Strategic guidelines of ethno-national policy of Ukraine: political and legal aspects

Chernivtsi Institute of Law of the National University “Odessa Academy of Law”

V.M. Koretsky Institute of State and Law of the National Academy of Sciences of Ukraine

The main problem of the ethno-national legislation of Ukraine is that the basic normative legal acts have not been updated and improved for many years in a row, do not meet modern realities and ethno-political challenges, and therefore cannot be an effective, modern legislative framework for meeting the interests and needs of national minorities of Ukraine as a state that has declared its intention to join the EU [5; 6]. Ukraine is one of the multi-ethnic states with a complex historical heritage and significant regional, cultural, linguistic, and ethnic differences that have failed to be resolved within ethno-national policy and that have provided a breeding ground for separatist tendencies among some national minorities. The reintegration of the annexed territories has added to the challenges facing Ukraine's ethno-ethnic policy, which includes, inter alia, solving problems of national consolidation, inter-ethnic relations, establishing ethno-cultural tolerance and a culture of ethno-national relations [7; 8]. However, the ethno-national policy of Ukraine remains unsystematic and inconsistent and does not yet provide a timely response to the challenges of the sphere of ethno-national relations, timely satisfaction of the rights and needs of ethno-communities that form a multi-ethnic Ukrainian nation, primarily because it does not rely on proper legislative support [9].

Here, it is important to highlight the main strategic guidelines for the political and legal development of the Ukrainian state and, accordingly, urgent problems that require priority solutions in the context of amendments to the legislation of Ukraine.

Changing the paradigm of Ukraine's ethno-national policy has long been emphasised by Ukrainian scholars - jurists and ethno-political scientists, as evidenced by numerous scientific papers, scientific notes for public authorities, legislative proposals, expert opinions on individual bills and initiatives, speeches at scientific forums and media [4; 9-12]. This article focuses on the analysis of Ukrainian legislation, which should ensure its harmonisation with European and international law, ethno-national policy - with the European integration vector of Ukraine.

The Law of Ukraine “On National Minorities in Ukraine” of 1992 [13] at the time of adoption was recognised as the most progressive and democratic among all similar legislative acts of the post-Soviet space. However, currently, some of its provisions do not meet European standards for the protection of national minorities, some of them are declarative (without a legislative implementation procedure cannot be used to meet the needs of ethnocultural development of national minorities, which accumulates discontent, encourages politicisation of relevant issues and lobbying for the adoption of decisions “necessary” for them).

The creation of a legislative framework for ethnic and cultural autonomy in Ukraine will contribute to the formation of an effective system for the protection of the rights of citizens belonging to national minorities in Ukraine, which will meet international standards in the field of protection of national minorities, which will mean the fulfilment of Ukraine's obligations under acts of international law ratified by the Verkhovna Rada of Ukraine, and will bring the legislation of Ukraine in the field of protection of the rights of national minorities closer to EU law. Each national minority will have the right to create its own ethno-cultural (extraterritorial) autonomy in order to resolve issues of preserving and developing ethno-cultural identity without demands and claims against the state and the state budget [17]. This will eliminate the declarative nature of the relevant legislation, increase the level of self-organisation of national minorities, allow redirecting ethno-territorial requirements into ethno-cultural ones, promote the harmonisation of ethno-national relations and interethnic harmony in Ukraine, and consolidate Ukrainian society into a political nation based on common citizenship.

Results and discussion

There is no register of national minorities in Ukraine, no normative act establishes their official list, and this Law provides a very general definition of a national minority (groups of Ukrainian citizens who are not Ukrainians by nationality and display a sense of national identity and community among themselves). Based on this definition, all 130 “nationalities” that were recorded during the All-Ukrainian Population Census 2001 can be classified as national minorities. No regulatory legal act provides an answer to the key question: which ethnic communities are considered national minorities in Ukraine. The basic Law only guarantees national minorities the protection of their languages and obliges the state to promote their ethnic, cultural, linguistic, and religious identity. According to Article 1 of the Law “On national minorities in Ukraine” [13], Ukraine supports the development of national identity and self-expression of citizens.

