REMARKS ON THE DRAFT CONSEPTION OF POLICY
OF UKRAINE TOWARDS INDIGENOUS PEOPLES

1. The use and interpretation of the terms “indigenous” and “tribal” peoples in the international law

International debate of the “indigenous peoples” concept began at the end of the 19^th century. The debate was conducted mainly in English, Spanish and German. Thus, because English and Spanish languages have common roots - Latin term indigenae distinguishes those who were born in the a given place from those who arrived from some other place (advenae). The modern term “indigenous” originates from these terms. French term autochtone is of Greek origin, and together with German term Ursprung referrs to the group which was the first to arrive in a given region. Thus, the semantic roots of these terms which are widely used in modern international law have common conceptual element, that is, the primacy in time.

The Statute of the League of Nations defined as “indigenous populations” peoples in the colonies and territories controlled by the colonial states. The Statute also defined as indigenous populations “peoples who are still unable to independently put up with the difficult conditions of the modern world.”

Pan-American Union - the predecessor of the modern Organization of the American States - used the term “indigenous population” in entirely different context. The Resolution of the Eighth International Conference of the American States (1938) proclaimed that the indigenous populations, as ancestors the original inhabitants of the lands which now belong to the states of America, have priority rights for protection from the governmental bodies of these states to compensate for deficiencies in their physical and spiritual development.

After WW II, the term “indigenous people” became associated with the meaning used by the Pan-American Union, not the League of Nations. At first, the 1945 UN Statute only mentioned “territories where peoples haven’t yet attained full self-government.” Direct usage of the term “peoples” in the shared article of the two Pacts on human rights signified that the definition of the right for self-determination has changed from a “geographical” to a “sociological.” However, the 1970 Declaration on Principles of International Law concerning Friendly Relations and Cooperation Among States in accordance with the Charter of the United Nations doesn’t allow… to dismember or impair the territorial integrity or political unity of States conducting themselves in compliance with the principles of equal rights and self-determination … and which follow the principle of equality and self-determination in their actions…and have government representing the whole people belonging to the territory without distinction as to race, creed or color.

Therefore, in the international law there was introduced a concept that within one independent state different “peoples” can exist, each of them having the right for self-determination (in this context self-determination doesn’t include the right for succession and creation of separate states). According to the explanatory note of the UN Chairperson Rapporteur, the right of indigenous peoples for self-determination can be considered realized if they, through their representatives, can fully participate in governing democratic state, do not have any obstacles for their development, and do not suffer from discrimination (Doc. E/CN.4/Sub/2/1993/26/Add.1., nn.21-23).

The ILO Convention # 107 (1957) was the first international legal document directly aimed at the protection of indigenous and other tribal and semi-tribal populations in independent states. The difference between these two terms was as follows. The “indigenous” definition was linked with the occupation or colonization process of certain territories, while “tribal” referred to populations whose social and economical conditions are at a less advanced stage of development. Nevertheless, this Convention considered as the most important defining feature of both categories of peoples their social, cultural, economic, legal and institutional specifics. Thus, under the ILO Convention # 107, the main source of the rights of both indigenous and tribal peoples is not so much the history of their occupation, colonization, or oppression, but their historical past as separate and distinctive societies or states.

The UN Special Rapporteur on Indigenous Populations proposed three additional elements for the conception of “indigenous peoples.” One of them is the “non-dominant position in society,” although this doesn’t mean that the group would lose the status of indigenous in case of full realization of its rights. Another important criteria of defining a group as indigenous people is close ties with the ancestral land or territories, as well as voluntary preservation and development of their distinctiveness (preservation of such distinctiveness may not be selectively inspired by the state). The ILO Convention # 107 was ratified by 27 states.

This Convention was revised and replaced by the ILO Convention #169. Article 1 of the Convention #169 also underlined the difference between “indigenous” and “tribal” peoples, although definition of these terms has somewhat changed. Thus, “tribal peoples” were defined as peoples “whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations.” Additional feature of “the indigenous peoples”, except their distinctiveness, is their descent from the populations “which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonization or the establishment of present state boundaries.” The ILO Convention # 169 accords even greater importance to group’s self-identification as indigenous or tribal as a criteria to define the group as such.

The conceptual ideas presented above were further developed in the Project on the Underlying Principles of Supporting Indigenous Population prepared by UN Development Program in 1995. The project is to be adopted by the Board of Directors of the UNPD in the near future.