Administrative system of the Autonomous Republic of Crimea — Wikipedia
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AUTONOMIES: concept, classification, positive and negative consequences of formation based on the experience of foreign countries and the situation in Ukraine (part II)

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As noted in the article “About the rights of indigenous peoples and their implementation in the legislation of Ukraine”, the content of the principle of self-determination of peoples is disclosed in more detail in the Declaration on the Principles of International Law Concerning Friendly Relations and Cooperation between States in accordance with the 1970 UN Charter. In particular, in para. 7, 8 of the corresponding section of the Declaration emphasizes that: “Nothing in the above paragraphs shall be interpreted as authorizing or encouraging any action that would lead to the dismemberment or partial or total violation of the territorial integrity or political unity of the sovereign and of independent states that observe in their actions the principle of equality and self-determination of peoples, as this principle is set forth above, and, as a result, have governments that represent, regardless of race, creed, or color, all the people living in that territory. Each state must refrain from any actions aimed at partial or complete violation of the national unity and territorial integrity of any other state or country” [7].

Thus, international law clearly and unambiguously determines that the principle of equality and self-determination of peoples is not directed against the territorial integrity of states and in no way encourages separatism.

These provisions of the Declaration on the Principles of International Law are further explained by the judge of the UN International Court of Justice, Eduardo Jiménez de Arechaga: “It is obvious that an unrestricted interpretation of the principle of self-determination would contribute to the emergence of separatist movements and minority movements for independence in various states of the world and could lead to dismemberment of existing states. Such a possibility could not be allowed by the UN, except in very special cases. Accordingly, the last two paragraphs of this section of the Declaration provide certain restrictions, the purpose of which is to protect states from separatist movements and which proclaim the principle of national unity and territorial integrity of states and countries” [8].

Also, in Article 4 of the UN Declaration on the Rights of Indigenous Peoples of September 13, 2007
No. 61/295 states that indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-management in matters related to their internal and local affairs, as well as ways of financing their autonomous functions [9].

The right to self-determination of indigenous peoples does not require the granting of autonomy, 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, to provide resources to promote the development of indigenous peoples.

In turn, the first part of Article 46 of the UN Declaration on the Rights of Indigenous Peoples indicates that nothing in this Declaration may be interpreted as authorizing or encouraging any action that would lead to separation or to partial or complete violation of the territorial integrity and political unity of sovereign and independent states [9].

At the same time, Doctor of Law Borislavska O.M. notes that the growth of the political role of regions (autonomies) in some countries has coincided with the growth of activity of separatist movements, which gives grounds for thinking about a possible connection between these processes. In those territorial units where ethnic groups or indigenous peoples who have preserved their identity live compactly, the demands for recognition of their right to self-determination and the formation of sovereign states have increased (Catalonia, Basque Country). [2]

It is worth noting that Catalonia is far from the only community in Europe that announces its intentions to create a sovereign state. In addition to the above-mentioned Basque Country, Corsica in France, Gagauzia in Moldova, and the Åland Islands in Finland, questions about the independence of such territories as Northern Epirus in Albania, Moravia and Czech Silesia in the Czech Republic, Bornholm and the Faroe Islands in Denmark, Brittany, and Northern Catalonia periodically arise. , Savoy in France, etc. [2]

Therefore, 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 not capable of preventing attempts to declare its own sovereign state. [2]

Therefore, the principle of the right to equality and self-determination of peoples does not provide for secession as a mandatory form of self-determination, but on the contrary, the right to secession is directly limited to special cases, which include decolonization, the struggle against occupation and the racist regime. The priority during the realization of the right to self-determination is given to the territorial integrity of the state.

The legal position of the Constitutional Court of Ukraine regarding the right of peoples to self-determination is similar and fully corresponds to the content of the main principles of international law and its doctrine. As stated in paragraphs 1 of 3.3 point 3 of the decision on the case on the constitutional submission of the Acting President of Ukraine, Chairman of the Verkhovna Rada of Ukraine regarding compliance with the Constitution of Ukraine (constitutionality) of the Resolution of the Verkhovna Rada of the Autonomous Republic of Crimea “On the Declaration of Independence of the Autonomous Republic of Crimea and the City of Sevastopol”: “according to by universally recognized principles and norms of international law, peoples have the right to self-determination, which should not be interpreted as sanctioning or encouraging any actions that violate or undermine (in whole or in part) the territorial integrity or political unity of sovereign independent states that adhere to the principle of equal rights and self-determination of peoples and, as a result, have governments that represent the interests of all peoples on their territory without any distinctions (Charter of the United Nations, Declaration on Principles of International Law Relating to Friendly Relations and Cooperation between States in accordance with the Charter of the Organization of the United Nations, dated October 24, 1970, Final Act of the Conference on Security and Cooperation in Europe of 1975)”.[10]

