Oleksii Plotnikov, PhD (international judiciary)
The restoration of cultural rights of the indigenous peoples of Crimea is to become a pivotal element of Ukraine’s transitional justice strategy for the peninsula. The preservation of own culture, language, and traditions ensures the survival of the people even in conditions of exile and guarantees the avenues for national revival in the future. Therefore, cultural issues are central and must be considered as prevailing even over preservation of material connection of indigenous people with their land.
The importance of culture is recognized by the Declaration on the Rights of Indigenous Peoples, which assumes that all peoples contribute to the diversity and richness of civilizations and cultures, and that every culture is part of the common heritage of mankind. Accordingly, respect for the knowledge, culture, and traditional practices of indigenous peoples should be generally accepted, and any policy affecting indigenous peoples should take into account their national, cultural, and religious characteristics .
The Declaration points out a number of rights enjoyed by indigenous peoples in the field of culture. First and foremost, it is the right to preserve and strengthen their special cultural institutions, while fully participating in the cultural life of the state (Article 5). At the same time, indigenous peoples have the right not to be assimilated and not influenced in any way in order to destroy their culture, whilestates are obliged to provide effective mechanisms for prevention and legal protection against any actions that can undermine the integriy, identity or cultural traits of indigenous peoples of their integrity as distinct peoples, or of their cultural values or ethnic identities (Article 8).
According to the Declaration, indigenous peoples have the right to observe and restore their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature. States must provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs (Article 11).
Indigenous peoples have the right to manifest, practise, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; the right to the use and control of their ceremonial objects; and the right to the repatriation of their human remains (Article 12).
Indigenous peoples have the right to establish and control their educational systems and institutions providing education in their own languages, in a manner appropriate to their cultural methods of teaching and learning. States should in conjunction with indigenous peoples, take effective measures, in order for indigenous individuals, particularly children, including 14 those living outside their communities, to have access, when possible, to an education in their own culture and provided in their own language(Article 14).
Indigenous peoples also have the right to representation of their culture in the field of public information, including in order to combat prejudice, eradicate discrimination and develop understanding and good relations between indigenous peoples and other segments of the society. To this end, indigenous peoples have the right to create their own media in their own languages and to have access to all types of media without discrimination (Articles 15 and 16).
Finally, indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the 23 right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions (Article 31). Indigenous peoples have the right to maintain and develop contacts, relations and cooperation, including activities for spiritual, cultural, political, economic and social purposes, with their own members as well as other peoples across borders (Article 36).
Certain international practice regarding special cultural rights of indigenous peoples and respective responsibilities of states seems to emerge, which can point at the possible international custom. For example, the Inter-American Court of Human Rights in the Plan de Sanchez Massacre Case investigated the destruction of traditional Mayan indigenous symbols and values as part of an attack on their settlement. He interpreted this issue in the light of the duty of states to protect and to prevent the destruction of cultural property in armed conflicts.
In another case, the same Court analysed the expert opinion, according to which the rights of the human being can only be ensured and fully exercised if there is a recognition of the rights of the collectivity and of the community to which this person has belonged since he or she was born and of which he or she is a part, and which gives him or her all the necessary elements for a feeling of complete realization as a human being, which also means a social and cultural being. A number of nations have norms that recognize the cultural diversity of the respective national societies, the existence of indigenous peoples, the right of these peoples to maintain their cultural diversity forever, and the right to legalize their lands .
The latter conclusion is also valid for Ukraine. According to Article 11 of the Ukrainian Constitution, the state promotes the development of ethnic, linguistic, cultural and religious identity of all indigenous peoples and national minorities of Ukraine. According to Article 53 of the Principal Law, citizens belonging to national minorities are guaranteed the right to education in their mother tongue. According to Article 54, the state ensures the preservation of historical monuments and other objects of cultural value, takes measures to return to Ukraine cultural values outside its borders .
Guarantees for the preservation and development of the ethnic, cultural, linguistic and religious identity of the Crimean Tatar people as an indigenous people, as well as other national minorities of Ukraine, are mentioned in the Statement of the Verkhovna Rada of Ukraine on guarantees of the rights of the Crimean Tatar People. The same Statement mentions restrictions on the rights of all ethnic groups, including Ukrainians, Russians, Crimean Tatars, Armenians, Bulgarians, Greeks, Germans, Karaites and Crimean Tatars, as a result of the occupation of the Autonomous Republic of Crimea and Sevastopol.
Of these groups, the Crimean Tatars, Karaites and Crimean Tatars are the indigenous peoples of Crimea, who have no connection with any land other than that of Crimea, and whose cultural life is inextricably linked with the existing cultural monuments and values in Crimea. At least some of these sites are of global value to all mankind (for example, the Khan’s Palace in Bakhchysarai was considered a candidate for inclusion in the UNESCO World Heritage List until 2014). Thus, the work on protection and restoration of the cultural rights of the indigenous peoples of Crimea, as well as on compensation for previous wrongs, is a direct responsibility of Ukraine, which stems from its own Constitution and international legal obligations. Such work should become part of Ukraine’s transitional justice strategy for Crimea.
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 Українивід 28.06.1996 № 254к/96-ВР. URL: https://zakon.rada.gov.ua/laws/show/254%D0%BA/96-%D0%B2%D1%80#Text.
3. Case of Plan de Sánchez Massacre v. Guatemala. Judgment of April 29, 2004. URL: https://www.corteidh.or.cr/docs/casos/articulos/seriec_105_ing.pdf.
4. Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua. Judgment of August 31, 2001. URL: https://www.corteidh.or.cr/docs/casos/articulos/seriec_79_ing.pdf.
5. Practice Relating to Rule 40. Respect for Cultural Property. URL: https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_rul_rule40.