Olexiy Plotnikov, PhD (International Judiciary)
The Ukrainian government paid little or no attention to the problems of Crimean Tatars prior to 2014. The situation changed dramatically after the annexation of Crimea by the Russian Federation in 2014. In the absence of real possibility for restoration of Ukrainian sovereignty over the Peninsula, the Crimean Tatar movement became one of the few effective instruments capable of influencing the occupying power. The leaders of the Mejlis, the Crimean Tatar body of national self-government, declared their support for Ukrainian sovereignty over Crimea and willingness to cooperate with the Ukrainian government in its restoration. In addition, Russia’s policies of discrimination and persecution provided perfect grounds for diplomatic and legal action against occupation of Crimea. The new policy of Ukraine was multi-aspect ranging from political gestures to cultural events and construction of new collective memory . For the purposes of this paper we will, however, concentrate on legal aspects.
The challenge for Ukraine stemmed not only from desire to end the occupation or moral duty in respect of the Crimean Tatars. It included firm international obligations owed by Ukraine. Human rights obligations exist towards all persons on the occupied territory, however, there is also a specific set of obligations existing towards Crimean Tatars as an ethnic group and indigenous people of Crimea, as well as post-genocidal group.
The first set of Ukraine’s obligations has its origin in certain provisions of international human rights law on the collective rights of peoples. Most importantly, it is the right to self-determination enshrined in common Article 1 of the International Covenant on Civil and Political Rights  and the International Covenant on Social, Economic and Cultural Rights , under which all peoples have a right to determination of their political status and economic, social and cultural development, while States Parties are obliged to promote the realization of the right to self-determination and respect that right. Another international instrument, that is important in the Ukrainian context, is the European Convention on Human Rights .
The second set of Ukraine’s obligations can be found in the international law against discrimination. Under Article 2 of the International Convention on the Elimination of All Forms of Racial Discrimination, States Parties undertook to “prohibit and bring to an end, by all appropriate means” racial discrimination and to “take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them”. Among other things, the Convention refers to freedom of thought, conscience and religion, freedom of opinion and expression and freedom of peaceful assembly and association, as well as the right to education and right to equal participation in cultural activities . The Committee on Elimination of Racial Discrimination, that was established under the Convention, confirmed that the situation falls within its mandate, when it urged Russia “to repeal any administrative or legislative measures adopted since the State party started to exercise effective control over Crimea that have the purpose or effect of discriminating against any ethnic group or indigenous peoples” and in particular “investigate effectively the allegations of violations of human rights of the Crimean Tatars, in particular abductions, enforced disappearances, arbitrary detention and ill-treatment” .
The third set of obligations of Ukraine comes from a developing corpus of international legal norms on indigenous peoples. The International Labour Organization Convention No 169 introduced the definition of indigenous peoples as “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”. Except for general respect to the rights and freedoms of indigenous peoples and elimination of discrimination, the Convention established certain specific obligations of states towards indigenous peoples living on its territory. Most importantly, this a duty to consult through appropriate procedures and representative institutions on measures that might affect indigenous peoples, and to establish means for full development of those peoples’ own institutions and initiatives . Ukraine is a party to the ILO Convention since 1991, i.e. it accepted firm legal obligations to protect the rights of indigenous peoples.
Interestingly, Ukraine was one of the few states that abstained from voting for the UN Declaration on the Rights of Indigenous Peoples of 2007, did not take any steps to implement it or guarantee to the Crimean Tatars the broad set of rights enshrined therein . In 2014, however, recognition and support of Crimean Tatars as indigenous people of Crimea was one of the first tools used by Ukraine against occupation. On 20 March 2014, four days after the “referendum”, the Parliament of Ukraine declared its support for the 2007 Declaration and recognized Crimean Tatars as indigenous people of Crimea. Verkhovna Rada (the Parliament) recognized the Quriltai and Mejlis as bodies of Crimean Tatar self-government . On 13 May 2014, Ukraine made a formal declaration in support of the Declaraion of the Rights of Indigenous Peoples. This unilateral act demonostrated Ukraine’s international commitment to recognition and protection of rights of indigenous peoples inhabiting its territory, and was in line with similar acts of Australia, Canada, Columbia and New Zealand [9, P. 125).
The Resolution declared a strategic priority of the Parliament to introduce legislative regulation of the status of the Crimean Tatars in Ukraine and recognition of their special needs as indigenous people and post-genocidal community. Further, in 2015, the Parliament adopted a resolution on recognition of deportation of the Crimean Tatars as genocide and claiming contemporary Russian politics in Crimea to be an ethnocide (Verkhovna Rada Resolution of November 12, 2015). Mustafa Dzhemilev called this resolution “the first step towards restoration of justice” .
The Parliament was, however, less decisive in taking successor steps. It did adopt a law “On the Restoration of the Rights of Persons Deported on Ethnic Grounds” , however a comprehensive bill on the legal status of Crimean Tatars, as well as the bill outlawing denial of deportation of Crimean Tatars, were submitted, but never adopted, and the prospects of their adoption remain uncertain. The existing corpus of Ukrainian law provides for recognition of Crimean Tatars as indigenous people, and regulates some symbolic steps like commemoration of deportation or renaming certain geographical objects. This legislation is directed into the past, but Ukraine still lacks legislation that would be directed into the future. The status of the Crimean Tatars, as well as plans for Crimean Tatar autonomy remain vague. This is partially because in the conditions of occupation such laws would remain on paper, yet another possible reason is reluctance of Ukrainian authorities to secure actual rights of the Crimean Tatars and their perception not as a community that requires special attention, but merely as an instrument against the hostile power.
- International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171.
- International Covenant on Economic, Social and Cultural Rights, G.A. res. 2200A (XXI), 21 U.N.GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3.
- Convention for the Protection of Human Rights and Fundamental Freedoms. Rome, 4.XI.1950.
- International Convention on the Elimination of All Forms of Racial Discrimination, G.A. res. 2106 (XX), Annex, 20 U.N. GAOR Supp. (No. 14) at 47, U.N. Doc. A/6014 (1966), 660 U.N.T.S. 195.
- Committee on Elimination of Racial Discrimination Concluding observations on the twenty-third and twenty-fourth periodic reports of the Russian Federation, CERD/C/RUS/CO/23-24 (September 20, 2017).
- C169 – Indigenous and Tribal Peoples Convention, 1989 (No. 169).
- G.A. Res. 61/295. United Nations Declaration on the Rights of Indigenous Peoples, UN Doc. A/RES/61/295 (October 2, 2007).
- “The Verkhovna Rada of Ukraine adopted the Resolution “On Statement of the Verkhovna Rada of Ukraine re guarantees of rights of the Crimean Tatar people as a part of the State of Ukraine” (March 20, 2014). https://rada.gov.ua/en/news/News/News/89899.html.
- Babin, Borys, Grinenko, Olena, Prykhodko, Anna, “Legal Statute and Perspectives for Indigenous Peoples in Ukraine” in Indigenous, Aboriginal, Fugitive and Ethnic Groups Around the Globe, ed. Gabbay, Liat K. (IntechOpen, 2019). 121.
- Coynash, Halya. “Ukraine recognizes Crimean Tatar Deportation as Genocide”. Kharkiv Human Rights Protection Group. November 13, 2015, http://khpg.org/en/index.php?id=1447336824.
- On the Restoration of the Rights of Persons Deported on Ethnic Grounds. Law No. 1223-VII of April 17, 2014. https://www.ilo.org/dyn/natlex/natlex4.detail?p_lang=fr&p_isn=99138&p_count=1&p_classification=01.05.