The Constitutional Court of Ukraine emphasizes that the right to self-determination on the territory of the Autonomous Republic of Crimea and in the city of Sevastopol was exercised by their residents as an integral part of the entire Ukrainian people during the national vote in the all-Ukrainian referendum on December 1, 1991. Taking into account the results of this referendum, the Verkhovna Rada of Ukraine on behalf of the Ukrainian people – citizens of Ukraine of all nationalities – adopted the Constitution of Ukraine on June 28, 1996, in which, in particular, it declared Ukraine a sovereign and independent state (Article 1) and established the principle of its territorial integrity (Article 2 ). The Constitution of Ukraine does not provide for the right of a separate part of the citizens of Ukraine (including national minorities) to unilateral self-determination, as a result of which there will be a change in the territory of Ukraine as a unitary state. The issue of changing the borders of Ukraine must be decided at an all-Ukrainian referendum appointed by the Verkhovna Rada of Ukraine in accordance with Article 73, Clause 2 of Part One of Article 85 of the Basic Law of Ukraine. [10]

However, in an advisory opinion on Western Sahara, the UN International Court of Justice confirmed that, except in exceptional circumstances, any change in legal status requires the free will of the people. But outside of colonialism, a referendum alone is not a sufficient condition for changing the legal status of a territory [11]. Similarly, in the Quebec secession case, the Supreme Court of Canada ruled that a decision in favor of secession would, at best, create an obligation on both sides to negotiate the territory’s future legal status [12].

Furthermore, the Supreme Court of Canada has clarified that the right to secession under the principle of self-determination of peoples in international law arises only when a “people” is governed as part of a colonial empire, when a “people” is subjected to foreign enslavement, domination or exploitation, and, perhaps when the “people” is denied any real exercise of its right to self-determination within the state of which it is a part. In other circumstances, peoples must achieve self-determination within their existing state. A state whose government represents the entire people or peoples living on its territory under conditions of equality and without discrimination, and which respects the principles of self-determination in its domestic law, has the right to preserve its territorial integrity under international law and to have this territorial integrity recognized by other states [13].

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 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 [14].

Also, it is necessary not to forget the provisions of the Basic Law in which the sovereignty of Ukraine 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 to exclusively for the people and cannot be usurped by the state, its bodies or officials (Article 5).

Thus, 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.

It is obvious that the entire population of the Republic of Crimea (while it was under the control of the state of Ukraine) does not meet the criteria of colonial, oppressed or repressed peoples. Also, taking into account the adopted legislative acts regarding the rights of indigenous peoples, which are discussed in the article “On the rights of indigenous peoples and their implementation in the legislation of Ukraine”, it cannot be claimed that they are denied real access to the authorities of Ukraine for the exercise of their political, economic, cultural and social development and there is a real need to create the corresponding autonomy.

Currently, there are discussions in society regarding the status of the Autonomous Republic of Crimea after de-occupation, four options are distinguished: leave it unchanged, create the national-territorial autonomy of the Crimean Tatar people or the autonomy of indigenous peoples, cancel the status of autonomy and create the Crimean region.

If we take as a basis the Law of Ukraine “On the Rights of Indigenous Peoples”, which defines three indigenous peoples (Crimean Tatars, Karaites, Krymchaks), and the UN Declaration on the Rights of Indigenous Peoples, then the logical step is to create the autonomy of indigenous peoples, without singling out any of them, actually giving clear advantages to one over the others, but now only the Crimean Tatars, who speak out for the status of Crimean Tatar national autonomy, are taking an active position.

At the same time, we should not forget about the inalienable right to self-determination of Karaites, Krymchaks, which is necessary for them to preserve their own culture and language.

By the way, the demands of the Crimean Tatars and the Crimean Karaites (Karays) regarding the recognition of themselves as indigenous peoples in an international legal format are detailed and documented in the researches of B. V. Babin [15]. In particular, in 1994, at the 11th session of the Working Group on Indigenous Peoples, representatives of the Crimean Tatars, Karaites and Krymchaks participated in the meetings of the group.

