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Indigenous Rights in the Russian Federation: The Case of Numerically Small Peoples of the

Russian North, Siberia, and Far East


Author(s): Alexandra Xanthaki
Source: Human Rights Quarterly, Vol. 26, No. 1 (Feb., 2004), pp. 74-105
Published by: The Johns Hopkins University Press
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HUMAN RIGHTSQUARTERLY

Indigenous Rights in the


Russian Federation: The Case of
Numerically Small Peoples of the
Russian

North,

Alexandra

Xanthaki*

Far East

and

Siberia,

ABSTRACT
There has been very
the North,

little research on the rights of numerically


the Russian

though

legislation has recently passed that improves their legal rights and
the

notwithstanding
considerable

gap

for indigenous
respect
relevant
between
general

on

terns,

discourage

that affect
ultimately

economic

national

any

cultures,

the

article

of

international

of

the violations

them, prolong
their

endanger

reveals

law

lack of political will and

maintain

development

real participation

Even

standards

and the real situation of these peoples. Ultimate


focus

Federation.

small

of

Siberia,

and

Far East of

peoples

pat
discriminatory
in decisions
communities

these

against

their

land rights and

survival.

I. INTRODUCTION
Indigenous rights have become a very topical
network of indigenous peoples
transnational
excitement
about indigenous
rights and has
the intense
the international agenda. Despite
on
written
the
little
been
has
very
rights of the

issue in international
law. The
has created an unparalleled
indigenous
rights on
in indigenous
rights,
small indigenous
numerically

imposed
interest

is a lecturer at the University


UK. In 2001,
Xanthaki
of Liverpool,
she acted as a
Alexandra
on the
the UN Special
UN consultant
Prof. Rodolfo
assisting
Rapporteur
Stavenhagen,
in completing
situation of Human
Freedoms
of indigenous
people,
Rights and Fundamental
like to thank Prof. Stavenhagen
Patrick
his first annual
and Professor
report. She would
for their help. The usual caveat applies.
Thornberry

Human

Rights Quarterly

26

(2004)

74-105

2004

by The

Johns Hopkins

University

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Press

Indigenous Rights in the Russian Federation

2004

75

peoples of the North, Siberia, and Far East of the Russian Federation; yet,
as "critical."1 The Russian numerically
their situation has been described
small peoples
number approximately
300,000
persons2 and live in areas
more
than half of the territory of the Russian Federation.3 Great
covering
reason for the
in access of information appears to be the main
difficulty
limited international awareness
about these communities.4
Fortunately, the
seems

to be changing
gradually,
partly due to the monitoring
has signed in
process of the human rights treaties the Russian Federation
recent years and partly due to the growing number and increased activities
situation

of regional and local nongovernmental


organizations.5
There is no accurate
information about the numbers or names of the
in the Russian North, Siberia, and Far East, mainly
indigenous communities
because of the confusion
created by the wide use of "external" names and
nicknames.6 Yet, the distinction
between
the "numerically
small peoples of
the North, Siberia, and Far East" and the other indigenous groups
living
iswell-known
in the Russian
within
the Russian Federation
and grounded
small peoples,
system. Currently, the numerically
namely sixty-five commu
nities as included in a 2000 Government
Resolution7 each comprised of less
are subject
to special
than 50,000
the
persons,
legislation8; although
some laws do not apply to
reasons are difficult to comprehend,
underlying
small, albeit
non-numerically
indigenous,
peoples
living in the same
territory.
This article focuses on the specific situation of the numerically
small
a
to
it
to
also
the
other
yet,
indigenous
peoples;
large degree
applies

1.

International Working
Group for Indigenous Affairs (IWGIA), The Indigenous World
1999
on the Elimination
at 36. In 2003,
the UN Committee
of Racial Discrimination
its concern
in the
about
"the difficult
situation
expressed
facing
indigenous
peoples'
Russian Federation.
on the Elimination
See Concluding
Observations
of the Committee
Russian
on Elim.
of Racial Discrimination:
Federation
U.N. CERD, Comm.
21/03/2003
62 Sess., 20, U.N. Doc. CERD/C/62/CO/7
Of Rac. Discrim.,
(2003).
in Towards a New Millennium,
The Years of the Indigenous
Olga Mu rash ko, Introduction,
in Russia 20, 25 (Thomas K?hler & Kathrin Wessendorf
Movement
Tsarev
eds., Vladislav
et al. trans., IWGIA, 2002)
Towards a New Millennium).
(hereinafter
2000,

2.

3.
4.

5.
6.
7.

8.

to Nikolai Vakhatin,
According
1992).
Group
Mattias
Racism
and
?hr?n,
and Russia?The
Scandinavia
& Marianne
(Suhas Chakma
Minority
Rights Group, World

Native
Racial
Saami

Peoples of the Russian

Far North

Discrimination
Against
in Racism against
People,

7 (Minority

Rights

the

of
Indigenous
People
Indigenous Peoples 136, 139

Jensen eds., Elaine Bolton


trans., IWGIA 2001).
Directory on Minorities
306 (1997).

Vakhatin,
supra note 3, at 7.
Government
Resolution
No. 255, adopted Mar. 2000
(on The List of Indigenous
Peoples
of the Russian
available
aiwww.minelres.lv
(also on file with author). See
Federation),
a
Towards
note
at
New Millennium,
24.
also
supra
2,
Towards a New Millennium,
supra note 2, at 26. However,
twenty of these communities
to be part of this special
do not wish
living in North Caucasus
legislation.

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76

HUMAN RIGHTS QUARTERLY

Vol. 26

in the Russian Federation.


communities
The
indigenous
living currently
article illustrates the legal and actual situation of numerically
small peoples
the answers
and explores
international
law offers to their problems. At the
a
the article offers
beginning,
general overview of the relevant international
and national

instruments.

Several relevant federal laws have recently been


their positive
impact on indigenous
rights is still unclear.
the article focuses on specific
Subsequently,
indigenous
rights, namely, the
and partici
prohibition of discrimination,
indigenous
rights to consultation
land rights, and finally cultural rights.
pation,
adopted,

but

II. LEGALFRAMEWORK
one
instrument protects
international
the rights of indig
the Convention
Concerning
Indigenous and Tribal Peoples
in Independent Countries,
No. 169 (ILO Convention
169), adopted by the
the Russian
International
Labour Organisation
(ILO) in 1989.9 Although
it has not
interest in this convention,
Federation
showed
unfortunately
even
the
international
pressure
instrument,
bodies,10
despite
by
signed

Currently, only
enous peoples:

for the conven


though in 1998 Russia initiated the ratification procedure
in the convention
tion. Still, given the interest of the Russian Federation
and
on
as
current
instrument
the
sole
the convention's
position
indigenous
to the situation
to apply
it is interesting
its standards
of the
rights,
not
Even
if
convention
the
does
small
become
numerically
peoples.
binding
it still constitutes a solid political tool to provide pressure
for the Federation,
of indigenous
for the development
rights.

9.

10.

in Independent
Countries
and Tribal Peoples
Indigenous
in
into force 5 Sept. 1991), reprinted
June 1989 (entered
in Human Rights 303
ILO
1992)
(3d ed.
(hereinafter
on the rights of indigenous
ILO Convention
Convention
169). The other
peoples,
the Protection
and Integration of Indigenous
and Other Tribal
Convention
Concerning
in Independent
Countries
26
and Semi-Tribal
(I.L.O. No.
107), adopted
Populations
on the Rights
is not open to new signatories
The draft Declaration
June 1957,
anymore.
is not yet law.
of Indigenous
peoples
on Economic,
For example,
in 2003 the UN Committee
Social and Cultural Rights asked
See Convention

Concerning
27
(I.L.O. No.
169), adopted
Ian Brownlie,
Basic Documents

the Russian
Federation
ILO Convention
has not signed
the state representatives
why
to the List
21 in Replies by the Government
of the Russian Federation
169. 5ee Question
with the consideration
of
of issues (E/C12/Q/RUS/2/Rev.1
)to be taken up in connection
the rights referred to in
the fourth periodic
reports of the Russian Federation
concerning
on Economic,
1-15 of the International
Covenant
Social and Cultural Rights, 3
articles
on Russia, the
5, U.N. Doc. HR/CESCR/NONE/2003/5.
Also, during the 1996 discussion
on the Elimination
of Racial Discrimination
Committee
International
(CERD) asked the
on the
169 had not been signed. See Committee
the ILO Convention
government
why
Elimination
on
Comm.

of Racial Discrimination:
48
Elim. of Rac. Discrim.,

U.N.
of the 1134th Meeting,
Summary
Sess., f 3, U.N. Doc. CERD/C/SR/1134

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CERD,
(1996).

Indigenous Rights in the Russian Federation

2004

77

to protect
is bound
In any case, the Russian Federation
indigenous
instruments, such
rights by its signing or ratification of international minority
on the Elimination of All Forms of
as the UN
International Convention
and
Racial Discrimination
(ICERD),11 the European Charter for Regional
for the Protection of
Minority
Languages,12 and the Framework Convention
of Europe (Framework Convention).13
of the Council
National Minorities
instruments to indigenous
of minority
The applicability
rights has been a
The Saami of Norway
matter of concern for some indigenous communities.
of their
instruments for the protection
have rejected the use of minority
an
on
have
Saami
and
"as
that
the
basis
the
legal
indigenous
people
rights
those covered by the provisions of the conven
political
rights that exceed
it iswidely
that indigenous peoples can use the
accepted
instruments
without
minority
harming their claims
by
protection
provided
as indigenous peoples.
Indefinitional
and indigenous
terms, both minorities
a distinct
some
common
both
have
denominators:
have
they
peoples
and they
culture that they want to preserve and transmit to new generations
in the state in which
The
live.15
both are the non-dominant
groups
they
an
in
to
leads
protection:
overlap
although minority
overlap
descriptive
instruments do not cover all aspects of indigenous
rights, they do cover
tion."14 Currently,

and thus they can be used by indigenous peoples.


Indeed, minority
used by indigenous
communities
and UN
have
been
repeatedly
rights
has in several cases used Article
bodies. The UN Human Rights Committee
on Civil and Political Rights (ICCPR),16
27 of the International Covenant
several,

11.

12.