Formally, any ethnic group can declare itself a national minority based on a sense of national identity and community among themselves. However, the very existence of such a group does not automatically extend to it the national legislation and acts of European law on the protection of the rights of national minorities. Attempts to introduce a procedure for obtaining the status of a national minority in Ukraine (in the draft concept of the ethno-national policy of Ukraine) were not implemented. Therefore, there is an identification of the category's “nationality”, “national minority” and “indigenous people”; attempts to raise the status of one ethnic group in a separate legislative order, which means discrimination against other ethnic communities.

The Law of Ukraine “On National Minorities in Ukraine” [13] lacks specific, effective mechanisms for protecting the rights of national minorities. For example, it establishes the right to ethnocultural (national- cultural, not national-territorial!) autonomy, Article 6 states that the state guarantees all national minorities the right to national and cultural autonomy: the use and study of their native language or the study of their native language in state educational institutions or through national cultural societies, the development of national cultural traditions, the use of national symbols, the celebration of national holidays, the practice of their religion, the satisfaction of needs for literature, art, mass media, the creation of national cultural and educational institutions and any other activity that does not contradict the law. However, this article interprets national-cultural (in fact, correctly - ethno-cultural) autonomy in a very simplified way. A definition of national and cultural autonomy as an organisational structure, an institution for the protection of the rights of national minorities, disclosure of its content, and features of the formation of powers cannot be found in a normative legal act - all these provisions need to be detailed. The introduction of ethno-cultural autonomy can take place through the adoption of the Law of Ukraine “On Ethno-Cultural Autonomy in Ukraine” (the draft of which was developed by scientists of the V.M. Koretsky Institute of State and Law of National Academy of Sciences of Ukraine [14]), or a new version of the Law of Ukraine “On National Minorities in Ukraine”, or amendments to it. The uncertainty of the institution of ethno-cultural autonomy is an additional source of ethno-political threats: individual national minorities under the guise of ethno-cultural autonomy are trying to justify the need to introduce national-territorial autonomy within a unitary Ukraine, which in modern conditions is a manifestation of separatism and a violation of the territorial integrity of our state.

First, article 10 of the Constitution of Ukraine establishes guarantees for the free development, use and protection of the Russian language, according to which the special position of the Russian language among other languages of national minorities is established. This, in a sense, contradicts Article 24 of the Constitution of Ukraine, according to which “Citizens have equal constitutional rights and freedoms and are equal before the law. There shall be no privileges or restrictions based on race, colour of skin, political, religious, and other beliefs, sex, ethnic and social origin, property status, place of residence, linguistic or other characteristics. Article 1 of the Law of Ukraine “On National Minorities in Ukraine” [13] guarantees citizens equal political, social, economic and cultural rights and freedoms, supports the development of national consciousness and self-expression, regardless of their ethnic origin. Ensuring the development, use and protection of the Russian language at a higher level than the languages of other national minorities leads to their discrimination, which provokes processes of ethnic discontent and language tension and can become a source of conflicts involving the language factor [15; 18].

The existence of the term “indigenous peoples” in the Constitution of Ukraine does not mean that it is necessary to grant a legal status corresponding to and different from the status of a national minority to any of the ethnic communities living in Ukraine. It should be understood as a synonym for the concept of a national minority. The demands of the elites of some national minorities to grant the legal status of an indigenous people are groundless and are conditioned by the desire to obtain a number of socio-economic and political rights and prerogatives provided for by international law for such peoples, including the right to collective ownership of land. But in Ukraine, land and its mineral resources are objects of property rights of the Ukrainian people, and not of individual ethnic communities (Article 13 of the Constitution of Ukraine).