Along with this, there is an opinion that if Ukraine does not fulfill the requirements of paragraph 60 of the Resolution of the European Parliament on the implementation of the EU Association Agreement with Ukraine (2019/2202(INI)) of February 11, 2021, in which the European Parliament calls on Ukraine to adopt laws on indigenous peoples of Ukraine, on the status of the indigenous Crimean Tatar people, as well as to amend the Constitution regarding the recognition of the national-territorial autonomy of the Crimean Tatar people within Ukraine, and in particular Crimea, which is connected with the inalienable right of the indigenous Crimean Tatar people to self-determination, we will not be able to become full members of the European Union and NATO.

However, the Resolution of the European Parliament has an exclusively recommendatory nature, so the implementation of these requirements in the format proposed by the European Parliament is optional. In addition, such obligations would to some extent contradict the principles of the European Union and, accordingly, cannot be considered as a requirement for joining the EU, let alone NATO, as they nullify the above provisions of the UN Declarations and their understanding, as well as violate the country’s sovereignty.

At the same time, from the analysis of the first part of this article, it can be concluded that in the European countries themselves, not everything is so perfect in the nature of autonomous entities that they can provide really high-quality recommendations, since there is no single typical approach.

Also, this requirement cannot be mandatory, since, as already studied above, this decision must be made by the state itself in the person of all citizens of Ukraine, and also because the creation of autonomy is not defined in international legal documents as a mandatory condition for self-determination. “The experience of solving internal contradictions and various conflicts that Europe has should be understood and embodied in our legal field, but it should not come from external coercion, but from the internal needs of the nation, the state as a whole and each individual citizen”, – as the journalist noted Valery Verkhovskyi.

In turn, the regulatory framework of Ukraine contains legislation on the protection of the rights of indigenous peoples, through the creation of self-governing representative bodies for each indigenous people, 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 Declaration UN on the rights of indigenous peoples and does not contradict the norms of the Constitution of Ukraine. Yes, 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.

In addition, it is worth paying attention to the interesting opinions expressed by the director of the Institute of Territorial Development, the author and co-author of a number of bills on the reform of local self-government, the budget and public procurement Yuriy Hanushchak in the article “Limitation of the autonomy of Crimea: a provocation or a timely conversation?” (Mirror of the Week” dated May 23, 2023), namely, that granting Crimean Oblast the status of an Autonomous Republic within Ukraine played its destructive role first in the preservation of the Soviet world, and later — in the early 2000s — in strengthening the “Russian world.” Attempts by patriotic forces to defend the interests of the state ran into the same thing: we have autonomy, we are special. There is Ukraine, and there is Crimea [16].

The Law “On Indigenous Peoples of Ukraine” will ensure the interests of the indigenous peoples much better than the preservation of administrative and territorial autonomy in Crimea. Firstly, because its effect is extraterritorial, that is, advantages in cultural and educational development will be given to representatives of indigenous peoples not only in Crimea itself, but also in places where they live compactly, for example in the Kherson region. Secondly, guarantees of the observance of such rights are provided not by a politically oriented regional authority, but directly by a state authority of Ukraine, which must also comply with international agreements in the area of protection of the rights of small nations [16].

The issue of liquidation of the Autonomous Republic of Crimea as an administrative-territorial unit should be raised now, before the end of the war, even before the deoccupation of the peninsula. First of all, because the preparation of constitutional changes will require serious elaboration. After all, it is not only about the removal of Section 10 of the Basic Law. It is necessary to amend Article 133, which concerns the administrative-territorial system of Ukraine, to remove the list of regions embedded in the Constitution, as a counterweight to the special status of public power in Crimea [16].

In the article “Does the liberated Crimea need autonomy?”, published in “Glavkom” on May 26, 2023, author Yulia Tyshchenko raises the question of the relevance of this topic, in particular it is noted: “There have been various discussions around Crimean autonomy since its creation in 1991 about content and perspectives. Controversies accompanied not only the periods of settlement of “Crimean separatism” in the early 90s, the constitutional process in the republic in 1996–1999, but also in 2013 some political forces, such as the Svoboda party, advocated holding a referendum on the cancellation of the autonomous status of Crimea . The motivational part of such proposals discussed the inadmissibility of the existence of territorial autonomy as such in a unitary state, the need to transform an autonomous republic into a region. In turn, the representative national institutions of the Crimean Tatars constantly discussed the lack of any clearly articulated guarantees in the Crimean autonomy regarding the preservation and development of the Crimean Tatar people as an indigenous people, as well as the guaranteed right to internal self-determination.”

