The International Law standards applicable to the Crimean Tatar situation including the land propert
of the situation of Crimean Tatars under Ukrainian Rule
1. Crimean Tatar People is a fusion of; 1) ancient and aboriginal
tribes of Crimea (Tavrs, Scythians, Sarmatians, Kimmerians) that had been populating
the peninsula as long as B. C.; 2) some alien European ethnic groups (Goths,
ancient and Medieval Greeks, Genovieses) had been settling here during the I-XIV
centuries; and 3) Turkic origin tribes of the Northern Trans-Black Sea Region
(Hunns, Bulgars, Hazars, Pechenegs, Kumans) who had mingled with a forming composition
of the people in the first century AD and comprised some mixture of emigrants
from Central Asia brought there by Hunns and later through Chingis-Khan's (Mongols)
invasion. The evidence of Indigenousness of Crimean Tatars is proofed both by
their anthropology, mainly European, and culture, organically harmonizing with
general traditions of Mediterranean and Middle East's cultural heritage.
2. “So they are (a)descent from the populations which from time immemorial inhabited certain geographical regions of Ukraine in its present state boundaries; (b) preserving cultural, linguistic, religious group identity different from the identity both of the dominant nation and national minorities in Ukraine, and desire to maintain and develop such identity; (c) existence of own historical traditions, social institutions, self-government systems and bodies; (d) non-existence of the ethnically congener national state or homeland beyond Ukraine's boundaries.
According to this definition, the Crimean Tatars are the only indigenous people in Ukraine”. (Bill Bowring, “The rights of Indigenous Peoples: international perspectives”, Migration Issues – Ukrainian Analytical – Informative Journal # 2, 1998, page 30)
3. The Crimean Tatars, whose population by the end of XVII century had constituted 1,5-2 mln. people, were a sovereign nation in the Medieval Europe. Their National State - Crimean Khanate was the Southern neighbour of Ukraine. The Crimean Khanate's territory included not only Crimean peninsula but also almost the whole Northern coastline of the Black Sea assumable expanded up to Kishenyov - Zaporozhye - Donetsk - on the North, and to Don River on the East.
4. Crimean Khanate was a sovereign state, which had been in political and military alliance with Ottoman Empire (it might remind relations between Scotland and England till XVII century). It had independently conducted both internal and foreign affairs. In particular, relations with Ukrainian Cossacks Republic - Zaporozhskaya Sich (Cossack Host) - are mentioned as an armed collisions and frontier clashes so decades – long military and trade alliances.
5. The independence of Ukraine was completely demolished since Pereyaslavskaya Rada was established in 1654, when Russian Empire taking advantage of the political and military agreement with Bogdan Khmeinitski, Hetman of Ukraine, step by step occupied and abolished Zaporozhskay Sich (Cossack Host).
6. 129 years later Crimean Tatar Khanate had lost its sovereignty. Under the Peace Treaty which was concluded in Kuchuk - Kaynardzhi, after one of the Russian - Turkish Wars, Crimean Khanate allied with Ottoman Empire, but at the same time its independence was guaranteed both by Turkey and Russia. In 1783 having occupied the territory of Crimean Khanate, the Russian Empire broke off the Treaty and declared Crimea to be a part of the Russian Empire. Thus, Russian annexation of the Crimea was realized.
7. Prior to the Russian annexation, Crimean Tatar people had already existed as an ethnic and political identity with its linguistic peculiarities, specific life style and social structure based on the centuries - old cultural and political institutions of its ancestors.
8. Repression and annihilation of some sections of Tatars' population, partial displacements and deportations, expropriation of the land and property and other forms of the colonial oppressions resulted in the fact that by 1921 the population of the Crimean Tatars residing on their homeland had decreased to 150 thousand turning the people into minority (25 % of total Crimean population). At that moment about 50 % of whole population constituted Russian colonists and 25% - Germans, Greeks, Checks, Estonians, Poles, Bulgarians, etc. brought here by the Tsar's government from the countries of the West Europe. Along with it, the Crimean Tatars residing outside of the Crimean peninsula were a subject to genocide. Those, who survived, moved to the present–day Romania and Turkey. As a result, by the beginning of the 20th century the Crimean Tatar population might be found only on the Crimean peninsula.
9. After the collapse of the Tsar regime in February, 1917, the National Crimean Tatar Congress (Kurultay) was convened. The Crimean Tatar leadership made an attempt to restore national statehood through declaring People’s Democratic Republic of Crimea. In 1918 by the invasion from the base of Russian Black Sea Fleet in Sevastopol, which had been controlled by the Bolsheviks of Russia, almost all leaders of the national movement were killed, and one more time Crimean Tatar people underwent mass terror.
10. During the Civil War in Russia there were different regimes, including German and Vrangel troops’ occupations, in Crimea. In 1921 Communists completely won the Civil War. Taking into account sustained resistance of the underground national – liberal movement, Soviet authorities tried to compromise with Crimean Tatar People, strongly intending to restore its national statehood. On October 18, 1921 the Council of People Commissars of Russia had adopted Decree about establishment of the Soviet Socialistic Republic of Crimea. Crimean Tatar and Russian languages were declared to be State languages in the Republic. Thus, the Crimean Tatar National Autonomy, within the Soviet Federative Socialistic Republic of Russia, later the USSR, was legalised.
11. Nevertheless, the Central Soviet Government was adamant to annihilate Crimean Tatar People totally. As a prologue to the intention the Crimea had been forcibly settled with Russian settlers brought in from the different oblasts (regions) of Russia and the leadership of the Autonomous Soviet Socialistic Republic of Crimea, being accused of anti-soviet propaganda and nationalism, had been severely murdered for several times.