Ukraine has ratified the European Framework Convention for the Protection of National Minorities of 1995 and is guided by this document in matters of legal regulation of ethno-national relations. In the acts of the Council of Europe bodies, all ethnic communities of Ukraine are defined exclusively as national minorities. Also, the Venice Commission has repeatedly and at various times emphasised in its conclusions: the proposed criteria for recognising individual ethnic communities in Ukraine as indigenous peoples (number, share in the population, absence of an ethnically identical or related state outside of Ukraine, historical harassment, guidelines for the state's foreign policy and circumstances of occupation) are unfounded. Ukrainian ethnic communities do not meet the criteria of indigenous peoples recognised in international law, belong to national minorities and have no grounds to enjoy the rights of indigenous peoples. The Venice Commission unequivocally and sharply condemned Ukraine's attempts to define any special status and rights of indigenous peoples as establishing inequality and even hierarchy among national minorities, leading to discrimination against them and violation of the state's obligations to comply with international law. This body consistently suggests that Ukraine address the issues of affected, vulnerable and small national minorities not by granting special rights and preferences, but through temporary, reasonable and limited special protective and supportive measures.

Despite the fact that the Universal Declaration of Human Rights recognises a limited list of rights of the indigenous population, and other international legal acts have either a narrow and regional distribution and a soft implementation regime, or are advisory in nature and are accompanied by a number of reservations on the part of states, there is every reason to consider this problem, on the one hand, in the context of protecting the rights of these social groups, on the other - ensuring political unity and territorial integrity of states and international security. Despite the proclamation of the indigenous population as rightful peoples in the recommendation acts of international organisations, the lists of recognised or proclaimed rights of indigenous peoples and nations are different [19; 20]. Some rights coincide to a certain extent, although they can be formulated differently and have different contexts and meanings: the right to development; to preserve and develop one's culture, respect for it, including its identity; to live in decent conditions, in conditions of freedom and enjoyment of the fruits of social progress. Some rights common to both categories have different scope, in particular: self-determination; equality of peoples; international legal personality; respect for the integrity of the national territory of the people; disposal of natural resources; peace. Some of the rights of peoples are not mentioned in the context of the rights of indigenous peoples but may relate to other proclaimed rights - in particular, to popular sovereignty. Instead, there are numerous rights of indigenous peoples that are not inherent in nations but are close to the rights of minorities.

Yet indigenous peoples in international law are a social phenomenon close to the nation. This objectively causes competition and conflicts of rights between these two forms of social integration, which can significantly affect the political stability of societies and cause processes of fragmentation of states - despite the reservations of all acts on exclusively internal self-determination of indigenous peoples. Therefore, the reservation expressed in the doctrine, and later in the American Declaration on the Rights of Indigenous Peoples of 2016, regarding the restriction of the exercise of the rights of indigenous peoples is extremely important - it should not lead to discrimination or violation of the rights of the rest of the population and should comply with the legislation of states and the needs of democratic development. The concept of “people” in international law is based on “demos”, not “ethnos”, and democracy should not turn into an ethnocracy.

The historical and modern constitution of such a community of a separate society, distinct and relatively ethnically homogeneous, clearly separates it from the rest of the national society and indicates its approximation or coincidence with the concept of a people of the non-sovereign territory. In this case, both the status of the people and their right to self-determination are fully justified. Different status from the rest of the population of the state cannot be considered as an independent criterion and can be reduced only to cases of segregation and discrimination but must also be considered in the context of traditional economy, community structure, customary institutions and customary regulation of public relations, which together provide for special status, rights and special protective measures on the part of the state.

Continuous genetic connection with pre-colonial societies can be considered as an unconditional criterion only for communities that historically did not have their own statehood or reached the proto-state stage of development (chiefdom, tribal way of life). After all, historically, states have never been ethnically homogeneous, any state creation was accompanied by internal or external colonialism. All the criteria for determining the indigenous population and indigenous peoples, recognised, or proclaimed in universal and regional international law, are reduced to a very long historical, defined geographically, determined socially, economically, culturally, previously recognised in national law the existence of a separate society within the state, which does not want and cannot be integrated into the national society on a general basis without losing its identity. And it is precisely the complex of these features in their connection with each other, and not the arbitrary choice of one of them, that can become the basis for recognition of a certain social community by both the people and the indigenous people, clearly separate it from minorities, and contribute to the harmonisation of its collective rights with human rights. An integrated approach should protect the political unity and territorial integrity of states from attempts to unjustifiably create new indigenous peoples in conditions of attractiveness and profitability of this status for solving various temporary or situational problems by groups fully integrated into national society [21]. Criteria for defining indigenous peoples as people should also be defined in some cases and communes or other communities in others. For example, these can be indicators of the size, compactness or dispersion of settlement, uniformity of the population of a certain territory, etc.

