Ira Chakraborty
Nov 3 · 9 min read

What does the right to self-determination mean for the Kurds & Catalans?

Introduction:

The Kurds held an independence referendum on September 25, 2017, expressing the majority wish to separate from Iraq. [1] Similarly, on October 1, 2017, the Catalan people voted in favour of separating from Spain. The central governments of Iraq and Spain have opposed the referenda as ‘unconstitutional’ and have rejected both claims for independence. While it has been established that the referendums cannot be justified based on the Iraqi and Spanish constitutions, it remains to be considered whether the international law on self-determination can provide a justification.This article analyses the Kurdish and Catalan claims for independence through the lens of international law on self-determination and secession by assessing whether minority groups can rely on international law based “rights” to assert claims of independence. [2]

The characteristics of a sovereign state under customary international law are codified in Article 1 of the Montevideo Convention on the Rights and Duties of States (‘Montevideo Convention’), to include a permanent population, a defined territory, a government, and the capacity to enter into relations with other states. [4]. The claims for independence by the Kurds and Catalans, lack international legal recognition.

In the case of the Catalonians, ‘Catalonia’ meets the classical objective criteria for statehood. To illustrate, Catalonia has a stable population of 7.5 million people, a clearly defined territory of approximately 32,000 km2, and has been economically viable under an effective government (Mark Weller).

What is meant by the right of self-determination in international law?

At the Paris Peace Conference 1919 , after World War I US President Woodrow Wilson pushed for the peace settlement to be based on the principle that “every territorial settlement in this war must be made in the interest and for the benefit of the populations concerned, and not as a part of any mere adjustment or compromise of claims amongst rival states”.

Who has the right to self-determination?

The right to self-determination is enshrined in the UN Charter and other treaties such as the International Covenant on Civil Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights. Self-determination accrues to a group recognised as a ‘people’ by international law (Simpson, G. 1996).The right to self-determination of peoples has an internal aspect, ie., the rights of all peoples to pursue freely their economic, social and cultural development without outside interference…The external aspect of self-determination implies that all peoples have the right to determine freely their political status and their place in the international community based upon the principle of equal rights and exemplified by the liberation of peoples from colonialism and by the prohibition to subject peoples to alien subjugation, domination and exploitation ( UN Committee on the Elimination of Racial Discrimination 1996, General Recommendation XXI (48),).

It holds that ‘peoples’ are free to determine their political status and economic, social and cultural development. To address the ambiguity of the right to self-determination the interpretation is restricted to ‘people’ in international law. However, international law does not define the term ‘people’. It entails a subjective element, such as a common belief by members of the group that they share the same characteristics and beliefs and thus form a common unit, as well as an objective element, such as common racial background, culture, ethnicity, religion, language, and history. [3]

In the political and legal debate around Catalonia and Kurdistan, the secessionist movement has argued two main principles of International Law: the principle of self-determination and the principle of democracy and human rights. The principle of the self-determination of peoples, on a strict reading, focuses exclusively on those peoples under colonial domination or foreign occupation and, thus, is not applicable to secessionist tensions within democratic States.

The principle of self-determination outlines not just the positive duty of states to respect and promote the right, but also the negative obligation to refrain from any forcible action which deprives peoples of the enjoyment of such a right. “Very few individuals”…” have the strength to conserve their own integrity if their social, political and legal status is completely confused (Hannah Ardent).”In particular, the use of force to prevent “a people” from exercising their right of self-determination is regarded as illegal and has been consistently condemned by the international community.

The principle of self-determination may provide a legitimate ground for Kurdish independence, as the Kurds, with their distinct ethnic and racial identity would constitute a ‘people’ under international law, who claim to have been subjected to systematic oppression based on ethnicity. For the Catalans, the case is hard to establish. “Given that Catalonia is not a colony, post-Franco Spain has not committed gross human rights violations in the region, and Catalonia enjoys political inclusion at every level of government in Spain, it fails to meet these three circumstances. That means international law does not support Catalonia’s claim of an international “right to independence” under the current circumstances.” However, the Catalans are a minority ignored in Spain and the behaviour of the central government towards the minority — with the imprisonment of some pro-independence politicians — would justify that the right of self-determination can be applied to the Catalan case.

‘The existence of the right to self-determination is now so widely recognised in international conventions that the principle has acquired a status beyond “convention” and is considered a general principle of international law.’ The right of all peoples to self-determination has been one of the most vigorously promoted and widely accepted contemporary norms of international law (Hurst). The right to self-determination is an obligation ergo omnes as decided for instance in the International Court of Justice’s (ICJ) Advisory Opinion regarding the construction of a wall in occupied Palestine. However, this right can be exercised taking into account the principle of sovereignty and territorial integrity and unity of states as recognised in the UNGA Friendly Relations Declaration of 1970. For this reason, international law distinguishes between internal self-determination and external self-determination (Hannum, 2007). While the former refers to autonomy ie the scope and ability to pursue cultural and socio-economic development within the framework of the state. The latter refers to total autonomy and can take place only in exceptional circumstances such as decolonisation or dissolution of a state (Fish, 2016).

Can the Kurds and the Catalan rely on international law norms in order to assert the right to independence from Iraq and from Spain, respectively? Assuming that both Kurds and the Catalan constitute peoples, they each have the right to self-determination.

  • Criteria for the right to self-determination

Until the conclusion of the Cold War, it is generally accepted that the right of self-determination was confined to decolonisation and to territories within the borders of a state where a distinct population was suffering egregious human rights abuses with no remedy available.

