Master International and European Public Law: Human Rights
Syrian Kurds: The Kurdish drive for self-determination in the wake of the Syrian civil war
Sozdar Shalal August 2018
A thesis presented in partial fulfilment of the requirements for the degree of Masters of International and European Law: Human Rights
Faculty of Law
Tilburg University, the Netherlands
Master International and European Public Law: Human Rights
Syrian Kurds: The Kurdish drive for self-determination in the wake of the Syrian civil war
Author Sozdar Shalal Anr S344803
Supervisor Mr.dr. A.K. Meijknecht Second reader Prof.dr.mr. N.M.C.P. Jägers
Date August 20, 2018
Master Dissertation Closing Master International and European Law: Human Rights Tilburg University
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Central question ‘’To what extent does the right to self-determination provide in the aspirations of the Kurds in Syria within the rules and standards of international law?’’
Master Dissertation Closing Master International and European Law: Human Rights Faculty of Law Tilburg University
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Foreword This dissertation is written as an assignment for the course Master International and European Law. It contains the research proposal for the thesis Master International and European Law: Human Rights track. This course is part and forms the completion of the Master phase at the University of Tilburg. At this writing, the situation of the Kurds is continuously altering, and the war in Syria still ongoing. This dissertation is completed on August 20, 2018. Developments taken place beyond this date will for this reason not be taken into account.
Abstract
With the outbreak of the Arab Spring in 2011, it seemed that the political scene in the Arab world was going to be determined by movements who, by way of peaceful mass protests and political organizations, strive for democratic rights and personal freedoms. The emergence of the Syrian civil war, the instability in Iraq and the rise and territorial expansion of the so called Islamic State, however, present that the revolutions created conflicts and even more authoritarian regimes. For the Kurds it heated up the Kurdish issue. Specifically, for the Kurds in Syria, where as a result of the unrest, the regime in power had to step down, giving way to aspirations of the Kurds in the light of the right to self-determination. This thesis seeks to shed light on these developments, and hence the aim of this thesis is twofold. First, it attempts to define a legal framework of the right to self- determination within the rules and standards of international law. Secondly, it investigates the emergence of the Syrian civil war and its influences on the aspirations of the Syrian Kurds to the right to self-determination. The results of the study suggest that the claim of internal of self- determination is likely to be supported by the international community, under the rules and standards of international law, and that the aspiration to the external right to self-determination through secession might not be omitted in the future.
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Acknowledgement
I would like to thank my thesis supervisor Ms. Anna Meijknecht, for guiding me through the process of writing my thesis. She consistently allowed this paper to be my own work, but steered me in the right direction whenever she thought I needed it. Her comments, questions and relaxed, thoughtful insight were very beneficial in the completion of this thesis.
I would furthermore like to express my profound gratitude to my parents, Amne Abdulkarim Abbas and Sleman Xaleb Abbas, for providing me with unfailing support and continuous encouragement throughout my years of study and through the process of researching and writing my dissertations. I shall be ever grateful to my parents for the opportunity they provided for me to study and without whom I never would have enjoyed so many opportunities. My sincere gratitude to my father for his endless love, support and inspiration. Without you, I never would have finished two Master Studies. I am forever indebted for your encouragement.
A special thanks to Claudia Manuputty, for her help and motivation in finishing this thesis. Without her drive and support of me, this thesis would still have been unfinished.
Last but not least, I would like to thank my siblings, for trusting and supporting me throughout my years of study and without whom I have struggled to find the inspiration and motivation needed to complete my dissertations. Your friendships make my life a wonderful experience.
ّﺃﻭﺩ ﺍﻥ ﺁﻫﺩﻱ ﻫﺫﻩ ﺍﻻﻁﺭﻭﺣﺔ ﻟﻭﺍﻟﺩﻱ ﻭﻭﺍﻟﺩﺗﻲ ﻟﺣﺑﻬﻡ، ﻭﻟﻠﺩﻋﻡ ﻭﺍﻟﺗﺷﺟﻳﻊ ﺍﻟﻼ ﻣﺣﺩﻭﺩ. ﺳﺄﻛﻭﻥ ﻟﻸﺑﺩ ﻣﻣﺗﻧﺎ ﻟﻭﺍﻟﺩﻱ ﻋﻠﻰ ﺍﻟﻔﺭﺹ ﺍﻟﺗﻲ ﻭﻓﺭﻫﺎ ﻟﻲ ﻟﻠﺩﺭﺍﺳﺔ ﻭﺑﺩﻭﻧﻬﻡ ﻟﻡ ﺃﻛﻥ ﻗﺩ ﺃﺳﺗﻣﺗﻌﺕ ﺃﺑﺩﺍ ﻋﻠﻰ ﺍﻟﻌﺩﻳﺩ ﻣﻥ ﺍﻟﻔﺭﺹ. ﺍﻧﺎ ﺃﺣﺏ ﺍﻥ ﺍﺷﻛﺭ ﺃﺧﻲ ﻭﺃﺧﻭﺍﺗﻲ ﺍﻟﻣﺫﻫﻠﻳﻥ ﺍﻟﺫﻳﻥ ﻫﻡ ﺍﻛﺛﺭ ﻣﻥ ﺍﺳﻡ ﻋﻠﻰ ﺍﻟﺛﻘﺔ ﻭﺍﻟﺩﻋﻡ ﻁﻳﻠﺔ ﻓﺗﺭﺓ ﺩﺭﺍﺳﺗﻲ، ﻭﻗﺩ ﺟﺎﻫﺩﺕ ﻟﻠﻌﺛﻭﺭ ﻋﻠﻰ ﺍﻹﻟﻬﺎﻡ ﻭﺍﻟﺩﻭﺍﻓﻊ ﺍﻟﻼﺯﻣﺔ ﻵﺳﺗﻛﻣﺎﻝ ﻫﺫﻩ ﺍﻟﺭﺳﺎﻟﺔ. ﺻﺩﺍﻗﺗﻛﻡ ﺗﺟﻌﻝ ﺣﻳﺎﺗﻲ ﺗﺟﺭﺑﺔ ﻣﻣﺗﻌﺔ.
To my parents
Content
Foreword ...... 6 Abstract ...... 7 Acknowledgement...... 8 Abbreviations ...... 11
Chapter 1 Introduction ...... 13 I. Background ...... 13 II. Purpose ...... 15 III. Research question ...... 16 IV. The theoretical framework ...... 17 V. Methodology ...... 17 VI. Structure...... 18
Chapter 2 Legal Framework of self-determination ...... 19 2.1 From Principle to Right ...... 19 2.2 Internal Self-determination ...... 24 2.2.1 Representative Government ...... 25 2.3 External self-determination ...... 28 2.3.1 Dissolution, Reunion or merger ...... 28 2.3.2 Secession ...... 30 2.4 Holders of the right to self-determination ...... 35 2.5 Ethnic Minorities & Peoples ...... 39 Interim conclusion ...... 43
Chapter 3 The Kurds in Syria & the opportunities provided by the Syrian civil war ...... 45 3.1 An historical background ...... 45 3.2 The Syrian civil war ...... 52 3.2.1 The rise of Kurdish nationalism ...... 55 Interim conclusion ...... 59
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Chapter 4 Syrian Kurds: autonomy and remedial secession...... 61 4.1 Internal self-Determination ...... 62 4.2 External Self determination ...... 64 4.3 Impact ...... 68 4.4 People & Minorities ...... 70 Interim Conclusion ...... 72
General conclusion ...... 75
Annexes ...... 77 Bibliography ...... 79
Abbreviations
ICJ International Court of Justice
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant of economic, social and Cultural rights
ISIS Islamic State of Iraq and al-Sham
KDP Kurdistan Democratic Party
KDPS Kurdistan Democratic Party in Syria
KRG Kurdish Regional Government
PKK Kurdistan Workers Party
PUK Patriotic Union of Kurdistan
PYD Democratic Union Party
UN United Nations
UNESCO United Nations Educational, scientific and cultural Organisation
US United States
UNSC United Nations Security Council
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Chapter 1 Introduction
In this introductory chapter, an introduction will be given to the research proposal and the subject matter of the thesis. Consecutively, both the purpose and the methodology of the thesis will be discussed. Upon which the formulated research question, essential to this thesis, together with the sub questions, will be specified. Last of all, the chapter will be concluded elaborating the structure of the thesis.
I. Background
The Arab spring has left some significant impact throughout the Middle East and Northern Africa. The revolutionary wave that began in 2010 in Tunisia with the Tunisian Revolution served as a catalyst and inspired activists in other countries in the region. While the uprising in Tunisia led to some improvements in the country from a human rights perspective, not all of the nations that witnessed such social and political upheaval changed for the better.
In March 2011 the wave of uprisings and protests calling for greater freedom, respects for human rights and improving living conditions reached Syria.1 The unrest in Syria grew out of discontent with the Assad government and escalated to an armed conflict after protests calling for his removal were violently suppressed. The violence rapidly escalated and the civil war in Syria commenced. The war created conflicts and even more authoritarian regimes. A new security environment came into being and caused shifts in alliances in the Middle East.
The persistence of the Syrian civil war, the instability in Iraq and the emergence and territorial expansion of the so called Islamic State (hereinafter ISIS)2, expanding right to the borders of Kurdish territories in Iraq and Syria, has attract attention, to the Kurds residing in Syria, like never before.
1 A.U. Noi, The Arab Spring, its effects on the Kurds, and the approaches of Turkey, Iran, Syria, and Iraq on the Kurdish Issue’, Middle East Review of International Affairs 2012, 16(2), p. 15-19 2 For the purpose of this thesis, the organisation will be referred to as ISIS, since the Islamic State has been known under different names and abbreviations; The Islamic State of Iraq and the Levant (ISIL), also known as the Islamic State of Iraq and Syria or Islamic State of Iraq and al-Sham (ISIS).; I.Tharoor, ‘ISIS or ISIL? The debate over what to call Iraq’s terror group’, The Washington Post, 18 June 2014
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The Kurds are one of the indigenous peoples of the Middle East and the region’s fourth largest ethnic group, with a distinct community united by race, culture and language.3 The Kurdish language is different from Persian, Turkish and Arabic languages, a trait that sets them apart from their neighbours, and seen as the most common bond shared among Kurds.4
Since the early 20th century, as a consequence of the Treaty of Lausanne in 1923,5 the Kurdish people found themselves dispersed over the modern States of Turkey, Iran, Iraq, and Syria.6 The Kurds are known as the largest nation in the world without a State of their own.7 The Kurds, having a long history of political marginalisation and persecution, have repeatedly risen up in pursuit of greater autonomy or complete independence. Their aspirations have resulted in continuous conflicts and a history of repression and existential threats in the aforementioned countries.8
3 Kurdish Democratic Politburo, Central Bureau for studies and Research, Kurdistan: An Economic, Geographic and Historical brief Explanation, No. 33, Kurdistan, 1999, p. 6; J.D. Eller, From Culture to Ethnicity to Conflict: An Anthropological Perspective on International Ethnic Conflict, Ann Arbor: University of Michigan Press, 1999, p. 153; The Kurdish language, an Indo-European language, has several dialects, Kurmanji, Sorani, Zaza and Bahdini, which are not universally understood among the Kurds. 4 C. J. Edmonds, ‘Kurdish Nationalism’, Journal of Contemporary History 1971, 6(1), p. 87
The probability of ongoing battle within Syria creates opportunities for Kurdish nationalists in Syria to realize their aspirations and declare independence. The convulsions of Syria’s civil war, the destabilisation of Iraq and the role of Kurds in the international fight against ISIS present new challenges and opportunities. Thus making it harder to ignore Kurdish pleas for greater autonomy, if not independence.13
II. Purpose
The Kurdish issue in Iran, Iraq and Turkey has drawn significant attention throughout the years.14 Many researchers have touched upon the subject of the Kurdish issue in these countries, in the light of international law. The Kurdish issue in Syria, however, remained particularly in the background. Due to the Syrian civil war and the instability in the region, the Kurdish issue in Syria revived, given purpose to my research proposal. Kurdish pleas for self-determination inspired me to examine the viability within international law.
9 H. Montgomery, The Kurds of Syria, an existing denied, Europäisches Zentrum für Kurdische Studien [European Centre for Kurdish Studies], Berlin 2005, p. 21. 10 M.M. Gunter, Historical Dictionary of the Kurds, Lanham: Scarecrow Press 2010, 2nd edition, p. 23. 11 K. Yildiz, The Future of Kurdistan: The Iraqi Dilemma, London: Pluto Press, 2012, p. 78; M.M. Gunter, Out of Nowhere: The Kurds of Syria in Peace and War, London: Hurst and Company, 2014; Syrian Kurds were referred to as the ‘forgotten Kurds’. 12 Z. Tziarras, ‘The ‘Arab Spring’ and the Kurds of Syria’, Global Politics, 16 June 2012 < https://zenonas- tziarras.net/2012/06/16/the-arab-spring-and-the-kurds-of-syria/> (Retrieved May 1, 2018). 13 United Nations Office of the High Commissioner for Human Rights, Report of the Office of the United Nations High Commissioner for Human Rights on the Human Rights Situation in Iraq in the Lights of Abuses Committed by the So- Called Islamic State in Iraq and the Levant and Associated Groups, UN Doc. A/HRC/28/18. 14 Iraq: after the fall of Saddam Hussein’s regime in 2003. Turkey: since the 1980’s, the ongoing Kurdish-Turkish conflict has been a subject of research.
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Hence, the purpose of this research is to examine the case of the Kurds in Syria and the situation created in the aftermath of the Arab Spring. Its goal is to scrutinise to what extent self-determination provides in the aspiration of Kurds in Syria within the rules and standards of international law. Observing the evolution of the aspirations of the Kurds in Syria, in the light of the Syrian civil war, will allow us to examine to what extend self-determination within international law provides in the pleas of the Kurds in Syria.
