Volume 12 - Issue 65
/ May 2023
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DOI: https://doi.org/10.34069/AI/2023.65.05.21
How to Cite:
Kovnyi, Y., Harasymiv, T., Chornopyska, V., Bek, U., & Fitsyk, S. (2023). Practical challenges and recommendations on the status
of national minorities and indigenous peoples: a comparative analysis of the approaches of the European Union. Amazonia
Investiga, 12(65), 185-195. https://doi.org/10.34069/AI/2023.65.05.21
Practical challenges and recommendations on the status of national
minorities and indigenous peoples: a comparative analysis of the
approaches of the European Union
Retos prácticos y recomendaciones sobre el estatuto de las minorías nacionales y los
pueblos indígenas: análisis comparativo de los enfoques de la Unión Europea
Received: April 28, 2023 Accepted: June 3, 2023
Written by:
Yurii Kovnyi1
https://orcid.org/0000-0002-1230-5050
Taras Harasymiv2
https://orcid.org/0000-0002-4627-4774
Viktoriia Chornopyska3
https://orcid.org/0000-0002-3230-5971
Uliana Bek4
https://orcid.org/0000-0002-1770-4237
Sofiia Fitsyk5
https://orcid.org/0000-0002-1236-0359
Abstract
Modern models of social development
emphasize the prevalence of positive examples
of solving complex national and political
problems aimed at finding peaceful ways to
conduct dialogue and resolve existing conflicts
or misunderstandings. The purpose of the article
is to analyze the practical challenges and develop
recommendations in defining the statute of
national minorities and indigenous peoples in the
European Union. The article is based on
theoretical methods of analysis and synthesis,
comparison, structural-functional and dialectical
methods. The article analyzes the current
problems of the existence of indigenous peoples
in the EU countries, the legal rules governing the
mechanism for the realization of the rights of
national minorities. The author identifies the
main challenges that arise in the process of legal
regulation of ethnonational policy in the EU.
Among them, in particular, the author identifies
the politicization of the issue of national
1
PhD in Economics, Associate Professor of the Department of Special Pedagogy, Ivan Franko National University of Lviv, Ukraine.
2
Doctor of Juridical Science, Associate Professor of the Department of Theory of Law and Constitutionalism of the Educational and
Scientific Institute of Law, Psychology and Innovative Education of the Lviv Polytechnic National University, Lviv, Ukraine.
3
Doctor of Juridical Science, Associate Professor of the Department of Civil Law and Process of the Educational and Scientific
Institute of Law, Psychology and Innovative Education of the Lviv Polytechnic National University, Lviv, Ukraine.
4
PhD, Associate Professor of the Department of Civil Law and Process of the Educational and Scientific Institute of Law, Psychology
and Innovative Education of the Lviv Polytechnic National University, Lviv, Ukraine.
5
PhD, Associate Professor of the Department of Civil and Business Law and Procedure in Lviv University of Trade and Economics,
Lviv, Ukraine.
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minorities and the denial of their existence.
Similarly, the political factor is relevant for the
legalization of indigenous peoples, which leads
to the weak development of legal instruments. It
is proposed to use international UN documents to
formulate national legislation, to demand legal
prosecution of any manifestations of
discrimination at the public level, and to develop
a legal framework for terminological aspects of
definitions. The conclusions emphasize the
importance for the EU candidate states
(including Ukraine) to pay leading attention to
the problem of indigenous peoples and national
minorities.
Keywords: national minorities, indigenous
peoples, EU, legal regulation, challenges.
Introduction
Modern models of social development point to
the prevalence of positive examples of solving
complex problems of national policy aimed at
finding peaceful ways to conduct dialogue and
resolve existing conflicts or certain
misunderstandings. Despite some cases of open
chauvinism as a political basis for explaining the
basis of their own “superiority” (for example, the
crimes of the Russian authoritarian regime in the
occupied territories of Ukraine), the current
attention of democratic governments is aimed at
supporting the principles of ethnic diversity,
protecting the rights and freedoms of national
minorities and indigenous peoples from
assimilation, and showing respect for smaller
peoples and nations (Dudgeon, Bray & Walker,
2023). Current globalization trends have turned
to the use of legal instruments of ethnic diversity
(Kumar, 2021), which within the European
Union, for example, has resulted in the use and
popularization of the slogan “Unity in Diversity”.
