INDIGENOUS PEOPLES AS THE OBJECT AND SUBJECT
OF INTERNATIONAL LAW

The spectrum of rights that the indigenous peoples have or for which they are striving, depends largely on whether they are recognized as “peoples” or simply as “ethnic groups” or “minorities”. The situation varies substantially across countries depending upon the position of national authorities, intergovernmental international organizations, independent and state legal experts and of the other participants involved in the long process of protecting the rights of indigenous peoples.

It is well known that to date there is no official or generally accepted definition of the term “indigenous people”. This allows some state officials and scholars to oppose attempts at to establish international standards with regard to the rights of indigenous peoples. The objection they usually revoke is that it is first necessary to agree on the generally accepted definition of indigenous people, and only after that to develop and adopt appropriate norms of international law. The second set of objections is based on the initially restrictive conception of indigenous people (which was developed in first years of UN establishment after WW II), which linked the definition of “indigenous people” with the history of “classic” colonialism. On the basis of this, some states vigorously denied the existence of indigenous peoples on their territories. Among these states, well known for their vocal opposition against the introduction of the provisions on the rights of indigenous people in the international law, were China, India, Bangladesh, and the former Soviet Union.

Neither argument can be considered either principal or substantive. Many other universal and regional declarations, conventions, and treaties on the international protection of human rights came into force and were ratified by participating countries without prior adoption of universal and clear definitions of key concepts such as “people”, “minority”, “national minority” and so on. Concerning the presence of indigenous people on state territory, the applicability of this concept has changed over time. While initially it was applied mostly or exclusively in the context of decolonization process, later a more universal understanding emerged, and the term “indigenous peoples” came to be applied to indigenous peoples in any independent state (not only in the colonized states).

Concerning the recognition of indigenous peoples as “peoples”, that is, subjects of certain collective rights, including the right for self-determination, most international experts agree with this and consider this issue as no longer debatable. This position has been expressed by Professor Erica-Irene A. Daes , Chairperson-Rapporteur of the Working Group on Indigenous Populations, in her analytical report on the Draft Declaration on the Rights of Indigenous Peoples: “Indigenous peoples are undoubtedly “peoples” in any of sense of this word: political, social, cultural, or ethnological.” (Dос. Е/СN.4/Sub.2/1993/26/Аdd.1).

Indigenous peoples organizations and a number of legal experts positively regard the lack of common formally recognized international definition of this term, as this underscores the importance of so-called subjective criteria in recognizing specific groups and concrete persons as belonging to indigenous people. This approach is embodied in the Convention # 169 of International Labor Organization (ILO), which says in article 2:

“Self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply.” The principle of self-determination is also reflected in the text of the Draft Declaration on the Rights of Indigenous Peoples, which states in Article 8:

“Indigenous peoples have the collective and individual right to maintain and develop their distinct identities and characteristics, including the right to identify themselves as indigenous and to be recognized as such.”

Therefore, a well known aspiration of the Crimean Tatar people to acquire the status of indigenous people of Crimea and Ukraine rather than a national minority is fully in accord with the subjective self-determination criteria that already found their reflection in modern international law. Self-identification of the Crimean Tatars as indigenous people is reflected in a number of statements, speeches and other documents, including those published by their main organs of self-government - Kurultay (National Assembly) and Mejlis of the Crimean Tatar people-representative body elected by Kurultay at its sessions.

Working definitions of the objective criteria of belonging to indigenous people have been developed and are being used. According to the Article 1 (b) of the ILO Convention #169, the Convention covers: “peoples in independent countries who are regarded as indigenous on account of 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 and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.”

The Draft Declaration on the Rights of Indigenous Peoples also incorporates a number of objective criteria which were developed by experts of the Working Group on Indigenous Populations following a comprehensive thirteen-year UN Research on issues concerning indigenous population. According to this document, for a group of population in an independent state to be recognized as an indigenous people, some or all of these criteria have to be met:

• living on the land of ancestors or at least on part of this land;
• common descent from the populations which inhabited these lands since the earliest times;
• common culture as a whole or in some of its concrete manifestations (such as religion, tribal way of life, belonging to a community of indigenous population, clothes, methods of management, lifestyle, and so on);
• language (the use of their own language as the only language, mother tongue, language used for communication within family, or as the main, primary, habitual, common or customary);
• living in certain regions of a country or in certain region of the world; other important conditions.

(Dос. Е/СN.4/Sub.2/АС.4/1995/3).

From this list follows that the Crimean Tatars meet subjective as well as objective criteria for recognition of groups in independent states as “indigenous peoples”. (It is necessary to stress that all existing criteria of recognition as indigenous peoples concern those groups which are not dominant in the society and not have their own statehood. These groups however live in their historical lands which are part of independent national states or federations. “Titular ethnos” or “titular nations” are never considered in the context of “indigenous peoples” rights).

One should note that the aspirations of the Crimean Tatars to acquire the status of indigenous people also reflect the general trend among indigenous peoples of the world against being identified as national minorities in the countries where they live. It also generally reflects the understanding of “minority” concept in international law. (Such views are largely justified by the fact that the presence of kin state or motherland outside borders of the state where minority commonly resides is considered one of the defining features of an ethnic (national) minority (see, for example, O.Munzberg, “International Law and Ethnic Minorities”, Frіесdгісh-Еbегt-Stiftung, Warsaw, 1993). Julius Dekhenes, member of Sub-commission on Prevention of Discrimination and Protection of Minorities of the UN Commission on Human Rights recognized the difference between “minorities” and “indigenous peoples”. In 1985 he prepared the propositions on defining the term “minority” (See. Doc. E./CN.4/Sub. 2/1985/31). On the regional European level, an illustration of this tendency is the resolution of the Parliament of Greenland adopted on October 24, 1991 (in the UN Day).

“It is very important that indigenous peoples of the world have fundamental human rights, as individual as well as group rights. Indigenous peoples are not and do not consider themselves minorities. The rights of indigenous peoples stem from their own history, culture, traditions, laws, as well as special relations to their land, natural resources, and the environment. Basic rights of indigenous peoples have to be based on their own value systems and visions of their future”.

In 1989, at the UN Seminar on the effects of racism and racial discrimination on the social and economic relations between indigenous peoples and states where they live it was underlined that:

• indigenous peoples are not the racial, ethnical, religious or linguistic minorities;
• in some countries indigenous peoples constitute a majority of the population; in other countries, indigenous peoples constitute a majority of population in the areas where they have live since the earliest times.

(Dос. Е/СN.4/1989/22).

Therefore, the aspirations of the Crimean Tatars to be recognized as indigenous peoples in Ukraine have sound basis. They are based on the norms and modern tendencies in the development of international law. The usage of the term “indigenous peoples” in the Constitution of Ukraine adopted by the Verkhovna Rada of Ukraine (Article 11, 92 para. 3 and article 119 para 3) obliges state government organs of Ukraine to develop and adopt appropriate laws as soon as possible. With regard to granting of the indigenous people status to the Crimean Tatars, their situation has been studied in details and there are no any objective obstacles for the adoption of such law. Other ethnic groups which could also fall under the provision of the Law of Ukraine on Indigenous Peoples are Krymchaks and Karaites. However, this question has not yet received appropriate attention, and therefore there is an insufficient informational base for the adoption of appropriate legislative acts. Undoubtedly, the situation of these ethnic groups requires further in-depth study to determine, among other things, their own attitude towards acquiring the status of indigenous people.