III. Research question
The above mentioned conditions of the Kurds in Syria leads to a serious consideration of the possibility of self-determination for the Kurdish population in Syria. How do the events of the Syrian civil war contribute to the position of the Kurds in Syria? What are their aspirations? Can the Kurds in Syria rely on international law norms to assert the right to autonomy, respectively, do they have the right to self-determination? Could the legitimisation they are gaining, in the eyes of the international community, lead to an official demand for independence? The relevant question is then one of determining how the Kurds ought to be able to exercise the right to self-determination.
Following on from the above discussion, the main research question of this dissertation is: ‘‘’To what extent does the right to self-determination provide in the aspirations of the Kurds in Syria within the rules and standards of international law?’’
Sub questions In order to answer the abovementioned research question, the following sub questions are formulated: Legal Framework i. What is the legal framework for self-determination? ii. Who are the holders of the right to self-determination?
1. Who are the Kurds? i. What is the historical background of the Kurds (in Syria)?
2. Regarding Kurds in Syria i. What is the current situation/development of the Kurds in Syria? ii. What are the aspirations of the Kurds since the Syrian civil war has started?
3. Which form of self-determination is/are feasible under the criteria of international law given the current circumstances of the Kurds in Syria? i. Is this form of self-determination sustainable?
IV. The theoretical framework
In order to attempt to answer the central question, the legal framework of self-determination within the rules and standards of international law, will be outlined. More specifically, the internal and external form of self-determination will be expounded to scrutinise the case of the Kurds in Syria in the end. In addition, Kurdish history and the evolution of the Kurds will be reviewed. Predominantly, the evolution and the recent developments in Syria will be considered in order to assess the situation and aspirations of the Kurds in Syria. Subsequently, as the Syrian civil war had some increasing influence on the Kurdish nationalism in Syria, the years following the Arab Spring and the commence of the Syrian civil war, will be brought into the picture to illustrate the position of the Kurds. Deflecting what is most obvious and thus most achievable, given the aspirations of the Kurds, the recent developments in Syria and the feasibility within international law, a few options will be set out.
The central question remains whether self-determination, within the standards and criteria of International Law, provide any outcome to the aspiration of the Kurds in Syria, as it is presented in the current setting. The question whether or not a certain form of self-determination is sustainable depends on many aspects. In this regard I hope by the end of this thesis to be able to name some aspects. Given the fact that the Kurdish issue is a transnational and international problem, the geopolitical dynamic must be taken into consideration as a second significant resource. Finally, this thesis will assess whether a form of self-determination, within Syria, is consistent within the rules and standards of international law.
V. Methodology
For the sake of this research paper, the first two sub-questions will be examined theoretically in order to provide a framework of the criteria of self-determination upon which the case of the Kurds in Syria can be examined. Thus, a descriptive analysis of the nature and value of the principle of self- determination is required. The development of self- determination as a principle toward its establishment as a right to self-determination will for this reason be literature study. Including sources of international law and documents, as well as case law, will provide a respectable understanding of the concept of the right to self-determination. Touching upon the historical evaluation of the establishment of the principle of self-determination since the decolonisation period, will allow us to understand the principle in its modern form.
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The questions regarding the Kurds, and specifically those in Syria, will be a study of desk research. As mentioned earlier, the Kurdish issue in general has received much attention from international media and frequently been researched by academics. Discussing Kurdish history will not be as hard as finding reliable sources on the Kurdish issue in Syria. Especially since the Syrian civil war has started, it remains hard to comprehend what happens within the borders of the country. In this regard, it is important to notice that since the length and timeframe, the thesis will focus on the years following the Arab Spring with occasionally reviewing the historical background. Moreover, defining what the aspirations of the Kurds are, will be primarily desk research. Fortunately, since the Syrian war started and the recent developments in Syria,15 much information has been provided by both the international media, and researchers and authors.
VI. Structure
The disposition of this thesis follows a simple structure, where the main investigation is divided into three chapters. Chapter 2, which follows immediately after this introduction, discusses the principle of self-determination in general, with particular focus on who possess this right. The chapter is subdivided into two parts, where the first part deals with the historical development of the right to self-determination and its contents today, and the second part analyses the relationship between self-determination and territorial integrity, and who possess the right to self-determination. Chapter 3 discusses the origin of the Kurds. This chapter is meant to provide background information on issues that are necessary for a thorough understanding of the thesis. Further focus in the chapter will be on the Kurds in Syria, including a historical account of the developments and an analysis of the conflicts in the aftermath of the Arab Spring. The Kurdish aspirations will undoubtedly be discussed as well. Chapter 4 constitutes the comparative aspect of this thesis wherein the recent developments in Syria, the position of the Kurds and the possibilities provided by the principle of self-determination are analysed. Running references to earlier findings of the thesis, the chapter will also include opinions presented in the doctrine. Chapter 5 follows the main investigation of this thesis and concludes its findings in an attempt to answer the research question initially posed. The chapter is divided accordingly, with the first part responding to the queries concerning self-determination, and the second part discussing the importance of the geopolitical dynamic.
15 The Russian involvement in Syria has put a lot of pressure on Turkey, leading to new developments in Syria. Chapter 2 Legal Framework of self-determination
The following chapter establishes a comprehension of the right to self- determination by outlining the development of the ‘principle’ of self-determination towards a ‘right’ to self-determination (paragraph 2.1). The legal framework requires a brief historical evaluation of this establishment as a principle from the decolonisation period to its understanding in external and internal form (paragraph 2.2). The first section provides the factual and legal background, whereas the second part of the chapter is closely related to the question ‘who has the right to self-determination?’.
2.1 From Principle to Right
When the United Nation (hereinafter UN) was formed in the aftermath of the war in 1945, the right to self-determination attained a status in the United Nations Charter (hereinafter UN Charter)16 and perceived as a means of realising world peace.17
At the time, self-determination meant neither the right of a colonial people to achieve political independence nor the right of a people to a sovereign State to choose its government freely through democratic and regular elections. It was rather a means of furthering the development for peaceful and friendly relations between nations, creating conditions for stability and well-being, and preventing as much as possible conflicts between them.18 Article 1(2) of the Charter explicitly states that among the main purposes of the UN is ‘‘(…) to develop friendly relations among nations based on respect for the principle of equal rights and self- determination of peoples, and to take the appropriate measures to strengthen universal peace (…)”.19
16 The mention of self-determination is found in articles 1(2) and 55 of Charter of the United Nations, 26 June 1945, San Francisco, entering into force on 24 October 1945, [1945] ATS 1 / 59 Stat. 1031 17 E. Suy, ‘De VN-praktijk op het stuk van het zelfbeschikkingsrecht der volkeren’ In: N. Sybesma-Knol &J. van Bellingen, Naar een nieuwe interpretatie van het recht op zelfbeschikking?, Brussels VUB Press, 1995, p. 257-297, p. 262. 18 R. McCorquodale, self-determination in international law, Aldershot: Ashgate/Dartmouth, 2000, p. 13; D. Thürer & T. Burri, ‘self-determination’, Max Planck Encyclopedia of Public International Law, 2008; Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, GA Res 2625, 24 October 1970.
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Over the years, the notion of self-determination has widely been influenced by advisory opinions of International Court of Justice (hereinafter ICJ) and scrutinised by many scholars.20
In 1995, the ICJ noted that self-determination is ‘one of the essential principles of contemporary international law’.21 The reference to the word ‘people’ in article 1(2) and article 55 of the Charter, however, remained rather vague until Resolution 1514,22 adopted by the UN General Assembly, provided the necessary clarification and some new insights.23
In 1960, the UN General Assembly adopted the so-called Declaration on granting independence to Colonial Countries and Peoples, also referred to as Resolution 1514, imposing that ‘all peoples’ are the subject of self-determination and having the right to self-determination. 24 Not only does the Resolution 1514 refer to the bearers of the right to self-determination as those subject to foreign domination, but also to those subject to exploitation and rejection of fundamental human rights.25
The General Assembly confirmed in Resolution 1514 and Resolution 1541 that self-determination refers only to colonial territories, which are separate from the metropolitan states.26 Resolution 1541 gives the basis for a people, subject to colonial rule, to be given the choice of how they wish to be constituted: integration, association or independence.27 Achieving self-governing territories would be
20 Among others by J. Crawford, S. Driest and D. Raič. 21 See International Court of Justice, East Timor, Portugal v Australia, ICJ Reports 90, ICGJ 86, 30 June 1995, para.29; H. Hannum, 'Rethinking of self-determination page' Virginia Journal of International Law, 2011 vol. 34(1), p. 12 22 Resolution 1514(XV) as well as Resolution 1614(XVI) have led to the emergence of right to self-determination as a rule of customary law. 23 In the narrow view of the UN Charter, self-determination was not identified as a legal principle; J. Crawford, The creation of states in international law, Oxford University Press 2007, p. 114; D. Raič, Statehood and the law of self- determination, Book Review, the Hague: Kluwer Law International 2002, p. 131. 24 General Assembly Resolution 1514 (XV), 14 December 1960, para. 1 and 2. 25 The Resolution associates the application of self-determination of political status and economic development. As confirmed also in Resolution 1514 note 5; Resolution 2625 note 5. Principle V; D. Raič, Statehood and the law of self- determination, Book Review, the Hague: Kluwer Law International 2002, p. 146 26 J. Crawford, The creation of states in international law, Oxford University Press 2007, p. 285. This is in contrary to the elaboration of H. Hannum, where the author argues that this does not refer to a possibility of one territory to be home to more than one group of people. Therefore, peoples are linked to territories and considered as its nation.; H. Hannum, 'Rethinking of self-determination page' Virginia Journal of International Law, 2011 vol. 34(1), p. 12 27 United Nations Resolution 1541, Principle VI; First the resolution defines that it refers only to territories known to be from colonial type according to United Nations Resolution. 1541, Principle I ; Legal Consequences for States of the either by emerging as a sovereign independent State, associating with an independent State, or integrate with an independent State.28 This meant that entire inhabitants of colonial territories were no longer part of the metropolitan state and had right to self-determination by attaining independence. Which in turn meant that the territorial integrity of State should be respected and territorial criterion instead of personal criteria, such as ethnic or religious criteria, should be used to define people. 29
With the Resolution, stating to cease armed actions or repressions to exercise complete independence, the right to self-determination, in the context of giving the colonial people independence, developed into a rule of customary international law.30 The transition from colonial status to independence was however not regarded as secession, but rather as the restoration of a rightful sovereignty of which people illegitimately have been deprived of by the colonial power concerned.31
In 1966, the adoption of the International Covenant on Civil and Political Rights (hereinafter ICCPR), together with Resolution 1514, established a change from a ‘principle’ towards a ‘right’ to self- determination,32 associating the application of self-determination to the free determination of political status and economic development.33
Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) Advisory Opinion, ICJ Reports 1971 16 at 31^2, paras 52^3. 28 General Assembly Resolution 1541, Declaration on the Granting of Independence to Colonial Countries and Peoples, UN GAOR, no 16, UN doc. A/4684, 1960 (hereinafter Resolution 1541), Principle VI; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276, 1970, Advisory Opinion, ICJ Reports 1971. 29 Article 10 ICCPR; H. Quane, ‘The United Nations and the Evolving Right to Self-Determination’, The International and Comparative Law Quarterly, 1998 vol. 47(3), p 550; Principles I-VII of the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, GA Res 2625, 24 October 1970 ; V. Lowe , International law, Oxford University Press, 2007, p. 100 30 H. Hannum, 'Rethinking of self-determination page' Virginia Journal of International Law, 2011 vol. 34(1), p. 12 31 R. Emerson, ‘self-Determination’, The American Journal of International Law, 1971 vol. 65(3), p. 465
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Article 1(1) of the ICCPR, explicitly states: ‘All peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.’34
Clarity on the meaning of the term ‘peoples’ in article 1(1) ICCPR, remained unclear but was clear enough to apply to various groups, including groups of individuals linked by a common language, religion or ethnicity35 or to refer to the population of a State of the population of a colony.36
The development of the right to self-determination over the years has continued beyond the context of decolonisation. It is now accepted that legal right37 to self-determination also applies beyond the traditional colonial context.38
Statehood and the law of self-determination, Book Review, the Hague: Kluwer Law International 2002, p. 215-217: Raič elaborates that numerous Resolutions express the right to self-determination adopted under the title of ‘the right of peoples and nations to self-determination’, including the UN Resolution 637 (A/RES/637) from 1952 regarding the recognition and promoting the realisation of the right to self-determination, UN Resolution 742 (VIII) from 1953 establishing a list of factors in determining whether a territory is within the scope of Chapter XI of the UN Charter, and Resolution 1188 (XII) from 1957. According to Raič the character of the rights to self-determination under customary international law, was even prior to Resolution 1514 visible. Moreover, Resolution 1514 demonstrates an existing rule of customary law. Raič furthermore notes that many resolutions are adopted post 1960, proving the existence of the right to self-determination. 34 International Covenant on Civil and Political Rights, 16 December 1966, entered into force 23 March 1976, 999 U.N.T.S. 171. 35 H. Quane, ‘The United Nations and the Evolving Right to Self-Determination’, The International and Comparative Law Quarterly, 1998 vol. 47(3), p 539 36 Article 1(1) of the ICCPR; H. Quane, ‘The United Nations and the Evolving Right to Self-Determination’, The International and Comparative Law Quarterly, 1998 vol. 47(3), p 537 37 D. Raič, Statehood and the law of self-determination, Book Review, the Hague: Kluwer Law International 2002, p. 284 38 Article 1(3) of the ICCPR validates this in particular by stating that ‘the States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-determination-Governing Territories and Trust Territories shall promote the realisation of the right of self-determination-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.’. J.F. Gareau, ‘Shouting at the Wall: Self- Determination and the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory’, Leiden Journal of International Law 2005, p. 489 Today, the right to self-determination is an essential principle of international law, reflected both in treaty law and international customary law.39 The notion of self-determination has evolved from a political principle to a legal right under international law. The right to self-determination is understood by its division into internal and external self-determination. The former referring to self-determination as applied to the relationship between peoples and their own rulers, in other words, the right of all parts of population to participate in the political discussion of their country. The external element of self-determination refers to the relationship between peoples and oppressive forces ‘from outside’.40
The right to self-determination incarnates the concept of ‘all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development’. 41 Cited in a similar way, the formulation is mentioned in almost all relevant UN documents.42
The right to self-determination of a people is normally fulfilled through internal self-determination within the framework of an existing State to decide on the political system and to choose which economic, social and cultural policy is being pursued.43 Such exercise of a right is compatible with the territorial integrity of that State. External self-determination is a people’s decision to establish an independent and sovereign State, to create free association with an independent State or to integrate with an existing independent State.44
39 See also the Case of Namibia and the Sahara Case. According to the case of Namibia, self-determination can be referred to as applying to peoples under colonial rule, to a people as whole or to its external form. The Sahara case confirms the view of free determination of political status ‘by their own freely expressed will’; International Court of Justice, Western Sahara, Advisory Opinion of 16 October 1975, ICJ GL no. 61, ICJ Reports 1975 12; Legal Consequences or States I the continued Presence of South Africa in Namibia (South west Africa). 40 R. Higgins, Problems and process , Oxford University Press 1994, p. 117; A. Cassese, Self-determination of Peoples: A Legal Reappraisal, Cambridge University Press 1995, p. 55. Cassese is generally credited for having “invented” the distinction. 41 L.C. Buchheit, Secession: The Legitimacy of Self-Determination, Yale University Press, New Haven and London 1978, p. 14 42 Including Article 1 of the ICCPR and the International Covenant of Economic, Social and Cultural rights (hereinafter ICESCR), Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, GA Res 2625, 24 October 1970. 43Reference re Secession of Quebec, 20 August 1998, Canadian Supreme Court, para. 126; J. Castellino, ‘self- determination, Indigenous Peoples and Minorities’, Macquarie Law Journal, 2003(3) 44 UN General Assembly Resolution, Declaration on Granting Independence to Colonial Countries and Peoples (1514) as well as UN-Res., Principle which should guide Members in determining whether an obligation exists to transmit the information called for in Article 73[e] of the Charter of the United Nations ( Resolution 1541), UN Yearbook, p. 49
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2.2 Internal Self-determination The right to self-determination complements fundamental principles of public international law, like State sovereignty, the equality of States and territorial integrity, comprising the prohibition of force and the principle of non-intervention as well.45
The international practice has established that the right to self-determination is to be achieved principally through the so called internal self-determination, by means of autonomy arrangements enabling a minority to attain a certain degree of political, social, cultural independence within the framework of an existing State.46 Autonomy is both an alternative to self-determination as well as an expression of it. 47 The ICJ specified in the Western Sahara case, that internal self-determination should be exercised in a free manner, including the political, economic and cultural development.48 The purpose of self-determination is to protect the distinct identity of a people by creating an atmosphere in which a people is allowed to preserve, strengthen and develop its collective individuality, without external involvement.49 The principle however does not define how the decision is to be made nor how this right to self-determination can be exercised, and neither does it say what constitutes a people.50 The background, scope and meaning of what constitutes a people will be examined in more detail at the end of this chapter.
