The basic content of the concept of the right to self-determination of peoples is defined in the UN Declaration on the Principles of International Law dated October 24, 1970, which states that due to the principle of equality and self-determination of peoples enshrined in the UN Charter, all peoples have the right to freely determine themselves without interference outside its political status, as well as to carry out its economic, social and cultural development, and every state must respect this right in accordance with the UN Charter .
At the same time, the specified Declaration emphasizes that the territorial integrity and political independence of the state are inviolable, and nothing in the points cited in this document should be interpreted as authorizing or encouraging any actions that would lead to dismemberment or to a partial or complete violation of territorial integrity or the political unity of sovereign and independent states, observing in their actions the principle of equality and self-determination of peoples, as this principle is set forth above, and as a result having governments representing, regardless of race, creed, or color, all the people living in that territory [ 1].
At the same time, both during the consideration of the theoretical construct and the practical implementation of the right of peoples to self-determination, many controversial issues arise.
In turn, the main part of this analytical research will be to find answers to the question: are indigenous peoples the subjects of the right to self-determination, because the very question of the subjectivity of this right is one of the uncertain ones, and what are the possible consequences of such self-determination.
N. Belitzer in the manual “Crimean Tatars as an indigenous people. The history of the issue and modern realities” notes that the International Labor Organization, recognizing the lack of a universal definition of indigenous and tribal peoples, declared a “pragmatic approach” to this problem – the application of both subjective and objective criteria. Self-determination of the people as indigenous is recognized as the main subjective criterion; origin from the population that lived in a certain country or geographical region at the time of enslavement, colonization or the establishment of modern state borders, as well as the preservation, in whole or in part, of its own social, economic, cultural and political institutions, regardless of official legal status, are considered the main objective ones . External self-determination refers to a people’s right to political determination of their international status, including separation from the state and acquisition of their own state sovereignty. Brutal, massive violations of the rights of members of such a community by the central government, usually with the use of violence, are considered legitimate reasons for the exercise of such a right. The right to external self-determination is exercised only in isolated cases and usually with the consent of the leading players (Great Powers), in particular members of the UN Security Council. The introduction of the concept of “internal self-determination” was caused by waves of separatism and conflict situations, mainly between dominant (title) nations and minority groups. This involves the use of mechanisms for the protection of minority rights and guarantees of preserving their identity within the boundaries of the modern state, that is, in the territory of their residence and citizenship, but without the right to secession and the creation of their own independent state. Such mechanisms vary depending on the specific situation in which this or that minority (indigenous people, small “stateless” nation), historical and legal tradition, and a number of other factors find themselves .
The rights of indigenous peoples are recorded, in particular, in such international acts as the Convention of the International Labor Organization on Indigenous Peoples and Peoples Leading a Tribal Way of Life in Independent Countries of June 27, 1989 No. 169 (hereinafter – the ILO Convention) and the UN Declaration on the Rights of indigenous peoples of September 13, 2007 No. 61/295 (hereinafter – the UN Declaration).
Doctor of Law P. V. Gogolev notes that the provisions of the ILO Convention are of great interest as the most important act addressed to indigenous peoples, which establishes at the ideological level the combination of state care and responsibility (paternalism) with the principle of partnership between the state and indigenous peoples. In the opinion of this author, one of the overarching ideas in the preamble of the Convention, which constructs its entire content, is the activity of the participating state to ensure maximum respect, preservation and development of the original ethnic community through the correlation of the duties of the state and the rights of this population group, on the one hand , and stimulation, and sometimes coercion of states with the help of pressure from the international community, to establish partnership forms of interaction with indigenous peoples with the help of treaties, agreements, and other constructive agreements .
From the analysis of the preamble and articles 1, 13 of the ILO Convention, the following characteristics can be identified that unite indigenous peoples: these groups are the descendants of those people and peoples who inhabited any territory before the arrival of a population with a different culture, other ethnic and racial origin; at the national level, they occupy a non-dominant position; they have linguistic, traditional, and often racial characteristics different from the rest of the population of a certain country or region; they consciously consider themselves indigenous, and such self-awareness is part of their culture, religion, being, existence; they are tied to their native land, nature and environment .