13.

on the Elimination
of All Forms of Racial Discrimination,
Convention
International
195 (entered
in
21 Dec.
into force 4 Jan. 1969), reprinted
1965, 660 U.N.T.S.
adopted
5 LL.M. 352 (1966)
(hereinafter
ICERD).
or Minority
5 Nov.
for signature
The European Charter for Regional
opened
Languages,
in
of Europe, Europ. T.S. No. 148 (1992) (hereinafter
1992, Council
ECRML), reprinted
Languages
Council of Europe, Explanatory Report?European
Charter for Regional or Minority
was signed but not ratified).
41 (1993) (the Convention
for the Protection
of National
for
Convention
Minorities,
opened
Eur. Parl. Doc.
of Europe Parliamentary
157,
1995, Council
Assembly,
in 16 Hum. Rts. L.J. 98 (1995) (hereinafter
Framework
Convention).
reprinted
to the Framework
art. 25, ?
Convention,
1,
pursuant
Report submitted
by Norway
1.1 & 3.1.
received on 2 Mar. 2001, ACFC/SR
(2001) 1,M
as precedence
At the same
and
of
time, elements
indigenous
descriptions?such
a special
with
the land, the strong sense of commu
historical
continuity,
relationship
The

Framework
1 Feb.

signature

14.
15.

in the State and the indigenous


the dominant
groups
group
nity, a cultural gap between
context?cannot
in descriptions
of minorities.
be found
and the colonialist
Indigenous
on Definitions
and Minorities:
Reflections
and Description,
Paper commission
peoples
to the 1996 session of the
from Patrick Thornberry,
submitted
Rights Group
by Minority
(WGIP).
Group on Indigenous
Peoples
Working
16.

on Civil and Political


19 Dec.
International Covenant
1966, G.A.
Rights, adopted
2200
21st Sess., Supp. No.
(XXI), U.N. GAOR,
16, U.N. Doc. A/6316
(1966),
171 (entered
into force 23 Mar.
U.N.T.S.
ICCPR).
1976) (hereinafter

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Res.
999

HUMAN RIGHTS QUARTERLY

78

Vol. 26

refers to minority
which
indigenous cases.17 The Advisory
rights, to decide
has also argued that the recogni
Committee
of the Framework Convention
that group from
tion of a group as an indigenous people does not exclude
to
minorities.18
same
offered
at
time
the
the
from
protection
benefitting
the Russian Federation must ensure that indigenous peoples
Therefore,
in the minority
the rights enshrined
its territory enjoy
living within
are
course
human
the
of
instruments. Also
rights
general
applicable
the
International
the
ICCPR
and
of
both
the
instruments;
provisions
on Economic,
Social and Cultural
Covenant
(ICESCR),19 legally
Rights
are
useful
for indigenous
Russian
for
the
Federation,
particularly
binding
Article
69 of the
is
instruments
confirmed
with
these
by
rights. Compliance
the rights of
the Russian
Federation, which
safeguards
"in
the
with
accordance
principles
generally accepted
indigenous peoples
law and international treaties of the Russian
and standards of international

Constitution

of

Federation."20

has recently taken several steps to safeguard


Federation
standards. The
international
relevant
and
comply with
rights
indigenous
of the Rights of Indigenous Numeri
1999 Federal Law on the Guarantees
(1999 Indigenous Rights Law)
cally Small Peoples of the Russian Federation
a wide
law
establishes
the
forward:
has been a fundamental
range of
step
that
federal
laws
Other
small
the
important
numerically
peoples.21
rights for
on
Law
National
1996
Federal
the
include
rights
protect
indigenous
the 2000 Federal Law on General
Cultural Autonomy,22
Principles of the
The

17.

Russian

v. Canada,
No. 24/1977,
Communication
Lovelace
A/
Rights Committee,
Communica
Lake Band v. Canada,
Chief of the Lubicon
36/40
(1981); Bernard Aminic,
No.
Communication
in A/45/40
views
tion No.
(1990); Kitok v. Sweden,
167/1984,
Ilmari L?nsman et al. v. Finland, Communication
in A/43/40
views
(1988);
197/1985,
U.N.
No. 549/1993,
No. 511/1992,
A/50/40
(1994); Hopu v. France, Communication
See Human

Doc. CCPR/C/60/D/549/1993/Rev.1 (1997).


18.

in
22 Sept. 2000,
on Denmark,
See Opinion
?fl 17, ACFC/INF/OP/1
(2001), adopted
the
Similar was
and Greenlanders.
to the position
of the Far-Oese
relation
persons
see esp. n
to the report of Finland,
Committee's
21-23,
34, 45, 50 of the
approach
the
22 Sept. 2000, where
on Finland, ACFC/INF/OP/1
(2001)005,
adopted
Opinion
instruments.
Committee
Reports
using minority
peoples
analyzes
rights of indigenous
at www.coe.int
Minorities).
available
go to National
(under Human
Rights heading

19.

on Economic,
Social and Cultural
Rights,
ICCPR, supra note 16; International Covenant
21st Sess., Supp. No.
U.N. GAOR,
2200
Res.
G.A.
Dec.
19
16,
(XXI),
1966,
adopted
into force 3 Jan. 1976) (hereinafter
3 (entered
U.N. Doc. A/6316
(1966), 993 U.N.T.S.

20.
21.

22.

ICESCR).
Konst. RF, art. 69.
Russian
Federation,
Small
Numerically

of the Rights of
Law on the Guarantees
Indigenous
16 Apr.
of the Russian
Federation,
adopted
by State Duma,
1999
22 Apr.
1999
of the Federation,
1999 and approved
(hereinafter
by Council
Rights Law).
Indigenous
Law on National-Cultural
Federal
Russian
Autonomy,
adopted
by State
Federation,
5 June 1996, available
of the Federation,
22 May
1996 and approved
by Council
Duma,
afwww.minelres.lv
(under National
go to Russia).
Legislation,
Federal

Peoples

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Indigenous Rights in the Russian Federation

2004

79

of Communities
of Indigenous Peoples of the North, Siberia,
Organization
and the Far East,23 as well as the 2001 Federal Law on the Territories of
Small Peoples of the
Traditional Nature Use by Indigenous Numerically
North, Siberia, and the Far East.24 The 2001 Federal Land Code25 is also
to have an important impact on indigenous
land rights.
expected
recent

the legal protection


of indigenous
activity concerning
in the Russian Federation highlights the recent state awareness
of
peoples
these laws have not yet had
the rights of these communities.
Nevertheless,
the expected
impact on the lives of Russian
positive
indigenous peoples.
at the regional and
The main problem appears to be lack of implementation
The

their
local level. International bodies and experts have repeatedly expressed
concerns
of such federal provisions26 and their
about the implementation
local laws.27 The recent report of the
with
consistency
regional and
European Commission
against Racism noted:
[T]he authorities of many constituent units of the federation often violate the
Constitution, federal laws and international obligations of the country in the
area of human rights, in practice the federal authorities have limited opportuni
ties of influencing the subjects of the Federation, and even these opportunities
are

The

not

generally

section

following

numerically

used

systematically

will

small peoples

or effectively.28

the most
important issues
analyze
of the North, Siberia, and Far East.

facing

the

A. Discrimination
The Russian
discrimination

23.

24.

25.

26.

27.
28.

has a constitutional
framework
that prohibits
Federation
on the basis of race. Article 19 of the Constitution
guarantees

Russian
Federal Law on General
of the Organization
of Commu
Federation,
Principles
of the North, Siberia, and the Far East, adopted
in Federal
nities of Indigenous
Peoples
20 July 2000,
Act No.
available
aiwww.minelres.lv
(for Russian
text, under
104-FZ,
National
go to Russia).
Legislation,
Law on the Territories
Use by Indigenous
of Traditional
Nature
Russian
Federation,
7 May 2001.
Small Peoples of the North, Siberia, and the Far East, adopted
Numerically
See also Towards a New Millennium,
supra note 2, at 281.
Russian
2001
Federal Land Code,
Federation,
on
and supplemented
Dec. 2001
(as amended
in Russian available
at www.worldlii.org/catalog/2171.
Racism
Committee
and
Against
European
activities
the period
from 1 January
covering

in Federal Act No.


197 of 30
contained
24 and 25 July 2002). Text of the Code

on
ECRI's
Annual
Intolerance,
Report
to 31 December
2 May
released
2000,
at www.coe.int
ECRI Report), available
2001, CRI (2001) 20, at 41, 1 10 (hereinafter
then to ECRI); see also, The
(under Human
racism,
go to Combating
Rights heading
Indigenous World,
supra note 1, at 34.
U.N. CERD, Comm.
Record of the 1247th Meeting:
Haiti, Russian Federation,
Summary
on Elim. of Rac. Discrim.,
52 Sess., 1 28, U.N. Doc. CERD/C/SR.1247
(1998).
ECRI Report, supra note 26, at 41, 1 14.

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80

HUMAN RIGHTS QUARTERLY

Vol.

26

and
of, inter alia, race, nationality,
equal
rights regardless
language,
residence and prohibits any restriction of citizens'
human rights on these
the establishment
of public associations
13(5) prohibits
grounds.29 Article
and religious strife, and Article 29(2)
aiming at inciting racial, national,
or campaigns.30
prohibits any such propaganda
Finally, Article 26(1) gives
to determine
the right to everyone
and
Based on these constitutional
guarantees,
protection
against acts of discriminatory

indicate his national affiliation.31


the 1996 Penal Code provides
nature as well as acts aimed at

discrimination
is still the major
inciting racial hatred.32 Nevertheless,
problem for indigenous peoples of the Russian North, Siberia, and Far East.
in living standards between
The difference
the indigenous
and the non
is vast. Currently, over 30 percent of the indigenous
indigenous
peoples
lives in substandard
population
housing or traditional tents, often because
in rural areas and along migration
routes is not available.33 One of
housing
in Russia is a resident in the North and death rates among
five unemployed
in the
times the average
indigenous of the North are one and one-half
in
in
The
and
and
death
wages
country.34
disparity
unemployment,
mortality
statistics, and in social benefits confirm the existing patterns of discrimina
on the Rights of the Child referred to the
tion.35 In 1999, the UN Committee
to
incidence
of
societal
discrimination
against children belonging
growing
ethnic

and asked the Russian


minorities,
indigenous
peoples,
including
to improve the situation.36
Federation to take all appropriate measures
In international
law, the right not to be discriminated
against on the
a
norm
no
from
which
basis of race constitutes
cogens,
jus
preemptory
on
In
in
is
its
Schools
Minority
permitted.37
Advisory Opinion
derogation
the Permanent Court of International Justice noted that "equality in
Albania,
in fact may
law precludes
discrimination
of any kind; whereas
equality
in order to attain a result which
involve the necessity of different treatment
establishes

29.

an equilibrium

30.

Konst. RF, supra note


Id. arts. 13(5), 29(2).

31.
32.

Id. art. 26(1).


1996 Penal Code

33.

34.

35.
36.
37.
38.

20,

between

art.

different

situations."38

19.

from Russian
of the Russian
Federation
text).
(translated
Arctic Monitoring
Issues: A State
and Assessment
(AMAP), Arctic Pollution
Programme
at www.amap.no
terms like
Environment
of the Arctic
available
(Use search
Report,
Arctic Environment
the
(non scientific)
Report and select Popular
Reports to download
1997 report, look under People
66 (1997)).
of the North,
on
Russian
U.N. CERD, Comm.
Record
of the 1246th Meeting:
Federation,
Summary
52 Sess., CERD/C/SR.1246,
1246
Elim. of Rac. Discrim.,
f 42, U.N. Doc. CERD/C/SR.
(1998).
Vakhatin,
supra note 3, at 26.
on the Rights of the Child, General
on the Adminis
UN Committee
Recommendation
tration of Juvenile Justice, 2d Sess. U.N. Doc. CRC/C/90
(Sept. 1999).
erga Omnes 124-30
Maurizio
(1997).
Ragazzi, The Concept of International Obligations
in the South West
this principle
PCIJ (series A/B), No. 64, 19 [1935] The ICJ affirmed
Africa Cases
303-04
[1966].
(Second phase), 6 ICJ Reports,

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Indigenous Rights in the Russian Federation

2004

81

are urgently needed


to ensure the survival of the
Positive measures
small peoples.
International law instruments cautiously encour
numerically
for the protection of minorities. Article
age states to take positive measures
so
"circumstances
when
2(2) of the ICERD allows for positive measures,
on Article
In its General
warrant."39
Recommendation
1(1) of the Conven
of treatment will not constitute
tion, CERD noted that: "A differentiation
if the criteria for such differentiation,
discrimination
judged against the
are legitimate or fall within
and purposes of the Convention,
the
objectives
scope of Article 1, paragraph 4, of the Convention."40
Arguably, Article 27 of the ICCPR41 also poses an affirmative obligation
if
action to protect minority
for positive
and indigenous
groups.42 Only
states take affirmative
action can the rights of Article 27 be realized.43
has followed this view: in itsGeneral
Indeed the Human Rights Committee
notes that states need to take positive
Comment
the Committee
23(50),
measures
to implement Article 27, not only against the acts of the state party
in the state.44 Also, during the
but
also against acts of other persons
itself,
Human
Committee
the
often includes within the
process,
monitoring
Rights
on
measures
27
of
Article
the states have taken
any positive
scope
questions
on
UN Declaration
minorities
and
The
concerning
indigenous peoples.45
to National or Ethnic, Religious or Linguistic
the Rights of Persons Belonging
on Minorities),46
an authoritative
Minorities
(Declaration
interpretation of

39.
40.

