(Editor’s note: This article is part of Just Security’s Symposium, International Law in the Face of Russia’s Aggression in Ukraine: The View from Lviv.)
Each large-scale armed conflict reveals certain gaps in the law, lack of law-enforcement mechanisms, and new problems that the world community should solve. Russia’s armed aggression against Ukraine since 2014 revealed a whole complex of such problems: the validity of treaties between hostile parties, crimes against the environment during the armed conflict, large-scale damage to nature (ecocide), humanitarian demining, non-compliance with international humanitarian law, the rights of civilian populations in occupied territory, international criminal responsibility, compensation for damage to civilians, restitution of cultural values, and many others. The protection of national minorities, including in occupied territories, is among the most urgent problems surfaced by this conflict.
International and municipal dimensions of the rights of national minorities are often based on different paradigms and approaches. International law is mainly based on humanitarian interests, and municipal law on political ones. That explains the relatively late formation of the system of protection of the rights of national minorities both at the international and national levels.
The situation now in Ukraine’s occupied regions is dire – with some national minorities under threat of extinction, serious curtailment of religious freedoms, lack of recognition of linguistic rights, accusations of terrorism, and loss of cultural heritage, among other challenges. In Russian-controlled territories there is no actual data on the population size of national minorities, or migration of persons belonging to national minorities, and therefore their needs. International law should recognize and adapt to the realities faced by national minorities during armed conflict.
International dimensions of the Rights of National Minorities
Ethnic conflicts are the most complex and ambiguous, as they include sensitive issues of religion, language, traditions, and more. Most states had problems with national minorities, but politically ignored them for a long time. In fact, the state with its sovereignty, political and other interests in the classical interstate law absorbed individuals and their groups.
After the Second World War, international society reached a breakthrough in the protection of national minorities: international law, forged in global condemnation and horror over the Holocaust and aimed at preventing another mass ethnic cleansing like the genocide that the Nazis committed. But the framework that emerged had a blind spot: The ideology of the UN Charter and other universal international legal acts mainly referred to national, ethnic, linguistic, religious, and other minorities in the context of non-discrimination. These systems emphasized the equality of all people, desiring not to distinguish among them on grounds of ethnicity. The UN Charter envisions human rights guaranteed to all, regardless of ethnicity. This is understandable. In short, because of the events of World War II with its ethnic destruction, h the international human rights framework aimed to treat all people equally. However, this did not eliminate the need to protect those rights that derive from a person’s ethnicity. In fact, only toward the end of the 20th century did international law directly protect national minorities.
The next evolution in international law occurred for similar reasons. Like after the two world wars of the 20th century, the collapse of the USSR and Yugoslavia resulted in mass ethnic conflicts, intensifying focus on harassment of and atrocities against national minorities. With the collapse of territorially large empires (as always), large groups of people of other nationalities were formed within the territory of the newly formed states. That is, each of the newly formed states contained (some or many) national minorities.
This has led to the need for appropriate legal regulation to protect national minorities. The Council of Europe’s Framework Convention for the Protection of National Minorities of 1995 (FCNM) is the first and only multilateral treaty on the issue to date. At the universal level, no relevant multilateral treaty on the protection of national minorities has been adopted. Prior to the adoption of the FCNM, there was in fact only one provision of international law on the issue, article 27 of the International Covenant on Civil and Political Rights (ICCPR) aimed at protecting national minorities (“In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language”). In 1992, the UN General Assembly adopted The Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. However, it was often criticized for its formality and for its provisions being too general and declarative in nature.
In the absence of a normative definition of “national minority,” and due to legal lacunas, the rules for protection of national minorities in international law fall into the following categories: national (ethnic) minority, linguistic minority, religious minority, and indigenous people.
The Permanent Court of International Justice and then the International Court of Justice have established that the existence of national minorities is a matter of fact, not law. Therefore, the existence of national minorities and their rights spring not from a state legislature, but from the facts of the lives of the peoples at issue.
The question of whether these rights are individual or collective is extremely important in the context of the protection of national minorities. According to some researchers on this issue (Patrick Thornberry, for example), Article 27 of the ICCPR is of a hybrid nature and lays down rights of national minorities in both collective and individual terms.