12. Another available reason for the ethnic cleansing of Crimea was committed during the World War II. After German troops were mainly defeated on the territory of Crimea by Soviet Army, a secret Decree titled “About Crimea Tatars” was adopted by USSR State Committee of Defence on May 11, 1944. Crimean Tatars were accused of collaboration with Nazi troops and sentenced to en masse deportation to the distant sites of Russia and Middle Asia. On May 18, 1944 the whole people was exiled within 24 hours by military units of the USSR. As the male population was recruited for military service in the Soviet Army it was mainly kids, women and old persons who had suffered from the deportation. The exile of 1944, committed by Soviet Government, had separated the indigenous people from their historical motherland for more than 50 years. Moreover, 46% of the Crimean Tatar people died during the first years of the deportation. From 1944 till 1956, all of the those who had pulled through, were detained in special confinement settlements, where living conditions were close to those in the concentration Camps.
- That action of the Soviet Power must be regarded as a concrete implication of the Crime of Genocide in accordance with the definition contained at the p. (c) art. II of the Convention on the Prevention and Punishment of the Crime of Genocide “ Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part”. As a crime against humanity it has not a term of prescription. But it has other consequences as well. It means that Ukrainian State had got the territory of Crimea including lands real estate and other property of Crimean Tatars while they were in a situation of victims of Genocide and until now has done nothing to change the situation restoring the Human Rights of Crimean Tatars and punishing the criminals arranged Genocide against Crimean Tatars.
13. Thereupon in 1946 Soviet government, notably the Supreme Council of the USSR legally abolished the Autonomous Soviet Socialistic Republic of Crimea, which had been converted into ordinary administrative unit - Crimean Oblast (region). At the same period the Criminal Code was modified by adding a provision that escape from the places of the exile was punished with the 25 years of the hard labour.
14. In 1954 by the Decision of the Presidium of the Supreme Council of USSR the Crimean Oblast was moved out of the jurisdiction of Russian Soviet Federative Socialistic Republic and transferred to the Ukrainian Soviet Socialist Republic as its administrative unit.
15. Legal procedure was as follows. On the 5th of February, 1954 the Presidium of the Supreme Council of the Russian Soviet Federative Socialist Republic had made a decision to transfer the Crimean Oblast to Ukrainian SSR. On the 19th of February, 1954 the Presidium of the Supreme Council of the Ukrainian Soviet Socialist Republic adopted that proposal of Russia by its own Decision using the following words: "Presidium of the Supreme Council of Ukrainian SSR expresses cordial acknowledgement of thanks to the Presidium of the Supreme Council of Russian Soviet Federative Socialist Republic for this magnanimous noble act of the brotherly Russian People.
16. Ukrainian People imbued with the feeling of satisfaction and gratitude will meet the decision about the transfer of Crimea into the composition of the Ukrainian SSR as a new bright manifestation of the endless confidence and sincere love of the Russian People to Ukrainian People, a new evidence of the indissoluble brotherly friendship between Russian and Ukrainian peoples". On 19th of February, 1954 the Presidium of the Supreme Council of the USSR approved this transfer through its own Resolution.
17. In order to understand and evaluate this act it is essential to pay attention to the fact that Crimean Tatar People in this period was totally detained far away from Crimea in the concentration camps in Russia and Central Asian republics of the USSR. And this detention lasted till 1956. However, even after the abolition of the concentration camps, the Crimean Tatars were strictly prohibited to return to Crimea. Ukrainian authorities of that time played an important role in preventing the repatriation of the deportees
18. At that time Soviet authorities had actively continued its policy of resettlement of Crimea by the ethnic Russians from the inner sites of Russia. There were 370 thousand persons in Crimea after the World War II and the deportation, whereas in 1990 (by the moment of mass repatriation of Crimean Tatars to their Motherland) the population of Crimea had grown up to 2.5 mln. persons. Only from 1967 – 1987 about 1.5 mln. persons were driven to Crimea. Thus, 90% of the Crimean population are the settlers brought in here after the deportation or their children. Through out the time the Soviet Government, in particular, the top Communist party leadership, suppressed all the endeavours of Crimean Tatars to come back to Motherland. Thousands of families, trying to return to Crimea, were repeatedly evicted; thousands were accused of violation of the residence regulations and thrown into prisons or mental hospitals. Hundreds were accused of anti soviet propaganda and incarcerated for many years.
19. Since in 1954 when the Crimean peninsula was brought under Ukrainian jurisdiction Ukraine has been responsible for such a kind of violations. Despite that Ukraine was one the founders of the UN, and ratified the International Charter on Human Rights, its law-reinforcement agencies and courts were primarily involved in the post-deportation discrimination. The repression had been carried out on the base of legislation and administrative practice of the Soviet Socialistic Republic of Ukraine. The recent Crimean Tatar hearings on violation of the residence regulation had been handled in 1982-1983. The Criminal cases brought against squatting by the repatriates had been considered in courts in 1992. In 1990 – 1992 local authorities destroyed newly constructed Crimean Tatar settlements.
20. Present-day Ukraine legally declared to be a successor of the USSR and Soviet Socialist Republic of Ukraine that was particularly manifested in considering the transmission and possession of the territory of Crimea as a legally based act realized in the time of the USSR and in accordance to its legislation. At the same Ukraine has been evading responsibility for being privy to the restriction of Crimean Tatar repatriation to Motherland, as well as violations toward many persons that contradicts to its International obligations. Moreover Ukraine - as a successor of the USSR - avoids responsibility for the restoration of rights of Crimean Tatar People, brutally violated by the deportation of 1944.
