ECMI Minorities Blog. Native Others: What Implications Does the Law on Indigenous Peoples Have for Ukraine’s Indigenous Population?
Author: Olha Sribniak | https://doi.org/10.53779/HDBB5593
* Olha Sribniak is a KYIV based representative of the ECMI. She holds a Master`s degree in Political Science from the National University of "Kyiv-Mohyla Academy" (Kyiv, Ukraine). During her studies, she spent a semester abroad at the Friedrich Schiller University of Jena, where she focused on International Relations as well as Peace and Conflict Studies. Her research interests include Human Rights and Minority Protection, International Development, Conflict Prevention and Resolution. Olha is also interested in the Politics of Memory and Commemorative Practices. She has extensive work experience in the civil society sector and in local self-government institutions.
In July 2021, the Ukrainian Parliament adopted a Law on Indigenous Peoples. It provides a framework for the protection of the rights of the indigenous peoples of the Crimean Peninsula, namely Crimean Tatars, Karaites and Krymchaks, and excludes Mariupol Greeks as a minority potentially qualifying for the status of the fourth indigenous group residing outside of Crimea. What was the general context of the adoption of the Law? What rights does it envisage? And what could the Law potentially bring to the recognized indigenous peoples? This blog post attempts to answer these questions.
Ukraine's thorny path to the new indigenous legislation
The need for a law to regulate issues around indigenous peoples has been on the political agenda of Ukraine for about three decades. Although the concept of indigenous peoples is mentioned in the Constitution, in the highly contested Law on Ensuring the Functioning of the Ukrainian Language as the State Language, and in international documents ratified by Ukraine, it has not been legally defined until recently. From the late 1990s until 2014, at least ten concepts of state ethnonational policy were developed, none of which was ultimately adopted.
The three widely recognized indigenous peoples of Ukraine traditionally live on the Crimean Peninsula. As such, the annexation of the territory of the Autonomous Republic of Crimea by the Russian Federation in 2014 and the subsequent internal displacement of large groups of Crimean Tatars and other minorities revitalized a public debate on the status of indigenous peoples. Political efforts in this regard have been consolidated around the Crimean Tatar people with less focus on Karaites and Krymchaks. In 2014 the Parliament of Ukraine adopted a statement on guaranteeing the rights of the Crimean Tatar people as part of the Ukrainian State and the following year the deportation of the Crimean Tatars from Crimea in 1944 was recognized as genocide. Nonetheless, the draft law, which could provide a systematic approach to safeguarding the rights of indigenous peoples, was still not adopted.
Preparations for the thirtieth anniversary of Ukraine's independence unexpectedly reinvigorated this process. The new draft law on indigenous peoples of Ukraine was introduced by the President to Parliament on May 18, the Commemoration Day of the victims of the genocide of the Crimean Tatar people. Having gone through all the necessary stages almost twice as fast as an average draft law, it entered into force on July 23, 2021. This draft law became one of several legislative acts adopted during the run-up to the Crimean Platform Summit, a Ukrainian diplomatic initiative aimed at returning the issue of the occupation of the Crimean Peninsula to the international agenda launched on August 23. Plans to pass the draft law before this event were outlined by the Deputy Permanent Representative of the President of Ukraine in the Autonomous Republic of Crimea, Tamila Tasheva, shortly after its registration. As Ms Tasheva pointed out, "In our opinion, there are no pitfalls in the draft law. It was reconciled with all parties, first of all with the Mejlis of the Crimean Tatar people. […] Therefore, even if there are any questions about the text, they will be mostly editorial, not in substance."
Indeed, the Kurultay and the Mejlis (supreme representative plenipotentiary body and executive body respectively) of the Crimean Tatar people were involved in drafting the Law and expressed their support for its text, along with the members of parliament of Crimean Tatar origin. The Chairman of the Board of the Crimean Tatar Resource Centre and Member of the Mejlis noted that the law "would render the status of a recognized public law entity to the representative bodies of the Crimean Tatars, which will transform communication with central executive bodies and other public bodies as well as raise interagency relations to a new level." TheLaw has so far been also positively assessed by international observers. Estonian human right activist Oliver Loode described the newly adopted legislation as "the most remarkable legislative and political step taken in Ukraine towards safeguarding the rights of the indigenous peoples of Ukraine since 2014."
Although the rapid adoption of the draft law impeded a broader public discussion of its content, some well-grounded comments have nevertheless been made by indigenous representatives — for example, that the discussion of the draft law had centred only on the territory of occupied Crimea. The recommendations formulated by indigenous groups proposed the lock-in of all mechanisms for enforcement of the rights of indigenous peoples at Cabinet level and suggested establishing the position of Commissioner for the Rights of Indigenous Peoples.
Looking at the ins and outs: what does the new Law envisage for Ukraine's indigenous population?
The rights of indigenous communities outlined by the Law are roughly divisible into five main categories: (1) recognition of indigenous people and their right to self-determination, (2) political representation and participation, (3) educational and linguistic rights, (4) rights to land and natural resources, and (5) cultural rights.
Prescribing legal recognition of indigenous people, the Law largely echoes the United Nations Declaration on the Rights of Indigenous Peoples. In particular, it provides a framework of the legal personality of indigenous people by guaranteeing their right to self-determination within Ukraine and self-government in matters relating to their internal affairs, and by establishing their political status within the Constitution and national laws.
Beyond this, the Law provides several other important provisions in this category. Firstly, it imposes on the state the obligation to promote "the formation of the sustainable territorial communities that would correspond to the areas of compact residence of the indigenous peoples of Ukraine." Secondly, the Law provides for the possibility of the government to take temporary enhanced measures to support the indigenous peoples of Ukraine "upon request and after consultations with representative bodies." However, it is worth noting that the mechanisms for the implementation of these provisions are not defined, providing the government with substantial discretion on both matters.