45 I. Brownlie, Public International Law, Oxford University Press, New York 2003, p. 555. 46 International Court of Justice, Western Sahara, Advisory Opinion of 16 October 1975, ICJ GL no. 61, ICJ Reports 1975 12
The internal aspect of the right to self-determination concerns the right of peoples within an existing State to choose their political status.51 According to paragraph 7 of the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations (hereinafter Friendly Relations Declaration), racial or religious groups within independent States clearly have the right to self-determination if they do not possess of a representative government. 52
The paragraph contains a clear reference to the fact that self-determination is not consumed once independence has been attained.53 As reflected in the Declaration,54 it indicates the right of the people of a State, already recognised by international law, to determine their own form of government and implies “equal access to government”, without distinction regarding race, creed or colour.55 This is correspondingly ratified in Principle VIII Final Act of the Conference on Security and Co-operating in Europe of the Helsinki Declaration (hereinafter Helsinki Final Act).56
51 McCorquodale, R. ‘self-determination: A Human Rights Approach’, International and Comparative Law Quarterly 43, 1994, p. 864; P. Malanczuk. ‘Minorities and self-determination’, in: N. Sybesma-Knol & J. van Bellingen, Naar een nieuwe interpretatie van het recht op zelfbeschikking?, Brussels, 1995, p.169; J. Castellino, ‘self-determination, Indigenous Peoples and Minorities’, Macquarie Law Journal, 2003(3), in H. Hannum, 'Rethinking of self-determination page' Virginia Journal of International Law, 1993 vol. 34(1), p. 17: pointing out that ‘representative government” is not a synonym of “democracy’. 52 The United Nation General Assembly Resolution 2625 (XXV): Declaration of Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, 24 October 1970; H. Quane, ‘The United Nations and the Evolving Right to Self-Determination’, The International and Comparative Law Quarterly, 1998 vol. 47(3), p 562 53 D. Raič, Statehood and the law of self-determination, Book Review, the Hague: Kluwer Law International 2002, p. 230 54 The United Nation General Assembly Resolution 2625 (XXV): Declaration of Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, 24 October 1970 55 Paragraph 7 of the Friendly Relations Declaration. This clause was reiterated in some of the most important declarations, such as in paragraph 2 of the Vienna Declaration and Programme of Action (1993) and paragraph 1 of the Declaration on the Occasion of the Fiftieth Anniversary of the UN (1995).; Declaration on the Occasion of the Fiftieth Anniversary of the United Nations, General Assembly. Resolution 50/6, adopted 24 October 1995, para. 1. ; A. Cassese, Self-determination of Peoples: A Legal Reappraisal, Cambridge University Press 1995, p. 117: Cassese argues that ‘race’ and ‘colour’ are used synonymously for the notion ‘race’, while ‘creed’ is meant to refer exclusively to religious beliefs. He stresses that since these terms do not refer to national or linguistic groups, these groups do not enjoy a right to internal or external self-determination. 56 Conference on Security and Cooperation in Europe: Final Act of Helsinki, 1 August 1975, principle VIII.
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According to the Friendly Relations Declaration, the right to self-determination is a universal right and applies to all peoples of independent, colonial States and non-self-governing territories. 57 Moreover, it is a continuous right requiring the periodic consent of those governed.58 Article 1(1) of the ICCPR, differs in terms of language, but accordingly emphasize its ‘continuing’ and ‘permanent’ character and the fact that it should be exercised without outside interference.59
The principle of self-determination outlines not just the duty of States to respect and promote the right, but also the obligation to refrain from any forcible action which deprives peoples of the enjoyment of such a right.60 In particular, the use of force to prevent a people from exercising their right to self-determination is regarded as unlawful and has been consistently condemned by the international community.61
The ICJ acknowledged, in the East Timor case, that the right to self-determination has erga omnes status.62 The concept of erga omnes encompasses the responsibility of States to ensure that a right is realised. By virtue of the erga omnes status of self-determination, States have obligations ‘towards the international community as a whole’, and consequently, ‘all states can be held to have a legal interest in their protection’.63
57 International Court of Justice, East Timor, Portugal v Australia, ICJ Reports 90, ICGJ 86, 30 June 1995, p. 102. 58 The ongoing character is reflected in Treaty law, resolutions and declarations of international organisations and conferences, as well as State practice, jurisprudence and doctrine, beyond the traditional colonial context: ICCPR, The Friendly Relations Declarations, and the Helsinki Final act; D. Raič, Statehood and the law of self-determination, Book Review, the Hague: Kluwer Law International 2002, p. 228 59 D. Raič, Statehood and the law of self-determination, Book Review, the Hague: Kluwer Law International 2002, p. 228 60 The Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights in Vienna, 1993: The Declaration ratifies that denial of self-determination is a violation of human rights. On a side note that in case of violations of territorial integrity, it no longer can be considered lawful. 61 The use of force against oppressed peoples fighting for their independence is a crime against peace and a violation of the UN Charter. The General Assembly and Security Council Resolutions have recognised stating that whoever possessed a right should possess the means to exercise it. Relevant GA resolutions expressed that they even have the right to seek and obtain assistance of other States in their struggle. 62 International Court of Justice, East Timor, Portugal v Australia, ICJ Reports 90, ICGJ 86, 30 June 1995, p. 102. 63 International Court of Justice, Barcelona Traction case, Light and Power Company Limited, Belgium v Spain, Judgedement C.I.J Recueil, 5 February 1970, para 33; Additionally, scholars and commentators have indicated that the principle has acquired the status of jus cogens, an imperious norm of international law. The Friendly Relations Declaration, furthermore, elaborates differentiations between interpretations of the Western and Third World States regarding ‘representative government’. 64 While Western States interpret the representative government as a democratic government or the power of majority, 65 Third World States embrace decolonisation as the essential element of self- determination, which means that the government must be non-racist and no specific group of the population can be excluded from government.66
Self-determination in this delineation means the right of a people within an independent state to freely choose their government. 67 This western and political concept of self-determination is understood as the legal right to self-determination of popular sovereignty and representative government. The perception of self-determination, as mentioned above, relates to the ongoing right of all citizens within the State to participate in periodic elections which a representative government.68 There are several ways in which internal self-determination can be realized, such as designating a number of seats in the Parliament for representatives of a particular people or regional autonomy.69 Internal self-determination is closely related to the principles of equal rights and non- discrimination, without which equal access to government would not be possible.70
64 J. Vidmar, ‘The Right of Self-Determination and Multiparty Democracy: Two Sides of the Same Coin?’, Human right Law Review, 2010 vol. 10(2), p. 239 65 This has been fuelled in part by the inclusion in the Declaration on Principles of International Law of the ambiguous requirement that a government must be representative: ‘only a government representing the whole people belonging to the territory without distinction as to race, creed or colour’. 66 A. Hurrel, Order and Justice in International Relations, Oxford University Press 2003, p. 192 67 A. Cassese, Self-determination of Peoples: A Legal Reappraisal, Cambridge University Press 1995, p. 19; J. Vidmar, ‘The Right of Self-Determination and Multiparty Democracy: Two Sides of the Same Coin?’, Human right Law Review, 2010 vol. 10(2), p. 239 68 General Assembly Resolution, Strengthening the role of the United Nations in enhancing periodic and genuine elections and the promotion of democratisation, adopted on 18 December 2013, UN Doc A/Res/86/164, 21 February 2014; A. Duxbury, The Participation of States in International Organisations: The role of Human Rights and Democracy, Cambridge University Press 2011 , p. 101 69 H. Hannum, Autonomy, Sovereignty, and self-determination: The Accommodation of Conflicting Rights, Revised Edition. University of Pennsylvania Press 1996, p. 30 70 Articles 1 (2) and 55 of the United Nations Charter, both calling on Member States to respect the principle of equal rights and self-determination of peoples
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2.3 External self-determination
As mentioned earlier in this chapter, external self-determination is the right of peoples to determine their own political status and to be free of alien domination, including formation of their own State.71 It can manifest itself through the formation of an independent State, the integration in, or association with a third State.72 In this regard, implementation of self-determination by a people leads to the modification of the external boundaries of the State in which that people resides. This feature is what separates external self-determination from internal self-determination. 73 The exercise of external self-determination, however, occurs by different means. External self-determination may be exercised through the dissolution of a State, State union or merger with another state, or through secession.74
2.3.1 Dissolution, Reunion or merger The possibilities of dissolution, and reunion or merger, are defined as peaceful ways for peoples to determine their ‘own destiny’,75 either directly or through representative government.76 These two means cannot be established without the approval of the existing State and the fact that the international legal principle of territorial integrity is respected. 77 Article 6 of Resolution 1514
71 Declaration on the Granting of Independence to Colonial Countries and Peoples Adopted by General Assembly resolution 1514 (XV) of 14 December 1960. 72 International Court of Justice, East Timor, Portugal v Australia, ICJ Reports 90, ICGJ 86, 30 June 1995, p. 92; G.H. Fox, ‘Self-Determination in the Post-cold War Era: A new Internal Focus?’, Michigan Journal of International law, 1995, p. 734 73 D. Raič, Statehood and the law of self-determination, Book Review, the Hague: Kluwer Law International 2002, p. 289 74 S.F. van den Driest, Remedial Secession. A right to external self-determination as a remedy to serious injustices?, Cambridge: Intersentia 2013, ,p. 84-86 ; D. Raič, Statehood and the law of self-determination, Book Review, the Hague: Kluwer Law International 2002, p. 284 75 C. Ryngaert and C. Griffioen,‘The Relevance of the Right to Self-determination in the Kosovo Matter: in Partial Response to the Agora Papers’, Chinese Journal of International Law 2009; Expert opinion prepared in 1992 by T.M. Franck, R. Higgins, A. Pellet, M.N. Shaw and C. Tomuschat, ‘The Territorial Integrity of Québec in the Event of the Attainment of Sovereignty, in: A. Bayefski, Self-determination in International Law: Quebec and Lessons Learned, The Hague: Kluwer Law International 2000, p. 248, para. 1.17. 76 D. Raič, Statehood and the law of self-determination, Book Review, the Hague: Kluwer Law International 2002, p. 290: Dissolution of one state or the separation of its territory is not prohibited under international law, referring to the cases of Soviet Union and Czechoslovakia. 77 Article 2 of the General Assembly Resolution 1541, UN GAOR, no 16, UN doc. A/4684, 1960; Article 73 of the UN charter; International Court of Justice, East Timor, Portugal v Australia, ICJ Reports 90, ICGJ 86, 30 June 1995, p. 92; G.H. Fox, ‘Self-Determination in the Post-cold War Era: A new Internal Focus?’, Michigan Journal of International acknowledged in this regard that ‘any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations’.78
Dissolution refers to the establishment of a new independent State through the separation of one or more integral parts of the territory of an existing State from that State, resulting in the discontinuation of the legal personality of the previous sovereign. Dissolution occurs often in the context of federal- type territorial units. In these instances, the possibility of dissolution is often provided for in the constitution by confirming a right to self-determination for the constituent units.79
Secondly, and in addition to dissolution as a mode of exercising the external dimension of the right to self-determination, the possibility of State union or merger is mentioned. This form of the right to external self-determination is exercised by the consolidation of two or more States, irrelevant whether or not they had previously existed as one State, to a new sovereign State.
