there is a contradiction between Indigenous peoples’ own procedures and a certain law of Ukraine – how will the Indigenous peoples’ right to self-determination be upheld in this case? Perhaps in some situation the respective law could be amended rather than forcing the representative body to change its procedures?
Given that representative bodies of Indigenous peoples are the main instruments realizing the right of Indigenous peoples to self-determination, it is particularly important that states, including Ukraine, treat them correspondingly, with the full respect conferred by the status of a representative body.
In this context I find Article 9 (3), according to which „Representative bodies shall quarterly publish via their website information on the financial support /…/ received from foreign states, international organizations, legal entities and individuals, as well as on its use.“, as problematic.
In the spirit of UNDRIP, IP representative bodies are not just some NGO that is accountable to the state with its annual reports, following of accounting standards, etc (an IP representative body does not even have to be registered as a legal entity), but independent political bodies that are accountable only to the people whom they represent, and as such, they could be viewed as equal partners rather than subjects of the statet where they operates. Hence, in my view it is improper to demand such information as listed in Article 9 (3) from representative bodies; instead, such requirements could be applied to NGOs affiliated with representative bodies rather than representative bodies as a whole.
There are also a number of smaller questions that the law raises, but they are of less fundamental nature and are not in potential contradiction with UNDRIP.
Oliver Loode
Managing Director, URALIC Centre
Former Member, UN Permanent Forum on Indigenous Issues (UNPFII), 2014-2016