Draft

CONCEPT

of the National Policy of Ukraine in Relation to Indigenous Peoples

Contents

1. General Provisions.
2. Rights of indigenous peoples in the context of international standards on human rights and freedoms.
3. Indigenous peoples and the ethno-national policy of Ukraine.
4. Indigenous peoples and the problem of repatriation of the deported Crimean Tatar people.
5. Measures to be taken to implement the national policy of Ukraine regarding indigenous peoples.

I. General Provisions

Having approved a Declaration on State Sovereignty, an Independence Act, a Declaration on the Rights of Nationalities, and a Law on National Minorities, Ukraine thus declared its intention to build a state which guarantees the equality and the right to free development of all citizens regardless of their ethnic background, religious beliefs, and linguistic and cultural traditions and characteristics. In this way the government and society assume responsibility not only for the rebirth and free development of the titular nation, but also for the preservation and creation of the preconditions for the rebirth and development of the national-cultural life of other ethnic, linguistic, and religious groups resident in the Ukrainian state. The Law of Ukraine on National Minorities adopted in June 1992, has become an important step forwards in embodying such approaches to the development of a general ethno-national policy. However, in recent years it has become clear that this law, notwithstanding all its positive traits, does not fully take into consideration the specific ethno-political, ethno-demographic, and migration situation in Ukraine. In particular, this law and other legislative acts do not take into account the presence on the territory of Ukraine of ethnic groups, which, in accordance with the criteria and standards of contemporary international law, may acquire the status of indigenous peoples.

The adoption by the Verhovna Rada (Ukraine’s Parliament) of the Basic Law - the Constitution of Ukraine - represents a new and important stage in the development of Ukraine’s statehood. At the same time the Constitution reaffirms Ukraine's unswerving adherence to a democratic path of development; in particular, its intention to improve its national legislation and ensure that it is in accordance with contemporary norms of regional European, and international law.

It is important to note that, for the first time, the text of the Basic Law of Ukraine introduces the term 'indigenous peoples'. In particular, in Paragraph 3 of Article 92 it is underlined that the rights of indigenous peoples are determined by the laws and legislative acts of Ukraine.For this reason it is essential to prepare a concept of the state policy of Ukraine on the rights of indigenous peoples, and to expeditiously prepare and pass the appropriate legislation.

Approval of the Concept shall stimulate further legislative activity in this new, for our state, sphere of national and international law.

It should be kept in mind that the general tendencies in the relations which developed democratic states have established with indigenous peoples resident on their territories are indicative of the principal changes in the positions of their governments having occurred over the last several decades. These changes are entrenched in a number of legislative acts in the national legislation of countries of Northern Europe, Americas, and New Zealand. They can also be found in individual articles and provisions of international declarations, conventions, inter-state treaties and agreements, and other international legal documents. The declaration by the United nations of an International Decade on Indigenous Peoples also demonstrates the increased attention paid to the problem of indigenous populations. In this fashion the international community has recognized the inalienable dignity of indigenous peoples and the unique contribution they have made to the development and diversity of the wealth of global culture, as well as the importance of preserving the identity of indigenous peoples for the further development of the human civilisation. There is a growing awareness that cultural diversity, consisting of a large number of co-existing ethnic, linguistic, an religious groups, is a prerequisite for the dynamism of multiethnic societies to which Ukraine belongs, contributing to their openness, capacity for cooperation, and fruitful dialogue with other countries. The maintenance of original cultures and harmonious co-existence of their bearers with dominant nations is an alternative to the homogenising of society and the assimilation of its minorities. The latter policy is characteristic of totalitarian states which are incapable to fully integrate themselves into the contemporary world community and thus condemned to self-isolation. Care for the preservation of the identity and providing the conditions for further development of linguistic, cultural, social and spiritual values of not only the titular ethnic group, but also of other ethnoses within national states (the state policies of the Scandinavian countries provide a good example) can be considered a logical continuation of the traditions on the basis of which the very civilization of Europe has emerged and developed.