The General Policy section of the ILO Convention states that national governments shall consult with the indigenous peoples concerned through their representative bodies when considering legislative or administrative measures that directly affect them, and shall establish procedures by which the said peoples may freely or at least , than other sections of the population, to participate in decision-making at all levels in elected institutions, in administrative and other bodies that carry out policies and implement programs that concern these peoples, create prefaces for the full development of their own institutions and initiatives of these peoples, and for needs provide the resources needed for these purposes .
Article 7 of the ILO Convention enshrines the right of indigenous peoples to decide on the issue of choosing their own priorities for the development process, as it affects their lives, beliefs, territory, and to exercise control over their own economic, social and cultural development, and they also participate in the preparation and implementation of national and of regional development, which directly affects them .
At the same time, it is important to perceive these norms through the prism of the preamble of the ILO Convention, which specifies that the following circumstances are the reason for the adoption of the declaration:
the need to change the normative regulation of the status of indigenous peoples and peoples leading a tribal way of life;
the need to eliminate the focus on assimilation, which was contained in the norms earlier;
the aspiration of such peoples to control their own institutions, way of life, economic development;
striving to preserve identity, language, and religion within the borders of the states where they live;
the absence in many parts of the globe of the opportunity for such peoples to enjoy basic human rights to the same extent as the rest of the population of the states in which such peoples live;
destruction of laws, values, customs and perspectives of such natio.
That is, the reason for the development and adoption of the ILO Convention is the oppressed position of indigenous peoples and peoples leading a tribal way of life in the world, pressure from the states in which they live, the exclusion of such peoples from the social and political life of the states in which they live, in because of which the values, customs and prospects of such peoples are destroyed due to the actions of the states.
Therefore, the ILO Convention was adopted with the aim of preserving such peoples from extinction and is aimed at protecting these peoples from the states of their residence.
It is important when evaluating the norms of the ILO Convention to consider that the situation with the state of indigenous peoples in other countries of the world is absolutely irrelevant to the state of indigenous peoples in Ukraine.
At the same time, the UN Declaration proclaims the right of indigenous peoples to self-determination. With this in mind, they freely establish their political status and freely carry out their economic, social and cultural development.
The executive director of the International Indian Council, A. Carmen, points out that the UN Declaration is the first international standard that focuses primarily on the recognition of collective rights, rather than human rights for individuals, as a response to the corresponding long-standing aspirations and demands of indigenous peoples .
Sami lawyer from Norway JB Henriksen notes that the UN Declaration characterizes indigenous peoples as having self-determination and emphasizes that they have a general right to self-determination .
Doctor of Legal Sciences A. Eide believes that the dimension and content of the right of indigenous peoples to self-determination, which had “huge symbolic significance” during the discussion of the text of the UN Declaration, turned into a “bundle of rights”, including the right to preserve cultural identity, to collective resolution of issues of land and residential areas, to determine ways of development of these areas, etc. .
Therefore, international legal acts, depending on their interpretation, grant indigenous peoples significant rights in both territorial and economic and socio-cultural aspects.
In turn, in 2007, Australian Senator Maris Payne expressed the Australian government’s objections to the UN Declaration in a speech in the Australian Senate, in particular, she noted that:
– the potential abuse of indigenous peoples’ right under the UN Declaration of Unconditional Consent in matters affecting them means that they can then use their right of veto over all matters of state, which would include national laws and other administrative measures.
– the exclusivity of indigenous peoples’ rights to intellectual, real and cultural property, which does not recognize the rights of third parties – in particular, their right to access land and heritage of indigenous peoples and cultural objects, if necessary under national law.
– the UN Declaration does not take into account the different types of ownership and use that can be granted to indigenous peoples, as well as the rights of third parties to property in this regard .
Thus, Article 4 of the UN Declaration states that indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters related to their internal and local affairs, as well as ways of financing their autonomous functions .
According to Article 18 of the UN Declaration, indigenous peoples have the right to participate in decision-making on matters affecting their rights through representatives elected by them independently according to their own procedures, and to maintain and develop their own decision-making institutions [ 7].
At the same time, the first part of Article 46 of the UN Declaration indicates that nothing in this Declaration can be interpreted as authorizing or encouraging any action that would lead to separation or to a partial or complete violation of the territorial integrity and political unity of sovereign and independent states .
