Oleksii Plotnikov, PhD, international judiciary

Between 19 and 30 of April 2021, the 20th session of the Permanent Forum on Indigenous Issues takes place in New York. The topic of this year’s forum is “Peace, justice and strong institutions: the role of indigenous peoples in implementing the Sustainable Development Goal 16”. This essay will address the Development Goals, and why their discussion at the Forum is important for the occupied Crimea.

From time to time, the United Nations set the priorities, which determine their work for a certain future period. Thus, the period between 1991 and 2000 was declared a Third disarmament decade [1], and between 2000 and 2015 the UN pursued the Millennium Goals [2]. Following these strategic visions, the UN concentrates its attention on the designated problems, arranges broad discussion of the relevant issues, takes concrete measures to address the problems, and frequently accepts binding international arrangements.

The strategic document for the period between 2015 and 2015 has been adopted by General Assembly Resolution A/70/L.1 “Transforming our world: the 2030 Agenda for Sustainable Development” [3]. According to the document, “the Goals and targets will stimulate action over the next 15 years in areas of critical importance for humanity and the planet”. On several occasions the document mentions the need for empowerment of indigenous people, as long as “We, the people” mentioned in the opening words of the UN Charter means also indigenous peoples.

Goal 16, which is the topic of the Indigenous Issues Forum, is to promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels. It includes, inter alia:

– promote the rule of law at the national and international levels and ensure equal access to justice for all;

– develop effective, accountable and transparent institutions at all levels;

– ensure responsive, inclusive, participatory and representative decisionmaking at all levels;

– ensure public access to information and protect fundamental freedoms, in accordance with national legislation and international agreements;

– promote and enforce non-discriminatory laws and policies for sustainable development.

These targets quite obviously coincide with the Declaration on the Rights of Indigenous Peoples [4], so no wonder that the indigenous peoples present their positions exactly under Goal 16. For sure, neither the Indigenous Peoples Declaration, nor the Development Goals or the decisions of the Forum for Indigenous issues are of binding nature for states. Nevertheless, they are based on existing obligations, and the present work is aimed at the development of future commitments.

The occupation of Crimea remains a unique case, where the territory of the indigenous people, which forms a part of the territory of one state, is occupied by another state that runs a hostile policy vis-à-vis that indigenous people. That occupation without the consent of the indigenous people itself constitutes a grave breach of the indigenous rights, and an act, that clearly contravenes Goal 16, as it is formulated in the Development Goals. Subsequent actions of the Russian occupation authorities added much gravity to the violation, as they are directly covered by firm international obligations, which Russia has failed to respect.

Refat Chubarov, the head of the Mejlis, in his address to the Indigenous Forum [5], explained that the Russian occupation is a threat to the future of the indigenous people of Crimea. According to Mr. Chubarov, this is exemplified by the prohibition of the Mejlis as a representative body, repressions and persecution of the indigenous people of Crimea, including failure to comply with the Order of the International Court of Justice to cancel the prohibition of the Mejlis.

Indeed, the prohibition of the Mejlis appears to be the most outrageous violation of the rights of the Crimean Tatars as an ethnic and political entity (not to mention the irreparable violations of individual rights, including killings, forced disappearances, and torture). Not only is that prohibition not in line with the target of development of strong and inclusive institutions, but it also contravenes the Convention on the Elimination of All Forms of Racial Discrimination (CERD), that is in force between Ukraine and the Russian Federation, and to which the latter has made no relevant reservations.

Notably, Article 5 obligates states to guarantee to everyone the right without discrimination as to race…national or ethnic origin, to equality before the law, in the enjoyment of the political rights, in particular…to take part in the Government as well as in the conduct of public affairs at any level. In the domain of civil rights, the Convention outlines the obligation of states to ensure the right to nationality, the right to freedom of thought, conscience and religion, the right to freedom of opinion and expression, the rights of peaceful assembly and association, the right to education and training, the right to equal participation in cultural activities.