21. In the period, preceding to its independence - 1990 - 1991 – Ukraine had carried out some legal measures aimed at elimination of the very possibility to restore rights of Crimean Tatar People who returned to their historical motherland.
22. In the period of Glasnost (Openness) and Perestroyka, the Soviet Government failed to apply direct repression against Crimean Tatars returning to their Motherland. By 1990 the number of Crimean Tatars, who had returned from the sites of deportation (Ural, Uzbekistan, Tadzhikistan, Kazakhstan, and Kirgizstan) to Crimea had reached 40 thousand persons. In political respect Crimean Tatars demanded the restoration of the Autonomous Socialistic Republic of Crimea as a national and territorial Autonomy of Crimean Tatar People. If all the deported Crimean Tatars could return to Crimea they would have constituted about 20% of whole population, so it would be equated to the percentage of 1921. Moreover, at first in the USSR, today in Russia there are many national autonomies of those peoples who are in the minority on their own motherland (Bashkirs, Udmurts, Komi, Hakasians and so on).
23. Thus, the claims were not ungrounded. However the Ukrainian leadership conducted the Referendum among the Russian - speaking population (January of 1991) concerning the Status of Crimea and approved its outcomes. Afterwards, some corresponding amendments were introduced to the Constitution of Ukraine, so that the Republic of Crimea was established, as a supposedly territorial Autonomy. But in fact it became the Autonomy for the Russian-speaking settlers, deliberately brought in Crimea to prevent the repatriation of Crimean Tatars. Crimean Tatars boycotted the referendum and opposed its results. However, Ukrainian Government ignored the protests, after all. By doing so the top leadership of Ukraine laid a ground for the local authorities to act against Crimean Tatars, about which the facts are given below.
24. At the end of 1998 the President and Parliament of Ukraine approved the Constitution of the Autonomous Republic of Crimea, drafted by Verkhovna Rada (the Parliament) of Autonomous Republic of Crimea without participation of Crimean Tatars and inspite of their protest campaign. Since the moment the issue of legal restoration of the Crimean Tatars' rights had appeared in question, so as any Ukrainian law concerning the Crimea has to be brought in accordance with its approved Constitution. Crimean authorities, representing the Russian-speaking majority, have earned a carte blanche for first-law and forcible assimilation of Crimean Tatar people.
25. The Law on National Minorities of Ukraine is absolutely not enough to guarantee the realization of the Human Rights of Crimean Tatar people because it define only some cultural and linguistic rights but not political, economic and social ones. On the other hand this law provides the rights of the minorities who are the majorities in any region in fact. Crimean Tatars are practically in minority in all administrative districts of their Motherland, in the smallest ones. However the Government doesn't want to consider the situation and undertake an adequate measures.
26. The legal ways for this policy now are:
• the announcement the Crimean Autonomous Republic so called territorial autonomy populated by so called Crimeans whose will constitutes the source of the legislative and administrative power in Crimea. Crimeans really means Russians –speaking settlers who occupied the territory of Crimean in absence of the Crimean Tatars and now constitute 64 % of population;
• the establishment of only two official language in Crimean Autonomous republic Ukrainian and Russian. The usage of other languages in public life is allowed only if a certain national group is in majority. However, the Government knows that Crimean Tatars practically are in minority everywhere in Crimea. Before the deportation of 1944 Crimean Tatar language was one of the State languages in Crimean Autonomous Soviet Socialist Republic (another one was Russian). But Government prevents to restore that practice;
• the establishment of the simple major system in elections, what allows the Russian majority to prevent the appearance of the winners among the Crimean Tatars candidates even in the districts where Crimean Tatars are represented in a major section of the voters. For the comparison, before the deportation of the Crimean Tatars constituted about 1/3 of Crimean Supreme Council members;
• the preservations against the amendment of Crimean Constitution which means that any measures to restore or to promote the Human Rights of Crimean Tatar People will be prevented by the Crimean regional Parliament because it will affect the interests of Russian majority in this parliament.
• Now formally Ukrainian Government has lost a possibility to do something because it is not in accordance with the Crimean Constitution, which shouldn’t be changed.
II. The duly Status of Crimean Tatars
to be recognized in accordance with Natural and International Soft Law:
Crimean Tatars as an Indigenous people and native owner of the land in Crimea
27. In order to look for the international standards which
Ukrainian Government must take into consideration for the solution of this problem
we need to pay attention to the following:
28. Crimean Tatars are not simply ethnic group or national minority, but the entire people so far as all elements of the definition are characteristic to its which were appeared during discussion of the definition by United Nation.
a) “The term people means a social entity, possessing clear identity and its own characteristics;
b) It implies a relationship with a territory, even if the people in question has been wrongfully expelled from it and artificially replaced another population (as it was directly done to Crimean Tatars – the note of editor).
c) A people should not be confused with ethnic, religious or linguistic minorities, whose existence and rights are recognized in Article 27 of International Covenant on Civil and Political Rights” (UNO Doc.: E/CN.4/Sub.2/404/Rev.1, 279).
29. UNESCO experts on the furthest search of the human rights gave one of the last and most detailed definitions of the people on February 1990, in Paris.
30. “People regarding as people, possessing the rights, in accordance with the international law, including the right of self-determination is to correspond to the definitions:
a) general historical tradition; b) racial or ethnic identity; c) cultural homogeneity; d) linguistic unity; e) general economical life.