The reestablishment of independence of an already existing State by a people after that State has been under foreign occupation in violation of international law, is acknowledged under international law. 80 Both in the case of State union or merger, and in the case of peaceful dissolution, the population of a State exercises its right to external self-determination, either directly through techniques or procedures such as the holding of a referendum, or through the representative government of the State. Although instances of State union or merger occur only infrequently, there are some examples in this respect. One example can be tracked to the establishment of Egypt and Syria into the United Arab Republic, on 21 February 1958.81 A more commonly known example concerns the reunification of East and West Germany in 1990.82 In the case of Czechoslovakia, the right to external self-determination was exercised through the representative government.83
law, 1995, p. 734; Article 2 stipulates that ’All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development’. 78 Article 6 of the General Assembly Resolution 1514, declares that ‘Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the Purposes and Principles of the Charter of the United Nations.’ 79 M. Weller, ‘Settling Self-determination Conflicts: recent Developments’, The European Journal of International Law, 2009 vol. 20(1), p. 125 80 Friendly Relation Declaration, Principle V, para. 4; such as in the case of the annexation of Kuwait by Iraq in 1990. 81 After the establishment of the United Arab Republic, the United Arab Republic continued the UN membership of Egypt as a single member. On 13 October 1961, Syria, having resumed its status as an independent State, resumed its separate membership in the UN. 82 After the fall of the Berlin Wall, East and West Germany were reunified.
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Noticeable, there is no rule of international law, including the principle of territorial integrity, which prohibits the entire population of a State84 from dissolving the State and dividing its territory.85 In this respect, it is key to mention the cases of the Soviet Union and Yugoslavia, in which most constituent Republics deemed it fit to hold a referendum before declaring independence.86 The Declaration on the Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union, created by the European Community and its member States, provides several conditions to be satisfied before recognition would be accorded. Namely, recognition would only be granted to those Republics which respect the ‘rule of law, democracy and human rights’ and which provided for ‘guarantees for the rights of ethnic and national groups and minorities’. 87
2.3.2 Secession
Another meaning to the term ‘external self-determination’ is the ‘right’ to secession. Secession has been described as a process of State creation in which a new State will come into existence upon a territory of an already existing State. Secession refers to the establishment of a new independent State, by withdrawal of a specific part of the territory, carried out by the occupant population of that part of the territory, either with or without the consent of the parent State, while the legal personality of the existing state continues to exist.88
83 On January 1, 1993, Czechoslovakia separated peacefully into new countries, the Czech Republic and Slovakia. 84 Although the argument is that the nation is the holder of the right to external self-determination, the eventual decision will effectively be based on the will of the majority in most cases.; D. Raič, Statehood and the law of self- determination, Book Review, the Hague: Kluwer Law International 2002, p. 290 85 The breakup of the Soviet Union and of the Socialist Federal Republic of Yugoslavia are examples of dissolution. 86 In 1991, referendums were held in among others Georgia, Turkmenia, Ukraine , Uzbekistan and Croatia.; D. Raič, Statehood and the law of self-determination, Book Review, the Hague: Kluwer Law International 2002, p. 291 87 Declaration of the Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union, adopted on 16 December 1991; See also Caplan, Europe and the Recognition of the New States in Yugoslavia, 2005 88 S.F. van den Driest, Remedial Secession. A right to external self-determination as a remedy to serious injustices?, Cambridge: Intersentia 2013, p. 46 ; J. Crawford, ‘The criteria for Statehood in International Law’, British Yearbook of International Law, 2012 vol. 48(1), p. 93 Withdrawal by a population on the territory may occur with the consent of the existing State or as a result of a clause comprised in the domestic constitution, allowing separation.89 The term unilateral secession is utilised when no consent is given nor a constitutional provision exist allowing secession.90 The concept of consensual secession refers to the separation of part of the territory with consent of the central government. Consensual secession has only occurred in a few instances, such as Singapore, which, after two years, peacefully seceded by mutual agreement from Malaysia in 1965.
The concept of constitutional secession refers to constitutions which, in a clear and unambiguous fashion, determine that specific constituent entities enjoy a right to external self-determination, provided that particular procedural conditions are met. A good example in this respect is the independence of Eritrea from Ethiopia. The 1994 Constitution of the Federal Democratic Republic of Ethiopia, declared that ‘Every Nation, Nationality and People in Ethiopia has an unconditional right to self-determination, including the right to secession’.91 The most recent example of secession through constitutional arrangements was the independence of Southern Sudan from Sudan in 2011.92
The opposing legal principle to external self-determination is, the respect for territorial integrity of existing States.93 The so-called safeguard clause in the Friendly Relations Declaration demonstrates a right granted to racial and religious groups within one state, to exercise both external and internal self-determination.94 The clause imposes that nothing must be aimed to disrupt the territorial integrity
89 G. Anderson, Secession in International Law and Relations: What Are We Talking About?, Loyola of Los Angeles International and Comparative Law Review, 2013, p. 350 90 G. Anderson, Secession in International Law and Relations: What Are We Talking About?, Loyola of Los Angeles International and Comparative Law Review, 2013, p. 354; J. Dugard, ‘A Legal Basis for Secession: Relevant Principles and Rules’, In: J. Dahlitz, Secession and International Law: Conflict, Avoidance-Regional Appraisals, Asser Press 2003, p. 89 and p. 245. 91 Article 39 of the 1994Constitution of the Federal Democratic Republic of Ethiopia. 92 L. de Vries & M. Schomerus, ‘Fettered Self-determination: South Sudan’s Narrowed Path to Secession, Civil Wars’, 2017 vol. 19(1), p. 2; Protocol between the government of Sudan and the Sudan People’s Liberation Movement on Power Sharing, 26 May 2004. 93 M. Khen, Secession, International law perspectives, Cambridge University Press 2006, p. 6; Article 10 ICCPR obliges the members to respect and preserve the territorial integrity and existing political independence of all members of the League against external aggression.; Principle V(7) the safeguard clause of the Friendly Relations Declaration. 94 Principle V(7) the safeguard clause of the Friendly Relations Declaration; H. Hannum, ‘rethinking of self- determination page, 2011 vol. 34(1), Virginia Journal of International Law, p. 16
31 of the Administrative State, in accordance with the Friendly Relations Declaration.95The exercise of the right is thus limited by territorial integrity, in order to prevent threats to the sovereign state and to international stability. Supported by the Helsinki Final Act, one must ‘refrain from any violations of the principle of territorial integrity and thus from any action aimed... at violation the territorial integrity, political independence, or the unity of a State.96
The Friendly Relations Declarations underlines the importance of self-determination that should be understood as governments representing the whole population, without distinction. 97 The 1993 Vienna Declaration however does not oblige States to grant such a right, neither does it prohibit this.98 It rather allows the limitations of the possibility to evoke territorial integrity in a context of discrimination and States’ non-compliance.99
The Alands Islands case,100 concerning Finland and Sweden and the question whether secession should be granted to the inhabitants of these islands, has provided some valuable remarks on the idea of secession, and, more specifically, regarding remedial secession.101 On the one hand, the
95 S.F. van den Driest, Remedial Secession. A right to external self-determination as a remedy to serious injustices?, Cambridge: Intersentia 2013, p. 94; Friendly Relations Declarations, preamble; The UN Charter mentions the protection of territorial integrity specifically mentioned as a crucial component of the prohibition of the use of force provided for in article 2(4): ‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.’. 96 Conference on Security and Cooperation in Europe: Final Act of Helsinki, 1 August 1975, p. 4 < https://www.osce.org/helsinki-final-act?download=true> (Retrieved August, 5, 2018); H. Hannum, ‘rethinking of self- determination’, Virginia Journal of International Law, 2011 vol. 34(1), p. 16 97 The safeguard clause of the Friendly Relations Declaration, last paragraph. 98 The Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights in Vienna, 1993 99 E.M. Brewer, ‘To Break Free from Tyranny and Oppression: Proposing a Model for a Remedial Right to Secession in the Wake of the Kosovo Advisory Opinion’, Vanderbilt Journal of Transnational Law 2012, p. 253; 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, Annex, at 123–24, U.N. Doc. A/8018, 1970 100 The Aland Islands Question, Report by the Commission of Rapporteurs, League of Nations Council Document B7 21/68//106, 1921 101 Aland Islands case, para. 27-28; The case was discussed by both the Council of League of Nations Commission of Jurist and the Commission of Rapporteurs, in order to provide advisory opinions on the matter.; S.F. van den Driest, Remedial Secession. A right to external self-determination as a remedy to serious injustices?, Cambridge: Intersentia 2013, p. 123; D. Raič, Statehood and the law of self-determination, Book Review, the Hague: Kluwer Law International 2002, p. 328 Commission stated that secession is to be a matter concerning domestic scene, rather than an international. On the other hand, it states that in case of sovereign power abuse by the government, the domestic character can be overruled, and become a matter within the scope of the League of Nations.102 More importantly, it refrained from granting an absolute right to secession, by imposing the prevailing role of stability and States’ order. 103 Nevertheless, the Commission stated that separation of minorities can be exercised only as ‘exceptional solution, as a last resort’104 when States fail to guarantee freedom to territories that are greatly oppressed and ‘misgoverned’ by the mother State.105 Thus, remedial secession was more apprehended as a last resort, since the State involved is unable to provide freedom for the groups within their territory, rather than as to an absolute right to such groups.106
While international law embraces the principle of self-determination, no country or group of people has the right to violate the territorial integrity of a country.107 Nevertheless, self-determination trumps territorial integrity when a country has, firstly, violated the “economic, social, and cultural development” of a people, as required the Friendly Relations Declaration,108 and secondly, a valid territorial claim is made by the people to the area that they wish to claim.109 It may in this regard be
102 D. Raič, Statehood and the law of self-determination, Book Review, the Hague: Kluwer Law International 2002, p.198; The Aland Islands Question, Report by the Commission of Rapporteurs, League of Nations Council Document B7 21/68//106, 1921, para. 28 103D. Raič, Statehood and the law of self-determination, Book Review, the Hague: Kluwer Law International 2002, p. 199 104 The Aland Islands Question, Report by the Commission of Rapporteurs, League of Nations Council Document B7 21/68//106, 1921, para. 27-28; D. Raič, Statehood and the law of self-determination, Book Review, the Hague: Kluwer Law International 2002, p. 198 105 J. Crawford, The creation of states in international law, Oxford University Press 2007, p. 111; S.F. van den Driest, Remedial Secession. A right to external self-determination as a remedy to serious injustices?, Cambridge: Intersentia 2013, p. 127 106 S.F. van den Driest, Remedial Secession. A right to external self-determination as a remedy to serious injustices?, Cambridge: Intersentia 2013; J. Crawford, The creation of states in international law, Oxford University Press 2007, p. 108 107 The UN Charter mentions the protection of territorial integrity specifically mentioned as a crucial component of the prohibition of the use of force provided for in article 2(4): ‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.’. 108 Reference re Secession of Quebec, Supreme Court of Judgement, 1998, Report (1998), 2 SCR 217, Case number 25506, Canada; Friendly Relations Declaration. 109 Reference re Secession of Quebec, Supreme Court of Judgement, 1998, Report (1998), 2 SCR 217, Case number 25506, Canada; Friendly Relations Declaration; G.J. Ewald, ‘The Kurds Right to Secede under International
33 argued that international law merely tolerates secession in instances of external self-determination, where a people is colonised or oppressed.110 In addition, de facto independence is a special factor that strengthens the right to self-determination over maintaining the territorial integrity of a State.111
In 1998, the Supreme Court of Canada (hereinafter Court) backed the idea of remedial secession, as possible outcome for separation, and presented the requirements need to be met in order to evoke the doctrine of secession. 112 The Court determined, primarily, that even though self- determination is ‘normally’113 exercised internally,114 it does not exclude a possibility to exercise it externally as well. Only when a right to exercise self-determination internally has been denied, it is possible to exercise self-determination through secession.115 According to the Court, it is possible to evoke the concept of secession as remedy to gross violations, under specific circumstances.116 A right to secession under self-determination is when ‘peoples’ is defined as to be governed under colonial rulings, subject to a form of domination, or subject to denial of any internal exercise of self-
Law: self-determination Prevails Over Political Manipulation’, Denver Journal of international Law & Policy, 1994 vol. 22(2-3), p. 375 110 UN General Assembly Resolution, Declaration on Granting Independence to Colonial Countries and Peoples (1514) as well as UN-Res., Principle which should guide Members in determining whether an obligation exists to transmit the information called for in Article 73[e] of the Charter of the United Nations (1541), UN Yearbook, p. 49 as well as 509 111 This could be understood in the context of colonisation. 112 Reference re Secession of Quebec, Supreme Court of Judgement, 1998, Report (1998), 2 SCR 217, Case number 25506, Canada, para. 126 113 Reference re Secession of Quebec, Supreme Court of Judgement, 1998, Report (1998), 2 SCR 217, Case number 25506, Canada, para. 126 114 E.M. Brewer, ‘To Break Free from Tyranny and Oppression: Proposing a Model for a Remedial Right to Secession in the Wake of the Kosovo Advisory Opinion’, Vanderbilt Journal of Transnational Law 2012, p. 259; J. Crawford, The creation of states in international law, Oxford University Press 2007, p. 119 115 Reference re Secession of Quebec, 1998, para 138; H.J. Blanke and Y. Abdelrehim, ‘Catalonia and the right to self-determination from the perspective of international law’ , Max Planck Yearbook of United Nations Law Online, 2015 vol. 18(1), p. 554 116 Reference re Secession Quebec Case, Supreme Court of Judgement, 1998, para. 112; I.U. Libarona, ‘Territorial integrity and self-determination: The approach of the international court of justice in the advisory opinion on Kosovo’, REAF, 2012 vol. 1(16), p. 110; H.J. Blanke and Y. Abdelrehim, ‘Catalonia and the right to self-determination from the perspective of international law’ , Max Planck Yearbook of United Nations Law Online, 2015 vol. 18(1), p. 554; E.M. Brewer, ‘To Break Free from Tyranny and Oppression: Proposing a Model for a Remedial Right to Secession in the Wake of the Kosovo Advisory Opinion’, Vanderbilt Journal of Transnational Law 2012, p. 259 determination.117 When a state is violating its obligations, the right to secession can be presented as a last resort of decolonization.118 The ICJ was provided briefs by fourteen States in its Advisory opinion on Kosovo, to argue in favour of the Kosovar secession and independence, based on the argument that international law embraced a principle of remedial secession in case of severe oppression by the existing State.119
2.4 Holders of the right to self-determination
The right to self-determination seems to be one of the most controversial principles of international law. The concept is widely disputed and consists of many elements and aspects. One of the elements is the term ‘people’. The definition of ‘people’ is significant for the scope of application of the right to self-determination.120 There is no unified or clear definition of the term ‘peoples’ in order to identify the holders of the right to self-determination, since no international treaty defines the term “peoples” for the purposes of self-determination.121
Since the adoption ICCPR and the ICESCR in 1966, the concept of self-determination, has been connected to human rights.122 The Covenants share the common article (1), on the right to self- determination, stating that ‘all peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development’.