In this regard, questions arise about how justified the desire of individual ethnic communities in Ukraine to obtain special status and rights of indigenous peoples is, and how much this corresponds to national and international law. The relevant requirements, formulated as norms in the Law of Ukraine “On Indigenous Peoples of Ukraine” (No. 1616-IX of July 1, 2021) [22], are based on: identification of the rights of peoples established in the UN Charter, international covenants of 1966 and other key international legal acts, with the rights of indigenous peoples; tendentious interpretations that do not correspond to the content of acts on the rights of indigenous peoples; attribution individual ethnic communities in Ukraine characteristics that are not inherent to them. According to the UN Charter, the right to self-determination belongs to peoples, nations (in the social, civic-political sense), not indigenous peoples. In Article 2 of the law “On indigenous peoples of Ukraine” [22] there is a norm on the right of indigenous peoples of Ukraine to self-determination, they “establish their political status within the framework of the Constitution”. The Constitution of Ukraine does not provide for the right to self-determination of indigenous peoples and to establish their special political and legal status. This right is exercised by the entire Ukrainian people.

In the concept of the indigenous people of Ukraine (Part 1 of Article 1 of the mentioned law) among the characteristics of indigenous peoples, some are generally far-fetched and inconsistent with international law (autochthonous ethnic community that was formed on the territory of Ukraine; is an ethnic minority in the population; self-recognises itself as an indigenous people; does not have its own state education outside of Ukraine, has traditional, social, cultural or representative bodies). Of particular concern is the legislative consolidation of the right of indigenous peoples to establish representative bodies, the financial support of which is provided at the expense of the state budget of Ukraine (Article 9), their own special political and legal institutions, as well as the norm on state assistance to the representation of indigenous peoples of Ukraine in the Verkhovna Rada of Ukraine, the Verkhovna Rada of the ARC and local self-government bodies (Article 2). In our opinion, attempts to legally consolidate the status of indigenous peoples in Ukrainian law, which differs from the corresponding status in international law, are unconstructive and can lead to significant conflicts and ethnic and social conflicts caused by them.

Arguments about the need to recognise the special legal status and rights of peoples in certain ethnic communities of Ukraine are not legal, but political in nature, are aimed at achieving certain extremely important goals, but do not take into account possible violations of the constitutional order, do not consider comprehensively the further development of the legal system of the state, neglect the rights and legitimate interests of other citizens and ethnic communities.

The Constitution and legislation of Ukraine on the issue of indigenous peoples have long been consistent in recognising only one Ukrainian people on the territory of the state, consisting of citizens of all nationalities who have equal constitutional rights and freedoms. Indigenous peoples and national minorities are equal ethnic communities, and ethno-cultural programmes can be implemented to maintain their identity and culture. Such a pluralistic ethno-national policy is aimed at consolidating the Ukrainian people and at the same time preserving and developing the cultural identity of all ethnic communities. The idea of recognising certain ethnic communities of Ukraine as indigenous peoples in order to support the process of de-occupation of Crimea does not justify itself. The deliberate legal construction of de jure absent indigenous peoples in Ukraine violates national and international law, the integrity of the political and legal system and its democratic foundations. This leads to a deterioration of the international image of Ukraine and the emergence of conflicts with other states due to violations of the rights of national minorities. And playing with the rights and feelings of ethnic communities leads to their unjustified expectations and political radicalisation, threatens the political unity and territorial integrity of the state.