ICERD, supra note 11, art. 2, ?H2.


of Discrimination,
Definition
Recommendation
General
CERD,
XIV, U.N.
on Elim. of Rac. Discrim.,
42 Sess., art. 1,12,
Comm.
U.N.
of the Convention,

CERD,
Doc. A/

48/18 (1993).
41.
42.

43.
44.
45.

46.

ICCPR, supra note 16, art. 27.


in International
See Athanasia
Protection
Justifications of Minority
Spiliopoulou-Akermann,
Law 128 (1996). Spiliopoulou-Akermann
two approaches:
discerns
between
the radical
or active school,
Sohn, Ermacora, and Cholewinski,
represented
by Capotorti,
Thornberry,
or
to take affirmative
that supports
that states are required
action; and the minimalist
school
and Tom?schat
that maintains
that the article
passive
by Nowak
represented
not create
does
for the states; Higgins
takes a more
cautious
obligations
positive
See also Ryszard Cholewinski,
State Duty Towards Ethnic Minorities:
Positive
approach.
or Negative?,
10 Hum. Rts. Q. 344-71
International Law and
(1988); Patrick Thornberry,
the Rights of Minorities
185-86
(1991).
See Francesco
to Ethnic, Religious
Capotorti,
Study on the Rights of Persons Belonging
and Linguistic Minorities,
New York, U.N.
1992, Human
Rights Series, No. 5, 1 588.
Human
Comment
General
No. 23(50),
U.N.
Rights Committee,
by CCPR, Comment
Doc. No. A/49/40,
vol. I,CCPR/C/21/Rev.1/Add.5,
1 6.2 (1994).
See Reports of the Human
General
33rd Sess., Supp. No.
Rights Committee,
Assembly,
40, at 1 538, U.N. Doc. A/33/40
(1978); 35th Sess., Supp. No. 40, at f 186, U.N. Doc.
200 & 218, U.N. Doc. A/38/40
A/35/40
(1980); 38th Sess., Supp. No. 40, atn
(1983);
40th Sess., Supp. No. 40, atn
U.N. Doc. A/40/40
514-15,
(1985); 48th Sess., Supp.
No. 40, at f 509, U.N. Doc. A/48/40
(1993); 50th Sess., Supp. No. 40, at 1 303, U.N.
Doc. A/50/40
(1995).
on the Rights of Persons
Declaration
18 Dec.
Linguistic Minorities,
adopted
U.N. Doc. A/Res/47/135/Annex
Annex,
on Minorities).
Declaration

or Ethnic, Religious
or
to National
Belonging
U.N. GAOR, 47th Sess.,
1992, G.A. Res. 47/135
in 32 LL.M. 911 (hereinafter
(1992),
reprinted

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82

HUMAN RIGHTS QUARTERLY

Vol. 26

27 of the ICCPR according


to Brownlie,47 also supports the adoption
of appropriate measures
for the protection
of the existence
and identity of
minorities48 and requires that states adapt their legislation
in order to make
to promote "full and effective equality"
the protection
"effective." Measures
are also required "where necessary" by the Framework Convention
for the
Article

Protection
followed

of National

Minorities.49

Legal measures

are not adequate

if not

by

implementation.
instruments are clearer
Indigenous

about the positive obligations


of the
ILO Convention
169 establishes
concerning
indigenous
peoples.
for safeguarding
the "persons,
institutions,
special measures
property,
of the peoples
labour, cultures and environment
concerned,"50
provided
are according
to the indigenous wishes.
that these measures
The
ILO
Committee
of Experts on the Application
of Conventions
and Recommenda
states

tions

insisted that states need


(CEACR) has repeatedly
to
protection
indigenous populations.51

to guarantee

special

Russian federal legislation embraces


the idea of positive measures
for
the elimination
of discrimination
The
1996
against
indigenous
peoples.
Outline
of the Russian State Policy on Nationalities
proclaims equal rights
for indigenous peoples
irrespective of nationality, equal rights for all entities
of the Russian Federation,
and promotion
and development
of national
to
cultures and languages.52 The Outline
the
conduct
and
improve
sought
or nationalities
of ethnic policies
coordination
towards ethnic minorities
by
the efforts of federal and constituent
authorities with the ethnic
combining
communities.
Within
this framework,
the 1999
Indigenous
Rights Law
account
for
into
that
take
establishes
their
positive rights
indigenous peoples
a
characteristics.53
The
law
for
wide
of
range
specific
provides
rights for

47.
48.

49.

Ian Brownlie, Principles of Public International Law 699 (4th ed. 1990).
on Minorities,
the
Declaration
supra note 46, art. 1 states that: "States shall protect
and national or ethnic, cultural,
existence
identity of minorities"
religious and linguistic
to achieve
within
their territory and "adopt appropriate
and other measures
legislative
those ends."
are
Framework
Convention,
supra note 13, art. 4.2; guarantees
against discrimination
in: Council
Doc. No. 8943,
of Europe, Rights of National Minorities,
23
included
Rec. 1201 (1993), art. 11 (hereinafter
of Europe, Rec.
Council
Jan. 2001, Doc.
8943,
1201).
ILO Convention
169, supra note 9.
in an individual observation
in 1994, the Committee
For instance,
criticized
published
on the basis that there was a "certain movement
in the country away from a
Colombia
also

50.
51.

52.

or from programmes
of special
recognition
rights for indigenous
peoples,
specially
to their needs."
Individual Observation
107
Concerning
Convention
CEACR,
adapted
Indigenous and Tribal Populations
II 2 (Colombia,
1994).
15 June 1996 by
The Concept/Outline
of the State National
approved
Policy was
It is not a legally binding
Decree
No. 909 of the President
of the Russian
Federation.
document.

53.

1999

Indigenous

Rights

Law,

supra

note

21.

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Indigenous Rights in the Russian Federation

2004

83

including judicial protection of their rights; protection


indigenous peoples,
of the indigenous
of their cultures,
lifestyles, and languages; protection
for the indigenous economy
and self-government;
environment;
guarantees
and alternative military service.54
are not effective
the legal guarantees
However,
against discrimination
of these guarantees
has been weak. A notable
and their implementation
no
is that thus far
for the
federal funding has been assured
example
of indigenous rights,55 even though in 1998, the state proclaimed
be provided with
that the small peoples of the North and Far East would
state support under a presidential
program which was to be implemented by
realization

federal committee.56
the year 2000 by the competent
"Addressing the fourth
small peoples of the North, Siberia, and the Far
congress of the numerically
(Fatherland-All Russia) Artur Chilingarov
East, State Duma Deputy Chairman
and social develop
declared
that "the federal program for the economic
ment of the small people
has fallen apart" and that "entire raions and
. . . have not received their northern
remote villages
for the last
delivery
the federal laws discussed
three years."57 Moreover,
above are of declara
not been supported by national,
regional, and local
In general,
of federal
laws
regional
implementation
some
is difficult: although
and indigenous peoples
concerning
constituents
initiatives
have adopted such laws, this is not the norm. Other
to combat discrimination
to
also
need
be
taken.
against indigenous peoples
For example,
to
laws
the
have
condemned
reference
the
any
although
in
in
official
such
references
still
documents,
person's nationality
persist
some documents
measures
and lead to discriminatory
Practical
practices.59
to enforce the laws in this respect are needed; sole legislative guarantees
fall
InArticle 2(1) of the ICERD, state parties
short of international
standards.

tory nature,
enforcement

54.

55.
56.
57.
58.

59.
60.

and have

laws.58
minorities

14 guarantees
Id. For example,
Article
the judicial protection
of their rights; Article 4
to ensure
authorizes
authorities
the development
of indigenous
and
public
peoples
their ways of life and systems; Article 5 allows
6
for positive measures;
Articles
protect
measures
and 7 establish
and promotion
of indigenous
for the protection
rights; and
to indigenous
Article 8 gives extensive
rights of participation
peoples.
The Indigenous World,
supra note 1, at 34.
28.
Haiti, Russian Federation,
supra note 27,1
Summary Record of the 1247th Meeting:
Russian
Federation
Toward
the North
Lambasted
Report, Federal Government's
Policy
at www.rferl.org/russianrepoiV2001/04/14-180401.
available
(18 Apr. 2001),
in 2000
noted the lack of laws implementing
the 1999 federal
Parliamentary
hearings
law. Statement
in
of Russian Association
of Indigenous
of the North
(RAIPON)
Peoples
IV Arctic
the
Parliamentarians
Rovaniemi
at
available
(28 Aug.
2000),
Meeting,
www.raipon.org/english/library/ipw/number4/article1.
ECRI Report, supra note 26, at 41.
International
ICERD, supra note
11, art. 2, <H 1(a). In its 2003
Report, Amnesty
measures
to combat
at chapter
recommends
several practical
9. See
discrimination,
on Grounds
of Race in the Russian
Amnesty International Report, Dokumenty! Discrimination
Federation (2003).

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84

HUMAN RIGHTS QUARTERLY

Vol. 26

have agreed to "engage in no act or practice of racial discrimination


against
should be
[or] groups of persons."60 The right of non-discrimination
persons,
not just in its formal form, in law, but also in its substantial form,
established
In 2001,
in practice.61
the responsibility
of indigenous affairs was shifted
from the Ministry
for the Affairs of the Federation, National
and Regional
of Economic Development
and Energy; since the
Policy to the Ministry
no real positive action has been taken on indigenous
transfer of powers,
of the federal
rights.62 Such lack of implementation
in all aspects of indigenous
has tragic consequences

B. Participation

legislation
lives.

on equality

Rights

The

legislation of the Russian Federation offers extensive


political
rights to
the small peoples of the North, Siberia, and the Far East. According
to the
1999 Indigenous Rights Law, indigenous peoples can establish "the territo
rial bodies of public self-government"
and enjoy the right "on the voluntary
...
basis to organise
for the social, economic
and
[their] communities

cultural development,
protection of their traditional habitat and the environ
and aboriginal activities."63 Even during the Soviet
ment,
economy
lifestyle,
of the North had created autonomous
administrative
era, the Committee
in
to protect
and
districts
order
(national
(national
acreage)
regions
raiony)
indigenous

peoples.64
a roundtable discus
the ambitious
legal provisions,
Notwithstanding
in legislative assemblies
sion on the participation
of indigenous peoples
and
in
elective
2001
local governance
confirmed
that
such
agencies
July
has not been achieved.65
have
representatives
representation
Indigenous
...
noted that "the problem of representation
of indigenous
is
peoples
and
for
for
northern
of
the
questions
important
peoples
topical
addressing
ethnic development
and regulating
interethnic relations and guaranteeing
constitutional
rights and freedoms of man and citizen."66
law establishes
the right of every citizen to take part in the
in
of public affairs on a basis of equality and in circumstances
as
to
"are
able
and
their
identities
members
express
persons
develop

International
conduct
which

61.
62.
63.
64.
65.

66.

on Minority
in Albania,
Schools
Opinion
Advisory
The Indigenous World,
supra note 1, at 38.
1999
Rights Law, supra note 21.
Indigenous
Gail Osherenko,
Property Rights and Transformation
7 Eur.-Asia Stud. 1077-108,
the Far North,
1083-85
to deserve
"You need
the right to represent
your
L'AURAVELTL'AN
INDIGENOUS
INFORMATION

PCIJ, supra

in Russia:

note

38.

Institutional

Change

in

(1995).
Bulletin
No.
people,"
available
CENTER,

indigenous.ru/english/english.
Id.

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All use subject to JSTOR Terms and Conditions

41 of the
at www.