31. The group is to consist of some number of individuals, which is not bound must be large (example, people of micro-states), but it is to be larger, than simply association of individuals within a state.
32. Group, as a whole is to have a will to be identified as a people, or who has a home consent for existence as a people, admitting, that can be the groups or members of those, who possess these characteristics, but they can not have an appropriate will to it.
33. Probably, the group is to have institutions or other means of expression its general characteristics and a will to identity”.
34. Crimean Tatars correspond to all characteristics, which were given above.
35. As a result of the Russian's Empire centuries-old aspiration by the way of repression, deportation and other violence to destroy or at least to assimilate Crimean Tatars, afterwards Soviet Union policy of genocide they have been turned into insignificant minority in their own historical, native land, but they did not become and feel themselves as a minority in juridical international meaning. Currently, only one of the characteristics is lacked to Crimean Tatar People- this is a common economical life. But, it is understandable that, after deportation and settling on a territory of some republics, and now in the hardest period of repatriation, such community was artificially demolished, and it could not be restored in a short time.
36. Currently, the legal status of the Crimean Tatars is not defined in Ukraine, and in this connection, they are officially considered, namely as "national minority", and their status is equated to diasporas of other peoples, living in Ukraine and who have their historical homeland, and often kin – state outside. Crimean Tatars have no statehood through which they would be able to promote their interests in Ukraine through the external protection and bilateral agreements because the own State of Crimean Tatars Crimean Khanate doesn't exist now and whose territory is under complete jurisdiction of Ukraine.
37. Nevertheless, the Crimean Tatar People have not only kept many customs, as spoken language, but also are restoring actively by their own efforts, without support, and usually with opposition of the local authorities, basic social and cultural institutions, including the most important of them - Kurultay of Crimean Tatar People (National Congress) and Mejlis of Crimean Tatar People (National Assembly).
38. Thus, the Crimean Tatars are classic example of the entire People on the territory of the independent state of Ukraine.
39. Present ethnic and demographic composition of Crimean population produces the situation where post migrants and settlers prevail in all areas of public life and are totally controlling local administration and regional parliament.
40. Crimean Tatars are deported people. "The formerly deported peoples - these are the peoples which in the Soviet period were deported from their historical Motherland" (UNO Doc.: CISCONF/1996/6, Appendix 2, 9). See as well the article 7, para. 1 (d), para. 2 (d) of Rome Statute of the International Criminal Court (UNO Doc.; A/CONF. 183/9).
41. Crimean Tatars are the biggest Muslim group in Ukraine. The Muftiat of Muslims of Crimea was established in 1991. More than 150 local Muslim communities are united by this umbrella. The most important problem is that authorities try to prevent the giving back to these communities the buildings which were confiscated earlier or to put forward any conditions for this restitution such as to buy the new houses for present inhabitants or owners of these buildings etc. Periodically the articles or communications of anti-Muslim character appear in news-papers. Mostly they are published in private Mass-Media however State officials don’t react to that anti-Muslim propaganda as a rule.
42. Crimean Tatars have had a long period of the existence as a sovereign nation. Tsar’s Russia destroyed their statehood but nevertheless the Crimean Autonomous Soviet Socialist Republic in 1921 - 1944 was established as a national and political autonomy of Crimean Tatar People in the framework of USSR regime. The process of the restoration of Human Rights of the Crimean Tatar People naturally expects to have the problem of legal determination and definition of the status of this people in Ukraine.
43. The transfer of the Crimean peninsula, native land of Crimean Tatars occurred when Crimean Tatar People was factually held in concentration camps. Thus the importance of this question is growing obviously. The most acceptable is the concept of Indigenous People including the Right for internal Self-Determination, which allows the Ukrainian State to preserve its territorial integrity and at the same time to promote the vital interests of Crimean Tatars. However the right of self determination of Crimean Tatar People was not an object to the Ukraine's attention, in spite of the fact that the Mejlis of Crimean Tatar People has insistently and repeatedly tried to draw attention of the President, Parliament and Government of Ukraine to the necessity of legal settlement of a state and a status related issues of Crimean Tatar People in Ukraine.
44. The Law on National Minorities of Ukraine is absolutely not enough to guarantee the realisation of the Human Rights of Crimean Tatar people because it define only some cultural and linguistic rights but not political, economic and social ones. On the other hand this law provides the rights of the minorities who are the majorities in any region in fact. Crimean Tatars are practically in minority in all administrative districts of their Motherland, in the smallest ones. However the Government doesn't want to consider the situation and undertake an adequate measures.
III. Indigenous people whose territories under the Ukrainian
Rule are subjected to illegal and violent deprivation of land rights and natural
resources Violent illegal depriving of the land and natural resources of the
Indigenous People territory under the Ukrainian Rule.
Applicable and reliable standards of the International Law
45. The Crimean Tatar People had been preserving it’s
own national State Crimean Khanate for 129 years more than Ukrainian People
whose sovereignty was undermined and eliminated by the Treaty of Pereyaslavskaya
Rada in 1654 voluntarily signed and accepted by Ukrainian Ghetman Bohdan Khmelintskiy.
So the point of view of the Ukrainian Government to treat the Crimean Tatars
as only the national minority living on the territory of Ukrainian Nation is
historically and legally unjustified and unacceptable.