On the other hand, it is equally important to study
the experience of democratic countries in the
legal regulation of coexistence with national
minorities and indigenous peoples, as this issue
is extremely relevant for local multiethnic
communities. Identifying the legal aspects of
regulation on a local basis may be useful for other
countries, especially developing countries.
Accordingly, consideration of this issue is quite
relevant for the formation of relevant research
findings and recommendations for the protection
of the rights of national minorities and
indigenous peoples, and the formation of relevant
areas of public policy, including in Ukraine.
Research Problem
The development and subsequent improvement
of the policy of protecting the rights of
indigenous peoples and national minorities is
important in the context of the current state of
globalization, forming a kind of response to the
challenges of unification of social and national
structures. Established practices of coexistence
in multinational societies in Europe demonstrate
that national minorities generally constitute an
active, important force for the establishment and
development of the economy, law, and civil
society in general. At the same time, open
disregard for national minorities and neglect of
their constitutional rights and interests is
unacceptable in the practices of the twenty-first
century (Kumar, 2021). As a result, such actions
can lead to escalation or at least strong social
tensions, the spread of public discontent, etc.
Thus, the legal aspects of the policy on national
minorities and indigenous peoples coexisting
within the borders of one country are important
aspects of modern research in the field of
jurisprudence.
Research Focus
The main areas of research proposed in this
article are to turn to the legal experience of
democratic countries (primarily European
countries). The main purpose of such an analysis
is to formulate certain generalizations and
develop recommendations that would be suitable
for streamlining legal mechanisms for
establishing coexistence with national minorities
and indigenous peoples.
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Research Aim and Research Questions
The purpose of the article is to analyze the
practical challenges and formulate certain
recommendations regarding the status of national
minorities and indigenous peoples based on a
comparison of the approaches of the European
Union.
To achieve this goal, the following issues will
need to be considered:
1. Analysis of the legal situation of indigenous
peoples in the EU and challenges related to
this issue.
2. Analysis of the legal status of national
minorities in the EU and challenges related
to this issue.
Theoretical Framework or Literature Review
Contemporary scholars have studied various
aspects of the functioning of the policy on
national minorities and indigenous peoples.
Mostly, this problem is characterized within
narrow territorial frameworks. Unfortunately,
there are not many comprehensive studies on the
evolution of the status of national minorities and
indigenous peoples. Móré (2016) described the
key aspects of the status of national minorities in
Hungary through the prism of legal discourse.
The author also addressed the problem of
parliamentary representation of national
minorities in Hungary. Korhecz (2022) also
studied similar issues. Thus, in multinational
states with a large number of representatives of
national, ethnic, and linguistic minorities with
their own identity and culture, the principle of
democracy requires that these groups have their
representatives in the parliaments of the states.
However, in many multiethnic states today, the
national majority sometimes makes great efforts
to minimize the representation of such ethnic
groups in modern governing bodies.