Indigenous Rights in the Russian Federation

2004

85

within
of different communities
groups do not
larger societies."67 Although
to
of
in
have an unconditional
choose
the
modalities
their
participation
right
Committee
the conduct
of the public affairs,68 the Human
has
Rights
in its General Comment
the importance of effective
23(50)
emphasized
in decisions
of members
of minorities
that affect them.69 The
participation
has noted that "indigenous
should
Committee
have the oppor
populations
concern
to
in
in
matters
decision
that
them,"70 and
participate
tunity
making
on
has commented
of
devolution
examples
positively
concerning
indig
enous

an important
communities.71
Effective participation
has become
it
for
is
the
UN Minority
minority participation:
by
prerequisite
encouraged
1992
in
the
for
and
Declaration,72
Organization
Security
Co-operation
as
as
Helsinki
well
the
Framework
Convention
Document,73
Europe (OSCE)
for National Minorities.74
The Flensburg Proposals
also emphasize
that
must proactively
decisionmakers
consult members
of minorities
that are
affected by their decisions
and must also create opportunities
for them to
in
the
Human
effectively
participate
process.75
decisionmaking
rights bodies
to
attention
minorities
whether
have
in
been
included
pay special
matters
in
that
affect
them
and
that
decisions
have
been
any
decisionmaking
taken after real public debate.
and cooperation
with states also constitutes
Indigenous participation
one of the main principles
169.76 Article 6, the "key
of ILO Convention
article of the whole Convention"77
consultation
and participation of
requires
"whenever
is being given to legislative
consideration
indigenous peoples
measures which
and administrative
affect [them] directly."78 Consultations
must be in good faith and in a form appropriate
to the circumstances,
with
or
the objective of achieving
consent
to the proposed measures.
agreement
on Indigenous Rights goes even further: indigenous
The draft UN Declaration

67.
68.
69.
70.
71.
72.
73.

74.
75.

76.
77.
78.

ICCPR, supra note 16, arts. 25, 26, 27.


v. Canada,
Human
Marshall
No. 205/1986,
Communication
U.N.
Rights Committee,
Doc. CCPR/C/43/D205/1986
(1991), esp. n
5.4, 5.5.
Human
Comment
General
Rights Committee,
by CCPR, supra note 44, f 7.
49th Sess., 1 182, U.N. Doc. A/49/40,
Mexico,
Report of the Human
Rights Committee,
vol. I (1994).
id. ?? 89.
Norway,
on Minorities,
Declaration

supra note 46, art. 2(3).


in Europe (CSCE) 1992 Helsinki
for Security and Co-operation
Conference
Document,
the Challenges
of Change,
at
9-10
?H24, CSCE Summit, Helsinki,
July 1992, available
ish/1990-1999/summits/hels92e.
www.osce.org/docs/engl
Framework
supra note 13, art. 15.
Convention,
of the ECMI Seminar,
Effective
Towards
of Minorities,
U.N.
Proposals
Participation
?
on Hum. Rts., 5th Sess.,
ESCOR, Comm'n
20, U.N. Doc.
E/CN.4/Sub.2/AC.5/1999/
WP.4
(1999).
ILO Convention
Id. art. 6(1 )(a).
Id.

169,

supra

note

9.

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86

HUMAN RIGHTS QUARTERLY

Vol. 26

their distinct political characteristics


and
peoples have the right to maintain
identities (Articles 4 and 8); to determine
the selection of "the membership
in accordance
of their institutions
with
their own
"the
procedures";
of individuals to their communities"
(Article 34); and "their
responsibilities
own citizenship
in accordance
with their customs and traditions"
(Article
32).79

of a group may take various forms: the establishment


of
Participation
are represented;
in which minorities
bodies
advisory and decisionmaking
elected
bodies and assemblies
of national minority
affairs; or local and
autonomous
1999
administration.80
The Russian
Indigenous
Rights Law
allows
for representation
for numerically
small peoples within
quotas
legislative bodies of the regional and local level;81 currently though, no such
seats for indigenous
exist in
quota system, nor permanent
representatives
the federal or the regional level. Although
there are some representatives
of
the numerically
overwhelming
in all
bodies

small peoples
of an

absence

levels.82 The

in the regional and


"voice"
indigenous

1999

local bodies, there is an


in the main
legislative
Law also prescribes
that

Indigenous Rights
in the review and development
of laws
participate
indigenous peoples
and the implementation
of programs that affect them;83 this does not happen
in practice
often
either. Ultimately,
asked
for the
indigenous
peoples
same
manner
in
as the
establishment
of an Indigenous
the
Parliament,
Saami Parliaments;
the
first
relevant
draft
law
federal
that
unfortunately,
the
of
small
to
submitted
representatives
numerically
indigenous peoples
the Russian Parliament was rejected.84
may

Because of the minimal participatory


rights northern indigenous people
have in practice,
several communities
have opted for autonomy
following
the 1996 Federal Law on National
Cultural Autonomy85
and the 1999

79.

80.
81.
82.
83.

from the Universal


Declaration
of Human
10 Dec.
1948, G.A.
Drawing
Rights, adopted
Res. 217A
3d Sess.
A/810
(III), U.N. GAOR,
(Resolutions,
pt. 1), at 71, U.N. Doc.
in 43 Am. J. Int'l L. 127 (Supp. 1949)
(hereinafter UDHR).
(1948),
reprinted
See CSCE, Report of the CSCE Meeting
1991 ).
of Experts on National Minorities
(Geneva
1999
Indigenous
Rights Law, supra note 21.
Statement
note 58.

of Russian

Association

of

Indigenous

Peoples

of the North

(RAIPON),

supra

5 and 8 of the 1999 Indigenous


See Articles
Federal
Rights Law, supra note 21. In 2003,
on Temporary
to Secure
No. 21-FZ
the Representation
Measures
of the Small
in Legislative
of the Russian
Federation
of
(representative)
Organs
Indigenous
Peoples
was adopted.
in the Constituent
Entities of the Russian
Government
Federation,
Act

84.

85.

See Report by the President


of RAIPON, On Activity
of the RAIPON
Co-ordination
Council:
The Analysis
of the Past Activity,
and Tactics
for the Future by the
Strategy
of the Indigenous
of the North,
Siberia and the Far East of the
Organisations
Peoples
Till 2005
at www.raipon.org/english/
Russian
Federation
available
(12 Apr. 2001),
events/4conference/report.
Russian
Federal
Federation,

Law on National-Cultural

Autonomy,

supra

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note

22.

87

Indigenous Rights in the Russian Federation

2004

Indigenous

Rights

autonomous

Law.86 It is reported

regions

has

that since

the 1990s,

the number

of

increased.87

is not a right in international


law;88 rather, it is an application
Autonomy
on
and self-determination.
The UN Declaration
of the rights of participation
Minorities
does not expressly
yet, the
provide minorities with autonomy;
condition
of "effective participation"
through local and national organiza
to include
tions seems
the possibility
of self-government.89
European
instruments are more vocal on this option. Recommendation
1201 (1993) of
of the Council
of Europe supports minority
the Parliamentary
Assembly
or special
autonomous
status in areas that such minorities
authorities
if historical conditions
constitute a majority,
prescribe so.90 The 1990 OSCE
as a
Document
has a reference to autonomous
administrations
Copenhagen
means
to protect
and promote minority
identities.91 Any autonomous
the specific situation and be in accordance
models must match
with the
state.
of
the
domestic
legislation
Alfredsson
of
points out that "the degree of autonomy
an
states
within
of
becomes
indicator
the
indigenous peoples
probability of
their survival."92 It is doubtful whether
the degree of autonomy
for Russian
can
their
the
serious
has
survival;
system
guarantee
indigenous
peoples
are mostly
that have been created
drawbacks.
The autonomies
self
means
not
to
and
thus
do
have
the
This
follows
the
supporting,
operate.93
never
state
the
Soviet
of
Union
when
the
funded
the
era,
pattern
adequately
Gudmundur

autonomous

villages and the only sources of revenues came from native


serious drawback of the autonomous
regimes is the common
to implement
of regional governors
in
local self-government

taxes. Another

reluctance
their territory, either

86.
87.

88.
89.
90.
91.

the powers

by marginalizing

and

functions

of

local

Federal
Law on the Guarantees
of the Rights of
Federation,
Indigenous
Small Peoples
of the Russian
supra note 21.
Federation,
the Baikal and Verkheangarsk
in the Republic
Evenk rural settlements
of
on the implementation
of provisions
of the
Federation
Buryatia, Report of the Russian
on 8 Mar.
Framework
Convention
of National
for the Protection
received
Minorities,
Protection
(2000) 2, art. 15 (hereinafter
2000, ACFC/SR
Report).
Implementation
Russian

Numerically
For example,

On
the Legal Understanding
of Autonomy,
Hans-Joachim
Heintze,
and Implications 7-32
Applications
(Markku Suksi ed., 1998).
on Minorities,
Declaration
supra note 46, art. 2(3).
of Europe, Rec. 1201, supra note 49, art. 11.
Council
CSCE: Document
of the Copenhagen
of the Conference
Meeting
Dimension,

adopted

29

June

1990

35,

reprinted

in 29

LL.M.

1305

in Autonomy:

on

the Human
It reads:

(1990).

The participating States note the efforts undertaken to protect and create conditions
for the
promotion of the ethnic, cultural and linguistic identity of certain minorities by establishing as one
of the possible means to achieve these aims, appropriate local or autonomous
administrations
to the specific historical and territorial circumstances
of such minorities and in
corresponding
accordance with the policies of the State concerned.
92.
93.

As quoted
in Heintze,
supra note 88.
ECRI Report, supra note 26, at 41, ? 6.

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88

HUMAN RIGHTS QUARTERLY

Vol. 26

or by creating a parallel system or opposing


any transfer of
powers.94 In addition, there is a great deal of confusion
regarding the powers
in the sub-national
of local self-government
level and general
lack of
in the federal level; all these factors
information about the developments
have led to the diminution
of the indigenous
in the
self-government
policy
Russian Federation.95 Formal declarations
aside, the state has so far failed to
to the indigenous communities.96
provide effective
self-government
governments

C.

Land Rights

Land rights is the most fundamental


issue for indigenous peoples
living in
Russia. Currently,
the property system of the state has not been finalized.
The system of property rights that will emerge will certainly have a powerful
and the development
of Russian
impact on the economy
indigenous
Gail Osherenko

peoples.
The

economic

that

participate

in Russia

transformation

tional development,
manner

has noted:

local

protects
in decision

economies

making

needs

to be

supported

through the allocation

especially

and

as well

as

allows
share

through

institu

of property rights in a
to

the indigenous
population
in the benefits
of development.97

in the
land system is a difficult and painful process
Russian Federation. The recent economic
changes have affected
indigenous
are not
lines have been disrupted
and many
peoples:
supply
people
to
of
fed, especially with respect
imported foods. Reorganization
adequately
The

reform of the

of fish stocks, closure of


collectives
and state farms along with depletion
forest plots, and reduced investments have led to increased unemployment
among northern indigenous peoples,
reversing a previous upward trend in
and
interests
ideas concerning
the land reform
employment.
Conflicting
on
have resulted in confusing and contradictory
the subject. The
legislation
an
is
lack of a comprehensive
framework
for the
important obstacle
realization
of land rights of numerically
small peoples.
land rights between
separation of competences
concerning
is not clear. Under Article
72
the regional authorities

the
Currently,
the federal and
of

the Russian

the subjects of the Russian Federation have joint responsibility


Constitution,
use and management
with the Russian Federation over issues of possession,
of the land, mineral
resources, water and other natural resources, delimita
tion of state,

94.
95.
96.
97.

protection

Peter Kirkow,
Stud. 43, 48
Id. at 49.
Id. at 54.
Osherenko,

of the environment,

Local Self-government

in Russia:

protection

Awakening

of historical

from Slumber?,

(1997).

supra

note

64,

at 1077.

