THE KURDISH QUEST FOR INDEPENDENCE AND THE LEGALITY OF SECESSION UNDER INTERNATIONAL LAW.

• Published date: 22 March 2020
• Author: Evans, Dylan
• Date: 22 March 2020

INTRODUCTION

In September 2017, the Kurdish Regional Government in Iraq held a referendum asking its people if they wanted to become an independent state. Nearly 93 percent of voters answered yes. (1) This result was unsurprising. The Kurds, who are spread over numerous countries, are commonly described as the world's largest nation of people without a sovereign country to call their own. (2) Their quest for independence spans generations, and the vast majority of Iraqi Kurds desire statehood. (3)

Masrour Barzani, the son of the region's former president and the chancellor of the Kurdistan Region Security Council, said this of the referendum: "If you look at our history we have been mistreated throughout history... We as a nation have every right to self-determination." (4)

Iraq declared the referendum illegal. (5) In the wake of the result, it also quickly seized large portions of Kurdish-held territory. (6) Meanwhile, the international community provided little support for the Kurdish referendum, with Turkey, Iran, Syria, and even the United States condemning it outright. (7) As of today, the Kurds' quest for independence is indefinitely stalled. (8) These events provide a useful paradigm for renewing considerations as to how secessionist movements should be viewed under international law.

I. BACKGROUND: SELF-DETERMINATION AND SECESSION UNDER INTERNATIONAL LAW

Self-determination, broadly defined, is the "determination by the people of a territorial unit of their own future political status." (9) As a right of international law, it is highly codified. Article 1 of the Charter of the United Nations states the following: "The Purposes of the United Nations are... To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples...." (10) Meanwhile, the United Nations' Declaration on the Granting of Independence to Colonial Countries and Peoples states: "All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development." (11) The right of self-determination is also "widely accepted as a norm of customary international law." (12) Even more, "it is one of the essential principles of contemporary international law." (13) Given this, it might seem that the Iraqi Kurds' right to democratically determine their own political status and to establish sovereignty for their stateless nation would be--legally speaking--an appropriate exercise of international law.

Yet, while the right of self-determination is uncontroversial as an abstract moral or legal concept, there is far less clarity in the scope of its application. This is likely due to the limiting effect of another fundamental principle of international law and modern sovereignty: territorial integrity. (14) The importance and inviolability of territorial integrity are enshrined in Article 2 of the United Nations Charter. (15) Moreover, the United Nations' Friendly Relations Declaration states, "Convinced in consequence that any attempt aimed at the partial or total disruption of the national unity and territorial integrity of a State or country or at its political independence is incompatible with the purposes and principles of the Charter." (16)

Control over territory is of utmost importance to states. (17) Thus, it is unsurprising that states--like Iraq--tend to be highly resistant when a constituency of their population seeks independence, which implies the partitioning of territory. In the case of Iraq, this would mean that Iraq would lose control over its Kurdistan region. States' paramount interest in maintaining their territory, as well as international law's corresponding support for the integrity of states' territory, therefore, provide limitations upon the right of self-determination and, by implication, limit secession as a means of exercising the right of self-determination. (18)

Practical considerations also restrict it. As President Bill Clinton once said, "[I]f every racial and ethnic and religious group that occupies a significant piece of land not occupied between others became a separate nation--we might have 800 countries in the world and have a very difficult time having a functioning economy or a functioning global polity. Maybe we would have 8,000--how low can you go?" (19) This was echoed in the United Nation's Agenda for Peace: "[I]f every ethnic, religious or linguistic group claimed statehood, there would be no limit to fragmentation, and peace, security and economic well-being for all would become ever more difficult to achieve." (20)

Notably, such limitations upon the scope of self-determination do not apply in the colonial context. International law recognizes the right of colonial peoples to become independent. (21) The United Nations' Declaration on the Granting of Independence to Colonial Countries and Peoples asserts, "The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights... All peoples have the right to self-determination." (22) Indeed, the right of colonial peoples to freely establish their own state has achieved jus cogens status. (23)

However, given how few colonial peoples remain, this right has lost its utility for the large majority of modern self-determination movements. (24) Arguably, the emphasis that has been placed upon the colonial status of peoples, as a limited threshold requirement to justify secession, has had the effect of narrowing the right of self-determination and "disenfranchising groups that lack the requisite colonial background." (25) For peoples that are not living under foreign subjugation--but nevertheless, have been or are being oppressed--cannot rely upon the legal rights ascribed to colonial peoples. (26)

II. THE ISSUE: THE TENSION BETWEEN TERRITORIAL INTEGRITY AND THE RIGHT OF SELF-DETERMINATION

This tension between territorial integrity and the purported right of self-determination has created enormous issues. First among them is the difficulty of, or unwillingness to, clarify how the right of self-determination may be reconciled with the right of territorial integrity in the modern, post-colonial context. This is evidenced by the fact that international law is silent on a non-colonial peoples' right to secede through self-determination. (27)

In February 2008--not unlike the Kurds in September 2017--Kosovo unilaterally declared independence from Serbia. This followed a bloody conflict in which Kosovars were ethnically cleansed and subjected to extensive violations of their human rights. (28) Following the Republic of Kosovo's declaration, the Government of Serbia filed a request before the United Nations, and the General Assembly posed to the International Court of Justice (the "Id") the following question: "Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?" (29)

In its advisory opinion, delivered in July 2010, the ICJ declared that "General international law contains no applicable prohibition of declarations of independence--Declaration of independence of 17 February 2008 did not violate general international law." (30) Among other reasons, the ICJ supported their conclusion by looking at Security Council resolutions condemning similar declarations in the past. The Court concluded that these condemnatory resolutions were not relevant because they were passed in response to the unlawful use of force of the violation of a jus cogens norm, which differentiated the situation from that of the Kosovars. (31)

This advisory opinion could indicate that international law is moving toward an expanded view of secession through self-determination in the non-colonial context. Indeed, it has been suggested that the Kurds could have possibly relied upon this precedent to legitimize their own referendum. (32) Indeed, Visar Ymeri, the former leader of the Self-Dctermination movement in Kosovo from 2015, has endorsed Kurdish independence. (33)

It is unclear why the Kurds have not defended their referendum on the basis of the ICJ advisory opinion. However, even to do so would hardly strengthen the Kurds' claim of secession. The advisory opinion neither clarifies the right of secession nor reconciles the tension between self-determination and territorial integrity. Instead, the opinion was intentionally narrow, even explicitly refusing to address such issues. As the opinion stated further, "Issues relating to the extent of the right of self-determination and the existence of any right of 'remedial secession' are beyond the scope of the question posed by the General Assembly." (34) So while the Court concluded that Kosovo's declaration of independence was not prohibited by general international law, it remains unclear what that means for a right of secession through self-determination. The right to declare is different from the right to actually secede. To date, the Republic of Kosovo's status as a legitimate state is incomplete, with only 111 member states of the United Nations recognizing Kosovo's status as an independent sovereign. (35)

The persistent ambiguity of the legality of secession, partially resulting from the ICJ's decision to not address it in the Kosovo case, creates a gap in the international legal system that is dangerous. Peoples who may be subjected to great oppression, violence, and persecution from their sovereign governments lack the legal norms and framework by which to establish a new state that would be free from such oppression. Judge Bruno Simma of the ICJ--in his separate Opinion--said as much, voicing his frustration with the majority's decision to not resolve this issue, and writing that the opinion was "unnecessarily limited and potentially misguiding." (36)

As he further wrote, "The Court could have addressed [arguments on remedial secession] on...