In case of violation of these rights, Article 6 of the Convention obligates the parties to assure that everyone within their jurisdiction effective protection and remedies through the competent national tribunal and other institutions against any act of racial discrimination, as well as the opportunity to seek adequate reparation or satisfaction for any damage suffered as a result of discrimination. Further, under Article 7, states must undertake to adopt immediate and effective measures, particularly in the fields of teaching, education, culture and information, which view to combating prejudices which lead to racial discrimination and to promoting understanding, tolerance and friendship among nations and racial or ethnic groups.

Ukraine claimed violations of these rights in its memorial submitted to the International Court of Justice (ICJ) in its case against Russia [7]. According to Ukraine, Russia has comprehensively violated the duty to combat racial discrimination, because rather than protecting the Crimean Tatar and Ukrainian communities from racial discrimination, it actively promoted it through the actions of its executive bodies and court decisions, including through banning of the Mejlis and denying relief to protect the Crimean Tatar cultural heritage.

Earlier in its request for indication of provisional measures, Ukraine mentioned the risk of irreparable prejudice to the rights of the Crimean Tatars in Crimea due to the Russian “policy of cultural erasure” through discrimination against the Crimean Tatar and ethnic Ukrainian population, including due to banning of the Mejlis and the suppression of the cultural and educational rights of Crimean Tatars [9].

In its Order [10], issued on the basis of the Ukrainian request, the ICJ relied on the findings of the OHCHR that “the ban of the Mejlis, which is a self-government body with quasi- executive functions, appears to deny the Crimean Tatars – an indigenous people of Crimea – the right to choose their representative institutions”. In the light of this, the Court agreed that there exists an imminent risk that the ban of the Mejlis, as well as other actions of Russia, could lead to irreparable prejudice to the rights protected under the CERD. In the light of this, the Court ordered Russia to refrain from maintaining or imposing limitations on the ability of the Crimean Tatar community to conserve its representative institutions, including the Mejlis.

It is known that Russia has not complied with the Order of the ICJ until this day, and nothing indicates that it intends to do so. Moreover, the official statements by the Russian Foreign Ministry indicate that Russia does not consider that the Order of the ICJ created for it an obligation to cancel the ban of the Mejlis, since, according to the Russian position, the Crimean Tatars are not deprived of the opportunity to create their representative institutions [10].

The failure of Russia to comply with the Order of the ICJ and to put an end to the ban of the Mejlis indicates its actual denial of the targets of development set forth under Goal 16 of the UN Development Goals, namely the targets of promotion of the rule of law at the national and international levels and to ensure equal access to justice for all, the goal of development of effective, accountable and transparent institutions at all levels, the goal of ensuring responsive, inclusive, participatory and representative decision-making at all levels. It also directly points at the violation of the goal of promotion of non-discriminatory laws and policies for sustainable development.

The discussion of these issues under the auspices of the Forum on Indigenous Issues will not have an immediate effect on the restoration of the rights of indigenous peoples in Crimea. However, as of now, the Forum is the most effective mechanism of bringing the attention of UN bodies and Member-States violations of the rights of indigenous people in Crimea as a systematic problem. In this sense, the Forum is a valuable tool of international advocacy and an important instrument that is used by indigenous peoples in their lawfare against the foreign invasion.

1. https://undocs.org/en/A/RES/43/78

2. https://undocs.org/en/A/RES/43/78

3. https://www.un.org/ga/search/view_doc.asp?symbol=A/RES/70/1&Lang=E

4. https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf

5. https://ctrcenter.org/ru/news/6723-vystuplenie-refata-chubarova-na-zasedanii-20-j-sessii-postoyannogo-foruma-oon-po-voprosam-korennyh-narodov

6. https://www.ohchr.org/Documents/ProfessionalInterest/cerd.pdf

7. https://www.icj-cij.org/public/files/case-related/166/166-20180612-WRI-01-00-EN.pdf

8. https://www.icj-cij.org/public/files/case-related/166/166-20170419-ORD-01-00-EN.pdf

9. https://www.icj-cij.org/public/files/case-related/166/166-20170419-ORD-01-00-EN.pdf

10. https://www.mid.ru/ru/foreign_policy/news/-/asset_publisher/cKNonkJE02Bw/content/id/2732665