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49

and

Eur.-Asia

89

Indigenous Rights in the Russian Federation

2004

cultural monuments,
safety, and traditional way of life of small
ecological
case
In
of conflict with federal
ethnic minorities.98
law, Article 74 of the
to
deference
the law of the constituent.99
Constitution
gives considerable
and the order of the use of
However, Article 36 asserts that the conditions
are
to
to
meant
is
be subject
and
land
federal law.100What
by "conditions"
fits with the above
"order of the use of the land" and how this provision
has not been clarified. Also, regarding specifically
land rights of
and indigenous peoples, Article 71(c) and (f) of the Constitution
to regulate and protect the rights of
give the authority to the Federation
to determine
of national policy and
national minorities,
basic principles
in the fields of the economy
and the environment,
and the social,
programs
of the Russian
and national
Federation.101 This
cultural,
development
in land
framework has lead to conflicting
legislation and a legal vacuum

provisions
minorities

law. Although
the Federation
still retains quite considerable
power, the
constituent
entities
enjoy greatly expanded
rights to adopt
legislation
to
the possibility
particular to their regions.102 Many regions have embraced
the federal lawmakers.103
regulate important areas of law without consulting
As Skyner has noted, "the absence
of clearly designated
criteria for the
in the political aspects of the
formulation of legislation, and abrupt changes
in Russia, have ensured
land question
that there are disparities
in the
legislation

of the regions

regulating

questions

of

land ownership

and

land

use."104

this framework,
Within
land is legally "public," owned by the state with
management
authority
increasingly
resting with the okrug, rather than the
The land resources or the land reform committee of the
federal government.
use rights and determines
the transfer of lands to private
okrug allocates
herders or for industrial purposes.105 The language of the 1999 Indigenous
instruments: the
Rights Law differs from the language of the international
1999 law protects the right of numerically
small peoples
"to own and use,
free of charge, various categories
of land required for supporting
their
traditional economic
systems and crafts," rather than the lands on which
the land is not protected
they have been living.106 Inother words,
just for the
mere fact that indigenous peoples have been living there; the land must be

98.
99.
100.
101.
102.
103.
104.
105.
106.

RF, supra note 20, art. 72.


74 ? 6.
36.
71(c) & (f).
Osherenko,
supra note 64, at 1090.
Louis Scanner,
Political
and Legal Uncertainty:
Conflict
in Russia, 53 Eur.-Asia Stud. 983-85
(2001).
Ownership
Id. at 985.
supra note 64, at 1091.
Osherenko,
See 1999 Indigenous
Rights Law, supra note 21, art. 8.4.
Konst.
Id. art.
Id. art.
Id. art.

The

Privatisation

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of

Land

90

HUMAN RIGHTS QUARTERLY

Vol. 26

necessary for the traditional economic


system of the indigenous community.
This could hinder indigenous communities
that do not use their lands in a
traditional way; on the other hand it could prove beneficial
to most of the
are nomadic
small peoples who
and
numerically
has obstructed
case, so far lack of implementation

semi-nomadic.
the realization

In any
of this

provision.

new

Land Code envisages


the right to acquire
land as private
a
law
to
The
of
land to those
property.107
gives
priority right
acquisition
on
a
this
is
land,
already having possession
priority right which
rights
com
beneficial
for indigenous communities.108
Unfortunately,
indigenous
munities often cannot take advantage of this provision: many are dispersed
across vast areas, cut off from administrative
centers, and left uninformed of
The

their lands. On the contrary, private


concerning
legal developments
some
that
also
have
lands take advantage of
companies
rights to indigenous
the process of leasehold
the priority clause. Therefore,
practi
legalization,
payment, of the land in industrial use on traditional subsis
cally without
tence territories of indigenous
has become
intensive
peoples
extremely
since 2000. The specific conditions
of Russian
indigenous peoples are not
on the
in the Land Code. The system envisaged
is focused
addressed
the

state and individual property rights, rather than collec


of a group. Yet, a focus on privatization
the
without
a
will
framework
of
have
property
underlying
rights
of
the
their
land
lives, threatening
indigenous
security
"reserved territories."109 In addition,
the
rights and their aim of creating
contradictions
found in the Land Code with other national
and
legislation,
its vague points, and the lack of regulations
the Civil Code,
for
especially
the
the implementation
of the Code; are serious problems
that weaken
benefits the code offers indigenous peoples.
International
law does not provide
indigenous peoples great support on

between
dichotomy
tive property
rights
of the
development
negative
impact on

instruments have
securing their collective
ownership
rights. International
even
been very reluctant to establish standards on property rights; moreover,
those instruments that include provisions on property rights favor individual
of Human Rights could be helpful for
rights.110 The Universal Declaration
the indigenous peoples of the North, Siberia, and Far East.111 Article
17(a)

107.
108.
109.
110.

111.

Federal Land Code,


supra note 25.
Id.
on Minorities,
World
Directory
supra note 5, at 306.
1 to the European Convention
for the Protection
of Human
See e.g., Protocol
Rights and
not included
in
Fundamental
of certain Rights and Freedoms
Enforcement
Freedoms,
I of the Convention
into force
in Basic
18 May
Section
(entered
1954),
reprinted
on Human Rights 341 (Ian Brownlie
Documents
ed., 3d ed. 1992).
UDHR,
supra note 79.
2001

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91

Indigenous Rights in the Russian Federation

2004

as in
"to own property alone as well
right of everyone
one
"no
that
shall
be
whereas
17(b) prescribes
others,"
of
his
the
declaration
arbitrarily deprived
property."112 Therefore,
recognizes
that if an indigenous group ever enjoyed property rights in a specific piece
of land and was arbitrarily deprived of those rights, then their rights would
establishes
association

the

with

violated. However,
indigenous peoples of the north have never
over the lands where
had ownership
they live, since all the lands were
owned by the state. Also, the declaration
prohibits only arbitrary depriva
tion of property, in other words deprivation without any reasonable cause or
imposed by the mere exercise of power, without
justification
giving those
It
the right to be heard and to have their interests considered.113
affected
a
on
to
be
difficult
that
of
individual
would
very
prove
system
ownership
have been

be against this rule, especially


since the code
lands would
indigenous
a general right for everybody with previous possession
establishes
rights to
on
which
they have been living.
buy the lands
on the
instrument could be the Convention
Another
useful
possibly
Prevention and Punishment
of the Crime of Genocide
(Genocide Conven
as: "deliberately
2 of the Convention
defines
tion).114 Article
genocide
to bring about
of life calculated
its
inflicting on the group conditions
or in part."115 Indeed, in the last century
in whole
destruction
physical
several
nationalities
of the north have been extinguished,
indigenous
Itcan be argued
others are currently on the verge of extinction.116
whereas
if the lands are taken over by private persons
that this situation will worsen
or companies.
sets as an intrinsic element of
Convention
Yet, the Genocide
the "intent to destroy" a distinct group of people.117 Itwould
be
genocide
of these natives groups was and still
very difficult to prove that destruction
is the intention of the Russian Federation,
since the state has
especially
taken several measures
for the protection
of their rights. It is interesting to
on the Rights of
note here that in its current form, the draft Declaration
Indigenous

112.
113.

Peoples

establishes

Id. art. 17(a) & (b).


Eric Lucas, Towards

an

that the determining

International

Declaration

on

criterion

Land Rights,

is

for genocide

33

Int'l Comm.

Jurists

Rev. 64

114.

115.
116.

11 7.

(1984).
on
Convention

the Prevention
and Punishment
9
of the Crime of Genocide,
adopted
277 (entered into force 12 Jan. 1951 ) (entered into force for U.S.
Dec.
1948, 78 U.N.T.S.
23 Feb. 1989) (hereinafter Genocide
Convention).
Id. art. 2.

Statement
and Movements
of Indigenous
by the Social Organizations
peoples
of the North
in the Russian
North, Discrimination
against
Indigenous
peoples
tion, released 4 Mar.
1996, available
afarcticcircle.uconn.edu/SEEJ/russia_indig.
Genocide
Convention,
supra note 114.

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of

the

Federa

92

HUMAN RIGHTS QUARTERLY

"aim or effect"

to destroy

indigenous

communities

Vol. 26

rather than only

the

intent.118

A more

realistic option would


be the use of the ICERD which
includes
nondiscrimination
"the right to own
concerning
specifically
as
as
in
with
alone
well
association
others."119
Yet, the Russian
property
Land Code establishes
the same system for everybody;
and consequently
does not directly discriminate
against indigenous peoples.120 A case can be
made

for

that this system of private


discrimination,
arguing
hinders
the
of an appropriate
framework
ownership
indirectly
development
to protect indigenous
land rights. To this end, voices raised in favor of some
the land systems of the constituents
of the Russian
flexibility concerning
Federation should be seriously taken into account.121 A balance needs to be
found between
the individual right to ownership
and the collective
right of
own
on
to
which
the
northerners
lands
have
been
they
indigenous
living.
Lately,

indirect

the United
land rights.

indigenous
XXIII (51) concerning
recognise
and use

and
their

Nations
In 1997,

indigenous

protect
communal

the

system
CERD

has become
issued General

peoples,

encouraging

more

engaged
Recommendation
states to:

in

to own,
control
peoples
right of indigenous
develop,
territories
and
and where
resources,
they have

lands,

been deprived of their lands and territories traditionally owned or otherwise


inhabited or used without their free and informed consent, to take steps to
return

these

lands

and

territories.122

the right to indig


the 1999 Indigenous Rights Law recognizes
Although
own
enous
to
land
that
"their
traditional
economic
supports
peoples
as
as
common
resources
in
and
well
accordance
with
mineral
crafts
systems
and
established
the
federal
the procedure
by
legislation of
legislation
no
measures
Russian
the
such
have
of
been taken
Federation,"123
subjects
yet.

118.

on Human
Commission
Intersessional Working
Group on the Draft Declaration
Rights
on the Rights of Indigenous
18 Oct.
of possible
1999, art. 7. On the question
Peoples,
in
violations
of indigenous
lands, see Martin A. Geer,
concerning
Foreigners
genocide
Interna
Their Own
Land: Cultural
Land and Transnational
Corporations?Emergent
38 Va. J. Int'l L. 359-64
tional Rights and Wrongs,
(1998) (hereinafter Draft Declaration
on the Rights of Indigenous
Peoples).

119.

ICERD, supra
2001
Federal

120.
121.
122.

123.

note

11, arts. 5 (c), (d)(v).


Land Code,
supra note 25.
of different
representatives

the Tula deputies,


them,
regions of the State Duma,
Among
Putin. 5ee Scanner,
and in early May 2000 President
supra note 103, at 989.
on the Elimination
XXIII
of Racial Discrimination,
General
Committee
Recommendation
on Elim. of Rac. Discrim.,
51 Sess., f 5, U.N.
U.N. CERD, Comm.
Peoples,
Indigenous
annex V (1997).
Doc. A/52/18,
1999
Indigenous
Rights Law, supra note 21, article 8.4.

