230087

M.Y. Zadorin

Northen (Arctic) federal university

named after M.V. Lomonosov

Arkhangelsk, zadorin@hotmail.com

INDIGENOUS PEOPLES OF RUSSIA: COLLISION BETWEEN

DOMESTIC AND INTERNATIONAL LAW

The article suggests the brief scientific and legal analysis of Russian constitutional law on the rights of indigenous peoples. The main aim is to show the problematic issues and legal gaps inside the system of federal normative acts in comparison with international legal standards, customs and recommendations from the authoritative bodies as the UN, ILO, CERD and etc. The final provisions contain the concrete measures for the legal reform in Russia, protecting indigenous communities.

Indigenous peoples, indigenous numerically small peoples, Russia.

With the collapse of the Soviet Union, the policy of assimilation, conducting at the state level, had stopped. The Russian Federation Constitution adopted by national referendum on 12. 12. 1993 establishes in Article 69 the principle of “guarantee the rights of the indigenous numerically small peoples” according to international law [1]. Unfortunately, this rule is rather declarative because Russia is still not a party to ILO Convention 169 – one of the strongest instruments in international law. Russia has not ratified ILO Convention № 169, primarily due to the presence of a certain kind of legal conflicts with Russian law. It requires the clause concerning the concept of “indigenous people” as enshrined in the Article 1 of the Convention. Reservations must also apply to the Article 14 of the Convention. It establishes that for the numerically small peoples recognized the rights of ownership of the lands they traditionally

Казанская наука №10 2011 Юридические науки 120002

occupied. However, the acting of Russian legislation does not fix for numerically small peoples the land ownership rights to the territories of traditional nature [2]. Still, given the interest of the Russian Federation in the convention and the convention’s position as the sole current instrument on indigenous rights, it is interesting to apply its standards to the situation of the numerically small peoples. Even if the convention does not become binding for the Federation, it still constitutes a solid political tool to provide pressure for the development of indigenous rights [3]. Unfortunately, Russia for this moment had not yet signed the United Nations Declaration on the Rights of Indigenous Peoples [4].

There are several key provisions in the relevant articles of the Constitution, establishing rights and freedoms of the peoples residing in Russia: 1. equality of rights and freedoms of man and citizen, regardless of their nationality, language and culture (Article 19); 2. prohibiting any form of restrictions on the rights of citizens on ethnic grounds, as well as actions aimed at inciting ethnic hatred

(Article 26); guarantee the rights of “indigenous n umerically small peoples” and “numerically small ethnic societies” (Article 69, A rticle 72 (m)).

Article 69 leads the idea, that: “guarantee the rig hts … according to the

universally recognized principles…” If we look at the UN Declaration on

Indigenous Peoples Rights we can find those principles and basic rights: 1. Right for self-determination (3, 4 Article); 2. Right for land resources (25-29 Article); 3. Principle of free and prejudicial agreement (10, 11, 19, 28, 30, 32 Article); 4. Principle of consultations (19, 32, 38 Article); 5. Right for restitution (11, 28 Article); 6. Unity of the state (46 Article).

The last 6th principle is very important, because it means that no separatism could exist in modern society [5], only, if the state government could give full sovereignty for indigenous peoples [6]. Secession can be realized only in case in “genocide” or systematic cruel human rights violati ons against indigenous people. This is the doctrinal opinion which could be real international custom in

future. Moreover, the right for self-determination of indigenous peoples (as collective right) could be an approach for such sustainable development [7].

In any case, the Russian Federation is bound to protect indigenous rights by its signing or ratification of international minority instruments, such as the UN International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the European Charter for Regional and Minority Languages, and the Framework Convention for the Protection of National Minorities of the Council of Europe. It also should be noted that the UN Human Rights Committee has in several cases used Article 27 of the ICCPR, which refers to minority rights, to decide indigenous cases [8]. The Advisory Committee [9] of the Framework Convention has also argued that the recognition of a group as an indigenous people does not exclude that group from benefiting at the same time from the protection offered to minorities [10]. And it is important that the evolution of aboriginal rights to land has occurred against the backdrop of the broader issues of citizens’ rights to land and minority rights [11].

