Between Kurdistan and Catalonia: On the Right to Self-Determination of Peoples





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.

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Post-War Justice in Syria—Considering Universal and Domestic Options



Despite the international community’s continuing inspections of the war in Syria—including several UN commissions of inquiry—the warring parties continue to commitunthinkable crimes and breach core norms of international law. Both Bashar al-Asad and the rebelling militias have perpetrated war crimes and crimes against humanity that include murder, torture, violence against civilians—and even the use of chemical weapons. Sooner or later—whether before or after the conflict—the international community and the Syrian population will demand that the alleged perpetrators be prosecuted. Indeed, the UN Security Council in May 2014 considered an initiative to try President al-Asad in the International Criminal Court (ICC), but it was vetoed by Russia and China.

This setback notwithstanding, the accumulation of heinous crimes will doubtless lead to further attempts to prosecute suspects, raising a number of questions. Where will prosecutions take place? Will the ICC be involved? Will states apply universal jurisdiction laws to try the perpetrators? Or will the Syrian society prefer doing “justice at home”?

If we ask who will apply universal jurisdiction—the ICC or independent states—the ICC would seem at first glance to be the best option. States can appeal to universal jurisdiction to assert extraterritorial jurisdiction, making the former a vital tool for the international community to punish perpetrators of extreme international crimes. But the judicial systems of independent states often face many obstacles in applying universal jurisdiction, such as political bias and allocation of financial resources. Some states, not wanting to jeopardize international relations with countries whose high officials are suspected of international crimes, have exerted universal jurisdiction mainly and manipulatively against relatively minor suspects. Moreover, states are bound by the customary law of immunity for heads of state and ministers of foreign affairs while in office. Some states, after considering the costs and benefits of exerting universal jurisdiction, prefer not to intervene.

The ICC was established to overcome these types of difficulties. As an independent body, it is free of such political considerations; and furthermore, the ICC Statute denies customary law immunity. Finally, the ICC’s financial considerations differ from those of independent states, with a budget specifically tailored for the purpose of prosecuting suspected perpetrators of international core crimes.

On a closer inspection of the Syrian case, however, the ICC does not seem a practicable option. The ICC’s jurisdiction is limited by three major conditions. First, its jurisdiction ratione materiae is limited to four types of international crime: genocide, crimes against humanity, war crimes, and aggression. Second, its jurisdiction ratione loci is limited to offences committed on the territory of a state party to the statute. Third, its jurisdiction ratione personae is limited to offences committed by nationals of states party to the statute. Fourth, its jurisdiction is narrowed by the complementarity principle, according to which the ICC can only serve as a court of last resort and only when a state that has nexus to the case is unwilling or unable to exert criminal proceedings and trials.

As Syria is not a party to the ICC Statute, the ICC cannot exert its jurisdiction ratione loci or its jurisdiction ratione personae. Although the UN Security Council can, in fact, overcome the ICC’s jurisdictional limitations ratione personae and ratione loci, Russia and China will likely continue to veto such initiatives by the other members of the Security Council.

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