Milena Sterio

Introduction

Kurds held an independence referendum on September 25, 2017, deciding by an overwhelming majority that they wished to separate from Iraq and form an independent state of Kurdistan.[1] Similarly, on October 1, 2017, the Catalan voted in an independence referendum in favor of separating from Spain.[2] The central governments of Iraq and Spain have opposed the referenda and have rejected the Kurds’ and the Catalan claims for independence.[3] This Insight will analyze the Kurdish and the Catalan claims for independence through the lens of international law on self-determination and secession by assessing whether these minority groups can rely on international law-based “rights” in order to support their separatist claims.

Self-Determination

Under international law, minority groups that qualify as “peoples” have the right to self-determination: the ability to freely determine their political fate and form a representative government.[4] The principle of self-determination can be traced back to the end of World War I, when the losing powers, Germany, Austria-Hungary, and the Ottoman Empire, were stripped of their colonies and when several new states were created out of the territory of these former empires.[5] Using this newly-articulated principle, in 1920, the Swedish-speaking people of the Aaland Islands, an archipelago of about 300 small islands that had been incorporated into the recently-created state of Finland, insisted on holding a plebiscite in order to express their will as to whether they wished to separate from Finland in order to unite with Sweden. The Aalanders’ claim was ultimately resolved by a committee of jurists within the League of Nations, which determined that the Aalanders did not have a right to separate from Finland because “[t]he separation of a minority from the State of which it forms a part . . . can only be considered as an altogether exceptional solution, a last resort when the State lacks either the will or the power to enact and apply just and effective guarantees.”[6]

The theory of self-determination, as justifying the secession of a people from its existing mother state as a matter of last resort only, in situations where the people is oppressed or where the mother state’s government does not legitimately represent the people’s interests, has remained constant throughout the 20th century development of international law. Two United Nations’ declarations, in addition to the United Nations Charter itself, have addressed the issue of self-determination—the 1960 Declaration on the Granting of Independence to Colonial Countries and the 1970 Friendly Relations Declaration.[7] Both declarations, however, envisioned self-determination leading to secession as a matter of last resort only within the decolonization paradigm: here, both conditions for a right to self-determination were met insofar as colonized peoples were oppressed and their colonial governments did not adequately represent their interests. Both declarations also confirmed the importance of the principle of territorial integrity of existing states, [8] and thus embraced the idea that self-determination could lead to the territorial disruption of existing states only in extreme instances of oppression or colonization.

It may be argued that international law subsequently developed to embrace the principle of self-determination in a binary form, as entailing rights to internal or external self-determination depending on the circumstances. Peoples who do not fall into the category of colonized or oppressed groups may exercise their right to self-determination through internal means, such as free association and autonomy. Peoples who are oppressed or colonized, however, have the right to external self-determination, which they may exercise through secession from their mother state.[9] This view of self-determination was confirmed in 1998, in the Canadian Supreme Court opinion regarding the proposed secession of Quebec from Canada, where the Court held that all peoples are entitled to various modes of internal self-determination, but that only some peoples, such as those subjected to conquest, colonization, and perhaps oppression, may acquire the right to external self-determination through remedial secession.[10] Today, it may be concluded that international law bestows on all peoples the right to self-determination, but that the right to external self-determination, exercised through remedial secession, only applies in extreme circumstances, to colonized and severely persecuted peoples.

Secession

While international law embraces the principle of self-determination, it does not contain a right of secession.[11] It may be argued that international law merely tolerates secession in instances of external self-determination, where a people is colonized or oppressed (like in the case of Kosovo). In addition, secession is prohibited under international law if the secessionist entity is attempting to separate by violating another fundamental norm of international law, such as the prohibition on the use of force (like in the case of Northern Cyprus).[12] In other instances of attempted secession, where the relevant people is not oppressed, as in Quebec or Scotland, international law is neutral on secession—it does not support a right to secession nor does it prohibit secession. Instead, the secessionist dispute is left to the realm of domestic law and to political negotiations between the mother state and the secessionist entity.[13]

Kurdistan and Catalonia

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. The relevant question is then one of determining how these peoples ought to be able to exercise the right to self-determination. Neither of these peoples is currently colonized, and if accepting the view that international law embraces the right to external self-determination only for colonized peoples, then one would conclude that the Kurds and the Catalan have the right to internal self-determination only. If one accepts the view that international law authorizes oppressed peoples, in addition to colonized ones, to exercise external self-determination through remedial secession, then one would need to examine whether the Kurds’ and the Catalan rights to internal self-determination had been meaningfully respected by Iraq and by Spain, or whether these groups had been oppressed.

Kurds suffered years of oppression under the Saddam Hussein regime, when they had no meaningful rights to internal self-determination. Fourteen states submitted briefs to the International Court of Justice in its Advisory Opinion on Kosovo to argue in favor of Kosovar secession and independence, based on the argument that international law embraced a principle of remedial secession/external self-determination in instances of severe oppression by the mother state.[14] While the Kurds could have relied on the Kosovo precedent during the Saddam regime, this type of external self-determination-through-remedial-secession argument is difficult to make today. Iraq is no longer ruled by Saddam Hussein, and the current Iraqi leadership has appeared willing to grant Kurdistan some form of autonomy.[15] However, in the wake of the Kurdish independence referendum, it is unclear whether Iraq will allow the people of Kurdistan to continue to meaningfully exercise their internal self-determination rights; it is thus unclear whether Kurds may have the right to external self-determination through secession.[16]

A secession argument rooted in international law is very difficult to craft for Catalonia. The Catalan have not been oppressed by Spain and have enjoyed meaningful internal self-determination rights; it also appears that Spain is willing to respect Catalan autonomy in the future.[17] Thus, international law does not appear to support a right for the Catalan to secede, and the issue of proposed Catalan independence should be governed by domestic law and constitutional, democratic, and/or political processes.