The priority task of the state ethno-national policy of Ukraine at this stage of development is to develop an adequate legal framework, which, on the one hand, will correspond to the realities of ethno-national relations, and on the other, will bring Ukraine closer to the implementation of ratified international legal instruments, in particular The European Framework Convention for the Protection of National Minorities. For this purpose, first of all, it is necessary to adopt a political and legal document that will fix the democratic foundations of state ethno-national policy: to define the goals, objectives, achievements and mechanism of implementation of this policy, namely the Concept of State Ethno-national Policy of Ukraine [23; 24]. However, after the adoption of the Law of Ukraine “On National Minorities in Ukraine”, the legislation regulating the specifics of ensuring the rights of national minorities was improved mainly through the implementation of international legal acts. These are the European Framework Convention for the Protection of National Minorities, the European Charter for Regional or Minority Languages, etc.

Bringing the legislative framework of ethno-national policy in line with trends in the sphere of ethno- national relations through the adoption of relevant laws is hindered by the lack of a conceptual, basic political and legal document that should become the basis for its further development. As a result, most of the problems of the ethno-national sphere remain unresolved. Since the mid-1990s, many drafts of the concept of state ethno- national policy have been developed in Ukraine, but none has been adopted. Various subjects of legislative initiative offer their own, sometimes contradictory versions of the fundamental document, which hinders both its adoption and the development of the entire legislative framework of ethno-national policy. Most of the draft laws contain provisions that are unacceptable from the point of view of scientific validity, lobby for the solution of certain issues in favour of certain national minorities and are marked by ideological bias.

Separatism as a political phenomenon manifests itself in various destructive forms and manifestations. In Ukraine, it has become a serious challenge to Ukrainian statehood, the constitutional order and state structure, a threat to sovereignty, territorial integrity and national security. The subjects that objectively contribute to the “feeding” of separatist sentiments and manifestations by their political activities are both certain internal (leaders of certain ethnic groups) and external actors. This is evidenced by permanent attempts to provoke conflict situations both within the country and in interstate relations. The system of countering separatism requires both scientifically balanced positions (based on modern achievements of constitutional law, comparative law, ethnopolitics and conflictology), and the development and improvement of political and legal mechanisms (including international legal ones).

The problems of countering separatism and its manifestations have been the subject of scientific research by a number of Ukrainian scientists [25-27]. Important results of these studies were legislative proposals, in particular on amendments to the laws on the fundamentals of national security of Ukraine, on the fundamentals of domestic and foreign policy, etc. However, all these scientific conclusions and proposals have not been developed in legislative and law enforcement activities. As a result, Ukrainian society was unprepared for an adequate response to the threats of separatism. One of them is attempts to create national-territorial autonomies in the regions of compact residence of some national minorities, in particular the Hungarian one in Transcarpathia.

Of concern are attempts to institutionalise the Hungarian national minority, namely the draft administrative structure of the Transcarpathian region proposed by the Ministry of development of communities and territories of Ukraine, which provided for the creation of a new, larger than the current, Beregivsky district as part of separate territories of 6 modern districts of Transcarpathia - Uzhgorod, Beregivsky, Mukachevo, Vinogradovsky, Khust and Tyachevsky, which would allow uniting all the territories of residence of the Hungarian national minority in Transcarpathia. The idea of such consolidation had to be abandoned due to pressure from civil society. The need for a separate administrative unit that would unite the majority of Transcarpathian Hungarians has been insisted upon for years, raising fears of further autonomy and then even secession from Ukraine.

Ukrainian scientists criticise the idea and principles of territorial autonomy of Hungarians in Transcarpathia, as they believe that it aims to consolidate the regional dominance of Hungary through such mechanisms as state financial support for foreign Hungarians, granting dual citizenship and representation of Hungarians at all levels of government in the countries of residence. According to S. Vednyansky, the Hungarian community in Ukraine has broad rights, which are exemplary for other states and guaranteed by Ukraine, while the main problem remains the full integration of Hungarians into Ukrainian society [28]. Since Ukraine does not take significant steps in this direction, Ukrainian Hungarians are becoming the object of increased attention from the political forces of its ethnic homeland.

