Why Baghdad should stay firm despite the Kurdish referendum
The non-binding Kurdish referendum on independence clearly illustrated that most inhabitants of the autonomous region of Kurdistan favour an independent state separate from the Republic of Iraq.
There is a lot of talk about the right to self-determination. In a rights-based and rights-orientated culture, this is a buzzword. Something to mention as a debate-winning clincher.
Somehow, we reached a stage where the right to self-determination is exclusively equated with full statehood or secession from an existing state.
That is not the scope of the right. The right is one of substance. The Kurds already have that self-determination through autonomy — a level of autonomy that is increasingly considerable. The fact that the Kurdistan Regional Government (KRG) could call, organise, co-ordinate and police such a referendum is indicative of that very autonomy.
Everywhere, one can see references to the right of self-determination enshrined in various instruments of international law. It is in the UN Charter in Chapter 1, Article 1. It is featured in the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).
However, despite such provisions, these covenants, the charter and all other instruments do not, as is often thought, insist on full independence as the best or even necessary method for self-determination. There is a difference between internal self-determination and external self-determination.
The Kurdish people undoubtedly have a right to self-determination. Indeed, their self-determination has already been operative under Iraq’s new constitution through increasing autonomy.
However, self-determination cannot and should not be understood as undermining the principle of territorial integrity, and Iraq has every right to insist on the maintenance of its long established territorial integrity.
Today, while we might think of Kashmir, Catalonia, Chechnya, the Basque Country, Biafra and others as a handful of examples, it may be surprising to note that there are far more self-identified nations without full independence than there are independent states and there is no legal process or right to modify or redraw state boundaries even with the democratic consensus of these peoples.
The Helsinki Final Act of 1975, as well as the United Nations, and the International Court of Justice (ICJ), indicate there is no inherent contradiction between the principles of self-determination and territorial integrity but the latter, one should take note, takes precedence.
This was reaffirmed by the UN General Assembly in agenda items 13 to 18 as recently as December 2008 (recent in international law terms) when considering the conflicts in the GUAM area (Georgia, Ukraine, Azerbaijan and Moldova) and the occupied territories of Azerbaijan.
Professors Thomas Franck, Rosalyn Higgins, Alain Pellet, Malcolm Shaw and Christian Tomuschat — all experts in international law — indicated in a 1992 document: “[F]ew principles in present-day international law are so firmly established as that of the territorial integrity of states.”
One sees, following Kosovo’s unilateral declaration of independence in 2008, only 69 of the United Nations’ 192 members recognised Kosovo. This is illustrative of the importance attached to the principle of territorial integrity.
A leading juridical and academic expert in this field is Allen Buchanan, author of seven books on self-determination and secession. He supports territorial integrity as a moral and legal aspect of constitutional democracy and indicates that a group has “a general right to secede if and only if it has suffered certain injustices, for which secession is the appropriate remedy of last resort.”
Self-determination is a universal right. However, it is a right with various degrees. Self-determination in the form of secession should be a remedy of last resort.
While the Kurds have, in recent history, been victims of atrocities, particularly during the reign of Saddam Hussein, they have a vibrant and active form of self-determination through autonomy. Iraq, however, has every right to maintain its territorial integrity and point out that there are no grounds for secession.
Baghdad’s stance should not be viewed as the stance of the bad guy. Instead, Baghdad is merely protecting the most fundamental of all rights under international law — its territorial integrity.