The discussion in the public social space continues. Unfortunately, these are mostly conversations about the name and status, about the need or not, but to a lesser extent about the content, about the real protection of the rights of indigenous peoples and the security component of the state…

P/S: At the time of writing this article, none of the indigenous peoples of Ukraine have yet taken advantage of the opportunity to obtain the status of a representative body in accordance with the Law of Ukraine “On Indigenous Peoples of Ukraine” and the Resolution of the CMU “Procedure for Consolidating the Legal Status of a Representative Body of the Indigenous People of Ukraine and Depriving Such status”.

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Eney TESLYA, 

analyst information agency “Voice of Crimea” by order of the editors of the newspaper “Krymska Svіtlytsia”

The Ukrainian version of the article is here

Read the beginning of the article here

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The following sources were used in writing the article:

1.Large encyclopedic legal dictionary / [ed. Acad. Yu. S. Shemshuchenko of the National Academy of Sciences of Ukraine]. — K.: “Legal Opinion” LLC, 2007. — 992 p.
2.Territorial autonomy, regionalization and problems of political secession in Europe / Olena Markivna Boryslavska // Scientific article – 2017;
3.Theoretical problems of the legal status of autonomous entities in the modern states of the world / N. A. Myalovitska // Scientific notes of the NaUKMA. – 2003;
4.Nationwide Ukrainian newspaper “Krymska svіtlytsia” issues of 2018 No. 13, 14, 15, 16, 17, 19, 20, 21, 22, 23, 30;
5.Article “Ukrainian Crimea after Liberation”;
6.Article “Transcarpathian Regional Council legitimizes Ruthenians”;
7.Declaration on the Principles of International Law. Resolution No. 2625, adopted by the UN General Assembly on October 24, 1970;
8.Korotky T.R., Merezhko O.O., Pleshko E.A. Proclamations of the “DPR” and “LPR” and the right of peoples to self-determination: illusory sovereignty or sovereignty of illusions. Ukrainian Revolution of Dignity, aggression of the Russian Federation and international law. Kyiv, 2014. P. 673-705;
9.United Nations Declaration on the Rights of Indigenous Peoples. Resolution No. 61/295, adopted by the UN General Assembly on September 13, 2007;
10.Decision of the Constitutional Court of Ukraine No. 3-рп/2014 of March 20, 2014;
11.Brief summary of decisions, consultative conclusions and rulings of the International Court of Justice, 1948–1991 / UN, Mezhdunar. court. New York: UN, 1993. VIII. 286 p.;
12.Reference re Secession of Quebec: Judgment of the Supreme Court of Canada of 08.1998 in case No. 25506;
13.Safonov V.E., Myryasheva E.V. Regulation of state unity in foreign judicial practice. Scientific and practical journal “Science and education: economy and economy; entrepreneurship; law and management”. 2011. No. 10 (16). P. 34-38;
14.Shinkaretskaya H. G. Position of actually existing regimes (unrecognized states). New Challenges and International Law, 2010. P. 158-175;
15.Babin B. V. Constitutional and legal status of indigenous peoples of Ukraine: dissertation. Ph.D. law Sciences: 12.00.02 “Constitutional law” / Babin Boris Volodymyrovych. – Donetsk, 2004. – p. 140-160 sheets.
16.The article “Liquidation of the autonomy of Crimea: provocation or a conversation that is timely?”;
17.Resolutions of the European Parliament regarding the implementation of the EU Association Agreement with Ukraine (2019/2202(INI)) dated February 11, 2021;
18.Keating M. Rethinking the region: culture, institutions and economic development in Catalonia and Galicia / M. Keating // European Urban and Regional Studies. – 2001. – No. 8. – R. 217–234;
19.Article “On the rights of indigenous peoples and their implementation in the legislation of Ukraine”;
20.Law of Ukraine dated July 1, 2021 No. 1616-IX “On Indigenous Peoples of Ukraine“.
21.The procedure for holding consultations between executive authorities and representative bodies, approved by Resolution No. 1018 of the Cabinet of Ministers of Ukraine dated August 19, 2022.

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