In 2011, Hungary officially recommended that the Ukrainian authorities create a single Pritisyansky electoral district in Transcarpathia with the centre in Berehove in order to provide Ukrainian Hungarians with the opportunity to also participate in the Hungarian parliamentary elections and choose their representative deputy in the Verkhovna Rada elections, but this initiative was evaluated ambiguously [29]. During the presidential and parliamentary election campaign of 2019, the head of the Society of Hungarian culture of Transcarpathia V. Brenzovich tried to appeal in court the refusal of the Central Election Commission of Ukraine to create a majoritarian Pritisyansky constituency [30]. The electoral legislation provided for the possibility of uniting the district on an ethnic basis. According to the specifics of the territorial organisation of elections defined by the Law of Ukraine “On Elections of People's Deputies of Ukraine” [31], administrative- territorial units on the territory of which individual national minorities live compactly and which border each other should have been part of the same electoral district. If in adjacent administrative-territorial units the number of voters belonging to a national minority was greater than necessary for the formation of one electoral district, the districts were formed in such a way that in one of them the voters belonging to a national minority made up the majority of the number of voters (Article 18). It follows that the requirements of the Society of Hungarian culture of Transcarpathia were quite reasonable and were based on the electoral legislation of Ukraine. The Central Election Commission (CEC) formed single-member districts and changed their borders, and they operated on a permanent basis.

Hungarian organisations have repeatedly appealed to the CEC to create an electoral district taking into account the compact residence of the Hungarian national minority. However, the CEC refused, referring to the fact that for various reasons they cannot find out exactly where Hungarians live in Transcarpathia, and therefore cannot form a separate Hungarian electoral district. Since then, during the Electoral Reform, Ukraine abandoned the majority component of the electoral system in parliamentary elections, the Electoral Code was adopted, which incorporated the provisions of the main legislative acts related to the electoral process: “On the Election of the President of Ukraine”, “On the Election of People's Deputies of Ukraine”, “On Local Elections”. Currently, the regulatory legal act does not contain any requirements for the formation of territorial electoral districts, taking into account the compact residence of national minorities. According to Article 27 of the Code, the borders of territorial districts are determined taking into account only the borders of administrative-territorial units. It is not allowed to form a territorial district from territories that do not border each other. Thus, there are no legal grounds for forming a Hungarian electoral district based on an ethnic criterion on the territory of Transcarpathia in the areas of residence of the Hungarian national minority. Having lost the grounds for creating a Hungarian electoral district, representatives of the Hungarian minority decided to use the opportunities provided by the reform of local self-government and territorial organisation of government. Within the framework of compact residence, they form new united territorial communities, which is the basis for creating new electoral districts. The result of the creation of united territorial associations with Hungarian dominance was a high-profile project of the administrative structure of the Transcarpathian region, which includes the enlarged Berehove district.

So, Hungarian organisations in Ukraine, with the support of Hungary, have changed the strategy and tactics of forming autonomy in Ukraine. They have not abandoned the ethno-territorial principle, but have changed their approach - from radical statements and destructive steps (blocking Ukraine's Euro-Atlantic integration) to dialogue and the use of all possible democratic mechanisms provided for by Ukrainian legislation that can be used for gradual autonomy (the creation of a Hungarian electoral district, changes in the administrative structure of the Transcarpathian region with the formation of a Hungarian district based on amalgamated territorial community with a compact residence of a national minority).

Since the adoption of many specialised laws on the protection of the rights of national minorities was blocked due to the lack of a concept of the state ethno-national policy of Ukraine, the Verkhovna Rada Committee on Human Rights, De-occupation and Reintegration of Temporarily Occupied Territories in Donetsk, Luhansk Regions and Autonomous Republic of Crimea, the City of Sevastopol, National Minorities and Interethnic Relations should return to solving this problem and initiate the development of a draft concept of the state ethno-national policy of Ukraine in an impartial and unbiased scientific environment, which stands on the protection of national interests and state positions of Ukraine.

Thus, the strategic guidelines and directions of the state ethno-national policy outlined by us require significant adjustments in the legislation regulating public relations in this area, and the implementation of the achievements of Ukrainian legal and political science in the legislative process.