Oleksii Plotnikov, PhD (International Judiciary)

The restoration of justice for the Crimean Tatar people in the framework of Ukraine’s transitional justice strategy should include restoring and guaranteeing of the property rights of the indigenous people. The post-socialist countries of Eastern Europe developed an extensive practice of restoration of property rights of individuals affected by the actions of the socialist governments through restitutions and compensations, even though it appears that neither country was entirely successful in consistent implementation of such measures [see, for example, 8]. Without doubt, the question of compensation of individual property losses as a result of deportation of Crimean Tatars in 1944 deserves consideration, however, such compensations would be important for individuals, but not for Crimean Tatars as a group. As for indigenous people, their property rights are of entirely different nature.

The Declaration on the Rights of Indigenous Peoples [1] indicates in its preamble the special material problems faced by such peoples. In particular, indigenous peoples have been victims of historic injustices, which have deprived them of their lands, territories and resources, preventing them from exercising their right to development in accordance with their needs and interests. Hence the Preamble describes the need to respect and promote the inalienable rights of indigenous peoples, in particular their special rights to their lands, territories and resources. Such rights can be exercised by controlling events affecting the lands, territories and resources of indigenous peoples. Finally, the preamble emphasizes the need to demilitarize indigenous lands and territories. Such rights are the basis for the existence and development of indigenous peoples, exercised by indigenous peoples collectively through their representative bodies.

The Declaration enshrines specific substantive rights of indigenous peoples, including the right to land, territory and resources traditionally owned, occupied or otherwise used by the people. These rights derive from a special spiritual connection with traditionally owned or otherwise occupied or used lands, inland, marine and coastal waters, and other resources. This right of indigenous peoples corresponds to the obligation of States to ensure the legal recognition and protection of such lands, territories and resources with due respect for the customs, traditions and land tenure systems of the indigenous peoples concerned (Articles 25 and 26 of the Declaration).

It is the duty of the state to establish and implement, with the participation and taking into account the traditions, customs and land tenure systems of indigenous peoples, a fair, impartial, open and transparent process of recognizing and legally affirming the rights of indigenous peoples over their lands, territories and resources. However, if the indigenous people in question felt victim to violations of such rights in the past, that people becomes entitled to compensation for land, territory, and resources traditionally owned, occupied, or used by indigenous peoples that have been confiscated, alienated, or occupied, used or damaged (Articles 27 and 28 of the Declaration).

Separately, the Declaration points to the right of indigenous peoples to preserve and protect the environment and the fertility of their lands, territories and resources, which corresponds to the obligation of States to take effective measures to prevent adverse environmental impacts on such sites (Article 29 of the Declaration). In carrying out any activity on the use of indigenous lands or resources, States are obliged to consult and obtain their free informed consent through their representative institutions, which is particularly important in the exploitation of mineral deposits, the use of water or other resources. At the same time, states are obliged to provide effective mechanisms for fair compensation in connection with such activities, and to take appropriate measures to mitigate their negative effects on the environment, economy, society, culture and spiritual development of indigenous peoples (Article 32 of the Declaration). Another important aspect of property rights is the prohibition of military activity on the lands or territories of indigenous peoples, except when its implementation is justified by the presence of state interests. However, in such a case, States are obliged to consult with indigenous peoples and to seek their consent to the relevant military activities (Article 30 of the Declaration).

Finally, the provisions of Article 10 of the Declaration establish, that indigenous peoples are not to be forcibly removed from their lands or territories without their free, prior and informed consent, and without just and fair compensation, and, where possible, an option to return.

As can be seen, the Declaration, which is currently the main international instrument on the rights of indigenous peoples, determines a wide range of collective substantive rights of the people. It also clearly defines the norms on such acute issues for the Crimean Tatar people as compensation in case of forced relocation, preservation of ecology and natural resources, including water, and material rights related to the military activities of states.

For sure, the declaration is a soft law instrument. However, there are at least two considerations that suggest that the provisions of the declaration give rise to specific obligations for Ukraine.