The UN’s practice regarding decolonisation indicates that the preference was given to ‘territorial’ definition of people, as the entire population of a territory achieved independence, within boundaries of former colonial State, and without any relevance given to ‘ethnic’ composition of the State.123 Till
117 D. Raič, Statehood and the law of self-determination, Book Review, the Hague: Kluwer Law International 2002, p. 332 ; Reference re Secession of Quebec, Supreme Court of Judgement , 1998, para. 138 118 Reference re Secession of Quebec, Supreme Court of Judgement ,1998 119 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, International Court of Justice, General List No. 141, Advisory Opinion of 22 July 2010 120 J. Crawford, The creation of states in international law, Oxford University Press 2007, p. 285p. 124 121 D. French, Statehood and self-Determination Reconciling Tradition and Modernity in International Law, Cambridge University Press 2013, p.349 122 International Covenant on Civil and Political Rights, 16 December 1966, entered into force 23 March 1976, 999 U.N.T.S. 171; R. Emerson, ‘self-Determination’, The American Journal of international Law, 1971 vol. 65(3), p. 460
35 date, no uniform or consistent practice exist. It is for this reason that several approaches, outside colonial context, exist when it comes to the definition of ‘peoples’. 124
Many scholars remain close to the UN’s practice, by linking the definition of a people to ‘territory’ in order to determine the holders of the right to self-determination.125 In this view a people, as a group, which can be holder of the right to self-determination, exists only if it lives in a distinct territory, where it constitutes the majority and where it is able to speak its own language, develop its own culture, cultivate its traditions or practice its particular religion.126 According to this definition only an entire population of an existing State can attain a right to self-determination and entails the exclusion of a part of a State’s population from secession. Consequently, the subjects of self-determination are not determined by their cultural or linguistic characteristics, but by existing external boundaries.127
Other scholars refer to international documents in which the restricted effect of the principle of territorial on the exercise of self-determination is accentuated.128 Accordingly, they argue that a people is not a natural, but rather a historical fact that has arisen through involvement and internal self-determination of individual citizens with certain group characteristics.129 They reiterate the idea reflected in the Friendly Relations Declaration, which proclaims that peoples are to be ‘possessed of a government representing the whole people belonging to the territory without distinction as to race
Charter; Helsinki Final Act; M.N. Shaw, International Law, Cambridge University Press 2014, p. 443; The division of northern and southern Cameroon, the former joining Nigeria, and the latter to French Cameroon, or the separation of Rwanda and Burundi were based on ethnic considerations. 124 R. McCorquodale, ‘Self-determination: A Human Rights Approach’, The International and Comparative Law Quarterly, 1994 vol. 43(4), p. 857 125 J.J. Summers, Peoples and International Law: How Nationalism and Self-determination Shape a Contemporary Law of Nations, p. 209; R. Higgins, Problems and Process, International law and how we use it, Oxford university press 1994, p 124. 126 General Assembly Resolution 1541, Declaration on the Granting of Independence to Colonial Countries and Peoples, UN GAOR, no 16, UN doc. A/4684, 1960 127 R. McCorquodale, ‘Self-determination: A Human Rights Approach’, The International and Comparative Law Quarterly, 1994 vol. 43(4), p. 866; J.J. Summers, Peoples and International Law: How Nationalism and Self- determination Shape a Contemporary Law of Nations, p. 209; R. Higgins, Problems and Process, International law and how we use it, Oxford university press 1994, p 124. 128 D. Raič, Statehood and the law of self-determination, Book Review, the Hague: Kluwer Law International 2002, p. 284 129 J. van Bellingen, ‘Recht op zelfbeschikking en soevereiniteit’ In: N. Sybesma-Knol en J. van Bellingen, Naar een nieuwe interpretatie van het recht op zelfbeschikking?, Brussel, 1995, p. 43-81, 50. creed or colour’.130 Accordingly, the distinction implies that the Friendly Relations Declaration recognises the existence of more than one people, and thus subgroups, within a State.131 Since the purpose of self-determination is to maintain the collective identity of a ‘people’ as a group, rejecting subgroups as holders of the right to self-determination, would oppose its purpose.
The definition of ‘people, linked to territorial integrity, regards the unification of peoples in their entirety, implying the right holders are ‘the people of a state’.132 Adopting this principle, however, would mean that States consist of homogeneous societies, which is hard to imagine in the era of globalisation.133 Moreover, prioritising the principle of integrity on the exercise of self-determination would make no sense if self-determination was meant to apply solely to the whole population of an independent State, since the territorial integrity would not be threatened, and therefore, in no need of protection against the effects of self-determination.134
In addition, the Supreme Court of Canada, in the Quebec Case, affirmed the position that the term ‘people’ should not be equated with ‘nation’ by maintaining the following: ‘The juxtaposition of these terms in indicative that the reference to people does not necessarily mean the entirety of states population. To restrict the definition of the term to the population of existing states would render the granting of a right to self-determination largely duplicative’.135
The Court argued that as long as it refers to internal self-determination, it applies to minorities within one State. However, in case of external self-determination, the Court concludes that it does not
130 Paragraph 7 of the Friendly Relations Declaration. This clause was reiterated in some of the most important declarations, such as in paragraph 2 The Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights in Vienna, 1993, and paragraph 1 of the Declaration on the Occasion of the Fiftieth Anniversary of the UN, General Assembly Resolution 50/6, adopted 24 October 1995. 131 D. Raič, Statehood and the law of self-determination, Book Review, the Hague: Kluwer Law International 2002, p. 199; J. Crawford, The Creation of States in International law, Clarendon Press Oxford, p. 108 132 R. Higgins, Problems and Process, International law and how we use it, Oxford university press 1994, p 124 133 U. Barten, Minorities, Minority Rights and Internal Self-Determination, Springer 2015, p. 291; D. Raič, Statehood and the law of self-determination, Book Review, the Hague: Kluwer Law International 2002, p. 189 134 D. Raič, Statehood and the law of self-determination, Book Review, the Hague: Kluwer Law International 2002, p. 190; U. Barten, Minorities, Minority Rights and Internal Self-Determination, Springer 2015, p. 291; D. Raič, Statehood and the law of self-determination, Book Review, the Hague: Kluwer Law International 2002,, p. 189 135 Reference re Secession of Quebec, 20 August 1998, Canadian Supreme Court, para. 124 ; Raič and Van Bellingen, for example, have also refuted the territorial-based definition of a people. Van Bellingen argues that a people is not a natural, but rather a historical fact that has arisen through involvement and internal self-determination of individual citizens with certain group characteristics.
37 define the term ‘people in the context of the case. The subject of external self-determination should be considered as a people governed as part of colonial empire, where a ‘people’ is ‘’subject to alien subjugation’’136 and possibly where ‘a people’ is denied any meaningful exercise of its right to self- determination within the State of which it forms a part.’’137 People must be then considered as a separate entity of the entire population, and ‘must have an identity that distinguishes it’,138 and therefore be a part of the entire State’s population.139
A more workable definition of ‘people’ could be taken from the United Nations Educational scientific and cultural Organisation (hereinafter UNESCO) International Meeting of Experts where a ‘people’ was described as ‘a group of individual human beings who enjoy some or all of the following common features’:140
(a) A common historical tradition; (b) Racial or ethnic identity; (c) Cultural homogeneity; (d) Linguistic unity; (e) Religious or ideological affinity; (f) Territorial connection; (g) Common economic life,
136 D. Thurer and T. Burri, ‘Secession, Max Planck Encyclopedia of Public International Law, 2015 vol. 1(1), para.34; Reference re Secession of Quebec, Supreme Court of Judgement, 1998, para. 138; The Aland Islands Question, Report by the Commission of Rapporteurs, League of Nations Council Document B7 21/68//106, 1921: Both the Aland Case and Reference re Secession Quebec Case, state that only peoples, under colonial domination, oppression or denial of internal self-determination, or subject to human rights violations are entitled to the right to remedial secession. 137 Reference re Secession of Quebec, Supreme Court of Judgement, 1998, para 154 138 D. Raič, Statehood and the law of self-determination, Book Review, the Hague: Kluwer Law International 2002,, p. 557 ; note 15 of the 1990 February 22 Final report and recommendations, UNESCO International Meeting of Experts on further study of the concept of the rights of peoples. 139 S.F. van den Driest, Remedial Secession. A right to external self-determination as a remedy to serious injustices?, Cambridge: Intersentia 2013, p. 115 140 Final Report and Recommendations, of the International Meeting of Experts on further study of the concept of the rights of peoples, UNESCO, 22 February 1990 In order for a group of people to attain the right to determine their political destiny and to choose which state they belong to, the group must be sufficiently ‘distinct’. The criteria for establishing what groups of people are sufficiently ‘distinct’ can be split into objective elements and subjective elements.141 Objective elements include “common racial background, ethnicity, language, religion, history and cultural heritage’. To satisfy the subjective element, the group has to perceive itself collectively as a distinct ‘people’, whereas, the group must be more than a mere association of individuals within a State and have the will to be identified as a people or consciousness of being a people. 142 It should be noted that these criteria were in one way or another proposed for the definition of “a people having the right to self-determination" during the 2010 Kosovo case decision of the International Court of Justice.143
2.5 Ethnic Minorities & Peoples
Various international treaties mention the distinction between the rights of people and that of minorities. The Helsinki Final Act144, the 1990 Charter of Paris,145 and the ICCPR146 are a few among them. In the latter, peoples are granted the right to self-determination in article 1 of the ICCPR, stating that “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”147
As regards minorities, Article 27 ICCPR states: ‘In those States which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.’.
141 Final Report and Recommendations, of the International Meeting of Experts on further study of the concept of the rights of peoples, UNESCO, 22 February 1990; for the subjective elements See UNESCO Expert Group 7-8. 142 C. Tomuschat, Modern Law of self-Determination, Dordrecht: Martinus Nijhoff Publishers 1993, p. 158; D. Raič, Statehood and the law of self-determination, Book Review, the Hague: Kluwer Law International 2002,, p. 265 143 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, International Court of Justice, General List No. 141, Advisory Opinion of 22 July 2010 144 Conference on Security and Cooperation in Europe: Final Act of Helsinki, 1 August 1975: principle VIII of the Helsinki Act confers on peoples the right to self-determination, while Principle VII deals with minority rights. 145 The 1990 Charter of Paris mentions people’s right to self-determination in the Chapter on ‘Friendly Relations among Participating States’, whereas minority rights is inserted in the chapter on ‘Human Dimension’; Charter of Paris for a New Europe and Supplementary Document to Give Effect to Certain Provisions of the Charter, Paris, 21 November 1990, 30 ILM 190, 1991 146 International Covenant on Civil and Political Rights, General Assembly Resolution 2200A (XXI), UN GAOR , Supp. No. 16, UN Doc A/6316 , at 52, New York, 16 December 1966, 999 UNTS 171, entered into force 23 March 1976. 147 Article 1 of the ICCPR.