46. It is known that one of the principal Human Rights is economical ones, the right to property, as well as to compensation for moral damage caused by deportation of 1944, through what Crimean Tatars were deprived their own real and personal estate: over 80 thousand houses, more than 3,4 thousand land plots were taken away from collective farmers, about 500 thousand heads of cattle, whole stock of seeds, saplings, food - stuffs, feeding and building materials. About 4 thousand tons of wheat, corn, barley, grouts and other sorts of farm produce were withdrawn from storehouses. More over, before deportation 40 thousand tons of wheat, 40 centers of tobacco, 95 thousand liters of wine, 314 centers of dried fruits, 43,2 thousand pieces of sheepskins and 554 thousand tons of wool were procured.
47. Theoretically estimated direct material damage consists of4.5 billions of $US.
48. Practically it was a deprivation of means to existence of the entire people.
49. Ukraine had got in 1954 al Crimean territory with all natural resources and has used it since that time without any kind of compensation or sharing of benefit with the Crimean Tatar People. It had got a most of the private property of the Crimean Tatars families mentioned above.
50. Only the agricultural lands corresponding to the official State Archive data constitutes 999 997 hectares.
51. So there is a situation in which the Ukrainian State is carrying out the policy which should be overviewed through the standards of articles 2, 4, 6, 8, 9, 10 of the Draft of the Declaration on the Population Transfer and Implantation of the Settlers, (UNO Doc.; E/CN.4/Sub.2/1997/23, Appendix II).
52. The situation when the entire people is denied of the right of legacy and the right to the land for the advantage of the other ethnic groups as the Russians and Ukrainians.
53. Ukrainian President, Parliament and Government deny the necessity to restore the rights of Crimean Tatar People in accordance with the international Human Rights standards (for instance see the Main Principles and Guidelines Relating the Right for the Restitution of the Victims of the Brutal Violations of the Human Rights and Humanitarian Law. (UNO Doc.: E/CN.4/Sub/2/1996/17, Appendix).
54. There are the whole range of the International instruments to be applicable to the situation:
55. p.2 art.1 of the International Covenant on Economic, Social and Cultural Rights: “All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence”;
56. p.2, art.1 of the International Covenant on Civil and Political Rights: “ All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence”.
57. As for the international Soft Law we refer to the “Indigenous peoples and their relationship to land”, Final working paper prepared by the Special Rapporteur, Mrs. Erica-Irene A. Daes (UNO Doc. E/CN.4/Sub.2/2001/21, 11 June 2001, para 145-156) where we find the next
58. Countries where such legislation does not exist should enact legislation, including special measures, to recognise, demarcate and protect the lands, territories and resources of indigenous peoples in a manner that accords legal protection, rights and status at least equal to those accorded other lands, territories and resources in the country.
59. Such legislation must recognise indigenous peoples’ traditional practices and law of land tenure, and it must be developed only with the participation and free consent of the indigenous peoples concerned.
60. Special measures regarding indigenous land and resources must not deprive indigenous peoples of legal rights with respect to land and resources that other groups and individuals in the country enjoy.
61. Within the legal context of each country, consideration must be given to the need to reform the relevant portions of the Constitution in order to assure the necessary level of legal protection for indigenous lands and resources and particularly to assure that indigenous rights to lands and resources are not subject to invasion or diminution by the Government.
62. Governments should formally renounce discriminatory legal doctrines and policies which deny human rights or limit indigenous land and resource rights. In particular, they should consider adopting corrective legislation, constitutional reforms or corrective policies, as may be appropriate, within the International Decade of the World’s Indigenous People, regarding the following:
63. The doctrines of discovery and terra nullius;
64. The doctrine that indigenous communities do not have the capacity to own land or to own land collectively;
65. The doctrine that indigenous land, title or ownership may be taken or impaired by the State or third parties without due process of law and adequate, fair and just compensation;
66. Doctrines or policies that indigenous lands must be held in trust regardless of the will of the indigenous peoples concerned;
67. Doctrines and policies that unilaterally effect an extinguishment of indigenous land rights, title or ownership;
68. Policies which exclude some indigenous peoples from the land claims processes established by the State.
69. Countries must abjure power with respect to indigenous peoples, their lands and resources that is not limited by respect for human rights and rights generally applicable in the country.
70. Rights and property protections must not be diminished or denied on the ground that title or other interest is held in common or held by an indigenous people or group rather than by an individual.
71. Governments are encouraged to consider the establishment and use of impartial mechanisms, including international mechanisms, to oversee and facilitate fair and equitable resolutions of indigenous land and resource claims and the implementation of land agreements.
72. Governments, in consultation with indigenous peoples, should establish fair procedures for reviewing, and taking corrective action in, situations in which indigenous land or resources have been taken or rights to them extinguished through past processes which are claimed or are found to be fundamentally unfair or discriminatory.
73. In consultation with indigenous peoples, States should each consider creating a permanent capital fund which will generate sufficient funds for the purpose of compensating indigenous peoples for the past taking of their lands and resources, where return of the lands and resources or provision of equivalent lands and resources is not possible.
74. Effective measures should be provided by States for implementation, amendment and enforcement of land settlements and agreements, and for dispute resolution.
75. States and intergovernmental bodies, including organs and bodies of the United Nations system should identify means for meeting the serious needs for training, education and financial and technical resources so that indigenous peoples may enter negotiation processes fully informed and technically equipped with respect to the whole spectrum of implications of land rights negotiations. Training and education should also figure prominently in agreements negotiated”.
76. Nor less important are the conclusions contained in the Final Report of the Special Rapporteur, Mrs. Erica-Irene A. Daes “Indigenous peoples’ permanent sovereignty over natural resources” (UNO Doc. E/CN.4/Sub.2/2004/30, 13 July 2004, para. 53 – 77)/ Particularly following ones:
77. Since the completion of the final working paper, international law has developed substantially concerning the legal obligations of States to recognize, demarcate and title indigenous peoples' rights to lands and associated resources. Legal standards now exist in international law that direct or guide States in determining what lands, territories, and resources belong to indigenous peoples.