Accordingly, Korhecz (2022) compared the
policies of Serbia and Hungary on the legislative
regulation of the functioning of national ethnic
groups in parliaments. Nipp (2015)
characterized the main problems related to the
legislative regulation of the rights and freedoms
of national minorities. Marko (2009) provides a
detailed overview of important legal mechanisms
to ensure, support, or guarantee minority
representation in elected bodies. According to
Drzewicki (2010), the previous lack of important
and extensive research on the main legal issues
concerning the status of national minorities is the
result of the normative deficit of certain minority
rights norms in international law after the end of
World War II. At the same time, some documents
influenced the formation of key standards on
national minority rights. In particular, the
following documents are important:
1. Copenhagen Document of the CSCE (1990)
2. UN General Assembly Declaration on the
Rights of Persons Belonging to National or
Ethnic, Religious, and Linguistic Minorities
(1992)
3. Council of Europe Framework Convention
for the Protection of National Minorities -
FCNM (1995)
Verstichel (2010) argues that after the war in
Bosnia and Herzegovina, which ended with the
signing of the General Framework Agreement
(better known as the Dayton Agreement), a
complex institution for regulating ethnonational
principles in the post-war country was formed. In
particular, the Upper House (otherwise known as
the House of Peoples) is composed of the
following delegates: five from each of the three
ethnic groups: Serbs, Croats, and Bosnians. At
the same time, the parliamentary assembly is
declared to promote the “vital interests” of
Bosnians, Croats, or Serbs. According to
Verstichel (2010), “the presidency is composed
of three members - one Bosnian, one Serb and
one Croat - who rotate through the position of the
“chairman”. These are some of the important
aspects of the consociational democracy shaped
by the Dayton Agreement. However, it should be
emphasized that contemporary scholars believe
that some decisions related to ethnic or religious
aspects are debatable. Paravina (2022) studied
the peculiarities of observance of national
minority rights for Serbs living in Croatia. The
researcher focused on the analysis of language
and education policies. Sanka (2020) also
focuses on analyzing the dilemmas of language
policy in relation to national minorities.
The study by Dalimartha & Sara (2021)
demonstrates that indigenous peoples are a part
of society vulnerable to violations of
fundamental human rights. Smith (2019)
characterizes the main differences between the
concepts of indigenous people and national
minority. Stavenhagen (2015) describes the main
problems faced by national minorities in the
political and social dimensions. Vrdoljak (2018)
examined the observance of key human rights
among national minorities at the present stage.
Bochsler (2010) analyzed the basic electoral
rights and freedoms of national minorities in the
current political environment. Hagen & Jensen
(2018) emphasized the economic aspects of
interaction with national minorities in the EU.
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Methodology
The study is based on the use of theoretical
methods of scientific cognition. In particular, the
analysis method was used to organize the
structure of the article and to identify the main
problematic elements in the current interpretation
of the rights of national minorities and
indigenous peoples in the EU Member States.
The use of the synthesis method made it possible
to combine individual elements of interpretations
of the problems of ethnonational policy
regulation at the present stage. The application of
the structural-functional method made it possible
to study and compare society as an integral
system of certain united parts that are aimed at
sustainable development and require adherence
to common democratic values and mutual
respect. The use of this method also made it
possible to identify certain points in the
evolutionary development of ethnonational
policy mechanisms on the examples of some
countries. The dialectical method made it
possible to interpret the ethnonational policy as a
system that is constantly transforming in
accordance with the understanding of the
concepts of indigenous peoples and national
minorities.
An important role in this legal research is played
by the content analysis method used in the study
of modern literature and the legal framework of
EU countries.
Results
Current Trends in Legal Regulation and
Implementation of Indigenous Peoples'
Protection Policy in the EU
The general trends of democratic social
development during the second half of the
twentieth century did not do much to protect the
rights of indigenous peoples (United Nations,
1990). The researchers determine that a
fundamental stage of legal support for the rights
of indigenous peoples was the adoption of the
International Labor Organization Convention
No. 169. The Convention presented much clearer
requirements for the use of indigenous labor and
established norms of legal protection
(Lautensach, 2016). In particular, the Convention
legally enshrines the formation of collective legal
norms for indigenous peoples, the possibility of
providing certain territories for their use, and the
establishment of certain rights for indigenous
peoples, which in general had a positive impact
on the protection of their interests and society. At
the same time, the countries of the European
Union, for example, did not adopt the provisions
of this Convention because they believed that
indigenous peoples in their territories were
already well protected by national legislation.
The Federal Republic of Germany was an
exception in 2021. Although there are no
indigenous peoples within its borders, this step
was perceived as a democratic gesture of
solidarity with Latin American countries. Other
researchers believe that this renewed interest in
Convention 169 from a legal point of view as a
structural element of broader national policy in
general (Kovalchuk et al., 2021; Kumar, 2021).