In drafting the FCNM, the representative of the United Kingdom, Monroe, suggested that these rights should be considered in an individual sense, namely: instead of the words “national minority,” to use the term “persons belonging to national minority.” This phrasing clearly established the individual nature of the rights of national minorities, while also aligning with the state vision of national minorities. This was explained by several arguments: first, the minority is not a normatively defined concept; second, it does not have international legal personality, and third, it pursued the goal of an expanding (individualized) approach. (Not also the use of “individuals” and not “citizens,” which also expands the list of persons who fall under protection. Before the opening of borders within the EU, this was extremely important for the protection of the rights of Roma and other nomadic peoples.)
The European Court of Human Rights has rarely addressed the issue of the rights of national minorities. However, decisions directly related to the rights of national minorities have recently become more frequent. Examples include the judgments in the cases of “Ciubotaru v. Moldova” (27.04.2010), “Molla Sali v. Greece” (18.06.2020), and “Tashev v. Northern Macedonia” (16.05.2919), among others. These cases rely mainly on Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the right to respect for private and family life) and Article 14 (the prohibition of discrimination). It is likely that this this issue will have more rulings in the practice of the ECtHR.
Municipal dimensions of the Protection of National Minorities
Even now, states and the general public tend to perceive the rights of national minorities as “cultural rights,” such as the right to one’s language, research and study of one’s culture and history, creation of artistic groups, national cultural, and art centers, and the like. However, this narrow approach extremely simplifies the question. The rights of national minorities include the full range of human rights, and are closely linked to the issues of property rights, freedom of movement, social and economic rights, and more. Reference to international legal standards in this area helps to understand the scope of these rights appropriately.
On the other hand, states and governments often associate the rights of national minorities with the right to self-determination. Purely political considerations are also possible here, such as opposing the right to self-determination against the principle of territorial integrity of states. But this reproach cannot stand up to international law. The FCNM aims to ensure comprehensive self-determination of national minorities. However, its article 15 affirms the value of inclusiveness, the duty of the state to involve representatives of national minorities in governing the state. The Advisory Committee of the Framework Convention considers insufficient representation by national minorities in public authorities to be a violation by the state. That is, this framework concerns itself with self-determination within the existing state.
When the of protection of national minorities arose in the second half of the 20th century, States feared separatism and treated national minorities with care, as groups that could claim secession. Therefore, they quite willingly consolidated the rights of national minorities as individual ones. This had its advantages because the protection of an individual right was more effective (including in international courts). However, a number of rights belonging to the group as a whole were lost.
The approach to the rights of national minorities and indigenous peoples as individual rights prevails in Ukrainian legislation, which has a negative impact. For instance, after the prohibition by the Russian occupants of the Mejilis of Crimean Tatar people, the protection (especially in international courts) of the collective right to a representative body of the people would be much more effective.
In international legal practice and in the legal practice of many states there is a tendency to combine approaches to the rights of national minorities both as individual and as collective. Such a combination will contribute to the effective implementation and protection of the rights of national minorities. Both approaches will have to be taken into account by Ukraine when updating domestic legislation.
Today, international law imposes mutually complementary requirements on states. The first one is support for national identity and the prohibition of assimilation. And the second one is the policy of inclusion and promotion of the effective participation of persons belonging to national minorities in all spheres of society. So, states should refrain from the policy of assimilation and promote social inclusion of national minorities into the public life.
An underlying problem is that many states do not recognize the existence of national minorities in the first instance. Even some States Parties to the Framework Convention of the Council of Europe have made reservations that they will recognize only certain national minorities or groups. The reason for this is the following approach: the state has a single political nation, which consists of all its citizens, regardless of the color of skin, religion or ethnicity. In its most idealistic framing, the approach could be viewed as an effort to avoid discrimination on the basis of ethnicity. However, states also have purely political interests at play. In addition, under this approach, national minorities do not receive support (including financial) from the state for their national, cultural, or educational needs.
The Ukrainian Perspective
The situation with the protection of national minorities (even prior to Russia’s aggression in 2014) was twofold. On one hand, Ukraine recognizes all national minorities and indigenous peoples and the need to respect their rights. This follows from the Constitution (Article 11):
“The State shall promote the consolidation and development of the Ukrainian nation, its historical consciousness, traditions, and culture, as well as development of ethnic, cultural, linguistic, and religious identity of all indigenous peoples and national minorities of Ukraine.”
Also, in 2022, Ukraine’s government adopted its special Law on National Minorities (Communities). The legislation entered into force on 1 July 2023. Before that, in 2021, the legislature adopted its Law of Ukraine “On the Indigenous Peoples.” . The legislature is now expanding on these earlier laws. On Feb. 9, 2024, the Cabinet of Ministers (the Government) of Ukraine approved the “Methodology for the Use of Minority Languages,” which defines conditions and procedures for the use of minority languages in settlements where they have historically lived and specifies areas in which they may be used. The procedure for determining the list of settlements in which national minorities (communities) of Ukraine traditionally live was been approved by the Government in April.
