Who shall be referred to National Minorities?
Terminology used in legislation of the Federation Subjects.The Federation subjects in their law-making activities use definitions recorded in the Constitution of the Russian Federation (national minorities, small indigenous peoples, small ethnic communities) and in the Federal Laws (small peoples, indigenous/aboriginal peoples, small peoples of the North, indigenous small peoples of the North (the Extreme North), nationalities groups and communities, ethnic communities, small ethnic communities of the North, cultural ethnic communities).
Besides that, regional legislation contains definitions that are not used at the Federal level: ethnic minorities (republics of Tatarstan, Khakasia), dispersed ethnic minorities (Tomsk region), indigenous national minorities (Republic of Buryatia), nationalities' communities (Sverdlovsk region), small nationalities' communities (Krasnoyarsk region), small ethnic groups (Republic of Yakutia), indigenous nation (Republic of Kalmykia), indigenous peoples of a particular area (republics of Kabardinian-Balkar, Kalmykia, Tatarstan, Khakasia; Altai, Primorski, Sverdlovsk regions), indigenous ethnic group (Khakassia), titular indigenous people (Republic of Karelia), indigenoues population of a territory (republics of Dagestan, Khakasia, Irkutsk, Tomsk regions), ethic groups (republics of Komi, Dagestan, Yakutia), ethnic communities (republic of Adyghea), ethno-denominational and enthno-cultural groups (Republic of Buryatia). This diversity of definitions used in regions is the result not just of local peculiarities but of lack of precise regulation of conceptual apparatus in the Federal Laws.
In principle, two different approaches are possible: either distinct definition of terms or enumeration of specific peoples and ethnic groups that fall under this definition. The effective Federal Laws contain a precise definition of a single term, i.e., indigenous small peoples of the North. The legislator places “a peoples residing in territories of their traditional habitation of their ancestors, preserving original distinct way of life, having no less than 50 thousand people in Russia and recognizing themselves as an independent ethnic community” under this definition. The second approach is employed in sub-law acts: the Resolution of the RF Government # 22 of January 11, 1993 approves the List of small peoples of the North habitats while the Resolution of the RF Government # 255 of March 24, 1993 approves the Single list of indigenous small peoples of the Russian Federation. In all other instances it is not clear who falls into the effect of a particular Federal law or a sub-law act.
For example, the titular peoples, i.e., Kabardinians and Balkars are referred to the category of indigenous peoples. The similar situation exists in Bashkortostan where the Bashkirs are mentioned as the indigenous (Republic-forming) nation, in Udmurtia, in the Republic of Altai; in Buryatia the Buryats, among others, are meant as an indigenous/aboriginal people.
In result of that the Finns in Karelia are referred to “the national minority which is traditionally equated with a indigenous small people of the Republic of Karelia”. In Khakasia the Khakas are defined as the indigenous ethnic group as well as the indigenous people and indigenous population.
Models of national minorities legislative registration. Potential threats to the national security of the Russian Federation in the context of provision with national minorities’ rights in the Russian Federation territory may lead to possible conflicts of various ethnic groups’ interests, aggravation of inter-ethnic relations, inter-ethnic conflicts arising from realization of certain rights of national minorities.
The Framework Convention of the protection of national minorities determines and establishes the general principles the parties of Convention shall comply with and obligations that arise from these principles. That is done in order to ensure an effective protection of national minorities’ rights and of rights and freedoms of persons belonging to such minorities under observance of supremacy of law and respect of territorial integrity and the state sovereignty. The overwhelming part of national minorities’ rights declared in the Convention is ensured by the Constitution of the Russian Federation and the Federal elegislation. However the Convention proclaims norms that are either absent or formulated in too general and vague way in the Federal laws. The following norms deserve the special mentioning: creation of conditions for the effective participation of persons belonging to national minorities in cultural, social and economic life as well as in execution of the state affairs, in particular those that affect such persons (Art. 15); the right to place ads, signatures and other information of private nature executed in a national minority’s language in the public forums (Art. 11, part 2); facilitation of access to mass media for persons belonging to national minorities (Art. 9, part 4); provision with conditions that allow using a minority language in communication between these persons and administrative authorities (Art. 10. part 2).