Firstly, there are reasons to believe that the provisions of the Declaration reflect an emerging international custom. This is indicated by the practice of states inhabited by indigenous peoples. Thus, the Supreme Court of Canada has concluded that indigenous land rights are established through historical evidence of regular or exclusive use. If the state intends to operate on such lands, it must prove that the benefits to the indigenous people outweigh the harm inflicted. [9] Similar decisions have been made by the higher courts of other countries, such as Guatemala [6] and Belize [4]. The Inter-American Court of Human Rights also forms the relevant practice. Thus, in the case of the People of Saramaka v. Suriname, the ICCPR reaffirmed the State’s obligation to consult with indigenous peoples in projects that may adversely affect the people’s habitat and to provide compensation in the event of damage to people’s property. In the case of the Indigenous People of Kichwa de Saraika v. Ecuador, the same court found it illegal for Ecuador to grant concessions to oil companies that planned to produce oil on indigenous lands without even attempting to consult them.

Second, the effectiveness of indigenous peoples’ rights is reflected in Ukrainian law. Article 11 of the Constitution of Ukraine establishes that the state supports the development of indigenous peoples [2]. The Ukrainian Parliament made a statement on the guarantees of the rights of the Crimean Tatar people within the Ukrainian State, in which, in particular, it declared its support for the UN Declaration on the Rights of Indigenous Peoples [3]. From the point of view of international law, such a statement can be regarded as a unilateral declaration, which gives rise to specific international legal obligations. The implementation of these commitments is constrained, inter alia, by the insufficient development of the legal framework: the law on indigenous peoples has not yet been adopted. However, the lack of proper legislation does not invalidate the obligation as such.

The International Center for Transitional Justice in New York, the world’s most reputable research institution in the field of transitional justice, emphasizes that violations of indigenous peoples’ rights to land and natural resources are one of the most common and must be addressed by national and international mechanisms of transitional justice, such as truth and reconciliation commissions. In particular, the Center’s experts emphasize that there are international norms and practices according to which indigenous peoples should be involved in the work of the relevant transitional justice bodies when determining the prospects for restoring the rights of indigenous peoples to territory, land and natural resources [7].

Summarizing the above, Ukraine has an obligation to restore the rights of the Crimean Tatar people as the indigenous people of Crimea, concerning their historic territories, land, water, and resources. Such restoration should be part of Ukraine’s transitional justice strategy within the framework of special mechanisms for such justice for indigenous peoples. Within such mechanisms, the Ukrainian government and civil society, with the participation of the representatives of the Crimean Tatar people, should develop concrete actions to restore the collective property rights of the Crimean Tatar people as the indigenous people of Crimea, establish procedures for exercising these rights, and determine compensation for damage to indigenous peoples.

1. Декларація Організації Об’єднаних Націй про права корінних народів. Резолюція 61/295, прийнята Генеральною Асамблеєю 13 вересня 2007. URL: https://zakon.rada.gov.ua/laws/show/995_l56#Text.

2. Конституція України від 28.06.1996 № 254к/96-ВР. URL: https://zakon.rada.gov.ua/laws/show/254%D0%BA/96-%D0%B2%D1%80#Text.

3. Про Заяву Верховної Ради України щодо гарантій прав кримськотатарського народу у складі Української Держави від 20.03.2014 р. №  1140-VII. URL: https://zakon.rada.gov.ua/laws/show/1140-18#Text.

4. Cal et al. v. Attorney General Claims Nos. 171 and 172, Supreme Court of Belize, Judgment of 18 October 2007. URL: https://law.arizona.edu/sites/default/files/Brief%20to%20the%20Court%20%28Skeleton%20Argument%20of%20the%20Claimants%29.pdf.

5. Case of the Saramaka People v. Suriname. Judgment of November 28, 2007. URL: https://www.corteidh.or.cr/docs/casos/articulos/seriec_172_ing.pdf.

6. Corte de Constitutionalidad, Expediente 4785-2017. URL: https://iuristec.com.gt/images/3/3e/20170908-0000-4785-2017.pdf.

7. International Center for Transitional Justice. Strengthening Indigenous Rights through Truth Commissions: A Practitioner’s Resource. URL: https://www.ictj.org/sites/default/files/ICTJ-Truth-Seeking-Indigenous-Rights-2012-English.pdf.

8. Kozminski A.K. Restitution of Private Property: Re-Privatization in Central and Eastern Europe. Communist and Post-Communist Studies, 1997. Vol. 30, Issue 1. P. 95-106. 

9. Nation v. British Columbia, 26 June 2014, SCC 44. URL: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14246/index.do.

10. Pueblo Indígena Kichwa de Sarayaku vs. Ecuador. Sentenciade 27 de Juniode 2012 (Fondo y Reparaciones). URL: https://corteidh.or.cr/docs/casos/articulos/seriec_245_esp.pdf