A people can be said to have realised its right to self-determination when they have either (1) established a sovereign and independent state; (2) freely associated with another state or (3) integrated with another state after freely having expressed their will to do so.

If peoples under their governance can’t fulfil their right to internal self-determination, they have the right to secede and establish an independent state, thereby fulfilling their right to external self-determination. This was the interpretation Canadian Supreme Court adopted in dealing with the question of the legitimacy of Quebec’s secession from Canada. The Court held that the “right to secession” only arises under the right to self-determination of a people under international law in three specific situations. First, where a people are governed as part of a colonial empire; secondly, where a people is subject to alien subjugation, domination or exploitation; and thirdly, possibly, where a people is denied any meaningful exercise of its right to self-determination within the state of which it forms a part. According to the Court, in the absence of these situations, international law has established that the right to self-determination of a people is fulfilled through internal self-determination: i.e. within the framework of an existing state. One of the arguments for delegitimizing Quebec’s secession was that the Quebecois were already fulfilling their right to internal self-determination and thereby were not entitled to demand external self-determination.

Minorities do not enjoy an automatic right to secession under international law. This conclusion follows from Article 27 of the ICCPR which grants limited rights for minorities “ to enjoy their own culture, to profess and practise their own religion, and to use their own language”. From a plain meaning of the text, it is understood that external self-determination is not the right of minorities in existing states. Nonetheless, international law does not prohibit minorities to secede based on territorial integrity. This interpretation is supported by documents such as 1970 Friendly Relations Deceleration (GA Resolution 2625 (XXV) and the 1992 UN Deceleration on Minorities (GA Resolution 77/135).those in favour of a right of minorities to secession base their arguments on the Friendly Relations Declaration. They maintain that discrimination against minorities could give rise to a right to secede if the minority is exposed to violation of fundamental human rights by the state which is not willing to provide legal remedies or protection by courts.

The Kurds and Catalans can invoke the higher calling of UN assistance through “Paragraph 2 of General Assembly Resolution 1514 of 14 December 1960, which recall[s] the important role of the United Nations in ‘assisting the movement for independence in Trust and Non-Self-Governing Territories.’ In 1960 it adopted Resolution 1514(XV), which determined that a Non-Self-Governing Territory is a territory which is ‘geographically separate’ and ‘ethnically distinct’ from the country administering it.”

Act of Succession and Referendum

There is an unclear distinction between the act of succession which occurs after a lawful referendum and those which occur as a result of a unilateral declaration of independence. The right to secession is not contemplated in the Iraqi or Spanish legislation, though the right to self govern exists. article 2 of the Spanish constitution “recognizes and guarantees the right to self-government of the nationalities and regions of which it is composed”.Nonetheless, referendums are an essential aspect of the right to self-determination as they represent a manifestation of the will to a right of self-determination.

In The Kosovo Advisory Opinion, The ICJ held that there had been no breach of international law because there was no law explicitly prohibiting unilateral decelerations. This is because, declarations of independence are essentially claims of sovereignty, which can either be rejected or recognised by sovereign States. If they are recognised, independence is a fait accompli, and if they are rejected, they become irrelevant, regardless of their legality. The Kosovo Advisory Opinion provides the basis for a possible right of remedial secession, as the ICJ for the first time recognized the right of people to secede unilaterally under exceptional circumstances, such as sustained human rights violations. For the Kurds, it is possible to invoke remedial secession substantiated on their claims of genocide and racial oppression. While, the Catalans may base their claims on

If any cultural nation has the right to constitute itself unilaterally as a state, it may pose geopolitical and social risks. The right to self-determination is limited in democracies by legal frameworks that place procedures and restrictions. Although referendums are the best way to gauge citizens needs and interests, it may present an oversimplistic view of public opinion and polarise voters. Often, holding a referendum does not contribute to anything that was not known in advance. There are dangers in inflaming identity tensions in pluralistic democracies, wherein the people are left frustrated, like in the case of Brexit. The Spanish court observed that “a political problem cannot be confronted with a strictly legal approach and suggested that it was necessary to negotiate politically in order to avoid polarization.”

Self-determination and territorial integrity are presented as binary opposites, and for Catalans or Kurds to assert their democratic right of self-determination can only lead to secession from the states of Spain and Iraq. For one territory to become a new state, another existing sovereign state must lose some of its territory. That would violate the laws and norms of territorial integrity. This requires one authority to relinquish territorial control, somewhat voluntarily, and allow the subsequent transfer of sovereignty.

The international law on territorial sovereignty is “largely trapped within the framework of nineteenth-century colonial concepts” (McCorquodale and Pangalangan). minority claims have arisen precisely because of the unjust imposition of barriers through territorial sovereignty. · Borders have become barriers and ownership of territory in international law has been grounded in a colonial mindset that is “exclusive, partial and silencing”. Therefore, international borders need to be reconsidered, and a “more flexible system…devised” (McCorquodale and Pangalangan).

The Case for Catalonia

“Catalans believe their wealthy region has a moral, cultural and political right to self-determination, and that it has long put more into Spain economically than it has received in return.”

Sol on Catalan’s Self Determination and Denial of Rights (right to vote)

The Case for Kurdistan

We must support the right of self-determination for 40 million Kurdish people in Iraq, Syria, Turkey and Iran.

Maz on Kurdish Self Determination

References

Welcome to a place where words matter. On Medium, smart voices and original ideas take center stage - with no ads in sight. Watch
Follow all the topics you care about, and we’ll deliver the best stories for you to your homepage and inbox. Explore
Get unlimited access to the best stories on Medium — and support writers while you’re at it. Just $5/month. Upgrade