How will these rights of national minorities be implemented under the Russian circumstances? The above mentioned reference to the supremacy of law set forth in the Convention’s preamble sounds a bit ambiguous due to lack of a Federal law on national minorities and respective laws in subjects of the Federation.
Difficulties that impede adoption of the Federal law on national minorities are caused, in first place, by intricacy of inventing a distinct, unequivocal definition of national minority in the current conditions of Russia. Defining national minorities the legislator has to provide plain, unambiguous answers to several questions:
Perhaps, the last criterion is the least important: the laws on indigenous small peoples is rather well developed in subjects of the Federation. All rights envisaged in the Federal Laws as well as in international obligations of Russia are ensured for these small peoples. It is obvious that these categories should be separated.
The previous draft laws referred only citizens of Russia to national minorities. However the position of deputies is far from being unambiguous: one of objections raised against ratification of the CIS countries’ Convention “On provision with rights of persons belonging to national minorities” comes to the fact that this document contains a statement according to which only persons permanently residing in the territory of a particular state and possessing its citizenship are referred to a national minority. The statement passed by the State Duma at ratification of the Framework Convention is also a little ambiguous. The statement reads that exclusion of apatrides from the sphere of the Convention’s validity and effect runs counter its purposes. The inconsistency manifested by the body of deputies is explainable: any legislative step aimed at national minorities in Russia is made with caution. Deputies are anxious about possible effects their actions may have on condition of Russian compatriots in the new foreign states their actions. If the Russian legislators recognizes possession of a state of residence citizenship as one of criteria for reference of a person to a national minority then Russia automatically loses its right to protect those compatriots who do not have such citizenship, first of all, Russians residing in Latvia and Estonia.
Referral of only citizens of the Russian Federation to national minorities corresponds to the international practices and the existing realities: it’s difficult to imagine that guarantees of national minorities’ rights are extended, say, to numerous Chinese or North Korean citizens who reside permanently or take a temporary stay in the south of the Far East or to persons who enjoy a temporary staying in the territory of Russia in accordance with the Law “On refugees”. However one cannot exclude a compromise development when national minorities’ rights are extended to cover citizens of ex-USSR.
In absence of unambiguous Federal laws subjects of the Federation (and not just republics) may be unable to resist a temptation to pass laws on national minorities that will contain certain discriminatory norms.
Firstly, subjects of the Federation may include in their laws a norm according to which peoples that have national territorial formations of their own in the territory of Russia or ethnic districts in a subject will be not referred to national minorities.
Secondly, subjects of the Federation may be unable to withstand a temptation to introduce a hierarchy of national minorities making legislative provisions only for rights of either “indigenous nations” of a particular territory or of “indigenous national minorities”. (As it has been already said, respective notions are recorded in laws and normative legal acts passed by several subjects).
Thirdly, it cannot be excluded that national minorities’ rights will be secured by laws only for titular peoples of a subject.
Finally, there is also so well tried and tested means as the institution of registration: granting national minorities’ rights exclusively to the permanent residents of a region. For instance, authorities of Krasnodar region allow registration of Meskhetian Turks but only at the place of staying for 1 year.
It should be noted that making of laws regulating issues of migration, registration of residence and staying, drawing in and employment of foreign labor in subjects of Federation opens exceptionally wide opportunities for discrimination of national minorities. These are issues left unregulated by the Federal laws. And such laws are being formed intensively in the regions.
Taking into account the aforesaid, an expanded interpretation of “national minority” term for the purpose of this monitoring is accepted. The term covers representatives of ethnic groups that:
According to these criteria the monitoring embraces all nations that dwell outside of their national territorial formations including Russians who are outnumbered in the territory of a particular subject of the Federation.