On the one hand, the right to define oneself as a people does not belong to the state (the state is secondary, dependent on the will of the people), but to the community itself, so the people can also be national or ethnic minorities or a combination of ethnic groups .
At the same time, there are other opinions about self-determination, in particular, the famous French constitutionalist F. Lucher believes that the principle of free determination of peoples cannot serve as a justifying argument, because as long as the collective remains a constituent part of the French people, it cannot self-determine independently of the opinion of the entire French people .
Currently, various forms of political autonomies exist in many unitary states of the world. These are Northern Ireland in Great Britain, the Åland Islands in Finland, Greenland in Denmark, Corsica in France, the Azores and Madeira archipelagos in Portugal, and others. Political autonomies in some post-socialist countries, in particular, the Republic of Nakhichevan in Azerbaijan, the Republic of Karakalpakstan in Uzbekistan, have quite broad powers. According to the Constitution of Azerbaijan, the Republic of Nakhchivan is an autonomous state within Azerbaijan with its own constitution and the right to adopt laws that do not contradict the constitution and laws of the Republic of Azerbaijan .
If we analyze the above theoretical construct, then the “indigenous peoples” of the specified and other countries used their right to self-determination, while the “peoples” of such states, in the framework of the exercise of their national sovereignty, suffered a violation of their inalienable rights, and the issue in this context is only in the political expediency
Doctor of Law Shinkaretska H. G. notes that the principle of self-determination cannot serve as a counterweight to the principle of territorial integrity, its priority is not fixed in any international document and the right of a self-determining people to political secession is not enshrined, the subject of the title to the territory is the entire the people inhabiting the respective state, and therefore the decision to divide the territory should be made not by a self-determining part, but by all the people of the state .
Doctor of Law Sciences, associate professor, professor of the Department of Constitutional Law of the Ivan Franko National University of Lviv, O.M. Boryslavska in the scientific article “Territorial autonomy, regionalization and problems of political secession in Europe” indicated that territorial autonomy creates prerequisites for better representation of the interests of territorial communities and their consideration in the formation of state policy. Under certain conditions, it is also able to satisfy the basic national and cultural needs of the ethnic community. However, in the case of a strong sense of national identity of such a community and its activity, it is obviously unable to prevent attempts to declare its own sovereign state .
At the same time, the study of the issues of autonomy, their forms, positive and negative consequences of the creation of the latter, is not within the scope of this study and requires a separate analysis, the results of the study of these issues will be presented in another article.
In conclusion, it should be noted that the right of indigenous peoples to self-determination is a people’s right, not an obligation. Self-determination should not be implemented to the detriment of territorial integrity, national security and political unity of sovereign independent states and, in general, the unity of all citizens of the state.
The right to self-determination of indigenous peoples does not require the granting of autonomy, while at the same time it provides an opportunity to limit itself to the creation of a certain self-governing body through which, with the support of the state and the international community, resources can be provided to promote the development of indigenous peoples.
For Ukraine, the issue of self-determination of indigenous peoples is not new. Among the numerous ethno-national groups in Ukraine, only the Crimean Tatars and Crimean Karaites put forward demands for the recognition of peoples as indigenous.
The demands of the Crimean Tatars and the Crimean Karaites (Karays) regarding the recognition of themselves as indigenous peoples in the international legal format are detailed and documented in the researches of B. V. Babin .
The implementation of such requirements in the activities of the UN, its institutions and organizations under its auspices are interesting. On the official website of the Department of Economic and Social Affairs of the UN Secretariat, you can find information about four organizations of indigenous peoples from Ukraine that registered to participate in UN events and sent their own representatives to them: Mejlis of the Crimean Tatar People , Fund for Research and Support of Indigenous Peoples of Crimea , the Organization of Crimean Tatar elders “Namus” (“Consent”)  and the All-Ukrainian Association of Crimean Karays (“All Ukrainian Association of Crimean Karays”) . This UN body confirmed the participation of the Mejlis of the Crimean Tatar people, the Foundation for Research and Support of the Indigenous Peoples of Crimea, and the Karaite Organization in the UN Permanent Forum on Indigenous Peoples . According to the recollections of N. Bekirov, a member of the Mejlis of the Crimean Tatar people and the head of the Fund for the Research and Support of the Indigenous Peoples of Crimea in those years, in 1994 he attended the 11th session of the Working Group on Indigenous Peoples and, apart from him, in the meetings of the group “they took participation of other Crimean Tatars and representatives of Karaites and Krymchaks” .