Also, Ukraine is a party to both basic documents of the Council of Europe on this issue – the FCNM (from 1998) and the Charter for regional and minority languages (from 2006). In this respect, Ukraine is subject to regular monitoring mechanisms of both legal instruments.
On the other hand, Ukraine previously had extremely outdated legislation in this area, making these changes overdue. The 1992 “Law on National Minorities in Ukraine” predated the state’s ascension to the FCNM, as well as the adoption of the current Constitution of Ukraine. Therefore, this Law did not provide for all the international obligations that Ukraine has undertaken in this domain. Moreover, the law could not have envisioned a situation of occupation of part of the territory of Ukraine and an armed conflict still awaiting the country some two decades in the future. And in the territories occupied by Russia, starting in 2014, there were gross violations of the rights of national minorities, indigenous peoples and religious minorities. The Constitution of Ukraine also treats the rights of national minorities as exclusively individual rights, which obviously does not correspond to modern trends.
In addition to this long-lasting legal vacuum (except for the international legal commitments noted) institutional problems should be mentioned. For some 14 years, the State Committee of Ukraine for Nationalities and Religions — and its previous iterations — dealt with these issues. The agency formed in 1996 under a different name, took various forms in between and dissolved in 2010. With its liquidation, no institution took its place for nearly a decade. Ukraine’s Ministry of Culture assumed some of the Committee’s functions, but it lacked human and financial resources for such a wide area of work. In 2019, the State Service of Ukraine for Ethnopolitics and Freedom of Conscience was established, the functions of which include the implementation of state policy in the field of interethnic relations, religion and protection of the rights of national minorities.
Present Developments
Today, Ukraine finds extremely difficult to establish the real number of persons belonging to national minorities in the country, as well as the region of their permanent settlement. On the one hand, the last all-Ukrainian population census was conducted in 2001. It has come under criticism of international human rights bodies, such as in the Fourth Opinion of the Advisory Committee of the FCNM on Ukraine adopted on 10 March 2017
“Ukrainian legislation does not allow ethnic data collection other than that collected in the framework of the population census. Given that the last census was conducted in 2001, the available data is outdated and seriously hampers the authorities’ ability to develop adequate policy towards persons belonging to national minorities. (para 21)… The Advisory Committee deeply regrets that, due to frequent elections and financial considerations, the population census originally scheduled for 2011, was postponed to 2013 and then to 2016. It is now scheduled to take place in 2020. This delay is very detrimental as accurate information on the diversity of Ukrainian society is of crucial importance to drafting a national minority policy” (para 36).
On the other hand, once Russia began its aggression against Ukraine and occupation of Crimea and certain territories of Luhansk and Donetsk regions in 2014, the conflict made it technically impossible to conduct the census because of the risks for interviewers and interviewees. The climate of intimidation on the occupied territories would cast the results of the census in doubt. In its Fifth Report to the Advisory Committee of the FCNM submitted by Ukraine on January 10, 2022 the Government stated: “it is impossible to conduct a full-fledged nationwide survey due to the temporary occupation by the Russian Federation of integral parts of Ukraine, namely the Autonomous Republic of Crimea and the city of Sevastopol as well as certain areas in Donetsk and Luhansk Regions.”
After the full-scale invasion by Russia in 2022, the mass migration of people from occupied or front-line areas started. This further complicated what already had been a nearly impossible task to establish the number of persons belonging to national minorities (due to migration abroad) and the places of permanent residence of the relevant minorities in Ukraine. It prevents proper implementation of Ukraine’s legislation on national minorities (the Law of Ukraine on National Minorities, “Methodology for the Use of Minority Languages,” Procedure for determining the list of settlements in which national minorities traditionally live, etc.).
Thus, for Ukraine, the main problem in the domain of protection of national minorities remains the fact of occupation. In the occupied territory, Russia as the occupying power is violating its obligations, provided in the Fourth Geneva convention (Convention relative to the Protection of Civilian Persons in Time of War 1949).