78. As ? general matter, in the absence of any prior, fair and lawful disposition of the resources, indigenous peoples are the owners of the natural resources on or under their lands and territories. In the case of shared lands and territories, ? particularized inquiry is necessary to determine the extent and character of the indigenous ownership interests.
79. Though indigenous peoples' permanent sovereignty over natural resources has not been explicitly recognized in international legal instruments, this right may now be said to exist. That is, the Special Rapporteur concludes that the right exists in international law by reason of the positive recognition of ? broad range of human rights held by indigenous peoples, most notably the right to own property, the right of ownership of the lands they historically or traditionally use and occupy, the rights to self-determination and autonomy, the right to development, the right to be free from discrimination, and ? host of other human rights.
80. The right of indigenous peoples to permanent sovereignty over natural resources may be articulated as follows: it is ? collective right by virtue of which States are obligated to respect, protect, and promote the governmental and property interests of indigenous peoples (as collectivities) in their natural resources.
81. The right of permanent sovereignty over natural resources is critical to the future well-being, the alleviation of poverty, the physical and cultural survival, and the social and economic development of indigenous peoples.
82. Indigenous peoples, if deprived of the natural resources pertaining to their lands and territories, would be deprived of meaningful economic and political self-determination, self-development, and, in many situations, would be effectively deprived of their cultures and the enjoyment of other human rights by reason of extreme poverty and lack of access to their means of subsistence.
83. Laws and legal systems that arbitrarily declare that resources which once belonged to indigenous peoples are now the property of the State are discriminatory against the indigenous peoples, whose ownership of the resources predates the State, and are thus contrary to international law.
84. State laws and policies that arbitrarily deny or limit indigenous peoples' interests in the natural resources pertaining to their lands appear to be vestiges of colonialism that ought to be abandoned.
85. States' powers to take resources for public purposes (with compensation) must be exercised, if at all, in ? manner that fully respects and protects all the human rights of indigenous peoples. In the generality of situations, this would appear to mean that States may not take indigenous resources, even with fair compensation, because to do so could destroy the future existence of the indigenous culture and society and possibly deprive it of its means of subsistence.
86. Laws and policies affecting natural resources pertaining to indigenous lands and territories are varied and complex, reflecting the various circumstances and situations in each State and the indigenous peoples living within it. Accordingly, achieving respect for indigenous peoples' permanent sovereignty over natural resources will require ? wide range of possible measures appropriate to the particular needs and circumstances of indigenous peoples and States in many highly diverse situations.
87. New mechanisms and measures are needed at the international level, at least on an interim basis, to assist States in their efforts and to encourage, monitor, and examine their progress in implementing indigenous peoples' permanent sovereignty over natural resources.
88. Conditions of grossly unequal bargaining power can result in unjust transactions between indigenous peoples and others and may result in exploitation of resources in ? manner very harmful to the indigenous people concerned. Accordingly, mechanisms and measures at the international level are particularly needed to assure that oppressive, fraudulent, and other unjust arrangements are avoided, consistent with the freedom of indigenous peoples to manage and develop their own resources.
89. In consultation with indigenous peoples, States must amend their laws and constitutions and take all necessary legislative and administrative measures to assure that indigenous peoples enjoy ownership of and benefits from the natural resources on or under or otherwise pertaining to the lands they historically occupy and use.
90. As concern has been expressed about the use of the term "sovereignty", the Special Rapporteur suggests that in the development of these laws and measures parties should concern themselves less with what the right might be named, and more with whether the language employed fully protects the rights of indigenous peoples over their natural resources.
91. States must also recognize the authority of indigenous peoples to manage, conserve, and develop their resources according to their own institutions and laws.
92. In situations where indigenous peoples, for valid legal reasons, do not own or control the natural resources pertaining to all or ? part of their lands or territories, the indigenous peoples concerned must nevertheless share in the benefits from the development or use of these resources without any discrimination and must be fairly compensated for any damage that may result from development or use of the resources.
93. Consistent with the findings and recommendations of the World Bank's independent Extractive Industries Review, multilateral development banks should take ? clear position on upholding and supporting the human rights of indigenous peoples in relation to the extractive industry sector and should abstain from supporting extractive industry projects that affect indigenous peoples without prior recognition of and effective guarantees for indigenous peoples' rights to own, control, and manage their lands, territories, and resources.
94. In addition, States should take ?ll necessary domestic and international measures to carry out the recommendations and consider the conclusions and guiding principles previously articulated in the Special Rapporteur's final working paper on indigenous peoples and their relationship to land.
IV. Crimean Tatars as a corporation of the individuals of the
certain ethnic belonging.
Violent illegal depriving of the individuals (the former citizens of the State-predecessor and actual citizens of the State successor) of the land and other property as a result of the refusal for remedies on the basis of the same ethnic belonging.
95. Since there are no legal measures, providing the rights
of the deported peoples and individuals, moral and property damage caused by
deportation has been very complex issue as in legal, methodological so in methodical
senses. There is also no restitution mechanism for the right to illegally confiscated
property, as well as to compensation for damage. However, below listed Legislation
of Ukraine concerning the right to property, entitles one, whose real and personal
estate was illegally alienated, to ask for restitution:
- The Constitution of Ukraine
- Civil Code of Ukraine
- Civil Judicial Code
- Household Code
- The Law of Ukraine on Property
- The Law of Ukraine on Leasing of the State - owned Enterprises and Organizations' Property.