39
Accordingly, individuals belonging to a minority group are only entitled to ‘enjoy their own culture, profess and practice their own religion, or to use their own language. The difference between the rights mentioned in article 1 and article 27 has been further emphasised by the Human Rights Committee in the following wording: “The Covenant draws a distinction between the right to self-determination and the rights protected under Article 27. The former is expressed to be a right belonging to peoples (…). Article 27, on the other hand, relates to rights conferred on individuals (…) the enjoyment of the rights to which Article 27 relates does not prejudice the sovereignty and territorial integrity of a State party.”148
Parenthetically, it does not appear that self-determination is reserved for minorities similarly. The ICCPR established a separate regime for minorities, meaning that minorities cannot claim the right to external self-determination. They can only claim internal self-determination and the preservation of their own culture.149 Article 27 of the ICCPR is considered to be a right that asserts individual members of a minority those rights which are already possessed by other individuals not belonging to a minority. Hence, Article 27 is said to merely prohibit the denial of rights, which non- minorities already enjoy, to members of minority groups. It is thus, next to the Articles 2 and 26 of the ICCPR, that Article 27 is yet another provision that prohibits discrimination.150
Regardless, many ethnic minorities identify themselves as nation and claim the right to self- determination since the right is closely related to the doctrine of nationalism.151 The concept of the nation state and the concept of nationality has therefore been criticised by many scholars. According to these authors, State sovereignty is at odds with individual self-determination, and groups and collectives should never be the essence of a State.152
148 Human Rights Committee, General Comment No. 23: The Rights of Minorities, Article 27 ICCPR, CCPR/C/21/Rev.1/Add.5., UN GAOR, 49th Sess., Supp. No. 40, UN Doc. A/49/40(Vol I) (1994), at 106, paras. 3.1- 3.2. 149 Human Rights Committee, General Comment No. 23: The Rights of Minorities, Article 27 of the ICCPR, CCPR/C/21/Rev.1/Add.5., UN GAOR, 49th Sess., Supp. No. 40, UN Doc. A/49/40(Vol I) (1994), at 106, paras. 3.1- 3.2. 150 Office of the United Nations High Commissioner for Human Rights, The Right of Non-citizens, United Nations: New York and Geneva 2006, p. 24 151 J.J. Summers, ‘The Right of self-Determination and Nationalism in International Law’, International Journal on Minority and Group Rights 2005 p. 325 152 I. Brownlie, Public International Law, Oxford University Press, New York 2003, p. 555; J.J. Summers, Peoples and International Law: How Nationalism and Self-determination Shape a Contemporary Law of Nations, Martinus Nijhof, p. 46; R. Higgins, Problems and Process, International law and how we use it, Oxford university press 1994, p 124.
Additionally, from a human rights perspective, the international recognition of self-determination for indigenous peoples is of great importance. 153 In practice, it seems that only non-self-governing territories, including the entire population, who were under colonial rule, could claim the right to self- determination.154 In other words, when a colony became independent, the right to self-determination no longer seemed to apply to separate populations within the former colony. The right to self- determination for these population groups seems to take the shape of the right to democracy, participation and parliament. This meant that individual populations could only claim internal self- determination.
Although there is no uniform definition of the term ‘minority’, many experts have made attempts to create one. One of the most cited definitions of a ‘minority’ is that of Capotorti, who described minorities in 1979 as follow:155 ‘a group which is numerically inferior to the rest of the population of a State, in a non-dominant position, whose members -being nationals of the State- possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language.’156
From the description above, it can be concluded that the definition of a ‘minority’ consists of, at least, the following elements: (1) an objective element, being that the minority must distinguish itself from the rest of the population by possessing a distinct ethnic, religious, or linguistic
153 R.J. Jonston, D.B Knight and E. Kofman, Nationalism, Self-Determination and Political Geography, Routledge 2015, p. 128 154 International Court of Justice, East Timor, Portugal v Australia, ICJ Reports 90, ICGJ 86, 30 June 1995, p. 102; The United Nation General Assembly Resolution 2625 (XXV): Declaration of Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, 24 October 1970 155 F. Capotorti, a Special Reporter of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, made in accordance with the Article 27 of the ICCPR; Study on the Rights of persons belonging to Ethnic, Religious and Linguistic Minorities, UN Doc. E/CN.4/Sub.2/384/Rev. I (1979), reprinted as UN Pub. E.78.XIV.1 (1979). 156 Although many definitions of ‘minorities’ contain similar elements, there has been a lot of differences in opinion with regard to some of these elements, which is why the definition was never formally accepted. Some, for example, contested the requirements of a ‘non-dominant’ position and the ‘numerical inferiority’, since many minorities constitute a majority in a specific part of a State. Others wanted to remove the part on citizenship etc. As there are many various minority groups, it has become complicated to invent a definition that applies to all of them; D. Raič, Statehood and the law of self-determination, Book Review, the Hague: Kluwer Law International 2002,, p. 265
41 attribution;157 (2) a subjective element, which means that the minority must have the will to protect its distinct identity, and (3) the minority must make up less than fifty per cent of the host State’s total population.158
As can be noticed, the description of a ‘people’ has many similarities to that of a ‘minority’, for it also possesses an objective and a subjective element.159 Minorities are not necessarily peoples, but their status could be elevated to that of a people if they are oppressed by their own State, in which case, minorities could acquire a right to external self-determination.160
Despite this fact that the nature of people and minority are the same and the UN Charter and International Covenant have a national or ethnic approach to people,161 it seems that the position of non-dominant and non-representative nations in UN was downgraded to minorities by States after the World War II.162
157 D. Kugelmann, ‘The Protection of Minorities and Indigenous Peoples Respecting Cultural Diversity’, In: A. von Bogdandy, & R. Wolfrum , Max Planck Year Book of UN Law, 2007 vol. 11, p. 233-263. Periodic Publications of the Institute; S. Wiessner, ‘Demographic Change and the Protection of Minorities’, in: E. Klein, Globaler Demographischer Wandel und Menschenrechte, 2005, p. 155. 158 The subjective criterion also entails the free will of individual members of a minority to identify themselves with the minority group; Final Report and Recommendations, of the International Meeting of Experts on further study of the concept of the rights of peoples, UNESCO, 22 February 1990; for the subjective elements See UNESCO Expert Group 7-8.; European Commission for Democracy through Law: Opinion on the Interpretation of Article 11 of the Draft Protocol to the European Convention on Human Rights annexed to Recommendation 1201 of the Parliamentary Assembly, 1996, p. 6 159 S. Wiessner, ‘Demographic Change and the Protection of Minorities’, In: E. Klein, Globaler DDemographischer Wandel und Menschenrechte, 2005, p. 155. 160 D. Kugelmann, ‘The Protection of Minorities and Indigenous Peoples Respecting Cultural Diversity’, In: A. von Bogdandy, & R. Wolfrum , Max Planck Year Book of UN Law, 2007 vol. 11, p. 233-263). Periodic Publications of the Institute.; C. Tomuschat, Modern Law of self-Determination, Dordrecht: Martinus Nijhoff Publishers 1993, p. 158; D. Raič, Statehood and the law of self-determination, Kluwer Law International, 2002 vol. 43, p. 265 161 S.F. van den Driest, Remedial Secession. A right to external self-determination as a remedy to serious injustices?, Cambridge: Intersentia 2013, p. 115; Final Report and Recommendations, of the International Meeting of Experts on further study of the concept of the rights of peoples, UNESCO, 22 February 1990 162 Final Report and Recommendations, of the International Meeting of Experts on further study of the concept of the rights of peoples, UNESCO, 22 February 1990; Reference re Secession of Quebec, Supreme Court of Judgement, 1998, para 154
Interim conclusion The purpose of this chapter was to comprehend the right to self-determination and outline the evaluation of this concept. Moreover, the question ‘who has the right to self-determination?’ was raised.
As highlighted in the beginning of this chapter, the right to self-determination was first recognised in the context of colonisation. The concept of self-determination, however, continued in emerging as a form of internal and external self-determination. The internal mode of the right to self-determination must be understood as the right of peoples within an existing State to choose their political status.
External self-determination may be exercised through the dissolution of a State, State union or merger with another state, or through secession. International legal literature recognise that the right to self-determination does not imply a right to secede, except in cases of decolonisation. Former colonies are considered to have a legitimate claim to secede, again, only in case of colonial oppression, and therefore establish an independent State. Moreover, secession does not grant a legal right to unilateral secession to parts of State, since it challenges the principle of territorial integrity and state sovereignty. However under specific circumstances, secession can be evoked as a last resort, overruling the principle of territorial integrity. In the context of discrimination and States violating its obligations by denying internal self-determination, secession can be invoked as a last remedy, also called remedial secession.
Entitled to remedial secession are peoples under colonial domination, oppression or denied internal self-determinations, or subject to human rights violations. Consequently people must be considered as a separate entity of the entire population, and ‘must have an identity that distinguishes it’, and therefore be a part of the entire State’s population. Contemporary international law however, does not recognise secession of ‘minorities’ living within the borders of another State. Minorities striving for independence outside the colonial context is generally considered not to imply a right to unilateral secession.
There is no unified stance on who the bearers of the right to self-determination are. In case of internal self-determination it has been argued that it only applies to minorities within one State. The subject of external self-determination should be considered as a people governed as part of colonial empire, where they are denied any meaningful exercise of its right to self-determination within the State of which it forms a part. People must be then considered as a separate entity of the entire population, and ‘must have an identity that distinguishes it’, and therefore be a part of the entire State’s population. The UNESCO International Meeting of Experts further elaborated on this aspect describing ‘people’ as a group of individual human beings who enjoy some subjective and objective
43 elements, including the objective elements of common racial background, ethnicity, language, religion, history and cultural heritage. To satisfy the subjective element, the group has to perceive itself collectively as a distinct ‘people’, whereas, the group must be more than a mere association of individuals within a State and have the will to be identified as a people or consciousness of being a people. It should be noted that these criteria were in one way or another proposed for the
Since the legal framework of self-determination has been assessed in this chapter, the aspirations of the Syrian Kurds will be evaluated in the following chapter in order to scrutinise their aspirations in the light of the right to for self-determination.
Chapter 3 The Kurds in Syria & the opportunities provided by the Syrian civil war
This chapter will aspect the leading question; ‘what are the aspirations of the Kurds in Syria?’. The historical background of the Kurds will therefore briefly be discussed. This will allow us to gain some understanding of the Kurds in general, and more specifically, the position of the Kurds in Syria prior to the Syrian civil war. To analyse the current legal status of the Kurds in Syria, the primary focus will be on the Kurds in Syria and the role of the Kurdish population in the ongoing Syrian civil war. The chapter will allow us to advance our knowledge and understanding of the Kurds in Syria in general, and more importantly the aspirations of the Kurds in Syria.
3.1 An historical background
Kurds, a population between 25 to 40 million,163 inhabit a mountainous region straddling the borders of present-day Turkey, Iraq, Iran, and Syria.164 The Zagros Mountains, which separate Iran from Iraq, are considered to be their historical homeland.165 The territory commonly referred to as Kurdistan.
Following the disintegration of the Ottoman Empire at the conclusion of World War I, Britain and France finalised the Sykes-Picot Agreement, 166 agreeing in dividing the Ottoman provinces into different spheres of influence. In 1920, the Victorious Western allies signed the Agreement into law
163 There are no reliable figures available on the total number of the Kurds in the Middle East. Kurdish sources tend to have higher numbers while the numbers in the countries in which the Kurds reside tend to have lower numbers. An estimated of 12 million Kurds live in Iran, 2 million in Syria, about 5 to 6 million in Iraq, and 20 million in Turkey.; A. Altan, ‘The Kurds: The World’s largest stateless nation’, France 24, 30 July 2015 < http://www.france24.com/en/20150730-who-are-kurds-turkey-syria-iraq-pkk-divided> (Retrieved July 3, 2018); K. Yildiz & M. Muller, The European Union and Turkish accession: Human Rights and the Kurds, London, Pluto Press, 2008, p. 4-6 164 N. Entessar, Kurdish politics in the Middle East, Lexington Books, 2009, p. 3 165 See also annex 1: M.M. Gunter, Out of Nowhere: The Kurds of Syria in Peace and War, London: Hurst and Company, 2014; A. Altan, ‘The Kurds: The World’s largest stateless nation’, France 24, 30 July 2015
45 with the Sèvres Peace Treaty (hereinafter Treaty of Sèvres).167 With the Treaty of Sèvres, the dream of a Kurdish State came close to reality. In the Treaty of Sèvres, the Kurds were promised a State. The Treaty provided the Kurds a far-reaching opportunity to independence in the words of Woodrow Wilson’s fourteen points.168
Article 62 of the Treaty of Sèvres states: ‘’A Commission sitting at Constantinople and composed of three members appointed by the British, French and Italian Governments respectively shall draft within six months from the coming into force of the present Treaty a scheme of local autonomy for the predominantly Kurdish areas lying east of the Euphrates, south of the southern boundary of Armenia as it may be hereafter determined, and north of the frontier of Turkey with Syria and Mesopotamia…”.169
The Treaty further specified, in article 64, that the Kurds had the right to petition the League of Nations for independence, stating: “If within one year from the coming into force of the present Treaty the Kurdish peoples within the areas defined in Article 62 shall address themselves to the Council of the League of Nations in such a manner as to show that a majority of the population of these areas desires independence from Turkey, and if the Council then considers that these peoples are capable of such independence and recommends that it should be granted to them, Turkey hereby agrees to execute such a recommendation, and to renounce all rights and title over these areas’’.170
Their hopes were dashed when the Treaty of Sèvres was not ratified. In 1923, the victorious allies scrapped the provisions in the final Treaty of Lausanne,171 revoking the promise of an independent Kurdish Statehood and dividing the Kurdish region into parts.172
167 Sèvres Peace Treaty of 1920 (never ratified, superseded by the Treaty of Lausanne), A treaty part of the Versailles Peace Settlement, signed 10 August 1920 between the Allied and Associated Powers, and Turkey, effectively marking the end of the Ottoman empires. 168 H. Adelman, ‘Humanitarian Intervention: The Case of the Kurds’, Int'l J. Refugee L. 1992, 4(1), p. 5 169 HR-Net, Article 62 of the Peace Treaty of Sevres, 1920,
The Treaty of Lausanne settled the borders of modern Turkey, a notion introduced by the British, resulting in the claim by the Kurds of being betrayed, dashing any hopes of an independent Kurdish State.173 According to the Treaty of Lausanne most of the Kurdish territory was given to Turkey, but more importantly, the Treaty made no mention of the Kurds nor were there any mention of their national rights.174 In the case of Iraq, in order to appease the restless Kurds, Britain supported the enshrinement of cultural rights of the Kurdish population in its constitution.175
As a result of the Treaty of Lausanne, the Kurdish people got divided, each governed by a different Nation, without being legally incorporated.176 The borders that were drawn by the European allies were essentially straight lines drawn on a map of the Middle East that did not consider the traditional boundaries of the region. 177 Consequentially, the freshly drawn borders divided the Kurdish population between Turkey, Iraq, Iran and Syria.