In Europe, only the Netherlands and
Luxembourg have supported this Convention.
Active legal regulation of the functioning of
indigenous peoples in the international arena began
in 2007 when the UN developed and adopted an
important legal document - the Declaration on the
Rights of Indigenous Peoples (United Nations.
General Assembly, 2009). However, not all the
leading countries of the world voted for the
adoption of this somewhat fateful act (Lončar,
2016). This document, approved by the UN, in
practice declared the possibility of taking into
account trends in self-determination, opportunities
for obtaining autonomous rights and self-
government in those legal areas that would regulate
the internal life of indigenous communities within
nation-states and identifying ways to obtain funding
for their own autonomous entities (See Table 1).
Table 1.
Key provisions of the Declaration on the Rights of Indigenous Peoples
The right to self-determination
Articles: 1, 2, 3, 4, 5, 6, 8, 33, 34
The right of indigenous peoples to protect their identity through
education, language, religion, etc.
Articles: 9, 15, 23, 25, 31
The right of indigenous peoples to economic development, type of
governance
Articles: 17, 18, 19, 20, 21, 35, 36,
37
The right to protect their own health, protection of the elderly, children,
and women.
Articles: 22, 23, 24
The right to land ownership
Articles 10
Environmental Aspects of the Declaration
Articles: 26, 27, 28, 30, 32
Source: United Nations. General Assembly. (2009). Declaration on the Rights of indigenous Peoples. Allen
& Unwin.
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On the other hand, the Declaration, as a legal
document, prohibited indigenous peoples from
fighting for full independence, secession from
the country, and the formation of their own state
entities. This aspect was additionally emphasized
in the Declaration, including its legal
interpretation. All available clauses of this
document were proposed to be considered in
legal disputes as prohibiting and condemning any
activity that could lead to the complete or partial
disintegration, other manifestations of violation
of the territorial integrity of borders and
sovereignty of already established states (Manik,
Sumertha & Widodo, 2023).
Certain provisions of global decisions are also
reflected in EU norms and national legislation of
EU member states (Kugelmann, 2007). Although
the mechanisms of the Council of Europe do not
establish specific standards or other instruments
to regulate the rights of indigenous peoples, the
Declaration has a corresponding legally binding
list of standards, including the prohibition of
discriminatory actions and the right to respect in
private and family life. The European Court of
Human Rights has developed relevant case law
covering the rights and freedoms of indigenous
peoples. In addition, the observations of the
monitoring bodies of the Framework Convention
for the Protection of National Minorities and the
European Charter for Regional or Minority
Languages, which address certain issues of
indigenous rights, are relevant (Sanka, 2020).
In fact, there are not many peoples in Europe that
have a definition of indigenous. For example, in
Finland, the Sami Parliament is the main
representative body of the indigenous people of
Finland. It was founded in 1973, but its status
was strengthened by the 1995 Act and the 1999
Constitution of Finland. According to these legal
acts, the Sami, as an indigenous people, along
with the Roma and other groups, have the right
to preserve and develop their own language and
culture guaranteed by the state, and the right to
enjoy linguistic and cultural autonomy is
exclusively for the Sami (Vančo & Efremov,
2020). Other “other groups” do not have such
rights, according to Finnish law. The Sámi
Parliament cannot take legislative initiatives, but
it can initiate consideration of decisions on behalf
of the whole people in relation to any legal,
administrative, or other measures affecting the
rights and interests of the Sámi. In Sweden, the
Sami do not have the status of an indigenous
people. They are a national minority in this
country. On par with other minorities, their
language has official status in areas where the
Sami minority lives compactly. At the same time,
there is also a Sámi parliament in Sweden, which
is more focused on cultural issues (Sanka, 2020;
Sarkki et al., 2023).
There are no other officially recognized
indigenous peoples in the EU. For example, the
Basques in Spain or the Lusatian Serbs in
Germany have national minority status (Togeby,
2008). Obviously, the consequences of such
decisions are political, since in the long run,
granting autonomy could lead to separatism. For
this reason, the Serbs of Lusatia within the
federal state of Saxony have been granted
important rights to protect their identity, while
the Basques enjoy full autonomy and still seek
independence from Spain.