96. These and other legal acts can be used as a base for drafting and adopting legislation, providing implementation and restoration the right to moral and property damage caused by deportation. However Ukrainian Government does not do it.
97. In 1944, the Crimea was not under jurisdiction of Ukraine and a deportation was not the result of decision of Ukrainian Government. However, beginning from 1954 all lands, property and houses belonged to the Crimean Tatars till the deportation, were used by Ukraine. Ten thousands of the houses used as a habitation for settlers. Economic base, equipment, plantations of collective farms and enterprises, which Crimean Tatars had working in and which were established by Crimean Tatars had become a foundation for enterprises, which worked in national economy of Ukraine. Thus, Ukraine had received the definite part of national product, incomes and goods, as a result of their exploitation of the lands and properties, which were illegally taken from Crimean Tatar People.
98. The significant part of rural and urban population of the Crimea, who arrived to peninsula after 1944, still are living in the houses, which were taken from Crimean Tatar owners.
99. This situation raising, of course, a question of responsibility, restitution and compensation, in accordance with approaches were worked up in-theory and a practice of international law.
100. Before, the complete privatization of state and municipal property take place in the Crimea, Crimean Tatars are to get the means of subsistence in nature which belonged to them before deportation, and where this is impossible, a just compensation of full value.
101. While the consideration of the Republican budget the Supreme Rada of the Autonomous Republic of Crimea regularly refuses to allocate any money to finance the return and settlement of Crimean Tatars, in spite of the regional budget is formed by taxes, gathering from Crimean Tatars as well. Thus, the ethnic majority consisted from mew-settlers exploits the ethnic minority consisted from the Indigenous People.
102. The practice of the implementation of the law of Ukraine "On Rehabilitation of the victims of the political repression" is very significant in this respect, which is to restore the rights of them, who have suffered from Stalin's repression (1920-1930). None of Crimean Tatars who appealed to Republican Commission on the Rehabilitation of the Victims of the Political Repression received his property or house back, although theoretically the law provides it. Compensation has paid for property is not comparable with real cost.
103. Leonid Yefimenko, Deputy Minister of Justice of Ukraine, stated that Ukraine had fulfilled all its obligations concerning the return of property to persons who was previously the subject to deportation or to former victims of political repression. Compensation was paid and persons were rehabilitated. Cases where persons had received unfair judgements were currently being reconsidered (UNO press release, HR/CERD/98/14 of 10 March 1998). It was direct lie.
104. Ukrainian Government uses two approaches to avoid solving this problem. The first one is to try to keep the silence and to escape its responsibility for the restoration of the rights of the Crimean Tatars as a people. The second one is to propose those kinds of legal measures, which are not in accordance with the international obligations on Human Rights or even with the Constitution and Civil Code of Ukraine trying to minimise the responsibility of the State and to use only the decorative measures.
105. Formally for taking back of the houses and other possessions confiscated from the Crimean Tatar owners in 1944 it is not required to have the special law. The Civil Code of Ukraine has legal mechanism of the restoration of the ownership in the cases of the illegal confiscation. But the Crimean and Ukrainian courts refuse to consider these cases referring to the absence of the special law. At the same time the property and the land taken off from the Crimean Tatars are transferred to the new-settlers not only to the possession but also to the ownership through the privatisation.
106. Ukrainian Government didn't even pay attention to the fact that Special Reporters on population transfer of the Sub-Commission on the prevention and protection of Minorities Mr. Shaukat AI-Hasawne had pointed out in his report that Crimean Tatars coming back to the country of their ancestors face the occupation of their houses and land by the other immigrants that however doesn't prima facie create the material impossibility for the restitution (UNO Doc.: E/CN/4/Sub/2/1994/18, 96).
107. For example no one Ukrainian law has a provision about the real estate and land restitution, illegally taken out from Crimean Tatars despite still now there are the people who were deported personally and their land plots and houses are staying in Crimea being in a possession and official ownership of the after-deportation Russian and Ukrainian settlers. This is a situation when Ukrainian State obviously undertakes the gross and mass brutal violation of the p.p.1 of the article 1 of the international Convention on the Elimination of All Forms of Racial Discrimination acting illegally in favour of Russians, Ukrainians and other nationalities against the Crimean Tatars. Ukraininan State uses the distinction between Crimean Tatars and non-Crimean Tatars among its’ citizens. The State undertakes exclusions, restrictions in relation to the Crimean Tatars and preferences in relation to the non-Crimean Tatars in the land and property issues.
108. At the same time Ukrainian State escapes to implement the p.4 of the same article. Bu this way the State brutally violates the articles 2, 7 and particularly 8 of the Universal Declaration of Human Rights.
109. As a logic consequence of those violations the State directly violates:
- the articles 2, 3 (will be founded below) and particularly p.p. (a) because Crimean Tatars still have not the equal treatment before tribunals etc. in a case of their property rights,
- (b) because they were not reimbursed for the former genocide and arbitrary exile,
- (d) (v) so far as their right for illegally taken out property is not recognised by the State,
- (d) (vi) the right to inherit because despite there are the live descendants of the Crimean Tatars deportees their right for the inherit of land, real estate etc. is not admitted by Ukrainian State and Ukrainian law. There exists the paradoxical situation when after the death of the settler who possessed for example the house taken from Crimean tatr person or family at the deportation that house again is transferred to the children or grandchildren of the settler if even they are not Ukrainian citizens and live abroad. As a least that property could be given back to the descendants of the deportee especially when (and this is typical) the new settkler owner didn’t do any changes or improvements of the property. But it is not done.