Ever since, the Kurds have lived as minorities dispersed across countries, subject to ill-treatment by Arab, Turkish and Persian dominated governments.178 Many have been stripped of their citizenship, excluded from professions and barred from giving their children Kurdish names.179 Over the next 90 years, the Kurds have pushed for equal rights and autonomy over their affairs, and periodically rebelled aiming to set up an independent State.180 In response, the national authorities reacted
173 E. Turlington, ‘the Settlement of Lausanne’, American Journal of International Law, October 1924, 18(4), p. 7 174 Although reference was made to ‘protection of minorities’, the Kurds were not included, Articles 40 to 45 specified that the minorities in question are “non-Muslim minorities”, League of Nations Treaty Series, vol. 28, p. 12-113. 175 The constitution was substantially proving useless however.; J. Allain, International Law in the Middle East: Closer to Power than Justice, Ashgate, 2005, p. 22 176 Section I of the Treaty of Lausanne divided the Kurds among Syria, Turkey and Iraq in: Encyclopaedic Dictionary of International Law; P.S. Hadji, ‘The case for Kurdish Statehood in Iraq´, Case Western Journal of International Law 2015, 41(2), p. 517; W.R. Polk, Understanding Iraq, New-York: Harper Collings 2005, p. 67 177 C. Hunt, The History of Iraq, Greenwood Press 2005, p. 61 ; P.S. Hadji, ‘The case for Kurdish Statehood in Iraq´, Case Western Journal of International Law 2015, 41(2), p. 516 178 S.D. Moeller, Compassion Fatigue: How the media Sells Disease, Famine, War and Death, New York: Routledge 1999, p. 38; D. Abu-Nasr, ‘The Kurds’, Bloomberg 26 January 2018
47 severely, with measures such as expelling the Kurds from their villages,181 and attacking them with chemical weapons.182 Some Kurds, particularly those who have integrated to urban centres, such as Istanbul, Damascus, and Tehran, have integrated and assimilated, while many who remain in their ancestral lands maintain a strong sense of a distinctly Kurdish identity.
After the fall of the Ottoman Empire, Syria and the Kurdish regions were entrusted to the French by the mandate of 1920.183 During the French Mandate, the old elite of Syria was challenged by a new generation of leaders and new ideologies. With the establishment of the United Arab Republic in 1958 184 and with the coming into power of the Baath party in 1963, the Arab nationalists triumphed.185 Though Kurdish nationalism remained non-existent, it nonetheless led to the creation of the Kurdish Democratic Party in Syria (hereinafter KDPS) in 1957.186
Kurds in Syria make up between 7 and 10 percent of Syria's population, relatively small in comparison to the Kurdish population in the other countries.187 This makes them, nevertheless, the largest ethnic minority in the country. In Syria, the Kurds inhabit three fragmented regions in the
181 N. Talabany, Iraq’s Policy of Ethnic Cleansing: Onslaught to Change National/Demographic Characteristics of the Kirkuk Region, London: n. ed 1999, p. 13-14; R.Olson, The Kurdish Nationalist Movement in the 1990’s: Its impact on Turkey and the Middle East, Lexington, KY: University Press of Kentucky 1996, p. 16 182 H.L. Kieser, ‘Dersim Massacre, 1937-1938’, 27July 2011, p. 6. The relevant source was originally published in the Turkish newspaper Radikal on 20 November 2009. In 2016 the newspaper was shut down by the Turkish government. The article was still available online at the time this writing.
With the coming into power of the Baath party in 1963, the Kurds, like other minorities, immensely got involved in the communist party. The Syrian Baath Party published a 12-point plan aimed at wiping out the cultural identity of the Kurds. 192 The plan provided for the establishment of the Arabisation policy under which the Kurdish population was to be replaced with Arabs loyal to and armed by the regime, forcibly resettled on Kurdish land. 193
Since 1967, the policy of Arabisation replaced Kurdish names of cities, streets, and buildings with Arab names, Kurdish publications were forbidden, Kurdish language media not allowed, the teaching of Kurdish in schools banned, and new-borns were not to be registered with Kurdish names.194 Demands for cultural and political rights for Kurds were met with persecution, imprisonment and mistreatment, including women and children facing imprisonment for speaking their minds.195 Having been denied the right to Syrian nationality, around three-hundred thousand Kurds were deprived of
188 The Jazeera region is the largest of the three regions with Qamishlo as the administrative center. 189See also annex 2 and 3; G.C. Gambill., The Kurdish Reawakening in Syria, The Kurdish Issue, April 2014< https://kurdishissue.wordpress.com/2010/03/22/1-122/> (Retrieved November 18, 2017) 190 A Kurdish majority is spoken in Turkey and north-eastern Iraq and Iran. 191 Kurdish Democratic Politburo, Central Bureau for studies and Research, Kurdistan: An Economic, Geographic and Historical brief Explanation, No. 33, Kurdistan, 1999, p. 6; J.D. Eller, From Culture to Ethnicity to Conflict: An Anthropological Perspective on International Ethnic Conflict, Ann Arbor: University of Michigan Press, 1999, p. 153; The Kurdish language, an Indo-European language, has several dialects, Kurmanji, Sorani, Zaza and Bahdini, which are not universally understood among the Kurds. 192 J. Tejel, Syria’s Kurds, History, politics and society, New York: Routledge 2009, p. 7; ‘Syria: End Persecution of Kurds’, Human Rights Watch, 26 November 2009,
49 any social rights, in violation of international law.196 As a result, these Kurds were in effect trapped within Syria.197 Though these policies were intended to hold the Kurdish national movement in check, the Statement of the exteriority of the Kurds gradually nourished the sentiment among the Kurds and contributed to the rise of the Kurdish national movement in Syria.198
In 1970, Major General Hafez Al Assad came to power, after leading a coup d’état, and disengaged with these former policies in handling the Kurdish issue in Syria. The new regime, referred to as the corrective movement, strengthened the symbolic structures of the Baath unanimity, excluding the Kurds from the Syrian national power.199 On the other hand, the regime implemented policies to redistribute resources, co-opt Kurdish individuals and exploit Kurdish military forces200 in order to widen its political basis, formerly restricted to specific Alawi military circles.201
In 1976 Hafez Al Assad ‘ended’ the policies of mistreatment against the Kurds in the Jazeera region. The regime’s pragmatism also appeared with the exploitation of the problems transnational dimension with the Kurds residing in Iraq and Turkey.202 The alliance with the Kurdish parties of Iraq, Kurdistan Democratic Party (hereinafter KDP) and the Patriotic Union of Kurdistan (hereinafter
196 Refugees International, Buried Alive: Stateless Kurds in Syria, January 2006
Present Syria is a republic under the authoritarian regime of President Bashar Al Assad (hereinafter Assad), son of Hafez Al Assad who held office until his death in 2000. President Assad is holding power since 2000. To authorise this succession, the Syrian parliament amended Article 83 of the Constitution, reducing the mandatory minimum age of the President from 40 to 34.206 President Assad makes key decisions with the counsel from a small circle of security advisors, ministers, and senior members of the ruling Baath Party. The Constitution mandates the primacy of the Baath Party leaders in State institutions and the parliament. President Assad and the Party leaders, supported by various security services, dominate all three branches of the Syrian government.207
The balance that Hafez Al Assad established broke down in 2004 when clashes between Kurds and Syrians broke out at a stadium in Qamishlo.208 This event bears a fundamental importance as it has shown and signalled the transition of the long concealed Kurdish movement to visibility.209 The State
203 D. Romano, The Kurdish nationalist movement: opportunity, mobilization, and identity, Cambridge: Cambridge University Press, 2006, p.197; R. Brubaker, Ethnicity Without Groups, Cambridge, Mass.: Harvard University Press, 2004, p. 37 204 The PKK, a Kurdish separatist movement founded in 1974, regarded by many nation as a terrorist organization, has been fighting the Turkish government since 1984 in an armed struggle for Kurdish independence. 205 C. Panara & G. Wilson, The Arab Spring: New Patterns for Democracy and International Law, Martinus Nijhof Publishers 2013, p. 119; M. Yesiltas & T. Kardas, Non-State Armed Actors in the Middle East: Geopolitics, Ideology and Strategy, Springer 2018 , p. 111; R. Alaaldin, ‘What’s next for Turkey, US and the YPG after the Afrin operation?’, 26 January 2018,
51 maintained a harsh policy and increased repression against the Kurds.210 Political changes resulted from the coming into power of President Assad. Several Kurdish parties and the Arab opposition reconciled. The emergence of the Kurdish parties, such as Yekiti Kurd and Democratic Union Party (hereinafter PYD), as well as new political practices and the slight withdrawal of the intelligence services in Jazeera.211 The Kurdish national movement in Syria, toughened, especially among the youngsters.212
3.2 The Syrian civil war
In March 2011, peaceful demonstration in Daraa marked the beginning of the Syrian civil war. The unrest, part of a wider wave of the Arab Spring, has become more extensive and violent over the years.213 From the beginning of the revolution, the regime, took a number of measures to proof its being a reformist. 214 Assad, however, retained the founding decree of the State security administration which gives special powers to the military and special courts215 as well as issuing a judicial control law and a demonstrations law, both which contradict the impact of the reformist
210 M. Yesiltas & T. Kardas, Non-State Armed Actors in the Middle East: Geopolitics, Ideology and Strategy, Springer 2018, p. 124; ‘Group Denial. Repression of Kurdish Political and Cultural Rights in Syria’, Human Rights Watch, 26 November 2009, < https://www.hrw.org/report/2009/11/26/group-denial/repression-kurdish-political-and-cultural- rights-syria> (Retrieved June 4, 2018) 211 ‘The Syrian Constitution: Assad’s Magic Wand’, Middle East Center, 8 May 2014, < http://carnegie- mec.org/diwan/55541?lang=en> (Retrieved August 16, 2018); M. Yesiltas & T. Kardas, Non-State Armed Actors in the Middle East: Geopolitics, Ideology and Strategy, Springer 2018 , p. 250; N. Ghadbian, ‘The New Asad: Dynamics of the Continuity and Change in Syria’, Middle East Journal, 2001 vol. 55(4), p. 626 212 M. Yesiltas & T. Kardas, Non-State Armed Actors in the Middle East: Geopolitics, Ideology and Strategy, Springer 2018, p. 124; ‘Group Denial. Repression of Kurdish Political and Cultural Rights in Syria’, Human Rights Watch, 26 November 2009, < https://www.hrw.org/report/2009/11/26/group-denial/repression-kurdish-political-and-cultural- rights-syria> (Retrieved June 4, 2018) 213 ‘Is Syria the next domino?’, Al Jazeera English, 6 March 2011,
Many European governments have condemned Assad’s response as violent, while many Middle Eastern governments initially expressed support for the Syrian regime and the ‘security measures’ his regime has taken. As the death toll mounted they switched sides.218 So far in Syria’s uprising, the international community has focused on diplomatic measures for pressuring Assad’s regime to put an end to the unmitigated and widespread violation of human rights in the country. Several debates took place in the United Nations Security Council (hereinafter UNSC), yet no concrete plan for a humanitarian intervention has been put on the table.219 The UNSC passed a resolution for a political transition that excluded military intervention and punitive measures. 220 The European powers pushed likewise for diplomatic and economic measures against the Syrian regime.221
Due to Russia's close relations with the Syrian government, the Russian government has at various times used its UNSC position to block resolutions that would harm the Syrian government by blocking the first and second draft resolution condemning the violence in Syria.222 The attempts to
216 H. Abbas and Others, Syria’s revolution, Society Power, Ideology, Heinrich Boll Stiftung 2011, p 56; ‘Syrian cabinet resigns amid unrest’. Al Jazeera. 29 March 2011, p. 12 217 H. Abbas and Others, Syria’s revolution, Society Power, Ideology, Heinrich Boll Stiftung 2011, p 56; ‘Syrian cabinet resigns amid unrest’. Al Jazeera. 29 March 2011, p. 56; ‘Syria events of 2016’, Human Rights Watch
53 sanction Assad’s government have been repeatedly been vetoed. The draft UNSC resolution expresses "grave concern" about the situation in Syria and condemns the use of force.223 It urges the government to lift its siege of Syrian cities, implement political reforms and launch an impartial investigation into attacks on anti-government demonstrations.224
The situation in Syria is getting worse each day and as the Free Syrian Army, the main Syrian opposition group, composed of defected Syrian army personnel, also has been calling for the UN to intervene several times, is trying to bring down the system and protecting civilians, the death toll mounts. 225 With the rise of ISIS, an extremist militant group and self-proclaimed caliphate establishing a large presence in Iraq and Syria since 2011, many were forced to leave the country to seek refuge.226 The proclaimed terrorist organisation has been directly or indirectly tackled by many countries, among which them European States and the US.227
According to the UN, the estimated death toll for Syria has reached to more than 470,000.228 Due to the increased fighting the number of Syrian refugees swelled tremendously.229 According to the UN
223 UN Debates Resolution Condemning Syria As Unrest Continues’. Voice of America. 2 August 2011; ‘Russia, China block 2nd draft of resolution on Syria’. Voice of Russia. 10 June 2011 224 United Nations Office of the High Commissioner for Human Rights, Report of the Office of the United Nations High Commissioner for Human Rights on the Human Rights Situation in Iraq in the Lights of Abuses Committed by the So- Called Islamic State in Iraq and the Levant and Associated Groups, UN Doc. A/HRC/28/18 (13 March 2015) 225 L. Charbonneau & M. Nichols, ‘The UN increased its estimate death toll on March 27 2012 to more than 9000’, Reuters, 27 March 2012,
3.2.1 The rise of Kurdish nationalism
Before the uprising against President Assad began in 2011, most Kurds were concentrated in the fragmented areas of Kobane, Afrin and the North-Eastern city of Qamishlo.233 These three Kurdish enclaves constitute the natural extension of the Kurdish territory into Turkey and Iraq.234
When the uprising evolved into a civil war, the main Kurdish parties initially avoided taking sides.235 In mid-2012, after the fall of Assad’s regime, government forces withdrew to concentrate on fighting the rebels elsewhere, and Kurdish groups took control in their wake. 236 The Kurds started a campaign in which they governed themselves, striving for equality for all races, religions, and equality between men and women.237
230 D. Chatty, Syria, The making and unmaking of a refuge State, Oxford University Press 2018, p. 232 231 ‘Syria events of 2016’, Human Rights Watch
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As the war seems set to drag on indefinitely, Syria has partitioned into several contending de facto regions and groups, based on ethnic and sectarian lines and groups. Kurds, one of the most advantaged groups since the civil war, have captured most of Kurdish inhabited areas in addition to non-Kurdish areas.
