Two different peoples in far apart regions are currently struggling to fulfill their right to self-determination and establish a state of their own: the Catalans in Spain and the Kurds in Iraq. The governments of both Spain and Iraq oppose these initiatives. Following Catalan’s declaration of independence, the Spanish government took dramatic legal steps against Catalonia’s President Carles Puigdemont and Vice President Oriol Junqueras, stripping the Catalan government of its powers. In Iraq, the vote for independence of the Kurds sparked military clashes between the Kurds and the Iraqi governments. Are the governments of Spain and Iraq justified or wrong in their opposition? What are the differences and similarities between their reactions?
The right to self-determination of peoples is a fundamental human right, recognized by the 1966 human rights covenants and by the U.N.G.A resolution on Friendly Relations and Co-operation among States from 24 October 1970. These documents state that, by virtue of the right to self-determination, “all peoples freely determine their political status and freely pursue their economic, social and cultural development.” This notwithstanding, the Friendly Relations declaration ensures another right that allegedly conflicts with the right of self determination—that is, states’ right to territorial integrity.
The resolution of the conflict is embodied in the concept of internal self-determination, also promulgated by the Friendly Relations declaration. States should allow the peoples in their territory to fulfill their right to internal self-determination by “possess[ing] of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.” Only such states are entitled to the right of territorial integrity. If peoples under their governance can’t fulfill their right to internal self-determination, they have the right to secede and establish an independent state, thereby fulfilling their right to external self-determination. This was the interpretation Canadian Supreme Court adopted in dealing with the question of the legitimacy of Quebec’s secession from Canada. One of the arguments for delegitimizing Quebec’s secession was that the Quebecois were already fulfilling their right to internal self-determination and thereby were not entitled to demand external self-determination.
The above analysis suggests that the legitimacy of the Spanish and Iraqi governments’ reactions to the initiatives of secession in their territories is contingent upon whether these governments represent the whole people belonging to the territory without distinction as to race, creed or colour—in other words, whether they fulfill peoples’ rights to internal self-determination.
The form of governance that best implements the right to internal self-determination of peoples is democratic federalism. The federal system answers the demands of national minorities for self-government in the form of territorial autonomy, as it creates regional political units controlled by these minorities and endows them with constitutional protected powers of self-government. But federalism also, and more importantly, sustains the larger political entity, that is, the state. And finally, democratic federalism is the best system for incorporating and expressing the demands and wishes of the state’s subjects.
Iraq is formally a federal government while Spain is not—but when we compare the Catalans and the Kurds’ level of fulfillment of their rights to internal self-determination (and hence the legitimacy or illegitimacy of their demands for secession), our findings are quite surprising.
Spain is a parliamentary democracy allowing for the regional autonomy of seventeen communities—in a form of “asymmetrical federalism.” This system, through constitutional recognition of self-rule and cultural diversity, provides for a decentralization of powers and responsibilities. Yet, it also preserves Spain’s unity. The Spanish constitution constructs the Spanish state upon a concept of “sub-state nacionalidad,” which on the one hand provides for regional self-rule, and on the other hand proclaims the principle of solidarity that institutions of the state should implement. This means that the Catalans have a normative political infrastructure for fulfilling their rights for internal self-determination, and the Spanish government does not deny it in practice.
The Kurds’ case is completely different. While Iraq is formally a federal state, in which Kurdistan is an autonomous area, it is a weak and fragile democracy. The government’s general ability to secure human rights is often jeopardized by internal armed conflicts and insurrections, and this undermines the government’s ability to protect the Kurds’ right for internal self-determination.
The conclusion is that the non-federal Spanish government is justified in the steps it takes against the Catalan ambitions. In contrast, the federal Iraqi offensive against Kurdish fighters near the border with Turkey and Syria is a breach of the Friendly Relations declaration’s call “to refrain from any forcible action which deprives peoples … of their right to self-determination and freedom and independence.” Formalities can be misleading; legal conclusions are sometimes beyond black letter law.