17 травня 2017 р. 03:00
"The status of national autonomy and indigenous peoples should not be a matter of political speculations", - professor from Odesa
There are over 300 million belonging to the indigenous peoples in the whole world. In Ukraine, these are represented by at least three nations: Crimean Tatars, Krymchaks, and Crimean Karaites. Not so long ago Verhovna Rada has registered a bill "About the status of Crimean Tatar peoples in Ukraine", which we have already written about. In addition, the society has started to discuss, if Ukraine should create a national autonomy, should Ukraine be more active at implementing the UN standards, or even if it is the right time to speak of this problem. A day before the anniversary of Crimean nations deportation of May 1944, IzbirKom has met the professor, who is also an international lawyer – Boris Babin
There are over 300 million belonging to the indigenous peoples in the whole world. In Ukraine, these are represented by at least three nations: Crimean Tatars, Krymchaks, and Crimean Karaites. Not so long ago Verhovna Rada has registered a bill "About the status of Crimean Tatar peoples in Ukraine", which we have already written about. In addition, the society has started to discuss, if Ukraine should create a national autonomy, should Ukraine be more active at implementing the UN standards, or even if it is the right time to speak of this problem. A day before the anniversary of Crimean nations deportation of May 1944, IzbirKom has met the professor, who is also an international lawyer – Boris Babin.
Mr. Boris, not so long ago the last UN Permanent Forum on Indigenous Issues has finished, and in it also spoke the Crimean Tatar delegation. Tell me, how important is it to be involved in such things? Is it possible to actually achieve anything in this way?
UN Permanent Forum on Indigenous Issues is a very important measure, as this is one of the three constantly active mechanisms of UN, which consider indigenous peoples, specifically made to encourage the engagement of the representatives of said peoples. This annual Forum exists for many years, and Crimean Tatar, Krymchak, and Crimean Karaites representatives have often participated in it to criticise, as of before 2014, the Ukrainian government, which has not embodied the rights of the indigenous peoples, and after 2014 – the Crimean occupational government. Obviously, Russian government has automatically become the main threat for these rights. These measures are very important, as there exists, firstly, a powerful lobby of the indigenous peoples, who live in many civilised countries. Secondly, it allows them to speak to diplomats of various countries, even those that do not have any indigenous peoples, but still support the idea of abiding with their rights, and so we should encourage any activity in this process.
There are 300-350 million who belong to indigenous peoples in the world
One thing, which I want to warn the representatives about, is that their opinion may be the opinion of certain indigenous peoples, but not of certain countries. Russian Federation has many times carefully picked a representative, who would practically express the position of Russian government, and not the peoples. So I would like to warn the Ukraine’s indigenous peoples representatives, that they should have their own thoughts and their own position, instead of just adding to the Ukrainian government delegation. Only then such position will be respected by other countries and other people.
How would you address the bill "About the status of Crimean Tatar peoples in Ukraine", which was registered on 7th of April, and written by 21 deputies of Verhovna Rada, together with the leaders of Mejlis of Crimean Tatar people – Mustafa Jemilev and Refat Chubarov?
Here we have a situation where law-making processes depend on the politics. For a long time the society had been talking of accepting the law on Crimean Tatars’ rights, and so forth. The first of such bills was written and registered in 2003. But a lot has changed since those times. Apart from the occupation, in 2007 the Declaration on the Rights of Indigenous Peoples has been accepted.
Declaration on the Rights of Indigenous Peoples
Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.