Concerning representation of indigenous peoples and exercise of other political rights, the Law is more specific. Arguably, laying the legal basis for establishing representative bodies of indigenous peoples empowered to represent their communities and make decisions on their behalf can be considered a core novelty of the Law.
The competencies of representative bodies turn them into the centralized channel of communication of each indigenous people with the state authorities. Specifically, they have advisory powers in forming a list of objects of indigenous peoples' cultural and religious heritage, restoration of historical toponymy, the inclusion of information on indigenous peoples in the school curriculum, and environmental protection in Crimea. Besides this, representative bodies are empowered to establish their own media enterprises eligible to receive partial state funding. To ensure the stable functioning of representative bodies, the Law stipulates that they will be funded through a separate budget programme.
At the same time, it is important to mention that the mechanisms for the formation of such bodies and rotation of their members are not determined. Instead, article 2 entails that the modalities for their establishment belong to issues in which indigenous peoples have the right to self-government. Meanwhile, determining the legitimacy of representative bodies is assigned to the competencies of the government.
When it comes to educational and linguistic rights, the Law reiterates Ukraine's commitment to the protection of minority languages and draws on the provisions of the Law of Ukraine on Secondary Education, as well as the Law of Ukraine on Ensuring the Functioning of the Ukrainian language as the State Language. Both pieces of legislation treat indigenous languages more favourably as compared to other minority languages spoken in Ukraine. To illustrate it more precisely: according to the Law on Education, indigenous peoples can enjoy bilingual language immersion throughout early years, primary and secondary education, whereas national minorities enjoy such a right only as part of their early years and primary education.
An important novelty of the Law is a specific reference to the right of indigenous peoples to sustainable development. Article 7, Section 3 provides for directing part of the income from the exploitation of natural resources in Crimea and the city of Sevastopol to the needs of the indigenous peoples of Ukraine. Moreover, the Law also stipulates reservation and allocation of lands for agricultural and other purposes to members of the indigenous communities returning to the Autonomous Republic of Crimea. As Ukraine does not have factual control over the temporarily occupied territories, both norms are declarative.
Culture is another category that is worth considering in the context of the rights of indigenous peoples. Overall, the Law guarantees the right of indigenous peoples to practice, revive and develop their spiritual, religious, and cultural traditions and to preserve cultural heritage. To facilitate this the government must compile a list of objects of religious and cultural significance and determine the procedure of their use.
Whom does the Law, in fact, address?
Speaking about the possibilities of implementing the Law, it is necessary to say a few words about those indigenous peoples whom it concerns. According to the 2001 census, there were 248,200 Crimean Tatars, 1196 Karaites and 406 Krymchaks in Ukraine, including 243,400 Crimean Tatars, 671 Karaites and 204 Krymchaks in the Autonomous Republic of Crimea. To date, there is no exact data on the number of each of the indigenous peoples on the mainland of Ukraine and the Crimean Peninsula. Approximate estimates show that after the occupation of the Autonomous Republic of Crimea, about 10% of the Crimean Tatars (25,000 people) left there for the mainland. Most of them settled in the Kherson region – the one closest to Crimea, although many IDPs of Crimean Tatar origin also moved to Kyiv, Lviv and Odesa.
Outlooks for the indigenous peoples of Crimea
On the whole, official recognition of the indigenous peoples of Crimea is a significant turning point for minority protection in Ukraine as it not only codifies the status of the Crimean Tatar, Krymchak and Karaite communities in the national legislation, but also charts a path for laying claims to the lands in Crimea and girds the displaced minority groups with legitimate arguments to be raised before international fora about their repatriation. Nevertheless, due to a volatile political environment and the high sensitivity of issues pertaining to ethnic minorities in Ukraine, it is advisable that the country further adopts and ratifies ILO Convention 169. This move would create a set of additional obligations and safeguard the rights of indigenous peoples in case the national legal framework is amended.
In view of the demographic data mentioned above, it is important to emphasize that although the Law refers to the three indigenous peoples of Ukraine, it primarily addresses the needs of the Crimean Tatar people. In particular, this applies to linguistic and educational rights, as well as the right to establish representative bodies, which can be only partially fulfilled due to the numeric inferiority of the Krymchak and Karaim communities.
The challenge of the newly adopted legislation is to address the full spectrum of needs of both the indigenous peoples living on the Crimean Peninsula and those residing in the continental part of Ukraine. While the former group suffers from expulsion, repression and limited access to educational and religious rights, the latter lacks full-scale representation at the regional and local level in Ukraine, is in need of integrational programmes due to their experience of displacement (with the access to affordable housing being of primary importance) and requires comprehensive support to preserve and maintain their cultural, linguistic and religious identity. On top of that, to be effective and meaningful, a comprehensive action plan to support the implementation of the new Law would have to draw on more precise statistical data and a thorough needs assessment, both of which are currently lacking.
Ultimately, the new Law has a strong international dimension to it, as Russia has repeatedly underlined its allegedly discriminatory character towards other "indigenous" minority groups, e.g. Moldovans, Russians and Belarussians in Ukraine. While Russia provoked a public outcry by challenging the legitimacy of the new indigenous legislation, the wider context in which the new law has been adopted also demonstrated a high level of sensitivity of national minority issues in Ukraine. That, in turn, created a fruitful ground for external attempts to manipulate public opinion. Further development of comprehensive legal frameworks and institutionalization of a structured minority dialogue at all levels of governance have therefore become essential in strengthening Ukraine's resilience and societal cohesion.