In this way Ukraine’s policy to preserve and support the multifaceted diversity of large and small ethnic groups and peoples, as well as the titular Ukrainian nation, is a guarantee of the successful development and future maturity of the Ukrainian political nation, as well as its contribution to the process of European integration. Likewise, the development, the creation of a legal base for, and the implementation of the state’s policy regarding indigenous peoples would constitute Ukraine’s concrete contribution to the implementation of the Programme of Actions declared by the United Nations in connection with the International Decade on Indigenous Peoples. Approval of the present Concept shall also stimulate Ukraine's participation in the preparation of a Draft Declaration on the rights of indigenous peoples, and provide Ukraine with a rationale to have its active representation in the appropriate Working Group of the UN Commission on Human Rights.

In accordance with the existing international standards, the following should be considered objective criteria for the determination of the specific ethnic groups in Ukraine which could be regarded as belonging to the category of indigenous peoples: (a) descent from ancestors who have, from time immemorial, inhabited certain geographical regions of Ukraine in its current state borders; (b) the preservation of a cultural, linguistic, and/or religious group identity which differs from that of the titular ethnos and the identities of national minorities of Ukraine, and a desire to further maintain and develop this identity; (c) the existence of distinct historical traditions, social institutions, a system and organs of self-government and other traditional institutions; (d) the absence of an ethnically related national state or fatherland Ukraine's borders.

All international legal documents concerning indigenous peoples underline the necessity of considering, in addition to a number of objective criteria, a so-called subjective criterion; that is, the self-identification of members of the given ethnic group. In the ILO Convention N 169 and in the research by the UN Special Rapporteur Martinez-Cobo, self-identification is even recognized as the 'fundamental criterion' of membership in the community of indigenous peoples. Therefore this criterion must be applied when decisions are made to grant the status of an indigenous people to certain ethnic groups in Ukraine.

Proceeding from the above it is clear that in Ukraine the Crimean Tatar is an ethnic group, which satisfies all the aforementioned criteria defining an indigenous people. Its traditional of self-administration are the Kurultai (National Assembly), which makes decisions regarding the issues of greatest importance to the entire Crimean Tatar, and the Mejlis, which is elected at sessions of the Kurultai and is the main representative body of the people between the Kurultai’s sessions.

The issue of the status of other ethnic groups - the Gagauz, Krymchaks, and Karaits - can also be examined in the context of indigenous peoples of Ukraine. However, in order for them to be granted this status it is essential, first of all, for them to recognize themselves as indigenous peoples. They must indicate their own desire to achieve such a status, and they themselves must create or renew their own traditional cultural or social institutions and structures of self-administration.

II. The Rights of Indigenous Peoples in the context of international standards relating to human rights and freedoms.

The issue of the rights of indigenous peoples has a certain distinctiveness, which distinguishes it from the general issue of minority rights and, in particular, the rights of national minorities. Although these categories of rights are similar in some respects, they are not identical. A principled difference is that although indigenous peoples are not titular or dominant ethnic groups, they have lived on the territories of modern independent states since time immemorial, consider these territories their homeland, and have maintained especially strong spiritual links to these territories. Besides, in contrast to national minorities, indigenous peoples do not have their own national states beyond the borders of the countries of their permanent residence. (Inter alia, this makes impossible to protect their rights by means of such a powerful instrument as the conclusion of bilateral “symmetrical” interstate agreements.) Thus the rights of rights of indigenous peoples are an urgent issue related to the introduction of such a democratic regime, which would exemplify the principle of the reliable defence of the rights and interests of sensitive minorities in their relations with a dominant majority. Indigenous rights are a separate category of human rights and fundamental freedoms, which combines two dimensions - the individual and the collective. At the same time, ensuring the rights of indigenous peoples and national minorities promotes the political stability of multiethnic countries, especially during transition periods in their development. Therefore this problem has a direct bearing on national and regional security.

Thus, the resolution of the issue of the protection of the rights of not only national minorities, but also indigenous peoples, should become one of the priorities of Ukraine’s domestic politic and an important precondition for maintaining peace and strengthening stability in Europe.