In 2014 Ukraine recognised the power of this declaration, and the law about deported persons has also been accepted, so these problems can now be tackled outside the indigenous peoples’ rights law. So, today the situation has changed in a certain way. Starting from 2014 non-government organisations and academic society has been taking measures in order to discuss the concept of the according legislative regulation. In particular, there was a very powerful "round table" in 2015, to which, apart from others, came the deputy head of UN Permanent Forum on Indigenous Issues. And then we discussed what should concept of legislative regulation of this problem be. Considering that in Ukraine there currently live Crimean Tatars, as well as small nations – Krymchaks and Crimean Karaites, who are also recognised Ukrainian government and UN as indigenous peoples. At the same time it was agreed, that a bill about the status of indigenous peoples of Ukraine must be created, in which the unique situation of the Crimean Tatar nation should be described, and that it should also describe problems of the small nations of Crimea, which are close to vanishing. This has been perceived by both non-government organisations and the academic society, the bill was in the making, and then it was finished in 2016 and presented, among other places, in Geneva, where it received positive feedback from the indigenous peoples society. We also discussed it in OSCE meetings in Warsaw, and it was made public with the assistance of OSCE. After that it was sent to the Ministry of culture by NGO’s and Verhovna Rada committees, made it through the expertise, and received positive feedback.
1. Indigenous individuals have the rights to life, physical and mental integrity, liberty and security of person.
2. Indigenous peoples have the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of genocide or any other act of violence, including forcibly removing children of the group to another group.
At the same time, another process has been going on. In 2015, influenced by the Entrusted president on rights of Crimean Tatars – Mr. Jemilev - another work group has been set up to work on the bill, and this has been managed by Arsen Szhumadilov (ex-head of Bilyaev administration – note). Unfortunately, I don’t think that Jemilev has been keeping a close eye to this process, but I must say, that Mr. Szhumadilov’s position has not been viable, and the work group has seized its existence. The main reason for stopping the work on this project was a desire to have a law on the status of just the Crimean Tatars, although it has been stated for numerous times, that even the name of such law is received negatively in the Ukraine, where there are a number of indigenous peoples, and the UN has clearly expressed its opinion, saying that a law on a single nation has some signs of racism. You must not put the name of a nation into the law text. But from the view of some Mejlis representatives, there has to be either a law like that, or no law on indigenous peoples whatsoever. Unfortunately, it seems to me that now it’s going to be the latter. The bill, which was registered in the Verhovna Rada, is the result of hard work in 2015 under the leadership of Szhumadilov. There are a couple of political experts, who are professionals at matters with the indigenous peoples, but they did not receive a single professional lawyer, not a single expert on international relationships. Hence, the result that we got is a very sad one. It does not reflect the Declaration on the Rights of Indigenous Peoples in any way. It only considers the Mejlis, elections and quotas on those. It does not guarantee the indigenous peoples their rights, even the nation which is in the name of the bill. And it is very strange, that the bill which was written by the community and indigenous representatives only has an insignificant part of their rights listed.
1. Indigenous peoples have the right to the dignity and diversity of their cultures, traditions, histories and aspirations which shall be appropriately reflected in education and public information.
2. States shall take effective measures, in consultation and cooperation with the indigenous peoples concerned, to combat prejudice and eliminate discrimination and to promote tolerance, understanding and good relations among indigenous peoples and all other segments of society.
I can only explain it by the fact, that at some point of development, Ministry of culture has been involved. Unfortunately, those responsible for this matter in the Ministry are firstly incompetent in the legal side of things, and secondly they openly embrace the assimilation side of conflict. I mean, culture – maybe, we’ll let you do your dancing, but in all other matters you’ll be a lot of usual Ukrainians. They have a right for such a position as normal people, but not as officials. Technically, this project is so imperfect, that even the first reading will be passed only under huge pressure, and it has no chance of passing the second reading anyway. There are lots of things in them, which are not compatible with Ukrainian law. For example, a list of Crimean Tatar voters (such a list was planned in article 15 of the law – note). Who and how will create this list and which lawfully determined facts can include a person in this list? This somehow resembles the racist ways of determining who doe belong to the nation and who doesn’t. If your grandmother is a Crimean Tatar – are you one as well? And what if your father is Crimean Tatar, and your mother – Uzbek? And what about a person, whose grand-grand father was a Crimean Tatar, and he wants to be one as well? These problems cannot be resolved administratively, and an attempt to do so is just discrimination, which is very close to racism. International organisation will criticise it with no mercy. And today we have an even worse situation, than before the bill’s registration.