In a research paper titled “National minorities and indigenous peoples under occupation,” the Ombudsman’s Office of Ukraine stated:
“Currently, communication channels between Ukraine and its temporarily occupied territories are almost non-functional, which complicates the process of recording facts regarding systematic violations of human rights and freedoms by the Russian Federation. Multi-ethnic population, in particular the Kherson, Zaporizhzhia, Luhansk and Donetsk regions, are on the line of active hostilities. …it can be seen that among them there are a large number of settlements with compact residences of representatives of national minorities and indigenous peoples.”
The violation here is twofold. First, the general human rights of representatives of national minorities, regardless of their ethnicity are violated. For example, according to Research of the Ombudsman’s Office of Ukraine,
“A large number of representatives of national minorities and indigenous peoples remain in the zone of active hostilities and daily experience massive violations of human rights and freedoms – from urbicide campaigns and ‘filtration’ measures to cases of illegal abductions, torture, sexual and gender-based violence, illegal detentions, murders and show executions, politically motivated criminal prosecutions.”
Second, the specific rights of national minorities and indigenous peoples (envisaged by international law and Ukraine’s national legislation– such as religious, linguistic, cultural, and other rights) are violated. This was particularly emphasized by the International Court of Justice, considering repression against the Mejlis of the Crimean Tatar people in Crimea to be a violation of international law.
Specific Violations of National Minorities’ Rights in Occupied Areas
From the mentioned Ombudsman’s Office research we may single out just few following examples of the violation the national minorities’ rights in occupied territories:
- “The Greeks of the Azov region are under threat of extinction – the third largest ethnic group of the Donetsk region and the largest center of compact settlement of Greeks in the territory of the entire post-Soviet space;”
- “in Crimea …Crimean Tatar activists consistently receive an average of five warnings per year, usually before key Crimean Tatar and Ukrainian commemorative dates. They see these warnings as an attempt to suppress initiatives on the ground to organize gatherings or other public events;”
- “Crimean Tatar activists, as is customary, publicly advertise themselves as extremists and terrorists. Based on falsified propaganda campaigns, they are credited with belonging to the Islamist organization;”
- “the occupying administrations …resorted to introducing a campaign of systematic religious persecution in the regions under their control, where the limits of religious freedom are determined by the willingness of religious communities to cooperate with the Putin regime and/or publicly demonstrate their loyalty to him.”
- “according to the Institute of Religious Freedom (IRS), as of January 31, 2023, as a result of Russian aggression in Ukraine, at least 494 religious buildings, spiritual educational institutions and shrines were completely destroyed, damaged or looted by the Russian military;”
- “on the territory of the temporarily occupied Donetsk region, representatives of local Muslim cells are forced to submit to the Spiritual Administration of Muslims of Russia and to carry out their activities under its canonical management;”
- “among the physically destroyed, damaged and stolen objects of cultural heritage there are significant monuments of architecture, art and literature, which were created by representatives of national minorities of Ukraine;”
- “according to Crimean Tatar human rights organizations, the status of the Crimean Tatar language is purely declarative [in occupied Crimea – O.B.]. The Crimean Tatar language is only made optional in one of the last lessons of the school schedule;”
- “many facts of confiscation of premises of national and cultural societies and confiscation of their property have been recorded. Costumes of creative collectives of national minorities, without the permission of the owners, are used to spread the propaganda of Russian narratives;”
- “Russian army continues to massively destroy objects of cultural heritage of representatives of various national minorities and indigenous peoples, which are of particular importance for their identity, historical memory and preservation of identity;”
- “Unique museum exhibits were looted and taken to an unknown destination, a large array of archival materials, household items from private collections were lost forever.”
Such actions directly violate international humanitarian law, in particular the law of occupation.
Post War National Regulation
In the context of post-war regulation, the following issues should be taken into account:
(1) the lack of data as to the number of representatives of national minorities, place of their settlements, and lists of their cultural values in Ukrainian territory;
(2) the more vulnerable situation of the national minorities under occupation than the rest of population; and
(3) the need to adapt national legislation on protection of national minorities to the realities of the post-conflict needs of the peoples addressed.
Considering the problems that national minorities and indigenous peoples face as the most vulnerable groups under military occupation generally, and in Ukraine’s experience specifically, the international community should consider adopting a new international legal framework on the protection of national minorities in the event of an armed conflict. Such a framework should be mindful of the types of difficulties Ukraine now faces: extinction of some national or linguistic minorities, repressions of minority groups or activists in the occupied territory, violations of the prohibition of religious freedom, destruction of the cultural values of the national minorities, the impossibility of studying and teaching minority languages, looting of objects of ethnic cultural heritage, and more.