The universal international instruments which define the general principles of the rights of 'peoples', include: the Charter and Statute of the United Nations; the Convention on the Prevention of Genocide and the Punishment of its perpetrators; the Convention against discrimination in education; the International Convention on the elimination of all forms of Racial Discrimination; Resolution 1514 on granting independence to colonial countries and Peoples of the UN General Assembly, 1961; the common Article 1 of two International Covenants (on Economic, Social and Cultural Rights and on Civil and Political Rights); and the Declaration on the principles of international law concerning friendly relations between states, in Accordance with the Charter of the United Nations, of 1970 (this last document, a Suppl. to the Resolution 2625 of the UN General Assembly, has passed without voting which emphasises its paramount importance).

More specialised international instruments in regard to the protection of rights of indigenous peoples are the Convention No. 107 and the Convention No. 169 of the International Labour Organization (more detailed information about these and other instruments of international law are included into the Explanatory Note and Appendices to the Draft Concept).

The most accomplished legal norms and standards relating to rights of indigenous peoples are to be found in the Draft Declaration on the rights of indigenous peoples prepared by the UN Working Group on Indigenous Populations. This draft, being now considered by the special Work Group of the UN Commission on Human Rights, after its completion and approval by governmental and independent experts, would be passed for the adoption by the UN General Assembly.

The rights of indigenous peoples specifies in these documents cover a wide range of cultural, social, economic and political rights. The specific nature of the rights of indigenous peoples is based on the fact that they have both individual and collective dimension.

The most significant rights of indigenous peoples include:

• the right to specific forms of self-determination such as autonomy or self-government in all matters pertaining to the group’s affairs and needs in spheres such as culture, religion, education, information, health care, housing construction, social welfare, employment, economic activities, protection of the environment, and control of land and other resources. Indigenous peoples also enjoy the right to receive financial support from states and international institutions to allow them to fulfil these autonomous functions;
• the right to co-operate with the executive organs of the state during all stages of the approval of political decision-making on issues pertaining to the rights and interests of indigenous peoples;
• the right to freely develop and strengthen their particular political, economic, social and other characteristics and legal systems while maintaining the right of full participation in the political, economic, social and cultural life of the states on the territory of which they reside;
• the right to preserve, effectively renew and convey to future generations their cultural traditions and spiritual values including their own history, language, oral traditions, philosophy, written works and literature, geographical names, personal names and surnames;
• the collective and individual right not to be subjected to genocide, ethnocide or assimilation into other cultures characteristic of the dominant majority of the population by means of the application of legislative, administrative or other measures;
• the right not to be forcibly transferred from the territories of their permanent or traditional settlement;
• the right to obtain just compensation for all acts intended to deprive them of their land, property, spiritual and cultural heritage, historical monuments, material and spiritual values;
• the right to free access to all forms of education, including the right to introduce and administer their own educational systems and institutions providing instruction in the native language;
• other rights.

Accepting the Concept of the National Policy in Relation to Indigenous Peoples, and the appropriate legislation, will ensure that Ukraine is in conformity with the general norms accepted by democratic states, which aim at the establishment and implementation of a universal regime of human rights and freedoms, of which the rights of indigenous peoples are an unalienable component. Such measures help overcome the legacy of past regimes, when small nations and ethnic groups were often subjected by the state to either blatant or sophisticated assimilation. Such a policy has already led to irreversible losses sustained as a result of coercive or non-coercive “dissolution" of small distinctive minorities, and the creation of conditions facilitating their absorption by a dominant majority.

III. Indigenous peoples and the ethno-national policy of Ukraine.

The emergence of Ukraine as a democratic, social-oriented state based on the rule of law, with a multi-ethnic population, requires the resolution settlement of an entire complex of problems, the most important of which being the creation of favourable conditions for the development of the Ukrainian nation, indigenous peoples, and national minorities. The timely and competent settlement of the contradictions which objectively emerge in the sphere of inter-ethnic relations is the guarantee of civil peace and the strengthening of statehood in Ukraine.

The path chosen by Ukraine involves building a state in which national interests and national priorities will be determined on the basis of state and socio-political criteria, rather than ethnicity. A unifying factor in the process of state-building has been the idea of Ukraine as a homeland of all citizens who have linked their fate to Ukraine’s soil.

In its inter-ethnic policies the state adheres to the principle of pluralism, which means support for, and development of the ethnic and cultural identity of all nationalities living in the country. At the same time the state encourages the strengthening of the unity and solidarity of Ukrainian society as a whole, and the emergence of an all-Ukrainian identity and patriotism in the consciousness of its citizens.

