[Milena Sterio is a Professor of Law and Associate Dean for Academic Enrichment at the Cleveland-Marshall College of Law.]
On September 25, 2017, Kurds voted in a self-declared independence referendum organized by the Kurdistan Regional Government (KRG). , According to the referendum results, it appears that about 78 per cent of Kurds actually participated in the referendum and that nearly 93 per cent of participants voted in favor of independence). This post will briefly analyze the Kurdish proposal for independence via a unilaterally organized referendum in the larger context of international law on self-determination and secession.
Although the Kurdish independence referendum resulted in a “yes” vote, does this mean that Kurds automatically have the right to separate from Iraq and form their own independent state? Under international law, the answer is no (despite the Kosovo “precedent,” which should continue to be viewed as exceptional). In international law, one of the main vehicles by which groups have achieved statehood in the post-World War II era is self-determination. Self-determination is a principle of international law which posits that specific groups called “peoples” have the right to auto-determine their political fate. The right to self-determination entails self-governance for peoples and the idea that every people should have a government representative of its interests. This idea is reflected in several important international documents, such as the 1970 Friendly Relations Declaration, which proclaims that peoples are to be “possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.”
Within the decolonization paradigm, it was widely accepted that colonized peoples did not possess governments representative of their interests and the principle of self-determination was interpreted in that context as entailing the right to separate from the colonizer and form a new independent state. This type of self-determination has been described as “external,” and is widely seen as the more disruptive form of self-determination because it entails the dismembering of the territory of the mother state. Almost all scholars of international law would agree that colonized peoples had the right to external self-determination. External self-determination is typically exercised through the process of secession – a separation from the larger mother state by the smaller territorial unit inhabited by the self-determination-seeking people. While international law recognizes the right to self-determination, international law does not contain a positive law norm on secession. In other words, no people or other minority group can claim an international law-bestowed right to secede (more on this below).
While everyone in the international community agrees that the principle of self-determination applies squarely within the decolonization paradigm, when this principle was one of the main theoretical foundations toward the creation of new states, it is uncertain as to how this principle applies within other non-decolonization contexts. Outside of the decolonization paradigm, the principle of self-determination has typically been interpreted to entail internal autonomy for the relevant people within an existing mother state- the right to form a representative regional parliament and to elect regional and perhaps national government officials, as well as the respect of other non-political minority rights (such as the right to speak a separate language, to have education choices, to freely exercise a different religion, to have respect for a regional culture, etc.). This type of self-determination has been described as “internal,” and many in the international community argue that outside of the decolonization paradigm, peoples only have internal self-determination rights. Unlike the exercise of external self-determination, the implementation of meaningful internal self-determination rights does not entail disrupting the territorial integrity of the larger mother state. This is why most scholars argue that peoples outside of the decolonization paradigm can only exercise self-determination rights within the territory of their mother state, in an internal manner.
Nonetheless, external self-determination has occurred outside of the decolonization context and is supported by some scholars in limited circumstances. A minority scholarly view recognizes that in instances of extreme persecution by the mother state, a non-colonized people ought to be able to exercise external self-determination through remedial secession (.pdf). According to this argument, if a mother state is completely non-representative of the interests of a particular people, then the people accrues the right to exercise external self-determination through a remedial secession. However, even those who espouse this view do not claim that international law contains a positive right of secession. Instead, secession is a process through which external self-determination may be achieved, and international law at best tolerates secession, in instances of legitimate external self-determination or in exceptional situations, like in Bangladesh or Eritrea. Precedent for this argument exists in recent history – in 2008, Kosovar Albanians unilaterally declared independence and seceded from Serbia, through the exercise of external self-determination. While many other states almost immediately recognized Kosovo as a new sovereign state, it is important to note that almost no such states argued that Kosovar Albanians were indeed exercising external self-determination, or that they had a right to remedial secession. Instead, most argued that Kosovo was sui generis, an exceptional case which does not constitute any sort of precedent in international law. However, the Kosovo “precedent” exists, for better or for worse, and it has been relied upon in the rhetoric of other independence-seeking groups, in South Ossetia and Abkhazia, and by Russia, to justify its annexation of Crimea. The issue of the Kosovar declaration of independence was also the subject of an International Court of Justice advisory opinion in 2010; the world court, in an opinion disappointing to many scholars of international law, avoided issues of self-determination and secession and instead decided that the Kosovar declaration of independence was not prohibited by international law. Thus, in the Kosovo case, secession was tolerated by the international community, not as a right but as the outcome of a self-determination quest (because, inter alia, the Serbian government was deemed as non-representative of Kosovar Albanian interests). This is why the Kosovo case will likely remain exceptional: while it may be viewed as setting a factual precedent, it may not be easily interpreted as crafting new legal precedent on self-determination and secession. In fact, one scholar has argued that Kosovo is a “hard case” which should not be used as precedent for making “bad law.”
What does all of the above imply for the Kurds? Kurds, assuming that they are a people, should have internal self-determination rights respected within Iraq. If those rights are not respected by Iraq, then it may be argued that Kurds would accrue rights to external self-determination, which they could potentially exercise through remedial secession. It is questionable whether, as of today, Kurds can demonstrate that their autonomy/internal self-determination rights are not respected by Iraq. The current government of Iraq may be willing to grant the Kurds meaningful autonomy within Iraq, and if this were the case, then Kurds would have to satisfy themselves with the exercise of internal self-determination. Thus, putting aside the Kosovo “precedent,” it is unclear that the Kurds have the right to secede from Iraq under international law. If the government of Iraq were willing to authorize the Kurds to have an independence referendum and to negotiate a separation agreement, this would then become a matter of domestic/Iraqi law and international law would no longer be relevant. Regardless of the ultimate outcome in Kurdistan, this situation remains pertinent and it will be of particular interests to other independence seeking groups in the near future, such as the Catalan in Spain.