Oleksii Plotnikov, PhD (international law)
The previous part of this research considered the question of the relationship between the territorial integrity of states and the right of peoples to self-determination in international law. It concluded that international law is strongly in favour of territorial integrity. If the territory of a state includes the territory of habitation of a certain people, which does not constitute a majority in that state, then, as a general rule, such a people should exercise its right to self-determination within the existing state. Secession becomes possible only if the state commits intolerable violations of the rights of such a people. Thus, the state has a duty to the people not to violate their rights, and the people has a duty not to violate the territorial integrity of the state. This enables evasion of conflicts and serves the main purpose of international law – the maintenance of peace.
These remarks are also true for such a special category as indigenous peoples. The latter enjoy all the rights that are valid for all other peoples, but their status is characterized by a number of additional features. These features can be found already in the definition of indigenous people.
According to the ILO Convention on Indigenous and Tribal Peoples (ILO Convention 169) , peoples in independent countries 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 colonisation 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 Convention refers to the right of indigenous peoples to maintain a certain degree of autonomy. According to Article 8, indigenous peoples have the right to retain their own customs and institutions, where these are not incompatible with fundamental rights defined by the national legal system and with internationally recognised human rights.. In addition, the Convention contains a number of special provisions on the rights of indigenous peoples to land, procedures for determining the scope of those rights and dispute resolution.
With regard to the right to self-determination, in particular external relations, the Convention to facilitate contacts and co-operation between indigenous and tribal peoples across borders, including activities in the economic, social, cultural, spiritual and environmental fields. Governments must ensure coordination and evaluation in cooperation between such peoples.
As it is clear from the Convention, there is no question of any self-determination through the creation of indigenous political entities. It is only a matter of realizing the specific rights of indigenous peoples with the support of the governments of the states where the indigenous territory is found.
The Declaration on the Rights of Indigenous Peoples takes a similar approach . It lacks any provisions regarding self-determination through secession. In contrast, the Preamble affirms the right of all peoples to self-determination and the free establishment of their political status, the free exercise of their economic, social and cultural development in accordance with the provisions of the 1966 UN Charter and Human Rights Covenants. Thus, the right of indigenous peoples to self-determination is seen as part or a kind of right of any people to self-determination.
This right is confirmed by Article 3 of the Declaration, which is worded in terms similar to those used in the first common article of the 1966 Covenants on Human Rights. The fourth article, in turn, clarifies that indigenous peoples, confirms that the indigenous people have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions. At the same time, indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State. Finally, Article 46 of the Declaration explicitly states that nothing in it “may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations or construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States”.
As evident from this fundamental document, indigenous people should exercise their to self-determination without separation from the state. The right to manage their own affairs, while fully participating in public life, is primary. However, could it be the case, that the practice of indigenous people is different from theory, and still creates the risks of secession?
The main international body defending the rights of indigenous peoples is the Permanent Forum on Indigenous Issues, which began its work in 2000 under the auspices of the United Nations. After ten years of work of the Forum, Professor J. Anaya, who is himself a representative of the indigenous Hawaiian people, the Special Rapporteur on the situation of the human rights and fundamental freedoms of indigenous people, reported: “one that aims to secure for them [indigenous people] not just social and economic wellbeing, but that in doing so also advances their self-determination and their rights to maintain their distinct cultural identities, languages and connections with their traditional lands. Self-determination in the development process is a matter of basic human dignity, for indigenous peoples as for all others. Enhancing indigenous self-determination has also been shown to be conducive to successful practical outcomes, and indigenous people who make their own decisions about development have been shown to consistently fare better than indigenous people who do not” . Earlier, the same Professor Anaya wrote in his fundamental work on the rights of indigenous peoples in international law that the norm of the right to self-determination should be “distinguished from remedial prescriptions that may result from a violation of the norm” . In other words, secession becomes possible only as a response to the violation of the people’s right to self-determination by the state, for example, in cases of colonial exploitation of people’s lands .
In other words, as the representative of the indigenous people of Australia and coordinator of the Global Indigenous Peoples’ Caucus Les Malezer noted, “the real issue is to ensure self-determination so that indigenous peoples can decide for themselves about their future, their rights, territories and resources” .
In order for indigenous peoples to exercise this right, the UN encourages special agreements between them and governments. Achieving such a political agreement contributes to the concretization of the rights of indigenous people in the state and enablesthe establishment the most accurate way acceptable to them to exercise their rights. A successful example of such an agreement is the agreement between the Danish government and the Greenlandic authorities on holding a referendum on the order of the Greenlandic government. Following a referendum in 2008, a majority of Greenlanders called for greater autonomy, enshrined in the Act of Self-Government, which established Greenland’s constitutional position in the Kingdom of Denmark and laid the groundwork for relations between Denmark and its largest island.
For sure, the case of Greenlandis unique because of the size and remoteness of the self-governing territory from the mainland. At the same time, it is not more unique than any other case of settlement of relations between the state and the indigenous people. In any case, indigenous peoples living in the country need a special legal regime and special regulation of their rights, taking into account the provisions of the Declaration of the Rights of Indigenous Peoples.
Unfortunately, the Ukrainian situation on this issue is far from satisfactory. Ukraine is home to at least three indigenous peoples – Crimean Tatars, Crimean Karaites and Krymchaks. Until 2014, the Ukrainian authorities paid little attention to their interests, despite the long history of recognizing them as indigenous people, and regular statements by representatives of those peoples about their indigenous status (see  for details).
