Oleksii Plotnikov, PhD (international judiciary)
The development and implementation of transitional justice strategy for Crimea will not be possible without consideration of the interests of indigenous peoples: Crimean Tatars, Crimean Karaites and Krymchaks. However, in order to take these interests into account sufficiently and in a way that meets the real needs of indigenous peoples, rather than the state and society’s perceptions of them, it is imperative to ensure the representation of indigenous peoples in the state and public institutions. In other words, indigenous peoples must be given a voice and influence in all institutions that can make decisions that affect their rights and interests. It is about representation not only in the interests of transitional justice, but also about ensuring a permanent and complete representation of indigenous peoples.
The Declaration of the Rights of Indigenous Peoples , which has been repeatedly mentioned on this resource, enshrines the right of indigenous peoples to representation. In particular, in accordance with Article 18, indigenous peoples have the right to participate in decision-making on matters which can affect their rights, through representatives elected by them independently according to their own procedures, as well as the preservation and development of their own decision-making institutions. States, in turn, are obliged to consult and cooperate voluntarily with the indigenous peoples concerned through their representative institutions in order to obtain their free prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.
The Declaration also contains a set of provisions concerning the obligation of States to consult with indigenous peoples on specific issues. In particular, according to Article 27, the actions of the State with regard to lands, territories, and resources belonging to indigenous peoples must take place through an open and transparent process of interaction with indigenous peoples. Under Article 30, before using indigenous lands or territories for military activities, states must consult with the indigenous peoples concerned, in particular through their representative institutions. According to Article 32, States must consult and cooperate with indigenous peoples through their representative institutions in order to obtain the free and informed consent to the approval of any project affecting their lands, territories or other resources, especially in connection with the development, use and use of or the development of minerals or other resources.
The Declaration refers to representation not only at the state level, but also in the international arena. Indigenous peoples have the right to be represented in UN bodies and agencies, including the Permanent Forum on Indigenous Issues. States are tosupport such representation.
The right of indigenous peoples to representation is part of the broader and universally recognized right of peoples to self-determination. This is emphasized in a study conducted by the Expert Mechanism on the Rights of Indigenous Peoples of the UN General Assembly, according to which the right to self-determination is a central right of indigenous peoples, from which all other rights derive. With regard to access to justice, self-determination means the right of indigenous peoples to uphold their legal institutions by applying their laws and customs. At the same time, indigenous peoples have the right to participate fully in the life of the state. Hence, there exists a requirement for the recognition of such representative institutions .
For the purposes of this essay, we will not dwell in more detail in the analysis of the treaty and customary norms on the right of peoples and nations to self-determination. It must only be noted, that of all other indigenous rights, the right to self-determination is the most well-established and the obligations for states deriving from this right are the firmest. There are at least two forms which this right may take in the area of transitional justice. Firstly, it concerns the representation of indigenous peoples in transitional justice mechanisms, such as fact-finding commissions. Secondly, it is a matter of development of durable solutions aimed at ensuring the representation of indigenous peoples in the state and social institutions, determining the formats and scope of such representation, taking into account the rights, interests and needs of indigenous peoples, as well as available resources.
The existing situation with the representation of the indigenous peoples of Crimea in Ukraine is hardly satisfactory. On the one hand, the most numerous indigenous people of Crimea – the Crimean Tatars – have a long tradition of state life and self-government, which serves as basis for existence of national representative bodies (Kurultay and Mejlis). On the other hand, Ukraine rather tolerates the existence of these bodies than actively recognizes and interacts with them in the spirit of the Declaration on the Rights of Indigenous Peoples. In fact, currently the Ukrainian state has limited itself to a political statement on the recognition of these bodies . Attempts to legislate the order of interaction between them and the state have been fruitless. The draft law on the rights of indigenous peoples in 2014 was withdrawn , as well as two draft laws on the status of the Crimean Tatar people, prepared with the participation of Crimean Tatar parliamentary members of the Verkhovna Rada  . The new draft, which was to be submitted to the Parliament in August 2020, was never presented.
Another issue, that must not be omitted, is the fact, that only the Crimean Tatars renewed their own representative bodies on the controlled territory of Ukraine. The Crimean Karaites and the Krymchaks, who are on the verge of extinction due to their small number, are more dependent on the state to ensure the representation of their interests in issues that affect their fate. Currently, the state does not take any steps to organize such a representation. There is also little or no interest from non-governmental organizations representing Ukrainian civil society.
Taking into account the foregoing, the Ukrainian strategy of transitional justice for Crimea must ensure the representation of indigenous peoples of Crimean Tatars, Crimean Karaites and Krymchaks. The transitional justice mechanisms must interact with the representative bodies of these peoples. Furthermore, the transitional justice strategy itself should aim to develop solutions to ensure the representation of the indigenous peoples of Crimea in the Ukrainian state and society, as well as to support the proper representation of these peoples on the international level.
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