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Indigenous Rights in the Russian Federation

2004

93

sets clear
is contrary to ILO Convention
169, which
inactivity
for indigenous
collective
After
the
ownership.124
emphasizing
of
with
in
the
lands
"and
indigenous peoples
special relationship
particular
the collective
169
aspects of this relationship," Article 14 of ILOConvention
con
of
"the
and
of
the
recognizes
ownership
possession
rights
peoples
over
cerned
the lands which
they traditionally
occupy."125 The Draft
This

standards

on the Rights of Indigenous Peoples also provides a wide


range
of land rights to indigenous
to
peoples,
including collective
ownership
or
lands they "traditionally owned or otherwise
used."126
occupied
on the importance
In 1998, the Governing
Body of the ILO commented
a
an
in
of collective
land
indigenous
ownership
representation
concerning

Declaration

raised very similar


by Peru,127 which
alleged violation of the Convention
to
to
those
with
discussed
of the
respect
questions
indigenous
peoples
Far
East.
The
Peruvian
and
Land
Act
for the Rural
North, Siberia,
Titling
Communities
of the Coastal
individuals
Region authorized
living in the
Peruvian Coastal Region (an area inhabited mostly by indigenous peoples)
to sell lands to other
the land was owned
individuals,
although
by the
a
as
In adopting
whole.128
this act, Peru did not
community
indigenous
consult with the affected
but went ahead on the
indigenous community,
was better for the development
of the
ground that individual ownership
area. In its opinion,
the ILO Governing
lands held
Body noted that when
to
collectively
by indigenous and tribal peoples are divided and assigned
individuals, the exercise of indigenous
and, in
rights tends to be weakened
lose all or most of their lands.129 The International
general, they ultimately
Labour Conference
noted that although
it is not the Governing
Body's
or individual property was the
to determine whether
function
collective
most appropriate
for indigenous or tribal peoples,
arrangement
involving
as to whether
in the decision
this form of ownership
indigenous peoples
should change
is extremely
important.130
aside, indigenous
Putting land ownership
rights to traditional activities
are also currently under severe threat. The State Duma
in the
recognized
1995 Decree "on the crisis situation of the economy
and culture of the small
in number
of the North, Siberia and Far-East" that
peoples
indigenous

124.
125.
126.
127.

128.
129.
130.

ILO Convention
Id. art. 14.

169,

supra

note

9.

on the Rights of Indigenous


Declaration
supra note 118.
Peoples,
set up to examine
the representation
non-observance
Report of the Committee
alleging
art. 24, General
of
Confederation
169, I.L.O. Constitution,
by Peru of ILO Convention
Workers
of Peru (CGTP), Submitted:
& GB.273/14/4.
1997, GB.270/16/4
Peruvian
Land Titling Act No. 26845
of 26 July 1997.
set up to examine
the representation,
Report of the Committee
supra note 127, *fl 26.
Individual Observation
ILO Convention
169 (Peru n
CEACR,
3-6).
concerning
Draft

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94

HUMAN RIGHTS QUARTERLY

Vol. 26

to collapse which
activities were continuing
lead to
fur farm
impoverishment.131 Reindeer breeding/herding,
ing, hunting, dairy and livestock breeding as well as fish factories remain the
are not
of indigenous
activities
backbone
These
economy.132
peoples'
in
in
For
State
the
Committee
2001,
practice.
example,
protected
Fishing
issued a regulation giving rights to fish anadromous
species on a tender
traditional

economic

unemployment

and

peoples'
rights to priority licensing had been
Although
indigenous
no such rights were given to
in
"on
the
federal
law
fauna,"
envisaged
is
This
of primary
another
just
example
legislation
indigenous peoples.133
was
not
that
This
lack of
implemented.
benefiting
indigenous
peoples

basis.

has serious consequences


for indigenous
they
peoples:
with multinational
corporations'
equipment or organization
since the regulation does not give them
fish processing;
to
licenses
fish
rather
the
go to multinational
corporations
priority rights,
than indigenous peoples.
of indigenous
Positive measures
need to be taken for the protection
on
activities.
the
Swedish
the
traditional
report in 1995,
Commenting
in
Human Rights Committee
noted that equal rights to fishing and hunting
for the traditional activities of
Sweden may have adverse consequences
and indirectly gave priority to the traditional
rights of
indigenous peoples
to
to
ensured
for
need
be
peoples.134
Priority rights
fishing
indigenous
implementation
cannot compete
of fishing and

to the Lubicon Lake Band judg


peoples. According
indigenous
to
in traditional economic
of
violation
the
engage
ment,135
indigenous
right
In Ivan
activities amounts to a violation of the right to enjoy their culture.
Committee
while
noted
that
the
the Human
Kitok v. Sweden^36
Rights
a
an
matter
is
if
for
the
the
economic
of
state,
normally
activity
regulation
in the culture of an ethnic
in question
is "an essential
element
activity
Russian

there is a violation of Article 27 of the ICCPR.137


community,"
169 explicitly
the right of indigenous
ILO Convention
recognizes
to
The
activities.138
Convention
traditional
urges states to take
peoples

131.

132.
133.
134.
135.
136.
137.

138.

In Bill Bowring,
of Theory and
2000).

Ancient
Practice,

and New
Peoples
in Accommodating

in the Russian
Nations
National
Identity 223

Osherenko,
supra note 64, at 1080.
International Working
Group,
supra note 1, at 38.
in Spiliopoulou-Akermann,
1995 report discussed
Lake Band v. Canada,
Lubicon
supra note 17.

supra

note

42,

Federation:
(Stephen

Questions
ed.,

Tierney

at 154-55.

Id.
View

Under Article
of the Human
4, of the Optional
5, Paragraph
Rights Committee
on Civil and Political
to the International
Covenant
Protocol
Rights, CCPR, Communi
U.N. Doc. CCPR/C/33/D/197/1985
cation No. 197/1985,
(1988).
ICCPR, supra note 16,
art. 27.
ILO Convention
169, supra note 9, art. 14(1).

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2004

Indigenous Rights in the Russian Federation

95

measures

to safeguard
lands not exclusively
indigenous
rights to use
to
which
but
have
them,
by
occupied
they
traditionally had access for their
subsistence
and traditional activities.
Particular reference
is made
to the
situation of nomadic peoples and shifting cultivators, an important inclusion
for the numerically
small peoples of the Russian North, Siberia, and Far East.
The Draft Declaration
includes even wider protection of indigenous
rights
to traditional activities.139

the main threat to indigenous traditional activities are the


Undoubtedly,
multinational
corporations.140 Their attraction to the Russian north ismainly
to its rich natural resources,
owed
including timber, oil, gas, coal, and
minerals.
The rights to the subsurface are owned by the government,
but
transferred to companies
with a royalty payment.141
CERD
has
Indeed,
commented
that the life of the small peoples of the North, Siberia, and Far
to worsen,
East continues
not least because
persons are
non-indigenous
resources
control
of
the
natural
of
the
lands
where
taking
they live.142
The use of natural resources
is one of the most controversial
issues
1
Article
of
both
the
ICCPR
the
and
ICESCR
(2)
concerning
indigenous rights.
the right to "freely dispose of their natural wealth and resources"
recognize
and to not "be deprived of its own means of subsistence," whereas Article
47 of the ICCPR gives peoples
the right "to enjoy and utilise fully and freely
their natural wealth
and resources."143 Contrary to many states who do not
recognize
indigenous as "peoples," the Russian Federation does so. As seen
are called
in federal and regional
laws.
indigenous
"peoples"
as
them the rights of
Recognizing
such, but denying
indigenous peoples
Article 1(2) is discriminatory.
The Human Rights Committee
has also recognized
indigenous peoples
as beneficiaries
of this provision:
in its comments
the latest
concerning
and Australia,
the Committee
dealt
periodical
reports of Canada, Mexico,
with the right of natural resources of indigenous peoples by calling upon
their right to self-determination,
as enshrined
inArticle 1 of both the ICCPR
and the ICESCR.144Although
all three states, in their reports, had themselves
above,

139.
140.

on the Rights of Indigenous


Draft Declaration
supra note 118, arts.
Peoples,
The government
in 2002 that industrialization
has had adverse
acknowledged
lands and rights. Fifth Periodic
Federation
indigenous
Report of the Russian
taken and progress
towards
respect for the rights set forth in the International

26, 30.
effects for
on action
Covenant

on Civil and Political Rights, fl 187 UN Doc. CCPR/C/RUS/5.

141.
142.
143.
144.

supra note 64, at 1091.


Osherenko,
Record of the 1246th Meeting:
Russian Federation,
Summary
supra note 34,
ICCPR, supra note 16, art. 1(2); ICESCR, supra note 19, art. 1(2).
For Canada,
see UN Committee
on Human
of Reports
Rights, Consideration
40 of the Covenant,
Observations
by States Parties Under Article
Concluding
Human
Canada.
U.N. Doc. CCPR/C/79/Add.
07/04/99.
Rights Committee:
see UN Committee
For Mexico,
on Human
of Reports
Rights, Consideration

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42.

submitted
of

the

105, fl 8.
submitted

96

HUMAN RIGHTS QUARTERLY

Vol. 26

linked indigenous peoples with the right to self-determination,


the endorse
ment of this view by the Committee
and the expressed
view that Article
1
concerns
resources
is
in
natural
indigenous
important. Traditionally
though,
cases
on
the negative
effects of multinational
concerning
companies
has sidestepped
the controversial
issue of
rights, the Committee
resources
to
natural
and
has
used
the
"safer"
rights
indigenous
right to
6
v. Canada,
InOminayak
culture of minorities.145
the Committee
found
was
to
that a Canadian
of
lease
Indian
land
that
be
for
used
government
commercial
timber activities would
it would
violate Article 27 because
no violation
life of the Lubicon Lake Band. Although
destroy the traditional
7
was found in L?nsman v. Finland
the Committee warned
that any future
mining activities on a large scale "may constitute a violation of the authors'
indigenous

right under Article 27, in particular of their right to enjoy their culture."
8
the Committee
used the right to family
Making a shift, in Hopu v. France
and privacy. As they could not use Article 27 of the ICCPR,149 the Committee
held that construction
of a hotel located on indigenous ancestral grounds
itwould
would violate the right to family and privacy because
destroy the
can
an
owners'
traditional burial grounds, which
play
important role in a
person's
identity.150
169 is as helpful as it is realistic concerning
ILOConvention
indigenous
recognizes
peoples'
rights to natural resources. Article 15 of the Convention
that governments
often retain some natural resources for their own exclusive
but still provide
ownership,
indigenous peoples with rights "to the natural
resources pertaining
to their lands. These rights include the right of these
to participate
in the use, management
of these
and conservation
peoples
resources."151 Paragraph 2 provides for consultations?of
the kind provided
or even exploration.
for by Article 6?before
Thus,
permitting exploitation
over resources,
state
the
while
of
the
recognizing
sovereignty
principle
with
the need for prior consultation
also recognizes
provision
indigenous
peoples.

40 of the Covenant,
Observations
of the
Concluding
by States Parties Under Article
Human
Mexico.
U.N. Doc. CCPR/C/79/Add.
27/07/99.
109, H 19.
Rights Committee:
see UN Committee
on Human
of Reports submitted
For Australia,
Rights, Consideration
40 of the Covenant,
of the
Observations
Concluding
by States Parties Under Article

145.
146.
147.
148.
149.
150.
151.

Human
Australia
(Advanced
Rights Committee:
?
9.
CO/69/AUS,
ICCPR, supra note 16, art. 27.
See generally,
supra note 17.
Id.
Id.
ICCPR, supra note 16, art. 27. France has made
on this ground.
finding was possible
Id. art. 11.
ILO Convention

169,

supra

note

9, art.

unedited

version),

a reservation

U.N.

to Article

15.

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Doc.

27,

CCPR/

thus,

no

Indigenous Rights in the Russian Federation

2004

97

in 1999 that Bolivia had violated


ILO Governing
Body decided
in matters that concerned
those
rights to land and consultation
for
decisions
established
administrative
forestry concessions
in areas where
and petroleum
peoples
mining
exploitation
indigenous
in charge of the case held
them.152 The Committee
lived, without consulting
ensure
to
that the indigenous
communities
that states must undertake
are consulted
on the extent and
and adequately
concerned
promptly
and exploitation
these are
of exploration
activities, whether
implications
The

indigenous
rights when

or forestry activities.153
mining, petroleum,
The ILOGoverning
cultural, social,
Body suggested that environmental,
and spiritual impact studies, conducted
jointly with
indigenous peoples,154
consultations
with
should take place
and appropriate
indigenous peoples,
in areas they
and exploitation
of natural resources
before any exploration
have traditionally occupied.155 The Committee
of Experts of the ILO also has
on projects that had negative
in several of its observations,
commented,
impacts on indigenous peoples.156
their natural
Participation of indigenous peoples over issues concerning
resources
is mainly
based on the international
standards
concerning
ana
of minorities
and consultation
and indigenous peoples
participation
1999
Law
The
with
all
these
lyzed previously.157
Indigenous Rights
complies
8.1 provides
standards.158 Article
the right to
peoples with
indigenous
over
use
in
the
is
control
of
land
that
for
necessary
exercising
participate
in
their traditional economic
environmental
when
these
systems;
protection,
lands and the resources are industrially used; in development
and adoption
of decisions
assessments

152.