Thus, the rights of indigenous peoples in the EU
face challenges in several important ways (see
Table 2).
Table 2.
Practical challenges and recommendations on the status of indigenous peoples in the EU
Challenge
Features
Recommendations
Political factor The solution of the problem of indigenous
peoples is mainly entrusted to national
parliaments, which may or may not
recognize this status at their own
discretion and in the interests of the
titular nation. This creates significant
legal difficulties for the protection of
indigenous populations (e.g., Basques or
Sardinians). On the other hand, tangible
tendencies toward separatism only fuel
the concerns of politicians, as the
granting of a new status could lead to
precedents of secession in the future.
Adherence to the UN Declaration,
which allows for political consideration
of the issue based on international
documents. The affirmation of the
principle that independence cannot be
obtained based on the Declaration is an
important clarification. On this basis,
indigenous peoples will be able to
decide for themselves whether to obtain
this status or continue to pursue a
policy of self-determination. It is
important for EU countries to reduce
the politicization of this issue.
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Legal factor. The problem with defining the rights of
indigenous peoples is exacerbated by the
fact that there is a certain substitution of
concepts. The Lusatian Serbs could claim
the status of indigenous peoples within
Germany, but they do not have this status.
Obviously, the issue of terminology and
self-determination will become relevant
in the future.
The development of an appropriate
legal framework will make it possible
to clarify definitions for legal
instruments. Thus, it is possible to turn
to a peaceful resolution of possible
legal discussions or even social
movements.
The revival of interest in
the problem of indigenous
peoples (as indicated by
the example of Germany).
There is likely to be a
tendency to revisit the
issue.
The adoption of the UN Declaration in
2007 provides an opportunity for
further consideration of the issue of
indigenous peoples in national
parliaments with reference to existing
legal documents. Perhaps the next
actualization of the issue will bring
productive solutions to avoid
contradictions.
Source: authors' development
The relevance of the issue of indigenous peoples
depends on the political will of national
governments and relevant legal instruments. At
the same time, the renewed interest in this issue
among countries that do not have their own
indigenous peoples indicates support for the
general course of democratization of attitudes
toward them around the world.
Problems of the policy on national minorities
in the EU: the legal aspect
The EU member states have adopted separate
conventions and other legal documents,
including those approved by the Council of
Europe (Virtanen, 2019). For example, the
European Charter for Regional or Minority
Languages became important in 1992, and the
Framework Convention for the Protection of
National Minorities was ratified in 1995, which
also had separate provisions on indigenous
peoples. To generalize legal legislation on
minorities and ensure its universality and
maximum adaptation to the process of European
integration, Article 5 of the Convention reflects
the current trend. In this context, it emphasizes
the need to implement a legal policy that does not
prejudice the measures taken in accordance with
the general integration policy, while avoiding the
practice of assimilation of persons belonging to
national minorities. At the same time, the
implementation of the fundamental principles of
these documents depends on the norms and
peculiarities of the national legislative
framework of each participating country and
therefore depends on the political will of national
governments.
In particular, the governments of the Federal
Republic of Germany (Germany) and the states
of Saxony and Brandenburg recognize the Serbs
of Lusatia as a national minority who have no
other homeland outside of German territory.
There are significant historical traditions in the
German judicial system that guarantee the right
of Lusatians to use their mother tongue in courts
(Samorai, 2020). These traditions were
established in the late nineteenth century and
later restored in the former German Democratic
Republic, as well as adapted at the federal level
through the Constitutional Judicial Act.
Especially the two-state constitutions of Saxony
and Brandenburg reveal the legal status of Serbo-
Lusatians as citizens of the Federal Republic of
Germany and a national minority in Germany.