According to the Federal Law N 82 for the recognition of indigenous people, besides the traditional way of life requires a criterion for small numbers, which is not envisaged by international law. Peculiar to the Russian tradition of usage in quantitative criteria for determining the beneficiaries of the privileges of indigenous peoples precludes enjoyment of such rights by larger nations, such as Karel, Udmurt, Komi and Maris and etc (Federal Census 2002).

There is a list of questions, which are governed by Federal Law N 82: regulation of the individual and collective rights of indigenous numerically small peoples and their organizations; protection of the original habitat, traditional lifestyle and livelihood; establishment of the official public and territorial bodies and associations (Article 1(4)) [12].

The second important piece of legislation is the Federal Law “On General Principles of indigenous communities of the North, Siberia and the Russian Far East”. The law was created due to two main factors: 1. protect native habitats,

conservation and development of the traditional way of life, farming, fisheries and culture of persons belonging to indigenous peoples, 2. special procedure for the formation of communities – on consanguine and t erritorially-neighbor features [13].

Federal law “On territories of traditional nature o f Indigenous Peoples of the North, Siberia and the Far East of the Russian Federation” aims to preserve their traditional forms of management, protection of natural habitats, and the development of ethnic cultures.

Bringing together the opinion of two independent non-governmental experts in indigenous law, the official vice-president of the Russian Association of Indigenous Peoples of the North, Siberia and the Far East D.V. Berezhkov [14] and the Special Reporter in the UN Human Rights Council Sir James Anaya [15], the several ideas for Russian legal system reform can be made:

1.Relate all federal laws with International Declaration on the Rights of Indigenous Peoples and ILO Convention 169, as close as possible to the conditions of its international treaty.

2.Refuse of the term “numerically small peoples” a nd incorporate international terminology: “indigenous peoples”.

3.Open the question of the constitutional amendments and Land Code optimization concerning land rights, giving special priority to indigenous peoples.

4.Improve the quality of the federal statistics methods concerning the indigenous peoples.

5.Select appropriate amount from the budget of Russia for a large-scale ethnographic study of existing monitoring for indigenous communities living in the state for future legalization of their status.

6.Provide to Métis indigenous groups an opportunity to develop their culture and traditional crafts (allocate quotas, provide full support).

7.Develop a specific government body, which would deal with the indigenous population in Russia.

8.Prescribe a clear procedure for inclusion of certain persons to indigenous population, as well as the procedure of proving their belonging to them (a specific list of documents, testimony, etc.).

9.Access to the natural resources and cooperation with big oil companies within the interest of indigenous communities (as shareholders and share ownership).

10.Ethnographic impact assessment of the federal government.

11.Reliable methods of monitoring the development of industrial projects.

Literature

[1]The Constitution of the Russian Federation, 12.12.1993, Article 69.

[2]The Land Code of the Russian Federation, 25.10.2001 N 136-FZ, Article 9.

[3]Xanthaki A., “Indigenous Rights in the Russian Federation: The Case of Numerically Small Peoples of the Russian North, Siberia, and Far East”, Human Rights Quarterly, Volume 26, Number 1, February 2004. Pp. 74-105.

[4]UN Declaration on the Rights of Indigenous Peoples, 2007. URL: <http://untreaty.un.org/cod/avl/ha/ga_61-295/ga_61-295.html> (accessed: 20.09.2011).

[5]The UN Charter, 1945, Article 2 (4).

[6]International Covenant on Civil and Political Rights, 1966, Article 27.

[7]Presidential Decree of April 1, 1996 N 440 “On the Concept of Transition of the Russian Federation to sustainable development”.

[8]Human Rights Committee, Lovelace v. Canada, Communication No. 24/1977, A/36/40 (1981); Bernard Aminic, Chief of the Lubicon Lake Band v. Canada, Communication No. 167/1984, views in A/45/40 (1990); Kitok v. Sweden, Communication No. 197/1985, views in A/43/40 (1988); Ilmari Lansman et al. v. Finland, Communication No. 511/1992, A/50/40 (1994).

[9]Opinion on Denmark, 17, ACFC/INF/OP/1 (2001), Opinion on Finland, ACFC/INF/OP/1 (2001).

[10]Xanthaki, Alexandra, Ibid p.78.