153.
154.
155.
156.

157.
158.

that concern
them; and in environmental
in the development
of state programs

and anthropological
of natural resource

set up to examine
the representation
non-observance
Report of the Committee
alleging
and Tribal Peoples
1989
(No. 169), made
Convention,
by Bolivia of the Indigenous
under art. 24 of the I.L.O. Constitution
(COB), ILO
by the Bolivian Central of Workers
& GB.274/16/7
(1998).
Governing
Body Docs. GB.272/8/1
Id. % 38.
Id.n
Id.

39 &44.

See CEACR,
169 on Indigenous
Individual Observation
Convention
and
concerning
Tribal
Individual
Observation
^ 7; CEACR,
Mexico,
1997,
Peoples,
concerning
Convention
No.
and Tribal Peoples,
169, Indigenous
Colombia,
1999, ^ 2; CEACR,
Individual Observation
Convention
No. 169, Indigenous
and Tribal Peoples,
concerning
Individual Observation
Conven
Mexico,
1999, ? 11; CEACR:
published:
concerning
tion No.
and Tribal Peoples,
Individual
169,
Peru,
1999, ? 7; CEACR,
Indigenous
No.
Observation
Convention
169 on
and Tribal
concerning
Indigenous
Peoples,
?
4.
Mexico,
2000,
See esp. ICCPR, supra note 16, arts. 25-27;
Framework Convention,
supra note 13, art.
on Minorities,
15; Declaration
supra note 46, art. 5.
See 1999 Indigenous
Rights Law, supra note 21.

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98

HUMAN RIGHTS QUARTERLY

Vol. 26

for indigenous
exploration.159 The law also provides
rights to compensation
as well as state, regional, and local support for the realization of
peoples
these rights.160 Also,
the 2001
Federal Law on Territories of Traditional
Natural Use (Traditional Subsistence
Territories) of Indigenous Numerically
of the North,
Small Peoples
Siberia and the Far East of the Russian
Federation,

regulates
conserved
"especially
nature management
indigenous

peoples

the establishment,
and development
of
maintenance,
areas formed for the purposes of traditional
wildlife
and peaceful
of settlement
land by the
enjoyment
of the North, Siberia and the Far East of the Russian

Federation."161

since 1999 relevant


However,
reality is much bleaker: first, although
acts that apply the Indigenous
local normative
Rights Law have been
a
areas
as
in
few
of
the
such
Federation,
adopted
Buryatia, Yakutia-Sakha,
the Tyumen Oblast,
and Khabarovsk Krai,162 most often no action has been
even contra
instructions and enactments
taken; in truth, recent temporary
law.163 For centuries
the resources have been exploited
dict the above
and
today they provide one-fifth of Russia's gross
in this area is expected
to increase even
with
consultation
the Russian
indigenous
in areas
of natural resources
exploitation

national product; development


to the law,
more.164 Contrary
or
about
peoples
exploration
not
live
does
take
they
place.
no compensation
is made for the lands utilized by the state or
Moreover,
in traditional
land use areas; no funding
is
international
companies
no
its
for
the
realization
and
of
environmental
provided
provisions;165
"in the
assessments
take place.166 Indigenous peoples have no participation
the
benefits of such activities,"167 since any benefits are divided between
to which
federal, regional, and local governments,
indigenous communities
for any
often do not have access; nor do they get any "fair compensation

159.
160.

Id.
8.4 gives
indigenous
peoples
and
international,
federal,
regional,
right to compensation.
Id. Article

the
161.

162.
163.
164.
165.

166.

167.

Article

1 of

the

Law On

the

resources
and financial
the right to material
and Article 8.8 gives them
local authorities
Nature

Traditional

of the North,
Siberia
and
Indigenous
People
Towards a New Millenium,
supra note 2, at 281.
ECRI Report, supra note 26, at 41, ? 51.
The Indigenous World,
supra note 1, at 38.

Territories
of
Management
Far East of the Russian
Federation,

by
the
the
in

AMAP,
supra note 33, 65.
in the 2001
Statement
of the Association
for the Shor People
by Mikhail
Todyshev
on file with
25 July 2001,
session of the working
group on indigenous
populations,
author. See also The Indigenous World,
supra note 1, at 34.
IWGIA reports that no environmental
The Indigenous World,
1, at 41.
supra note
nor public hearing
assessment
took place before
of a gas
the start of the construction
in the south of the Tkhsanom
goes through
territory, even though the pipeline
pipeline
areas.
subsistence
indigenous
See ILO Convention
169, supra

note

9, art.

15.

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Indigenous Rights in the Russian Federation

2004

99

they may sustain."168 Finally, since the adoption of the 2001


damages which
law on Territories of Traditional Natural Use, not even a single traditional
to the government,
natural use territory has been established. According
this
is because of the "unavailability
of essential
legislative acts regulating the
order of establishing
traditional subsistence
territories of federal significance
as well as specification
to their function
of the system of rules applicable
has taken no steps to reverse the situation. At
ing."169 Yet, the government
the same time, cases of hasty abolition of the formerly established
tradi
tional subsistence
territories have come to the attention of the international
community.170

D. Cultural

Rights

small peoples of the North,


Fortunately, cultural rights of the numerically
Siberia, and Far East are better protected than land rights. Certainly, we have
dramatic positive changes. The historical past of indig
recently witnessed
enous peoples,
their culture, religious beliefs, customs, and traditions have
more coverage. Attempts have been made to
begun to receive considerably
incorporate the history of culture and religion in educational
programs and
to create
in
textbooks
all
constituent
entities
of the
regional
published
Russian Federation.
International
law protects a generic
individual right to a culture. Article
of

the Universal
Declaration
the right of everyone
"to
recognizes
in
the
cultural
life
of
the
15
Article
of
the
freely participate
community"171;
ICESCR establishes
the states' duty to protect culture172 and Article 30 of the
Convention
of the Rights of the Child protects the right of the indigenous
child "to enjoy his or her own culture."173
Members
of minorities
have the right "to enjoy their culture,"174 to
in
profess and practice their own religion and to use their own
language,
or
and
without
form
interference
of
private and in public,
any
freely
to "express, preserve and develop
in complete
freedom
discrimination175;
27(1)

168.
169.

1 70.
171.
172.
173.

174.
175.

Id.
from letter #29/22-1
dated
of
Jan. 2001, written
Quote
by the First Deputy Minister
Economic
S.N. Kharyuchi,
in The Indigenous World,
Development,
quoted
supra note 1,
at 44, n.1.
Id. at 39-40.
supra note 79, art. 27(1 ).
instruments
also protect culture.
ICESCR, supra note 19, art. 15. Several UNESCO
on the Rights of the Child, adopted
Convention
20 Nov.
U.N.
1989, G.A. Res. 44/25,
GAOR, 44th Sess., Supp. No. 49, art. 30, U.N. Doc. A/44/49
(1989) (entered into force
2 Sept. 1990), reprinted
in 28 LL.M. 1448 (1989) (hereinafter CRC).
on Minorities,
ICCPR, supra note 16, art. 27; Declaration
supra note 46, art. 2.
on Minorities,
Declaration
supra note 46, art. 2.
UDHR,

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100

HUMAN RIGHTS QUARTERLY

Vol. 26

religious, ethnic,
linguistic and/or cultural
identity, without
being
subjected to any attempt of assimilation
against his/her will,"176 individually
or in association
with others.
the relevant documents,
the
By signing
Russian Federation has undertaken
as well as to promote
these obligations
the conditions
to national minorities
for persons belonging
to
necessary
maintain and develop
their culture, and to preserve the essential elements of
their identity, namely
their religion,
and cultural
traditions,
language,
his/her

heritage.177

ILOConvention

169 goes further and requires positive measures


for the
to
the
full
realization
of
promote
indigenous
peoples
to
cultural
with
their
their
cultural
indigenous
respect
rights
identity,
customs and traditions, and their institutions.178 In general, the recognition,
and promotion
of indigenous values and practices must be an
protection,
factor
when
of the Convention.179
important
applying all the provisions
The Russian Federation has adopted
in accordance
with the
legislation
standards of ILOConvention
169. The Concept of the State National Policy,
in 1996,
to "the promotion
is committed
of development
of
adopted
national cultures and languages of the peoples of the Russian Federation."180
The 1992 Federal Law on Fundamentals
of the Russian Federation Legisla
tion on Culture guarantees
the right of peoples and other entities to preserve
of

participation

their cultural and ethnic


and develop
reconstruct,
identity and to protect,
and maintain
native culture.181 More
21 of the law
than this, Article
the right to cultural and ethnic autonomy
to all ethnic commu
guarantees
a
nities
in
state
outside
their
entities.182
The 1996
compact way
living
Federal Law on National
Cultural Autonomies
the
of
gives
possibility
to all stateless minorities183 and provides for a system of
cultural autonomy
associations
called national cultural autonomies
at the federal, regional, or
local level as a form of national and cultural self-determination
and self
for
the
and
of
organization
preservation
development
lifestyles, traditions,
of ethnic groups. The law provides
these
language, and self-awareness
cultural autonomies
with the right to ask for support necessary
to preserve

176.
177.

Council
Meeting
rr4csce3.

178.
179.
180.
181.

182.
183.

of Europe, Rec. 1201,


Convention,
supra
of the CSCE, adopted

Framework

supra note 49, art. 3.1.


note 13, art. 5.1; Concluding
19 Jan. 1989, % 19, available

Document

ILO Convention
169, supra note 9, arts. 2(b) & 4.
Id. art. 5.
Protection
Implementation
Report, supra note 87, at 2.
The Federal
Law on Fundamentals
of the Russian
Federation
9 Oct.
1992 and amended
adopted
by Federal Act No. 3612-1,
23 June 1999, 27 Dec. 2000,
30 Dec.
24 Dec.
2002.
2001,
Konst. RF, supra note 20, art. 21.
See National-Cultural

Autonomy

Law,

supra

note

of the Vienna

afwww.unesco.org/most/

on Culture,
Legislation
on
and supplemented

22.

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Indigenous Rights in the Russian Federation

2004

101

of the mother tongue, and national


the national way of life, the development
to put forward national and cultural
interests to the legislative
culture;
powers and local authorities; to create mass media and transmit and receive
in the mother tongue; to preserve and enrich the historical and
information
to create educational
cultural heritage, and follow traditions and customs;
and cultural institutions184 and cultural bodies; and to develop and maintain
cross-frontier

contacts.185

the wide protection established


by this federal legisla
Notwithstanding
here: autonomy
is not a
tion, an important point must be addressed
however,
requirement for indigenous cultural rights; effective participation,
cannot release
of cultural autonomy
is.186 In other words,
the proclamation
from the positive obligations
the federal state and its constituents
they have
under international
law to protect and promote
indigenous cultural rights.
These obligations
also include funding as well as steps to make
indigenous
on Economic,
effective.187 The Committee
Social and Cultural
participation
concrete
insisted that states should
take "deliberate,
and
states
of
for
the
cultural
of
steps
implementation
targeted"188
rights. Poverty
cannot be an excuse for inaction.189
law.
aspects of culture are also protected
by international
Specific
the
Constitution
of
Russian
the
Federation
Concerning
protects
language,
to use his or her native language and freely choose his/
the right of everyone
Rights

has

her language of communication,


and creative
education,
upbringing,
to all of its peoples
work.190 The Constitution
also "guarantee^]
the right to
to
create
their
native
and
its
conditions
for
preserve
study and
language
to
with
reference
the
of
the
guarantees
development,"191
specific
rights of
are
in
small
These
accordance
numerically
guarantees
indigenous peoples.
with existing standards of international
law.192The Law on the Languages of

184.
185.