The constitutional organization of these federal
states guarantees compliance with the principles
of a republican, democratic, and socio-legal
system (Hudson et al., 2023). In particular, the
Constitution of Saxony guarantees the right of an
ethnic minority to use its national symbols and
flag on an equal footing with the coat of arms and
flag of the federal state. The following articles of
the Constitution are intended to enshrine the legal
equality of the Lusatians as an autochthonous
minority with the titular German ethnic group, to
regulate the mechanisms of proper protection,
and to determine the public authorities that will
exercise the rights and freedoms of the Lusatian
minority.
In the current circumstances, the experience of
the states of the former Yugoslavia, which after
the war of the 1990s went through a long stage of
restoration and normalization of ethnonational
life, including with an emphasis on the status and
rights of national minorities, is also important.
Based on a study of the legal practices of Croatia
and Slovenia (both members of the European
Union), it is clear that the proposed models of
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normalization are similar in many respects. Their
constitutions contain provisions on the
fundamental rights of national minorities, which
form the legal basis for the relevant legislative
framework that details these rights and defines
the instruments for their realization. This
includes the consolidation of fundamental rights
(the right to exist as a self-determined
community that identifies itself with a particular
ethnic group) and the provision of
“compensatory” rights (protected opportunities
to use their native language in administrative and
educational institutions, receive information, the
necessary level of cultural development, free
opportunities for interaction, economic
development, and the use of their own symbols
for self-identification) (Gevorgyan &
Baghdasaryan, 2021). “Political” rights are also
granted: access to decision-making at the
national and local levels, especially in matters
that affect one's own political and social status.
For example, in Slovenia, where Italians and
Hungarians live together, there is a concept of a
double guarantee of national minority rights.
These representatives of national minorities have
the right, along with all other citizens, to vote in
national and local elections (Kovalchuk et al.,
2021). At the same time, they also vote in the
election of managers from national communes
(communities) and receive the right to elect
representatives from their own environment to
legislative or executive bodies.
Austria has a strong democratic tradition of
protecting minority rights. In Burgenland,
Croats, Slovenes, Hungarians, Czechs, and
Slovaks have national minority status. In the
future, it is planned to grant this status to the
Roma ethnic group. The Austrian Federal Law of
July 7, 1976, on the Legal Status of National
Minorities defines them as Austrian citizens who
do not speak German as their mother tongue,
have a separate cultural identity, and have lived
in Austria with domicile (80-100 years). An
important innovation is the functioning of the
Council of Ethno-National Minorities, which has
advisory powers to the federal government
(Nettheim, 2009). Hungary also sets a minimum
period of residence on its territory for obtaining
national minority status. Hungary considers
“national or ethnic minority” all ethnic groups
that have been living in the territory of the
Republic of Hungary for at least one century,
constitute a minority among the population of the
state, hold Hungarian citizenship, differ from the
rest of the population in their language, culture,
and traditions, and show an awareness of their
unity aimed at preserving this and protecting the
interests of their historically formed
communities.
The experience of France, which has not ratified
the European Charter for Regional or Minority
Languages and the Framework Convention for
the Protection of National Minorities, is original.
According to researchers, constitutional
considerations allow the French not to accede to
international treaties and not to recognize the
existence of minorities (Chikuvadze, 2023).
The politicization of ethnicity poses a serious
challenge and destabilizing factor in the
realization of the rights of national minorities,
especially when it comes to decision-making.
The process of politicization of ethnicity emerges
when discussing the issues of compact settlement
of representatives of a particular national
minority outside their homeland. There are
several examples of such policies in Europe. First
of all, we should mention the Russian minority in
the Baltic States and the Serbian minority in the
neighboring countries of the Balkan Peninsula.
The Kremlin has repeatedly used the
consequences of Soviet policy, in particular the
large number of Russians who were resettled in
other republics during the Soviet Union.
Similarly, Serbs use the settlement of their ethnic
group in the countries of the former Yugoslavia.
Abuse of tolerant attitudes toward national
minorities has become an urgent problem for
legal response in Latvia, Lithuania, and Estonia.
The legally enshrined institution of non-citizens
provides an opportunity to overcome the political
ambitions of politicians who use their fellow
citizens to achieve their personal goals.