In fact, a certain form of recognition was the result only of the aggression and occupation of Crimea, when the Verkhovna Rada of Ukraine adopted a Statement on guarantees of the rights of the Crimean Tatar people within the Ukrainian State . Formulated in the most general terms, this document guaranteed the preservation and development of ethnic, cultural, linguistic and religious identity of the Crimean Tatar people as an indigenous people and the protection and realization of the inalienable right of the Crimean Tatar people to self-determination within the Ukrainian state in the spirit of the Declaration on the Rights of Indigenous People (it is noteworthy that when voting for the UN Declaration itself, Ukraine abstained). The rights of other indigenous peoples are practically not mentioned.
The stated provisions of the Statement could be considered as laying the foundations for cooperation between Ukraine and indigenous peoples. In particular:
1) the representative bodies of the Crimean Tatar People (Mejlis and Kurultai) were recognized;
2) the Cabinet of Ministers of Ukraine was instructed to urgently submit draft laws of Ukraine and other normative legal acts establishing the status of the Crimean Tatar people as the indigenous people of Ukraine;
3) such legal acts were supposed to be developed in cooperation with the Mejlis of the Crimean Tatar people and in cooperation with the UN, OSCE, CoE, in accordance with international standards;
4) the Verkhovna Rada instructed the Cabinet of Ministers to develop practical mechanisms for cooperation between the executive authorities and the Mejlis.
In the case of immediate and full implementation of the Statement in peacetime, the Crimean Tatar People would find itself in a favorable position to exercise their right to self-determination. However, in fact the Statement remained a half-document for several reasons. First, it clearly recognized the rights only of the Crimean Tatar people, but not of other Crimean peoples (Karaites and Krymchaks). Secondly, it was adopted at a time when Ukraine had lost control over almost the entire ethnic territory of the Crimean Tatar People. Third, the points of the Statement were slowly (if at all) implemented. In fact, the Statement was a recognition of the Crimean Tatars as an indigenous people by Ukraine, which had a favorable international effect, but did not become what it was supposed to be – a fundamental document through which the right of indigenous peoples of Ukraine to self-determination was to be realized.
Returning to the key issue of this article, the Verkhovna Rada’s Statement verbally follows the provisions of international law on the right of indigenous peoples to self-determination, and establishes mechanisms for its implementation in the format of internal self-determination, without separation from the state. Another issue is that the Crimean Tatar People are currently in a situation of foreign occupation, accompanied by the violation of their fundamental rights. Thus, the key task of Ukraine is to maximize the protection and restoration of the rights of Crimean Tatars in the current conditions.
It should be noted that some efforts have been made to put the Statement into practice. One can mention the draft law “On the rights of indigenous peoples of Ukraine” № 4501 of 20 March 2014 (revoked on 27 November 2014), although this hastily drafted draft looks more like an attempt to implement the Declaration of the Rights of Indigenous Peoples into Ukrainian law (most of its provisions repeat the Declaration), and does not contain any practical mechanisms for the practical realization of the rights of indigenous peoples.
Two other draft laws (6315 of April 7, 2017 and 1205 of July 29, 2019) were prepared by the representatives of the Crimean Tatar People themselves, but were withdrawn for various reasons. Both of these projects used the formula “the right of the Crimean Tatar people to self-determination within an integral part of Ukraine – the Crimean Peninsula, on the territory of which it was formed as a single original ethnic group”. These norms, which never became laws, comply with the same international principle of internal self-determination, based on the mutual rights and obligations of the state and the indigenous people.
Finally, Article 19 of the draft law “On the State Policy of the Transition Period” prepared by the Ministry of Reintegration of the Temporarily Occupied Territories in December 2020 can be considered as a basis for a full-fledged law. The advantage of this norm is that it clearly lists the indigenous peoples of Ukraine (Crimean Tatars, Karaites and Krymchaks). Their right to self-determination within Ukraine is determined in the manner prescribed by law.
In itself, this norm, if adopted, would be a significant step forward in the self-determination of the indigenous peoples of Ukraine. However, it can only serve as a basis for full-fledged legislation on the indigenous peoples of Ukraine, the creation of which remains a matter of the future.
1. C169 – Indigenous and Tribal Peoples Convention, 1989 (No. 169). https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C169.
2. 61/295. United Nations Declaration on the Rights of Indigenous Peoples. https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf.
3. Statement by Professor James Anaya Special Rapporteur on the situation of the human rights and fundamental freedoms of indigenous people. UN Permanent Forum on Indigenous Issues 22 April 2010. https://www.un.org/esa/socdev/unpfii/documents/statement%20by%20SR.pdf.
4. Anaya S.J. Indigenous Peoples in International Law. Oxford University Press; 2nd edition (September 23, 2004).
5. Graham L.M. Resolving Indigenous Claims to Self-Determination. ILSA Journal of International and Comparative Law. 2004. Vol. 10. P. 385-420.
7. Implementing the UN Declaration on the Rights of Indigenous Peoples Handbook for Parliamentarians N° 23. http://archive.ipu.org/pdf/publications/indigenous-en.pdf.
8. Беліцер Н. Кримські татари як корінний народ: Історія питання і сучасні реалії. Інститут демократії ім. Пилипа Орлика. Київ, 2017. https://idpo.org.ua/wp-content/uploads/2017/ct-book.pdf.
9. Resolution of the Verkhovna Rada Of Ukraine of March 20, 2014 No. 1140-VII About the Statement of the Verkhovna Rada of Ukraine on guarantee of the rights of the Crimean Tatar people as a part of the Ukrainian state. https://zakon.rada.gov.ua/laws/show/1140-18#Text.