The state policy of Ukraine concerning indigenous peoples is an integral part of its general ethno-national policy, the basic orientations of which are:

• guaranteeing equal constitutional rights and freedoms to all citizens whatever their race, nationality, and ethnic origin;
• transforming the multiethnicity of a society, its multiculturalism into a consolidating factor in the development of a civil society;
• creating favourable conditions for the development of the titular ethnic group, indigenous peoples, and national minorities;
• the integration into Ukrainian society of the ethnic groups which had been unlawfully deported, and implementation of measures for their political, legal, social and cultural rehabilitation;
• fostering an atmosphere of tolerance, friendship, mutual confidence, and respect for languages, traditions, customs and religions of all ethnic groups;
• strengthening guarantees against discrimination of citizens based on ethnicity, religion, or language; overcoming the manifestations of intolerance extremism, and xenophobia;
• improving the legal foundation for the management of inter-ethnic relations, including the elaboration and adoption of legislative acts with respect to indigenous peoples.

IV. Indigenous peoples and the repatriation of the deported Crimean Tatar people

Establishing a linkage between two issues - the repatriation and integration of citizens of the former Soviet Union, deported from the territory of present-day Ukraine on the basis of their ethnic background, and the protection of the rights of indigenous peoples - requires clarifying precisely which ethnic groups in Ukraine fall simultaneously into the categories of 'indigenous peoples' and “deported peoples”.

Until very recently, in many documents and drafts of legislative acts of Ukraine dealing with the problems faced by deportees, the term 'deported peoples' was applicable to all ethnic groups and individual citizens having been deported on the premise of their belonging to a certain nationality. However, during the period 1995-1996 attempts have been made to situate these concepts in a more precise, and in particular, more juridical context. A great deal of attention was paid to these issues during preparation for a wide-ranging conference on migration processes, refugees, and related problems in the CIS countries (Geneva, May 30-31 1996). In particular, the terminological aspects of these issues were discussed in detail during the sub-regional meeting of governmental experts in Kyiv in September 1995. In accordance with proposals put forward by Ukraine's representatives, the following working definition has been approved: deported peoples shall be deemed peoples "which, as a result of state policy during the Soviet period, were deported from the territory of their traditional residence, and which were forbidden to return and settle on the lands where they had formerly lived".

The definition of “national minorities”, the rights of which are protected by the respective law of Ukraine as of June 1992, is applicable to other ethnic groups and persons, which have also been deported from the Crimea on the grounds of their belonging to a certain nationality.

As is emphasized in the new Constitution of Ukraine, the Ukrainian nation has declared not only its respect for human rights, but also the necessity of developing concrete mechanisms to defend and guarantee human and minority rights. In the context of the rights of a formerly deported indigenous people this means, in accordance with the principles of international law, the necessity of compensating (providing for reparations for) the victims of flagrant violations of human rights by previous regimes by means of restitution, compensation, rehabilitation, satisfaction and guarantees against recurrence of such actions.

Being guided by generally recognized principles and norms of international documents on human rights, Ukraine shall give priority to the elaboration of a normative and legal basis for the return, resettlement, and re-establishment of the formerly deported Crimean Tatar people, as well as of the general concept of socio-economic modernisation of the southern region of Ukraine.

Difficulties of the social and professional adaptation (integration) of the formerly deported Crimean Tatars and other repatriates demand the establishment in the places of their settlement of a modern labour market with a unified information system on job possibilities, professional orientation, education and re-training.

The state shall will ensure the creation of favourable conditions (with due regard of the entire complex of political, social, economic and other circumstances) for revival in certain regions of traditional forms of agriculture in which deportees once engaged, and for its compliance with modern ecological requirements.

Policy of Ukraine with respect to the accommodation of deportees belonging to the indigenous people should be aimed at ensurance of the compactness of their settlement with a view of creating favourable conditions for satisfaction of their ethnic, cultural and spiritual needs.