Therefore, there are certain challenges to the
rights of national minorities in the EU countries
related to several important aspects (See Table
3).
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Table 3.
Practical challenges and recommendations on the status of national minorities in the EU
Challenge
Features
Recommendations
Politicization. Politicization of the issue of
national minorities (typical for the
territory of states that collapsed in
the recent past and belonged to the
socialist camp).
1. The Baltic way of solving the
problem is to introduce the
institution of non-citizens, which
allows to isolate of the aggressive
minority from participation in legal
decision-making 2. Balkan way - integration of
minorities based on the concept of a
double guarantee of national
minority rights.
Bureaucratic obstacles and
constitutional interests of titular
peoples. Formation of deliberately
unworkable rules for the
legalization of a national minority.
It occurs when governments pursue
assimilation (legal and ethnic), thus
destroying the basis for the
functioning of a national minority.
Refusals to seek dialogue (overt and
covert) are destructive and lead to
social tensions. The response to this
legal challenge can probably be
primarily a public one - under
pressure from society, governments
are able to review cases of
discrimination against national
minorities. It is also relevant to refer
to international decisions,
conventions, etc. that set certain
guidelines in legal decisions
regarding national minorities.
Modern European policy “Unity in
Diversity”
Although the proposed slogan is
demonstrative, it still allows for
raising the issue of oppression of
national minorities at the
international level. Thanks to this,
this problem does not remain on the
margins of political and legal life
and requires constant updating. This
includes the search for new legal
instruments.
Source: author's development.
Accordingly, much of the solution to the rights of
national minorities depends on political will,
which generally fits into the modern credo of
“Unity in Diversity”.
Discussion
As demonstrated, the protection of the rights of
national minorities and indigenous peoples has
become an extremely important part of acquiring
the necessary political criteria to qualify for
membership and become EU member states. One
can agree with the view that the importance of
this element as the foundation of the European
integration process is simultaneously and equally
important with democratic transformation, the
rule of law, and human rights protection
(Togeby, 2008; Vrdoljak, 2018; Kumar, 2021).
European and international standards for
ensuring the rights of indigenous peoples and
national minorities are also relevant for Ukraine.
In particular, the current Association Agreement
between Ukraine and the European Union also
includes these factors. The parties that approved
it showed their commitment to close and valuable
relations based on democratic values, respect for
democratic principles, the rule of law, human
rights, and fundamental freedoms (Kovalchuk et
al., 2021). In particular, it was also about the
rights of persons belonging to national
minorities, non-discrimination, respect for
national feelings and traditions, etc.
A problem that leads to destabilization in the
realization of the rights of national minorities is
the politicization of ethnicity (Paravina, 2022).
This means that the issue of compact settlement
of representatives of a particular national
minority outside their homeland becomes a
subject of political disagreement (Korhecz,
2022). European examples of such politicization
have several manifestations. In particular, it
concerns the Russian minority in the Baltic States
and the Serbian minority in the neighboring
countries of the Balkan Peninsula. The Kremlin
has repeatedly used the consequences of Soviet
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policy, in particular, the large number of
Russians who were resettled in other republics
during the Soviet era, for political purposes.
In Ukraine, the problem of national minorities
and indigenous peoples was addressed at the
legislative level quite late. Although the
definition of “indigenous people” appeared in the
Constitution of Ukraine in 1996, there was no
clear definition of who fell under this concept.
The reason for this situation can be identified in
the political sphere: for a long time, certain
political forces in Ukraine have been speculating
on the national question. Their focus was not so
much on the Russian part of the population as on
the pro-Russian part of the Ukrainian population,
whose sentiments were not in line with European
integration. Delays and artificial inflating of the
“national question”, the status of the Russian
language, etc. led to the deployment of full-scale
Russian aggression - the Russian authoritarian
regime used this situation to launch a full-scale
aggression against Ukraine. Only on March 20,
2014, after an illegitimate “referendum” in
Crimea, the Crimean Tatars were recognized as
an indigenous people - the Verkhovna Rada of
Ukraine adopted a resolution and officially
supported the UN “Declaration” on the Rights of
Indigenous Peoples.