In the thesis of the candidate of legal sciences, A. V. Prykhodko states that the Fund for Research and Support of the Indigenous Peoples of Crimea, which sought to obtain consultative status at the UN Economic and Social Council, was rejected in 2008 due to the joint position of the foreign ministries of Russia and Ukraine, according to which this fund was “marked for extremist and nationalist activities” . In turn, the representative of the Foundation for Research and Support of the Indigenous Peoples of Crimea at the 2012 session of the UN Permanent Forum on Indigenous Peoples appealed to the government of Ukraine to join the UN Declaration and recognize the right of the indigenous peoples of Ukraine to the land of traditional residence, with a call to the Council on Rights of the UN to terminate Ukraine’s membership in the Council due to its systematic violations of the rights of indigenous peoples .
The adoption of the decree of the President of Ukraine dated May 18, 1999 No. 518/99 “On the Council of Representatives of the Crimean Tatar People” can be considered the beginning of ensuring the rights of indigenous peoples in Ukrainian legislation. A year later, the Regulation on the Council of Representatives of the Crimean Tatar People was approved, in which it is determined that the Council of Representatives of the Crimean Tatar People is a consultative and advisory body under the President of Ukraine. The main tasks of the Council, in particular, are: participation in the implementation of measures to solve political-legal, socio-economic, cultural and other problems related to the return, accommodation, adaptation of the deported Crimean Tatar people and their integration into Ukrainian society; participation in the development of projects of Ukrainian legislation and state programs on issues related to the return to Ukraine, settlement, adaptation of the deported Crimean Tatar people, their integration into Ukrainian society, preservation of ethnic, cultural, linguistic and religious identity; facilitating the coordination of the positions of Crimean Tatar public organizations, consultative and advisory bodies and state authorities in order to effectively solve political-legal, socio-economic, cultural and other problems related to the return, adaptation of the deported Crimean Tatar people and their integration into Ukrainian society.
N. Belitzer notes that the situation changed only in 2014, already after the occupation and illegal annexation of Crimea. By the resolution of the Verkhovna Rada of Ukraine dated March 20, 2014, the Crimean Tatars were recognized as the indigenous people of our state, and the Kurultai and Mejlis were recognized as its highest representative bodies .
In the period from 2014, the position of the Plenipotentiary of the President of Ukraine for the Affairs of the Crimean Tatar People was introduced by the decree of the President of Ukraine. People’s deputy of Ukraine Mustafa Dzhemilev was the first to be appointed to this position.
Resolution No. 792-VIII of the Verkhovna Rada of Ukraine dated November 12, 2015 “On recognition of the genocide of the Crimean Tatar people” recognized the deportation of Crimean Tatars from Crimea in 1944 as genocide of the Crimean Tatar people.
It is worth noting that the UN Declaration provides only a basic concept regarding the self-determination of indigenous peoples and support for their development, which must be guided by the formation of national legislation, at the same time, it is the state in the person of all its people, as the guarantor of sovereignty, to decide the vector of movement of its own country.
This is reflected in the Constitution of Ukraine, namely:
Ukraine’s sovereignty extends to its entire territory (Article 2);
the bearer of sovereignty and the only source of power in Ukraine is the people (Article 5);
the right to determine and change the constitutional order in Ukraine belongs exclusively to the people and cannot be usurped by the state, its bodies or officials (Article 5);
popular expression is carried out through elections, referendums and other forms of direct democracy (Article 69).
Therefore, neither international law nor the legislation of Ukraine provides for the right of part of the population of Ukraine to political secession.
In its turn, as noted earlier, on March 20, 2014, the Verkhovna Rada of Ukraine adopted the Resolution “On the Statement of the Verkhovna Rada of Ukraine regarding the guarantee of the rights of the Crimean Tatar people as part of the Ukrainian state”, according to which it recognized the Crimean Tatars as an indigenous people of Ukraine and declared its support for the UN Declaration . Ukraine guaranteed the preservation and development of the ethnic, cultural, linguistic and religious identity of the Crimean Tatar people as an indigenous people and all national minorities of Ukraine, as well as the protection and realization of the inalienable right to self-determination of the Crimean Tatar people as part of a sovereign and independent Ukrainian state .