- (e) (iii) so far as the State doesn’t give them back their houses. Other points and article are violated by the Ukrainian State also but it would take a lot of space to analyse all these violation so we selected the obvious ones.
110. ( We could mention in this context the restoration of the official status of Crimean Tatar language in Crimea, the right to political representation and participation, right to restitution confiscated cultural values as well as re - establishment of the educational and scientific institutions, to real participation in privatisation, to the recognition of the Institutions of Self - Governments of Crimean Tatars such as Kurultay and Mejlis, to the automatic and free granting of Ukrainian citizenship, to the free choice of the place of the settlement etc. But it has a provision stating the the restoration of the Rights of the deportees shouldn’t violate the rights of new-settlers that in the conditions of Crimea means that nothing will be done really due to the absolute domination of new-settlers. The Government having receipted a lot of objections and protest from CT, tries to pass this draft through Parliament aiming only to escape from the criticism and responsibility on the international scene. Practically, there exists in Crimea “institutionalized regime of systematic oppression and domination of one racial group over any other racial group or groups and committed to the intention of maintaining that regime" (See UNO Doc.: A/CONF.183/9, 7 para. 2, h)).
111. As a follow-up of previous violations the State violates the article 6 of the Convention because no kind of remedies exists for Crimean Tatars in Ukraine.
112. Although the International Convention on the Suppression and Punishment of the Crime of Apartheid was never earlier considered as applicable to the Crimean Tatar’s issue in Ukraine it was necessary to pay attention to the following provision: “the crime of apartheid” inter alia means:
113. p.(b) art. II: “deliberate imposition on a racial group or groups of living conditions calculated to cause its or their physical destruction in whole or in part”. The Ukrainian Government does it through the refusal for the restoration of the land and property rights of Crimean Tatars citizens;
114. p. (d) art. II: “any measures, including legislative measures…by the…expropriation of landed property belonging to a racial group or groups or to members thereof”. The Ukrainian State firstly had possessed the landed property of Crimean Tatars in 1954 and was using it as a State property during decades, secondly it organised the privatisation of this property in favour of Russian, Ukrainian generally said non-Crimean Tatar settlers after independence by the legislative and administrative measures.
115. Another important point is that the present Ukrainian State might not be considered as irresponsible one for violations mentioned from the view of both domestic and international law.
116. From domestic point of view in on November 14, 1989 The Supreme Council of USSR had adopted the Declaration about the recognition as illegal and criminal the repressive acts against the peoples being exposed to the violent displacement and about the ensuring of their rights. Legal consequences of that act are:
? in accordance with domestic Ukrainian law that Declaration is acting for the Ukrainian State as successor of the USSR;
? in accordance with the name and content of that Declaration all previous legal acts of USSR discriminating and annihilating the civil rights of the deportees are recognised legally insignificant.
? It means that all transfer of the land real estate and other property from the hands and ownership of deportees including all following transition of the rights from hands to hands is illegal and insignificant as well.
117. So this is a total responsibility of Ukrainian State for the continuation of the illegal using and transfer of that property to any new owners with except of the deportees and their descendants.
118. From International law point of view Ukraine:
- Was one of the founders of UNO and author of the International Human Rights instruments since the very beginning;
- Ukraine ratified all those instruments without any reservations concerning Crimean Tatars and their rights (or non recognition of their rights under those instruments);
- Ukrainian State recognises that it is one of the legal successors of USSR;
- Ukrainian State recognises that it is one of the legal successors of Ukrainian Soviet Socialist Republic;
- For that fact Ukrainian State insists that the transfer of the Crimea from Russian Soviet Socialist Republic to Ukrainian Soviet Socialist Republic in 1954 under the Soviet Rule was completely legal one and means the transfer of Crimea to the independent Ukrainian State in present time without any doubts or reservations;
- Ukrainian State obviously express its’ desire to possess Crimea and to use all advantages of that situation (jurisdiction, economic exploitation, natural resources, military purposes etc.);
- Ukrainian State since 1954 continuously used all benefits of the possession of Crimea without any differences related to the status of Ukraine (one of the Subjects of USSR or independent State);
- Ukrainian Government took an active part in the Soviet Policy of the prevention of the returning of Crimean Tatars to Crimea since 1954 till the Declaration mentioned above and even little bit period after it. It was definitely the violation of the right of the choice of the place of residence and right to come back to the Homeland. So the current problem of the lack of the remedies and restoration of the pre-deportation situation was created by the efforts of the Government of Ukraine at the period of USSR and in post-Soviet time as well.
119. If everything is like that what are the reasons to deny the responsibility of the contemporary Ukrainian State for the solution of all problems of the people who were with the gross and mass violations of the internationally established fundamental Human Rights and Freedoms acting continuously since 1944 till the nowadays?!
120. It is impossible for any State including Ukraine to enjoy with the advantages of the possession of territory, land, natural resources and property placed on that territory and simultaneously to try to escape the legal charges inherently connected with that possession.
121. References to the fact that there Communist Rule or Regime governed in USSR have no meaning from the point of view of the International Law so far as Ukraine wants to be, wants to be accepted by international community and really is State –successor of USSR and Ukrainian Soviet Socialist Republic.
122. References to the fact that Ukraine is only one of the 15 Republics-successors of the USSR mustn’t be accepted seriously in this case so far as Ukraine pretends to be and really is the only State possessing and keeping the Crimea completely under its' jurisdiction.