However, it was only in July 2021 that the Law
of Ukraine “On Indigenous Peoples of Ukraine”
was adopted. For the first time in Ukrainian
realities, the concept of an indigenous people of
Ukraine was defined as an autochthonous ethnic
community that originated on the territory of
Ukraine, has an original language and culture,
has traditional, social, cultural, or representative
bodies, self-identifies as the indigenous
population of Ukraine, constitutes an ethnic
minority within it and does not have its own state
formations outside Ukraine (which separates
them from national minorities). According to this
act, the Crimean Tatars, Karaites, and
Krymchaks are recognized as indigenous peoples
of Ukraine (the latter ethnic groups, according to
the 2001 census, amounted to only 1,196 and 406
people, respectively). Thanks to the adopted law,
these indigenous peoples were able to self-
determine, as no other country protects them. The
law also recognizes the representative bodies of
indigenous peoples, which require the
appropriate permission of the Cabinet of
Ministers of Ukraine to perform their functions.
Against the background of European and
international practice, this decision is quite
reasonable and relevant. However, there are
several problems in its implementation.
First of all, the decisions were made too late,
when the Crimean peninsula was occupied by
Russians under the guise of the results of a
“referendum.” It is unrealistic to implement the
resolutions of the Ukrainian government in such
circumstances, at least as of today.
The possible formation of national autonomy of
the Crimean Tatars is also a cause for concern
among researchers, as it could become a
precedent for other, primarily national
minorities. Although the analyzed law clearly
refers to indigenous peoples, other
interpretations may appear in practice. This
indicates the continuing politicization of the
national issue in Ukraine and weak definitions in
legislative acts that allow for two interpretations
even in cases where terms seem to be clearly
defined. European experience allows us to
reconsider and normalize the issue (Lautensach,
2016). It is about gradually abandoning the
politicization of the issue and using the
legislative experience of other countries in
dealing with indigenous peoples and national
minorities. Therefore, the solution to the national
issue in European countries is entirely applied in
nature.
Conclusions
Therefore, the issue of practical challenges and
recommendations regarding the status of national
minorities and indigenous peoples (based on a
comparative analysis of the approaches of the EU
states) is relevant for modern legal science. In
particular, the author identifies the following
challenges to the functioning of legal definitions
of indigenous peoples: political and legal. To
overcome them, it is recommended to:
1. Strict adherence to the UN “Declaration”,
which can become a legal basis for defining
the legal rights of indigenous peoples.
Currently, only the rights of the Sami people
(in Finland) are defined in the EU. At the
same time, the assertion of the principle of
the impossibility of gaining independence
based on the Declaration may become the
basis for further development of legal
regulation of indigenous peoples (one
example is Ukraine, which is oriented
towards EU accession and has granted
indigenous status to Crimean ethnic groups).
2. A political and legal solution to this issue
will allow for the development of an
appropriate legal framework to overcome
conflict or controversial cases. The interest
of the leading European countries
(Germany, the Netherlands, Luxembourg) in
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this issue indicates their interest in this legal
process and the existence of political
solidarity with unrecognized indigenous
peoples.
Among the current legal challenges to the
existence of national minorities. national
minorities are the following: the use of national
minorities in political interests, ignoring the
existence of national minorities on their territory.
To overcome them, it is proposed to:
1. Use of the Baltic approach (introduction of
the institute of non-citizens) or appeal to the
Balkan experience (double guarantee of
national minority rights).
2. Intensification of public reaction to
discrimination and development of
appropriate legal mechanisms based on
international law, national legislation, and
general trends towards democratization of
public life in the EU.
At the same time, the experience of countries in
implementing specific measures and regulating
the rights of national minorities and indigenous
peoples will require additional research in terms
of developing the necessary terminology. In
particular, this is relevant for countries seeking to
join the EU and harmonize their legislation
(including Ukraine).
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