The right to self-determination is a fundamental principle in international law. The UN General Assembly in 1970 declared that the duty of all states was to refrain from committing acts that defeat people’s right to self-determination.
Self-determination relates to the relationship between the identity of people and their territory. For some, this is uncontroversial as the territory they inhabit is defined by their nationality. However, others who belong to a particular territory might give more importance to factors such as their ethnicity, language, religion, culture and history.
This might lead to a conflict between the territorial sovereignty of the state in question and a fraction of its population’s wish to exercise their rights to self-determination. Whether exercising self-determination through secession is lawful or not is a matter of immense debate. Various people across the modern world struggle to gain independence from the states they belong to. What does international law provide for such secessionist attempts?
A distinction is drawn between internal self-determination and external self-determination. The former suggests that if minorities are represented in the government of their country, they do not have the right to separate from that country. However, this leaves open the question of whether there is a right to separate from their country if the rights of these minority groups are not protected by their federal government.
A recent example of this involves the Kosovo situation, where Serbian forces committed atrocities against the people of Albanian Muslim loyalty who were living in Kosovo and their regional autonomy was taken back by force.
This brings us to the current secessionist crises that took place this year. It started with the declaration of independence by the Kurdish people in Iraq in September 2017 who, despite having their own autonomous Kurdistan Regional Government (KRG), felt neglected and underrepresented within the federal government of Iraq. So, the KRG held a referendum and an overwhelming majority of 93 percent voted in favour of gaining independence.
International law doesn’t, in the strictest sense, permit independence and secession from a country that respects the rights of its minorities. So, the relevant question is whether Iraq has provided sufficient rights and freedoms to its Kurdish population? We could answer in the affirmative if we account for the fact that the Kurdish regions in Iraq have been given autonomy by the federal government. However, that does not appear to be sufficient since the Kurdish people had suffered abuse at the hands of Saddam Hussein’s regime along with the fact that they do not feel any sense of belonging to the country.
If we consider how the Kurdish Army Peshmerga has supported the US and its allies in the fight against Isis, it shows that the Kurdish people are democratic enough in their outlook to fulfil the criteria of statehood provided by the Montevideo Convention. However, given that none of its neighbours, including Iraq, are free from such allegations, this does not take away its potential to form a democratic government in its own right.
The second major referendum this year is the Catalan independence referendum within Spain. The referendum was held in defiance of the Spanish government’s orders. Violence took place on the day of the referendum when the Spanish Guardia Civil thrashed voters. The Spanish government eventually relied on Article 155 of the constitution to take back the autonomy granted to Catalonia.
The Spanish government issued arrest warrants against the Catalan president and his allies and many human rights activists protested against its reaction. Since the Spanish government reacted so violently towards the Catalans indicates that the claims made for Catalonia’s independence from Spain are valid on the grounds that the federal government neither represents the Catalan people nor accords respect to their rights.
However, much like the response towards Kurdistan’s referendum of independence from Iraq, the international response on the Catalonian referendum has been divided. Perhaps, the most peaceful solution would be the one advocated by the French President Emmanuel Macron: that if these countries were to ensure representation and human rights protection to these communities, they wouldn’t feel the need to secede. This makes sense since a right to secede cannot be granted merely because there are minorities who cannot identify themselves with that state. Every state consists of minorities and the essential question to consider is the representation they are provided within a state.
The writer is an advocate of the high court.