On July 23, 2021, the Law of Ukraine “On the Indigenous Peoples of Ukraine” entered into force, which protects precisely those indigenous peoples who cannot be protected by any other state except Ukraine, because they were formed on the territory of Ukraine and do not have their own state formation outside Ukraine [ 25].
According to part three of Article 1 of the Law of Ukraine “On Indigenous Peoples of Ukraine”, the representative bodies of the indigenous peoples of Ukraine are the relevant representative institutions created by the indigenous peoples and, in accordance with the Constitution and laws of Ukraine, are given the right to represent the indigenous peoples and make decisions on their behalf.
Parts one and two of Article 2 of the Law of Ukraine “On Indigenous Peoples of Ukraine” stipulate that the indigenous peoples of Ukraine have the right to self-determination within Ukraine, establish their political status within the limits of the Constitution and laws of Ukraine, and freely carry out their economic, social and cultural development. The indigenous peoples of Ukraine, realizing their right to self-determination, have the right to self-governance in matters related to their internal affairs, in particular, regarding the ways of creating their representative bodies, which are formed and operate within the framework of the Constitution and laws of Ukraine.
Thus, on August 19, 2022, the Resolution of the Cabinet of Ministers of Ukraine No. 936 “The procedure for establishing the legal status of the representative body of the indigenous people of Ukraine and depriving it of such status” was approved. The specified procedure regulates the procedure for adoption by the Cabinet of Ministers of Ukraine of a decision to establish the legal status of a representative body of the indigenous people of Ukraine and to deprive it of such status. The representative body acquires the rights and obligations provided for by the Law of Ukraine “On Indigenous Peoples of Ukraine” after its legal status is established. The decision to establish the legal status of a representative body and to deprive it of such status is adopted by the Cabinet of Ministers of Ukraine in the form of an order. To prepare a draft order of the Cabinet of Ministers of Ukraine on establishing the legal status of a representative body, the head or other member of the representative body, authorized to represent his interests, personally submits an application to the DESS on establishing the legal status of a representative body and the relevant annexes to it .
According to the second part of Article 8 of the Law of Ukraine “On the Indigenous Peoples of Ukraine”, acts and decisions of the executive authorities on the development of languages, culture, ensuring the rights of the indigenous peoples of Ukraine to education in the language of the indigenous people, media activities in the languages of the indigenous peoples of Ukraine, integration of the indigenous peoples of Ukraine are adopted after consultations with representative bodies. The procedure for holding consultations between executive authorities and representative bodies is determined by the Cabinet of Ministers of Ukraine. This procedure is currently determined by the Resolution of the Cabinet of Ministers of Ukraine “On approval of the Procedure for conducting consultations of executive authorities with representative bodies of indigenous peoples of Ukraine” dated August 19, 2022 No. 1018 .
Thus, Ukraine abstained in 2007, and subsequently, as we described above, supported the UN Declaration. At the same time, our state even developed the provisions of this Declaration and developed additional mechanisms for the protection of the rights of indigenous peoples of Ukraine, defining them at the national level. Indigenous peoples of Ukraine are included in the social and political life of our country, their representatives enjoy basic human rights, like the rest of the population.
So, in essence, the specified normative legal acts of Ukraine were adopted taking into account, in particular, the provisions of the UN Declaration. Analyzing them, it can be concluded that Ukraine provides opportunities for indigenous peoples to create representative bodies of self-government in accordance with the approved procedure, through which the state and the international community, in particular, will provide assistance for the development of the latter, which is a necessary and sufficient step in the understanding of the UN Declaration and does not contradict the norms of the Constitution of Ukraine.
P/S: At the time of writing this article, none of the indigenous peoples of Ukraine has yet taken advantage of the opportunity to obtain the status of a representative body in accordance with the Law of Ukraine “On the Indigenous Peoples of Ukraine” and the Resolution of the CMU “The Procedure for Consolidating the Legal Status of the Representative Body of the Indigenous People of Ukraine and Depriving of Such Status”.
analyst information agency “Voice of Crimea” by order of the editors of the newspaper “Krymska Svіtlytsia”
The Ukrainian version of the article is here
The following sources were used in writing the article:
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