Conclusion

If the governments of Iraq and Spain continue to respect the Kurdish and Catalan autonomy rights, in a manner sufficient toward these peoples’ meaningful fulfillment of internal self-determination, then these two peoples are not entitled to claim international-law based “rights” to external self-determination through secession. Without an international law “right” to secession, Kurdish and Catalan independence claims will likely remain governed by domestic law and hopefully resolved through political negotiations.

About the Author: Milena Sterio is Professor of Law and Associate Dean for Academic Enrichment at the Cleveland-Marshall College of Law, where she specializes in International Law and International Criminal Law. She serves as an editor of the Intlawgrrls blog and is currently Co-Chair of the ASIL International Criminal Law Interest Group.

[1] Tamara Kiblawi, Kurds Vote Overwhelmingly in Favor of Independence from Iraq, CNN (Sept. 27, 2017), http://www.cnn.com/2017/09/27/middleeast/kurdish-referendum-results/index.html (noting that more than 92 percent of the roughly 3 million people who participated in the referendum voted in favor of independence from Iraq).

[2] Raphael Minder, Spain Sets Stage to Take Control of Catalonia in Independence Fight, NY Times (Oct. 19, 2017), https://www.nytimes.com/2017/10/19/world/europe/catalonia-independence-referendum.html (noting that approximately 90 percent of those who voted in the referendum were in favor of independence).

[3] See, e.g., Loveday Morris, How the Kurdish Independence Referendum Backfired Spectacularly, WASH. POST (Oct. 20, 2017), https://www.washingtonpost.com/world/how-the-kurdish-independence-referendum-backfired-/2017/10/20/3010c820-b371-11e7-9b93-b97043e57a22_story.html?utm_term=.62ab5882d1b9 (noting “furious Iraqi objections” to the Kurdish independence referendum); Minder, supra note 2 (describing Spanish government’s opposition to the Catalan independence movement and referendum).

[4] Although no international treaty defines the term “people” for the purposes of self-determination, it is generally accepted that this classification 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. Michael P. Scharf, Earned Sovereignty: Judicial Underpinnings, 31 DENV. J. INT’L L. & POL’Y 373, 373–79 (2003).

[5] Milena Sterio, The Right to Self-Determination under International Law 10, 27 (2013).

[6] The Aaland Islands Question: Report Submitted to the Council of the League of Nations by the Commission of Rapporteurs, League of Nations Doc. B7/21/68/106 (1921).

[7] Declaration on the Granting of Independence to Colonial Countries and Peoples, G.A. Res. 1514 (Dec. 14, 1960); Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, G.A. Res. 2625 (Oct. 24, 1970) [hereinafter Friendly Relations Declaration].

[8] See Declaration on the Granting of Independence, supra note 7, para. 6 (declaring “[a]ny attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country” as incompatible with the purposes and principles of the United Nations’ Charter); Friendly Relations Declaration, supra note 7 (“[n]othing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States . . . .”).

[9] See, e.g. Antonio Cassesse, Self-Determination of Peoples - A Legal Reappraisal 119 (1995) (arguing that a group may have the right to separate from its mother state “[w]hen the central authorities of a sovereign state persistently refuse to grant participatory rights” to a “religious or racial group”); Sterio, supra note 5, at 18–22 (describing the distinction between internal versus external self-determination).

[10] Reference re Secession of Quebec, [1998] 2 S.C.R. 217. The Canadian Supreme Court indicated that it may be possible to argue that international law recognizes the right to external self-determination for a people who has been “blocked from the meaningful exercise of its right to self-determination internally.” The Canadian Supreme Court declined, however, to issue a definitive ruling on this issue because it decided that the people of Quebec had not been denied self-determination rights within Canada. Id.

[11] See, e.g., Antonello Tancredi, Secession and Use of Force at 68, in SELF-DETERMINATION AND SECESSION IN INTERNATIONAL LAW (Christian Walter, Antje Von Ungern-Sternberg, & Kavus Abushov eds., 2014) (noting that international law is neutral on the issue of secession and “does not prohibit nor authorize events of secession” while “wars of self-determination are fought in the name of a legal entitlement recognized . . . by the international legal system”).

[12] Marko Milanovic, A Footnote on Secession, EJIL: Talk! (Oct. 26, 2017), https://www.ejiltalk.org/a-footnote-on-secession/.

[13] Id.

[14] Id.; see also James Summers, Kosovo, at 252, in Walter et al., supra note 11 (noting that Finland and German had argued to the International Court of Justice in the Kosovo Advisory Opinion case that international law supported a possible exercise of remedial secession as a last resort in instances of gross human rights violations and denial of participation in government).

[15] AL JAZEERA, The Looming Question of Kurdish Independence in Iraq (June 21, 2017), http://www.aljazeera.com/indepth/features/2017/06/implications-kurdish-vote-independence-iraq-170621091328863.html (noting that the Kurdish Regional Government had enjoyed autonomy within Iraq, by having its own parliament, armed forces, and foreign policy).

[16] See Morris, supra note 3 (“Instead of paving the way to statehood, or boosting the Kurds’ bargaining power in negotiations, it [the independence referendum] has triggered a humiliating reversal of fortunes for Iraq’s Kurds.”).

[17] Non-Secessionist Solution to Catalan Crisis Possible, Says Ex-Leader, REUTERS (Nov. 13, 2017), https://www.reuters.com/article/us-spain-politics-catalonia/non-secessionist-solution-to-catalan-crisis-possible-says-ex-leader-idUSKBN1DD1DE (noting that the Spanish Prime Minister was willing to negotiate with the Catalan within the Spanish legal framework). [1]