1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.
3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.
For example, this bill does not declare the rights of the indigenous peoples on collective governing, resources, even cultural and language rights in this bill have been censored heavily, and are less than those listed in the UN declaration. The right on internal affairs is not provided, the right of self-naming is not stated, as well as the one on conservation of ethnic unity. For example, we, in our bill, have created a very simple mechanism – to apply the laws for the overseas Ukrainians to the indigenous peoples. It is a very logical thing, but their bill doesn’t have it. Like, these people are just ignored, as well as small indigenous nations.
I have often seen government officials opposing this view. They say, it is not the time to discuss the Ukraine’s indigenous nations. Especially the autonomy. Is that true?
Sure, most of our government officials still think in the Soviet way. We say one thing, and do something completely different. Take even our Ministry of foreign affairs. It is talking about the rights of Crimean Tatars, but if you look at its documents, there is no Crimean Tatar nation there. There is some sort of Crimean Tatar community. Or even just Crimean Tatars, or simply Tatars. I’m not even talking about Ministry of Education or Ministry of Culture, which only comply with some "cheburek festival" but not in any way for indigenous peoples’ rights.
On the other side, the position of Crimean Tatar community itself is concentrated in the position of its current leaders, and is not very productive. There must be a Crimean Tatar autonomy, it is unquestioned. But for it to exist there must exist certain mechanisms – the ones regulating representation of Crimean Tatars in various branches of government, ones that allow representative structures to exist, ones regulating communal public property, culture, education, ones that help with the self-governing of Crimean Tatars. Unfortunately, today the leaders think that the most important thing is to change the name. Say, we’ll change "Crimean autonomy" for "Crimean Tatar autonomy" and that will make everybody happy. No, it won’t. We have the Autonomous Republic of Crimea, we have the Ukrainian Constitution, where it is stated, we have the Constitution of the Autonomous Republic of Crimea, which cannot be changed, as there is no Verhovna Rada of Crimea, which nobody in the mainland wants to create. It is very hard to change the splitting norms of the 10th Article of Constitution. But we think, it does not need changing. In our bill it is simply stated, that ARC is a form of using the rights of Crimean indigenous peoples. That’s it. It’s a simple and real way in occupation conditions, but for some reason nobody goes for it, instead they want to go for a fantasy way – to change the Ukrainian Constitution. Ok, you’ll change a word or two, so what? It’s just propaganda, instead of real problem solving. And this propaganda is received negatively by the community, instead of just explaining, that there is this UN Declaration on indigenous peoples, and we want to protect them. And for this certain mechanisms have to be created. If it was done like that, I don’t think anybody would go against it. But now we see, that the discussion has fallen to the level of provoking disorder and strife. Unfortunately, in current situation this problem cannot be solved. Therefore the main task for NGO’s now – both Crimean Tatar, and the ones just linked to Crimea – is to should be to discuss not if the autonomy, which already exists according to the constitution, is needed, but the future autonomy, which should, firstly, reflect the rights of the indigenous peoples of Crimea, secondly – not to discriminate the other nations of Crimea, and thirdly – how it should work under occupation conditions. Then we’ll have something constructive.
The community has a certain negative attitude towards the national autonomy. Some think, that if such autonomy is given to, say, Crimean Tatars, they might wish to become a part of Turkey. Or that if it is done, we’ll have a negative example for emerging separatist views in the country. Why, do you think, that is?
Unfortunately, the reason is partly hidden in Soviet foundations, but any national country has this problem. There are very few monoethnical countries, where people are more than happy to give the rights to the indigenous nations. The politics of such a country is ethnically centristic, but it is the case in lots of other democratical countries of the world, and we are not an exception. What can we do about it? Only explaining the situation. I can’t think of any other way. But again, if things that we talked about are changed, in a good fashion, I do not think that there will be any resentment in the community. Unfortunately, instead of just doing it, we have lots of requests. Let’s first offer something to the community, and then request anything. But community is, on the contrary, pushed to the negative side of things.