The Ukrainian state guarantees to repatriates the right to preserve and develop their cultural heritage, the right to receive an education in their native language etc. Such a right in certain cases - such as the revival and preservation of the language and culture of the indigenous people - should be guaranteed by means of a national policy which foresees, in particular, the realisation of the aforementioned rights at the expense of the state budget of Ukraine, with the participation of other countries of the CIS. Such an approach shall ensure the real equality of the indigenous people and shall encourage the all-round participation of both individual citizens and their communities in process leading to the consolidation of Ukrainian society.

In order to resolve problems of the formerly deported indigenous peoples, it is essential to more actively attract financial and material support of state institutions, voluntary and charity organisations from the countries of Europe and North America, the Diaspora, and international organizations and foundations.

V. Measures to be taken to implement the national policy of Ukraine in relation to indigenous peoples.

• Ensure that the national legislation conforms with international norms and standards on human rights and the rights of indigenous people;
• prepare a law of Ukraine on the status of the Crimean Tatar people which would address the issues of the status of the Mejlis, the representation of Crimean Tatars in local legislative and executive organs, in the Parliament of Ukraine, and other urgent matters;
• become a signatory to the Convention No 169 of the International Labour Organization concerning indigenous and tribal peoples living in independent states;
• through the appropriate international institutions encourage the more active participation of donor states in the implementation of the UNDP Programme rendering Ukraine assistance to ensure the repatriation of Crimean Tatars. Encourage the coordination of programmes by the CSCE, UNDP, UNHCR, and IMO concerning repatriation and integration of the formerly deported Crimean Tatar people and other deported groups;
• actively participate in the preparation and discussion of the Draft UN Declaration on Indigenous Peoples, in particular within the framework of the Working group of the UN Commission on Human Rights;
• elaborate a mechanism for the attainment of an agreement between the CIS countries on the practical settlement of the problem of granting citizenship to repatriates, providing them with compensation, and encouraging their voluntary return. Create permanent working groups for regular discussion and resolution of these and other related issues;
• prepare proposals concerning a mechanism for the implementation of the Agreement on issues concerning the restoration of rights of deportees and national minorities signed by the CIS countries in Bishkek on October 9, 1992, and ratified by Ukraine;
• develop a national programme for the integration into Ukrainian society of the deported indigenous people; make maximal use of the experience and various instruments developed by international and non-governmental organizations in the field of peaceful settlement of inter-ethnic and inter-confessional conflicts;
• with the aim of regulating, by means of legislation, situations involving the return to their historical homeland of the formerly deported people as well as individuals belonging to other categories of deportees, acts should be passed at the all-national level on the restoration of their rights. In preparing these documents it is important to take into account the norms of international legal documents on human rights and humanitarian law, as well as the experience of states which had to previously deal with similar;
• solve urgently the problem of granting citizenship of Ukraine to deportees who belong to the indigenous people, as well as their children and grandchildren, upon their return for the purpose of permanent residence, in accordance with the effective legislation, by passing the appropriate amendments to the law on citizenship;
• define measures which will guarantee realistic prospects for the participation of persons belonging to the indigenous people in the process of privatization and economic reforms;
• submit proposals for changes to the draft Republican budget of the Autonomous Republic of Crimea as to allotting funds for the construction of buildings for the deported Crimean Tatars and individuals of other nationalities which have returned to and are living in the ARC;
• consider the possibility of granting funds to the Crimean republican employment Centre to provide additional job opportunities, taking into account the employment needs of the deported Crimean Tatar people and individuals of other nationalities who have returned to and are living in the ARC;
• encourage the elaboration of national and local programmes of social and economic development, aimed first and foremost at preserving the identity of each ethnic group, and creating equal opportunities for their development;
• create the conditions for the implementation of the state’s ethno-national policy along the entire hierarchy of authority including the establishment, in particular, of a Coordinating Council on Inter-Ethnic Relations (the Supreme Council and Government) which should include representatives of national-cultural associations and other non-governmental organizations representing the interests of indigenous peoples and national minorities of Ukraine;
• foster the spirit of confidence, mutual trust and dialogue to emerge between the indigenous peoples and other groups of population living on their historic homeland; devote particular attention to inter-ethnic relations in the districts to which the deported Crimean Tatar people and other categories of deportees have returned and settled; encourage international monitoring of the observance of human rights;
• work out special measures to celebrate the International Decade on World's Indigenous Populations.