His Excellency

Mr Hennady UDOVENKO

Minister for Foreign Affairs of Ukraine

Mykhaylivska Sor. 1

252018 KYIV

Republic of Ukraine

The Hague

14 February 1997

Reference :

No. 108/97/L

Dear Mr Minister,

On 25 November 1996 the Minister of Justice, Mr Serhiy Holovaty, sent me a letter asking my advice regarding the Draft Concept of the National Policy of Ukraine in Relation to Indigenous Peoples. I have now studied this document, while I have at the same time made a further analysis of some problems regarding the Crimean Tatars who, as you know, consider themselves as indigenous peoples. On the basis of these studies, I should like to submit to you a number of recommendations which follow below. It would be greatly appreciated by me if you would bring these also to the attention of your colleague Mr Holovaty.

Regarding the concept of indigenous peoples, I have noted that Article 11 of the Ukrainian Constitution as adopted by the Verkhovna Rada does recognise the existence of indigenous peoples in Ukraine. Taking this into account, the question arises whether there are international instruments which would oblige Ukraine to take specific legislative steps to protect the interest of, or to grant specific rights to, indigenous peoples. The conclusion I have reached is that, though international experts have prepared a draft UN Declaration on the Rights of Indigenous Peoples, the draft has so far not been accepted by states and is, indeed, only the basis of discussions by a working group of the Commission on Human Rights. There are two ILO Conventions (No. 107 and No. 169) which refer i.a. to indigenous peoples, but Ukraine is a party to neither.

At the same time, however, it is generally assumed that the rights of persons belonging to national minorities as laid down in various international instruments also accrue to indigenous peoples.

Article 11 of the Constitution of Ukraine lays down some important principles regarding both indigenous peoples and national minorities by stating that the state will assist in the development of their ethnic, cultural, linguistic and religious identity. Of immediate relevance is also Article 6 of the Law of Ukraine on National Minorities, which guarantees all national minorities the right to "national-cultural autonomy". Persons belonging to national minorities have the right to be taught in their language and to create national educational and cultural institutions.

When referring to international and Ukrainian legal instruments regarding national minorities which are applicable to indigenous peoples, I do not intend to suggest that no distinction can be made between national minorities and indigenous peoples. An important difference is, in my view, that, in contrast to a national minority, an indigenous people does not have a kin-state.

I have understood that, in studying the problem of the legal status of indigenous peoples in Ukraine, your Government is also analysing the way some Nordic countries have dealt with this problem. When studying the Nordic legislation myself, I was struck by the essential role allotted to the formalisation of a process of participation and consultation. I would recommend to your Government to follow the same approach. In the case of the Crimean Tatars, I suggest that their representatives in the Crimean Rada will at the same time play the role of a consultative body which will be enabled to present its view on Ukrainian draft legislation of relevance for Tatars, and which could at the same time function as an organ of dialogue with the Ukrainian Government regarding the economic, social and cultural problems confronting the Crimean Tatar returnees. Representatives of other indigenous peoples might be invited to join the consultepresentatives in the Crimean Rada will at the same time play the role of a consultative body which will be enabled to present its view on Ukrainian draft legislation of relevance for Tatars, and which could at the same time function as an organ of dialogue with the Ukrainian Government regarding the economic, social and cultural problems confronting the Crimean Tatar returnees. Representatives of other indigenous peoples might be invited to join the consultry large number of Tatars who do not have citizenship or whose citizenship has not been certified. Regarding the group of those whose citizenship has not been certified, I recall that there is probably a considerable number of Tatars who are entitled to have the citizenship of Ukraine but are not aware of this. I am referring to the Tatars who have acquired citizenship of Ukraine on the basis of Article 2(1) of the Law on Citizenship of Ukraine of 8 October 1991 which stipulated that all persons residing in Ukraine on the day the Law came into force (13 November 1991) who were not citizens of another state and who did not refuse Ukrainian citizenship automatically became Ukrainian citizens. (As all Crimean Tatars were Soviet citizens at the time of Ukraine's independence but the Soviet-Union disappeared as a subject of international law the question of citizenship of another state was not relevant for them). The only problem to be solved for this category of Crimean Tatars is that those amongst them who are not aware of their citizenship will have to be certified as such.

Regarding the category of Tatars who returned from Central Asia after 13 November 1991 and who have not yet acquired citizenship of Ukraine, Article 17 of the 1991 Law on Citizenship requires non-possession of foreign citizenship and permanent residency in Ukraine during the preceding 5 years. The draft of the new Law on Citizenship presently under consideration in the Supreme Rada of Ukraine contains similar provisions. In addition, the draft Law, in Article 12.2, dispenses with the requirement of 5 years residence in Ukraine for persons (as well as members of their families: children, grandchildren, spouses) who previously lived in the territory of Ukraine but were living outside Ukraine at the time of Ukraine's Declaration of Independence (24 August 1991), as long as they are not citizens of a foreign country. If the provisions in the new draft Law I just quoted will be adopted, they would in my view cover all Crimean Tatars who are not yet citizens of Ukraine and whose cases cannot be solved by the certification process I mentioned above.