The higher authorities regularly start talks about deoccupation of Crimea. Is it possible with the problems of indigenous nations left unsolved?
I’ll say it as it is, at this day and age Ukrainian government, starting with the president, have no plans on deoccupation. The real task for the government now is imitation of deoccupation process, or imitation of counteractions to the Russian occupation. We do not have a strategic goal for deoccupation, and on tactical level all we have is just reactions towards the actions of Russian occupational government, and that’s it. The fate of Crimean Tatars and other small nations is of no concern for the government. Any real steps towards deoccupation are only possible as a result of a great pressure from the community. If there is no pressure, there will be no movement. But the problem of protecting the indigenous nations is a somewhat different matter. I am sure, that sooner or later, their rights will be protected, as such is the logic of historical development of events in the world. In such conditions, it is very unwise to just forget about this problem. If Ukraine does not do anything, the following events can cause an international resentment. If the government does not do it, then the people must, by pushing the government to do anything significant. It will not have a choice.
In Odesa region there is a nation which might be considered indigenous – the Gagauz. Also, their rights for self-realisation are already determined in the neighbouring Moldova. But, on the other side, will giving this status and corresponding rights to the nations of Crimea not lead to a chain reaction in other regions of Ukraine, and will it not encourage separatism?
I think that even if we guarantee the national minorities – for example, Bulgarians in Odesa region or Hungarians in Zakarpattya – national autonomy – it will not threaten the integrity of the country. Those who speculate about this, have not seen the map. We have 10 or 15 Bulgarian villages, and in Zakarpattya – one district, but it is not the whole region. It is a matter of local autonomy. Such threats are not even worth spending time to talk about them. By the way, it shows how bad Ukraine relates to national minorities, and it is a big threat. We have to give a certain status to both indigenous peoples, and national minorities, it is not our right, but our duty to do so.
Declaration on the Rights of Indigenous Peoples does not contain a clear definition of "indigenous peoples". Various experts define it as follows:
Indigenous peoples are those, who lived on their land before the arrival of resettled people from other regions; or are the descendants of those, who populated a certain country or geographical region, when people of other cultural or ethnic background started resettling there, and such resettlement was made by the means of conquering, occupation, colonization, etc.
Initiators of the indigenous peoples movement were native Americans, who in the 1920’s have sent a delegation to the League of Nations to attract attention to their problems.
Considering Gagauz – soon as I know, there are only two settlements in Ukraine, in which they are the majority of the population. We do have positive duties before them. But the Gagauzian community itself does not think of itself or demand to recognise it as an indigenous nation, and it is not our job to decide these things. They have to do it themselves.
There is a similar situation with Rusyns in Zakarpattya. There is a so-called Rusyn political society, which is oriented towards Moscow. But there exists the Declaration on the Rights of Indigenous Peoples. If you think that you want to protect your rights – this is the mechanism for it, but they deliberately refuse to, as such are the politics of Russian Federation. Hence we have a paradox: there is an ethnic group, but it’s leaders do not want to use this status. We also have a "scarecrow", some say you can’t give this status to Rusyns, as "there is no such ethnic group". By the way, the authors of the bill, which was registered in Verhovna Rada, think the same way. But, gentlemen, we cannot deny the people some kind of identity. We should not forget, that in Romania, Slovakia, countries of former Yugoslavia this ethnic group is recognized. How can they not exist then? It looks barbaric from the point of view of the international community.
However, I want to point out that even though Ukraine’s attitude towards indigenous peoples is not very kind, but it is not aimed at destroying them. This means that if ethnic communities will work out the mechanisms to protect their rights, will work in this area, will collaborate with the non-government organizations, will act internationally, then there will be a result. You cannot expect that from the government.
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