Our Association granted submissions for studies of the UN Expert Mechanism on the Right to Development devoted to the duty to cooperate and non-state actors and to connection between investments and development. ARC pointed on special importance of the indigenous peoples’ representative bodies as special non-governmental actors, crucial for participation in the development issues.
ARC pointed in such submission that Ukraine recognised indigenous statute for the Crimean Tatar People in 2014 officially and later adopted a Law “On Indigenous Peoples of Ukraine” in 2021. Association described to the UN Expert Mechanism key norms of this law, that granted to Ukraine’s indigenous peoples right to cooperate through their representative bodies with state and local authorities on environmental protection, ensuring efficient and equitable use of sources located in the Crimea.
This law’s norm guarantees also that the indigenous peoples of Ukraine have the right to set priorities and develop strategies for the realization of their right to development through their representative bodies. Such right includes participation in the development and implementation of state and regional programs, as well as other strategic and policy documents on the basis of free, prior and informed consent on issues related to the rights and legitimate interests of indigenous peoples of Ukraine.
ARC stressed in the submission that Association’s experts cooperate now, with other NGOs and Ukraine governmental structures, such as State Service of Ukraine for Ethnic Policy and Freedom of Conscience, to elaborate sublegal acts that will develop such legal norms and will be fully realized after the Crimea’s de-occupation. ARC pointed to UN Mechanism, that experience of the participation of the indigenous peoples’ representing bodies in the decision-making processed will have extreme importance for the next evolution of the concept of duty to cooperate, especially for states, that include or de-facto control the territories of the traditional indigenous peoples’ settlement.
Regarding issue of correlation between investment treaties and right to development, ARC pointed to UN Expert Mechanism that there is bilateral investment treaty in force between Ukraine, as the state that have sovereignty over Crimean peninsula, and Russia, as the state that execute effective control over the Crimea since 2014, exactly – the Agreement between the Government of Russia and the Cabinet of Ministers of Ukraine on the Encouragement and Mutual Protection of Investments, Moscow, November 27, 1998. ARC gave to the UN Expert Mechanism the examples of cases against Russia, solving relevant disputes in situation of ongoing interstate conflict in the international arbitrary tribunals, that are made under this Agreement.
ARC stressed in its submission that exactly such Agreement’s application makes the strongest impact on issues of Crimean residents’ sustainable development, as Russia-controlled “administration” “nationalised” since 2014 a wide set of Ukraine’s state, municipal, civil property in the Crimea and even some Crimean residents’ private property. ARC pointed to UN Expert Mechanism that European Court of Human Rights established already in decision in case 20958/14 that there is the alleged existence of an administrative practice of extending the Russia’s laws to the Crimea and the resulting effect that as from 27 February 2014 the “courts” in the Crimea could not be considered to have been “established by law”, also as there is the alleged existence of an administrative practice of expropriation without compensation of property from civilians and private enterprises, in violation of Article 1 of Protocol № 1 to the European Convention on Human Rights.
ARC described in its submission on Association’s active participation in the Consultation for the Eastern Europe and Central Asia, convened by the UN Working Group on the Issue of Human Rights and Transnational Corporations and other Business Enterprises in 2021. Such cooperation was in framework of the preparation the Working Group’s 2021 report to the UN General Assembly, on providing practical guidance to States on negotiating human rights-compatible investment agreements in line with the UN Guiding Principles on Business and Human Rights.
ARC’s submission for Consultation’s participants stressed, giving as examples some certain pending international arbitrary cases, on the specific situation of legal defence the investments in the occupied Crimea, regarding the above-pointed Ukrainian-Russian Bilateral Investment Treaty, 1998 and relevant norms of the international human rights law defending the right to property. And in the framework of preparation the UN Working Group’s report to the UN General Assembly, the Summary of the discussions from this Consultation on Human Rights-Compatible International Investment Agreements was published by the UN OHCHR.
ARC informed the UN Expert Mechanism on the points 25 and 32 of this Summary, included in UN document under the Association’s proposals, and recognizing that in conflict-affected regions, investment treaties can serve as a tool for the protection of some human rights more effectively than classic human rights instruments. This can be relevant for both, State-to-State and investor-State cases and refers in particular to the right to peaceful enjoyment of possessions. Also ARC described in its submission the modern experience of discussing those issues by the Association’s expert professor Borys Babin on the World Law Congress in December 2021 in Barranquilla, Colombia, where he was invited as a speaker.
ARC invited the representatives of UN Expert Mechanism on the Right to Development to visit Ukraine, including the Crimea, in a framework of above-pointed studies preparation.