186.

187.
188.
189.
190.
191.
192.

Act also urges states to take appropriate


National
Minorities
that will
legislation
the creation
of cultural and educational
allow
establishments
of minorities.
Bill Bowring,
See
Last Laugh?
Austro-Marxism's
of
The Struggle
for Recognition
54 Eur.-Asia Stud. 229-50
for Rossians
and Russians,
National-Cultural
Autonomy
(2002), for a critique of the law.
See CSCE, Helsinki
1 Aug.
Final Act, CSCE Summit, Helsinki,
1975, <H26, "all peoples"
on
have the right to cultural
whereas
the United
Nations
Declaration
development
Minorities
of minorities
to the cultural
life and matters
requires effective
participation
that affect them.
on Minorities,
Declaration
supra note 46, art. 2.2, 2.3.
The

3 (1990) on "the nature of states' obligations,"


Comment
U.N. Doc. HR/
H 2.
PUB/91/1,
43-47,
Id. See also, Patrick Thornberry
& Diana Gibbons,
Education
and Minority
Rights: A
4 Int'l J.Min. & Group Rts. 144 (1997).
Short Survey of International
Standards,
Konst. RF, supra note 20, art. 26(2).
Id. art. 68.
In particular,
on
with
the ICCPR, supra note
16, art. 27; Declaration
they comply

See General

Minorities,
Framework

supra

note 46,

Convention,

art. 4.3; Council


of Europe,
note 13, art. 14.

Rec.

1201,

supra

supra

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note 49,

art. 8;

102

HUMAN RIGHTS QUARTERLY

Vol. 26

the Peoples
of the Russian
Federation193 gives the right to members
of
to learn their own languages
minorities
and indigenous peoples
1999
the right of indigenous
Indigenous Rights Law establishes
to
and
receive and dis
preserve
peoples
develop
indigenous
languages,

dispersed
and the

in the indigenous
languages, and establish
indigenous
in indigenous
and radio stations
newspapers
languages
in indigenous territories.195 Provisions
in federal laws also guarantee
operate
The 1999
minority and indigenous
language rights in judicial proceedings.
customs
Law
that
and
traditions
of such
proclaims
Indigenous
Rights
can
account
in
into
trials
be
taken
peoples
concerning
indigenous peoples,
seminate

media.194

information
Indeed,

and participation
of authorized
of numerically
small peoples
representatives
in defense of indigenous
is possible.196
accused
these
persons
Following
states
constitutions
of
the
constituent
several
of
the
Federation
safeguards,
also

guarantee

the protection

of minority

and

indigenous

cultures

and

languages.197

Provisions

for the education


have also been made
of indigenous
to
1992
Act
citizens
The
Education
the
grants
peoples.
right to primary
resources
to
to
in their national
the
education
available
language, subject
and
the
of
minorities
the educational
and
system,
indigenous peoples
right
to protect and develop
their culture and their historical
habitat.198 Apart
to education,199
the right of everyone
international
from establishing
inwhich participation,
standards set a framework for minority education,200
that the purpose
and resources are essential.201 The law establishes
choices,
in a
shall be to "enable all persons to participate
of education
effectively
free society."202 Education must apply without

193.
194.
195.
196.
197.

198.
199.
200.
201.
202.
203.

discrimination203

and positive

Law on

of the Russian
the Languages
of the Peoples
Federation
(as amended
by the
Federal Law, 24 July 1998).
1999
Indigenous
Rights Law, supra note 21.
on the Framework
art. 9, supra note
Federation
Convention
See Report of the Russian
87, at 2.
Id.
12 of the Law of the Republic
of Buryatia on the Languages
of the
For example,
Article
establishes
the right of the numerically
small
of the Republic
of Buryatia
Peoples
to use the language of the majority
of that area in the work of
of the population
peoples
in case
document
elections
and referenda
bodies,
government
processing,
conducting
Id.
of compact
residence.
13 Jan. 1996.
Education Act was adopted
The Russian
Federation
UDHR,
supra note 79, art. 26; ICESCR, supra note 19, art. 13; CRC, supra note 173, arts.
on Human
1 European Convention
28 & 29; Protocol
Rights, supra note 110, art. 2.
on Minorities,
CRC, supra note 173, art. 30; Declaration
supra note 46, art. 4.5; Helsinki
Final Act, supra note 186; Framework
Convention,
supra note 13, art. 6.
& Gibbons,
supra note 189.
Thornberry
ICESCR, supra note 19, art. 26(2).
on education
refers to discrimination
and
ICERD, supra note 11, art. 5(e)(v) specifically
on Human
1, European Convention
training; see also Protocol
Rights, supra note 110,
at 14.

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Indigenous Rights in the Russian Federation

2004

103

measures

can be taken to this end.204 As with all cultural rights, cultural


cannot take away the responsibility
of the state to take steps for
autonomy
the fulfillment of such rights. Education must be in conformity with one's
beliefs205 and must teach about the person's own
religious and philosophical
itmust also teach the national values of the state inwhich
culture; however,
is living.206
the person
At the same time, states should not forget the contribution
of minorities
to the general
of the
society. Thus, they should encourage
knowledge
history, traditions,
language, and culture of the minorities
existing within
their territory.207 Indigenous distinct culture, history, language, and way of
as an enrichment
life must be recognized
of the state's cultural
identity.208
"Intercultural dialogue" and mutual understanding
and cooperation must be
advanced
"in the field
through education209 and states must take measures

and research to foster knowledge


of the culture,
history,
of
and
national
minorities
and
the
language
religion"
majority.210 The value
of interculturalism and multiculturalism
is also emphasized
by the European
Charter for Regional or Minority
Languages.211
of education

to the explanatory
report to the European Charter, a "crucial
According
factor in the maintenance
of regional and minority
is the place
languages
are
in
educational
the
state has
The
Russian
given
they
system."212
the real problem of indigenous
languages' survival by establish
in
educational
institutions
in
that train teachers
ing departments
higher
native languages.213 In 1998, the Russian Ministry of Education elaborated
a
framework entitled the Concept of Reforming the System of Pre-school
and

addressed

General

School
and Training of Personnel
from among
the
Secondary
a
Small
of
the
North.214
Within
this
State
Indigenous
Peoples
framework,
Polar Academy
has been set up in St. Petersburg with a view to educating
the indigenous small peoples of the North215 and educational
and method
for
is
support
ological
teaching
indigenous
provided
languages
by the
in
federal authorities.216 Nevertheless,
education
tertiary
minority
languages

204.
205.
206.
207.
208.
209.
210.
211.
212.
213.
214.
215.
216.

ICERD, supra note 11, arts. 1(4) & 2(2).


on Human
Protocol
1, European Convention
Rights, supra
CRC, supra note 173, art. 29.
on Minorities,
Declaration
supra note 46, art. 4.4.
on the Elimination
Committee
of Racial Discrimination,
XXIII, supra note 122.
Framework
Convention,
/c/. art. 12.
ECRML, supra
Id. f 63.

note

supra

12, at ?

note

note

110, art. 2.

General

Recommendation

13, art. 6.

29.

For instance, the Buryat State University


see Report
has an Evenk section,
on the Framework
Federation
Convention,
supra note 87, art. 12.
1999
Indigenous
Rights Law, supra note 21.
Id.
Id.

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of the Russian

104

HUMAN RIGHTS QUARTERLY

Vol. 26

should not be restricted only to teacher


it does not
training, because
deal with the range of group needs.217 Expressing this principle,
adequately
to the
the Russian government
has noted that it gives "special attention
small peoples of the North pursuing their distinctive
problems of educating
way

of

life."218

the system does not seem to incorporate


Moreover,
indigenous partici
into the design of education.
the possibility
of cultural
pation
Although
are
allows
and participation
initiatives, consultation
autonomy
indigenous
can be used to work
not necessarily
The education
ensured.
process
towards assimilation.
the wishes
and desires of indigenous
Therefore,
can be disregarded
and lost among regional and local
peoples unfortunately
the curriculum
and the textbooks they will use.219
bodies when designing

III.CONCLUSIONS
This article contrasted
the rights of numerically
small indigenous peoples of
the existing
international
the Russian North, Siberia, and Far East with
standards. The Russian Federation has recently signed several human rights
its international
instruments that are relevant to indigenous
rights. Following
the state has adopted
the
important
concerning
legislation
obligations,
Far
East.
of
the
and
small
Siberia,
North,
Currently,
numerically
peoples
ensure the prohibition
on the
of discrimination
constitutional
guarantees
further legislation promises
basis of race, language, and religion, whereas
and promotion
of indigenous
and
the development
cultures,
languages,
are
wide
and
communities
cultural
the
given
lifestyles.
Indigenous
rights
can
autonomous
administrative
of
regions. They
participate
option
creating
in the development
of programs that affect
of laws and the implementation
constituent
authorities can allow a quota system in order to
them, whereas
ensure that indigenous peoples have a voice in legislative bodies. Moreover,
a right of priority for indigenous ownership
the new land system guarantees
of
the participation
of the lands they have been
using and assures
in land management
and environmental
protection.
indigenous peoples
small
Nevertheless,
numerically
peoples are still in a critical situation
and do not enjoy the rights guaranteed
by the federal state. Implementation
Lack of
laws protecting
of the federal
indigenous
rights is very weak.
as
as
new
will
the
well
lack
of
the
laws
with
by
regional
political
familiarity

217.
218.
219.

& Gibbons,
See Thornberry
supra note 189, at 147.
on the Framework
Federation
Report of the Russian
tion, supra note 87, art. 12.
& Gibbons,
See Thornberry
supra note 189, at 143.

Convention,

Framework

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Conven

Indigenous Rights in the Russian Federation

2004

105

there is an urgent
and local authorities are to blame for this. Consequently,
will
that
and
local
need for secondary,
regional,
implement the
legislation
the
of
the
federal
judiciary, regional, and local
legislation. Also,
principles
authorities need to be educated about
authorities as well as the enforcement
importantly, practical and realistic steps need to be
indigenous
rights. Most
taken to inform indigenous peoples of their rights.
lead to inactivity
The system of indigenous autonomy
regimes cannot
to be taken to
state.
Positive
have
the
measures,
including funding,
by
standards
require the real
rights. International
peoples'
not
the
of
these
just
protection
peoples,
legal protection. Also, autonomy
cannot be used to isolate indigenous
from the society; on the
peoples
must
to
to the life of the Russian
be
contribute
contrary, they
encouraged
can
This
effective
of these
society.
only happen
participation
through
in
in
matters
and
bodies
consultation
that
affect
decisionmaking
peoples
to ensure the participation
must be developed
them. Therefore, mechanisms
these

improve

in decisions
and projects that affect them; steps must
indigenous peoples
ensure
in the local decisionmaking
to
be taken
indigenous participation
areas
a
in
where
bodies
they have
strong presence;
guarantees must be
in
enforced
for the participation
of indigenous
land management.
are taken, the new legislative framework can prove
If these measures
are
very valuable and the situation of these communities,
many of whom
near extinction,
will
improve considerably.
newly established
Through

of

small peoples
have recently reached out to ask
organizations,
numerically
for help for their acute problems. The Russian society needs to address these
and help their indigenous peoples maintain
and develop
their
problems
identities, for the benefit of indigenous peoples as much as the benefit of the
society

as

a whole.

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