Though I have understanding for the wish of the Government of Ukraine to avoid double citizenship and I also believe that the formula chosen in the draft Law to counteract this risk could be applied without causing too many problems for those Crimean Tatars who might wish to return from Central Asia in future, it nevertheless does cause considerable difficulties for Tatars still without Ukrainian citizenship who have already arrived in Crimea. Equally, I do believe that it is feasible to work out a formula for those who have already returned which, on the one hand, can be effective in preventing double citizenship, but which on the other, would provide an easier solution for the Tatars.

Under the proposed legislation, the Crimean Tatars have to provide proof of cancellation of previous citizenship in order to acquire the citizenship of Ukraine. As both the formalities regarding the confirmation by Central Asian states of their renunciation of citizenship and regarding the application for Ukrainian citizenship may often take a year or even more, the persons concerned will be stateless during this interim period, with all the inconveniences this may cause. The procedure of renunciation also involves costs which are prohibitive for many applicants.

In this context I have also to recall the Declaration adopted by consensus by the CIS Migration Conference in May 1996, which was organized under the joint auspices of UNHCR, IOM and OSCE. Ukraine was one of the participating states. Paragraph 15© of this Declaration commits states "to adopt appropriate measures at the national and international levels to prevent and to reduce statelessness, particularly concerning persons residing permanently on their territory". Even though this is not the intention, the practical effect of the relevant draft legislation is that the number of stateless persons will be increased, at any rate for a period of time.

The formula I would like to suggest for all Crimean Tatars without Ukrainian citrizenship who will have arrived in Crimea prior to the coming into force of the new Law on Citizenship is that they will all be granted the citizenship of Ukraine provided that they submit an application requesting this accompanied by a formal declaration of renuncation of the citizenship of the country from which they had returned to Crimea. This system would have several advantages. In this way there would be no period of statelessness, and the long waiting period between the moment of application and the moment of acquiring citizenship could be considerably shortened. In order to counteract the risk of cheating, a provision could be included in the law that false information about previous citizenship will lead to the loss of Ukrainian citizenship.

In order to respect the interests of the states from which Crimean Tatars falling under such an arrangement have returned, a list of those who have renounced their citizenship could be dispatched to the Government concerned. In this connection, I also note that no state can forbid a person to change his citizenship. Article 15(2) of the Universal Declaration of Human Rights states explicitly that "no one shall be...denied the right to change his nationality". It would even be contrary to the letter and the spirit of the Universal Declaration to make the acquisition of Ukrainian citizenship dependent upon the determination of another state to agree to and to facilitate renunciation.

I now turn to a quite different problem of immediate interest for the Tatars and other formerly deported ethnic groups which in my view requires a solution. It regards the representation of the Tatars in the Parliament of the ARC. In the present Parliament, the Crimean Tatars have been allotted 14 seats, and the other formerly deported ethnic groups 1 seat, under a quota system valid only for the present legislative period. I would recommend that, especially taking into account many specific problems which returnees have to face, a formula will be developed which will ensure the Crimean Tatars a number of seats in the future Crimean Parliament broadly commensurate to their percentage of the total population of the ARC. A parallel arrangement would have to be developed for the group of other formerly deported ethnic groups.

In this context, I recall that the electoral system of Ukraine, when applied for the elections of the Crimean parliament, should in all likelihood lead to no representation at all for the Crimean Tatars and other formerly deported ethnic groups. This problem could be solved either by continuing the present quota-arrangement or by changing legislation in such a way, taking into account the specific asects of the situation in Crimea, that a proportional election system would be applied for the elections for the parliament of the ARC. In this connection, I would also like to draw your attention to the fact that the requirement for political parties to be registered in at least 13 Oblasts of Ukraine created very difficult problems for the Crimean Tatar community (and for a number of Crimean political parties as well).

Finally, I permit myself to make some comments on the question of the status of the languages in the ARC. I share the view that Article 10 of the Constitution of Ukraine, which states that the state language of Ukraine is Ukrainian, has to be reflected in the Constitution of the ARC. As far as the question of a reference in the Constituion of the ARC to the Russian and Tatar languages is concerned, I have noted that Article 10 of the Constituion of Ukraine states that "the free development, use and protection of the Russian language and the languages of other minorities is guaranteed in Ukraine", while Article 3 of the Ukrainian Law on Languages lays down the principle that in places of compact settlement of other nationalities their national language can be used alongside the Ukrainian language. Taking this into account, I would recommend that the following formula for the reference to other languages than the state language will be included in the Constitution of the ARC:

These are the recommendations I wanted to submit to you, Mr Minister. I look forward with great interest to your reply.

Yours sincerely,

Max van der Stoel

OSCE High Commissioner on National Minorities