In January 2014, Kurdish forces, including the dominant PYD, declared the creation of a Kurdish regional government in the three regions of Afrin, Kobane and Jazeera. 238 The PYD emerged as a potential game changer, taking advantage of the chaos caused by ISIS and the rebellion against the Syrian government, to take back the predominantly Kurdish cities and villages of their historical homeland.239 Following in the footsteps of Iraqi Kurds, who have established the Kurdish Regional Government, an autonomous government of Kurdistan in Iraq, the Kurds announced an autonomous government in northern Syria, known as Rojava.240 The autonomous government of Rojava seems to enjoy the support of most Kurds in Syria. Parties to the declaration include representatives of more than fifty parties.241 The administration in charge of the affairs of Rojava, the three provinces of Qamishlo, Afrin and Kobane, consists predominantly of Kurds as well as Arabs and Assyrians too.242
The fight against ISIS is seen as part of the Kurdish campaign for independence, fighting back ISIS’ advances into their territories and gaining control of cantons in the north.243 With the advances of ISIS, the international attention turned to Syria, where the fighters of the Kurdish People’s Protection Units (hereinafter YPG) held the strategic border town of Kobane against ISIS forces.244 In January 2015, The Kurds pushed ISIS out of Kobane after four months of fighting. The symbolic power of Kobane became a defining moment for nationhood and identity for Kurds everywhere.245 The YPG
238 M.M. Gunter, Historical Dictionary of the Kurds, Lanham: Scarecrow Press 2010, 2nd edition, p. 156; M.M. Gunter, Out of Nowhere: The Kurds of Syria in Peace and War, London: Hurst and Company, 2014 239 See also annex 1 240 Led by the PYD, the Kurds announced autonomy, in the predominately Kurdish-populated city of Qamishlo, to a cheering audience of several hundred people waving Kurdish flags.; The Kurds’, Bloomberg 26 January 2018
The Kurdish advancement initiated upheaval in the neighbouring countries, since the prospects of a Kurdish State seemed to become within reach.250 A Kurdish State, seen as a threat to the national sovereignties of Iraq, Iran, Syria and Turkey, would lead to enhanced aggression towards the Kurdish minorities in these countries.251
In March 2016, the Kurds announced the establishment of a "federal system" that included mainly Arab and Turkmen areas captured from ISIS. The declaration was rejected by the Syrian government, the Syrian opposition, Turkey and the United States (hereinafter US). 252 The PYD
246 After the victory in November 2013 against ISIS commander of the Kurdish militia stated that they plan to capture all northern part of Syria; The Kurds’, Bloomberg 26 January 2018
57 argued that it is not seeking independence, but insists that any political settlement to end the conflict in Syria must include legal guarantees for Kurdish rights and recognition of Kurdish autonomy.253 Initially threatening to use military force to recapture YPG-held areas, in September 2017, Assad stated that he was open to negotiations with Kurds over their demand for autonomy.254 Syrian Kurds claim their aim is to preserve the autonomy as part of a decentralized Syria, thus not following the path of Kurds in Iraq who held a referendum for independence in November 2017.255 Organised by Kurdish authorities in Syria, Syrian Kurds voted in October 2017 in local elections, as part of a bid for greater autonomy. The attempt to gain greater autonomy is aimed at establishing new governing institutions to sustain regional sovereignty.256
In January 2018, Turkey launched an assault on the northern part of Syria, overthrowing the Kurds controlling the area of Afrin, and seizing the town in March 2018.257 During the same time the Syrian government launched a ferocious assault on Eastern Ghouta, the final rebel-held district near Damascus. Claims of new chemical attacks of Douma, prompted the US, the United Kingdom and
November 2017,
Interim conclusion Since the early 20th century, as a consequence of the Treaty of Lausanne in 1923, the Kurdish people found themselves dispersed over the modern States of Turkey, Iran, Iraq, and Syria. The Kurds, having a long history of political marginalisation and persecution, have repeatedly risen up in pursuit of greater autonomy or complete independence. Despite the wide divergences amongst Kurds in four different countries, in very different geographical regions, the Kurdish nationalist movement has always been present in the region.
Syria's Kurds have long been suppressed and denied basic rights. The Kurds, understood by the Syrian government as a ‘community’ or ‘group’ apart,259 were object of specifically discriminatory policies. Following the Arab Spring in 2011, with the emergence of new wars and forms of terrorism, the Kurds in Syria draw attention. The Kurds, being the largest ethnic minority in Syria, played a significant role involving themselves directly in the fight against ISIS.
The ongoing battles empowered the Kurds and challenged the existing political map of the Middle East. The PYD emerged as a potential game changer in the Syrian civil war. Where federal security forces pulled out of Kurdish regions in Syria, the Kurds stepped in to retrieve the areas, leading to the control of Rojava. Syrian Kurds are making major advances towards their ambition of winning recognition for the self-rule they seized during the Syrian civil war. Their aspiration for a federal system in Syria seems to find domestic support, positioning themselves as a player the Syrian regime must reckon with in any final resolution of the war. Kurdish political parties have explicitly expressed that they do not advocate for secession in Syria. Syrian Kurds state that their aspirations for a federal system in Syria is to maintain unity while giving considerable autonomy to various regions.
258 Human Rights Watch World report 2017, Syria Events of 2016, January 2017
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The objective of this chapter was to gain some understanding on the position of the Kurds in Syria and their aspirations in the wake of the Syrian civil war. Since we already established the legal framework of the right self-determination in chapter two, and the aspirations of the Kurds in Syria, the following chapter will scrutinise the opportunities for the Kurds in Syria.
Chapter 4 Syrian Kurds: autonomy and remedial secession
The second chapter of this thesis determined the legal framework of the right to self-determination, dividing it into its internal and external form, where the internal mode of the right is understood as the right of peoples within an existing State to choose their political status. The external mode of self- determination may be exercised through the dissolution of a State, State union or merger with another state, or through secession. Chapter three elaborated on the situation of the Kurds, the ongoing conflict of the Syrian war, and the position and aspirations of the Kurds residing in Syria. The chapter determined the aspiration of the Kurds in Syria for a federal system, with the explicit announcement of Kurdish political parties stating to have no aspirations for secession in Syria. Syrian Kurds declared that their aspirations for a federal system in Syria is solely to maintain unity while giving considerable autonomy to various regions.
This chapter will scrutinise the case of the Syrian Kurds and their aspirations of autonomy within rules and standards of the right to self-determination. It will do so by first recalling the norms, mentioned in chapter two, under which internal self-determination within the rules and standards of international law can be invoked. By doing so, the aspirations of the Kurds for autonomy can be evaluated in regard with these rules and standards. Since the continuous development and power of the Kurdish Syrian situation and the ongoing Syrian civil war, the right to the external form of self- determination as well as the subject of ‘peoples’ and minorities, will briefly be evaluated. Given the unstable situation of the Kurds, the ongoing war in Syria and the involvement of countries such as Turkey, Russia and the US, it is important to highlight some matters concerning the right to self- determination and prospect for the Kurdish population in Syria.
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4.1 Internal self-Determination
As mentioned earlier, the international practice has established that the right to self-determination is to be achieved principally through the so called internal self-determination, by means of autonomy arrangements enabling a minority to attain a certain degree of political, social, cultural independence within the framework of an existing State.260 The right complements fundamental principles such as State sovereignty, the equality of States and territorial integrity, including the prohibition of force and the principle of non-intervention as well.261 In case of a civil war raging in a foreign State, other States should refrain from assisting in any manner whatsoever the insurgents.262 States, furthermore, have the duty to respect and promote the right to self-determination, but more importantly, the principle obligates States from taking any forcible actions, depriving people of the enjoyment of such a right. 263 The use of force to prevent a people from exercising their right to self-determination is regarded as unlawful and condemned by the international community.264
Assuming that the Kurds constitute a peoples, they will have the right to self-determination. The Kurds in Syria cannot be regarded as currently colonized, and if accepting the view that international law includes the right to external self-determination only for colonized people, one can conclude that the Kurds have the right to internal self-determination only. Accepting that international law authorises oppressed peoples, in addition to colonised people, to exercise the external form of self- determination, we need to examine whether the right to internal self-determination of the Kurds in Syria has been respected by the Syrian government, or whether the Kurds have been oppressed.
260 International Court of Justice, Western Sahara, Advisory Opinion of 16 October 1975, ICJ GL no. 61, ICJ Reports 1975 12; R. McCorquodale, ‘self-determination: A Human Rights Approach’, International and Comparative Law Quarterly 43, 1994, p. 864; P. Malanczuk. ‘Minorities and self-determination’, in: N. Sybesma-Knol & J. van Bellingen, Naar een nieuwe interpretatie van het recht op zelfbeschikking?, Brussels, 1995, p.169; J. Castellino, ‘self- determination, Indigenous Peoples and Minorities’, Macquarie Law Journal, 2003(3), in: H. Hannum, ‘Rethinking self- determination’, Virginia Journal of International Law, 1993(34), p. 17: pointing out that ‘representative government” is not a synonym of “democracy’. 261 Article 10 ICCPR; I. Brownlie, Public International Law, Oxford University Press, New York, 2003, p. 555. 262 Resolution 2526/ Friendly Relations Declaration; H. Quane, ‘The United Nations and the Evolving Right to Self- Determination’, The International and Comparative Law Quarterly,1998 vol. 47(3), p. 562 ; C. Panara & G. Wilson, The Arab Spring: New Patterns for Democracy and International Law, Martinus Nijhof Publishers 2013, p. 119 263 The Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights in Vienna, 1993, ratifies that denial of self-determination is a violation of human rights. 264 The use of force against oppressed peoples fighting for their independence is a crime against peace and a violation of the UN Charter. The General Assembly and Security Council Resolutions have recognised stating that whoever possessed a right should possess the means to exercise it. The Kurds, recognised by international law, do not possess a representative government in Syria. Kurds have suffered years of oppression under the Assad regime, when they had no meaningful right to internal self-determination. In Syria, tens of thousands of Kurds are Stateless, and others deprived of basic civil rights. 265 Kurdish political activity is repressed and Kurdish activists are imprisoned. In this regard, it can be argued that the Syrian government has not refrained from the use of force against the Kurds in their aspirations to self-determination, disputing international law. Even after the Stadium event in Qamishlo in 2004, a turning point in the visibility of the Kurdish movement, Kurdish aspirations of political involvement remained suppressed by the Syrian government.266 The regime maintained their harsh policy against the Kurds, years into the Syrian civil war.
According to the Friendly Relations Declaration, the right of the people of a State, already recognised by international law, is to determine their own form of government and implies “equal access to government” without distinction regarding race, creed or colour.267 The Kurds, understood by the Syrian government as a ‘community’ or ‘group’ apart, have continuously been excluded from the Syrian government.268 The erga omnes status of the right to self-determination containing the responsibility of a State to ensure that the right to self-determination is realised, has been neglected.269The Syrian government can be criticised for failing to uphold the rights of the Kurds and promoting the right to internal self-determination.
Although the Kurdish nationalist movement has always been present in the region,270 the declaration for internal self-determination can be regarded as contemporary. In 1957, the KDPS called for recognition of Kurdish rights, land reform, and democracy, but not Kurdish independence.271 While the Kurdish political parties were considered illegal, the Syrian government tolerated their existence
265 M.M. Gunter, Historical Dictionary of the Kurds, Lanham: Scarecrow Press 2010, 2nd edition, p. 23. 266 This has been fuelled in part by the inclusion in the Declaration on Principles of International Law of the ambiguous requirement that a government must be representative: ‘[only] a government representing the whole people belonging to the territory without distinction as to race, creed or colour’. 267 Resolution 2526/ Friendly Relations Declaration ; H. Quane, ‘The United Nations and the Evolving Right to Self- Determination’, The International and Comparative Law Quarterly, 1998 vol. 47(3), p. 562 268 J. Tejel, Syria’s Kurds, History, Politics and Society, New York: Routledge 2009, p. 19 269 International Court of Justice, East Timor, Portugal v Australia, ICJ Reports 90, ICGJ 86, 30 June 1995, p. 102 270 Articles 1 (2) and 55 of the United Nations Charter, both calling on Member States to respect the principle of equal rights and self-determination of peoples 271Human Righst Watch https://www.hrw.org/report/2009/11/26/group-denial/repression-kurdish-political-and-cultural- rights-syria
63 in the 1980’s and 1990’s on the condition that they remained low, did not call for any form of self- government, and no unified threat be existed.272 Unlike the response of the Kurds in Turkey or Iran to government repression, the Kurds in Syria never took up arms against the government prior to the Syrian civil war.273 The declaration of autonomy by the Syrian Kurds can in this regard be viewed as a contemporary, fuelled by the Syrian civil war.
The right to self-determination is understood as a universal right and applies to all peoples of independent, colonial States, and non-self-governing territories.274 Although Syria was entrusted to the French after the fall of the Ottoman Empire, they became de facto independent in 1946.275 This means that the aspiration of the Syrian Kurds consist of an internal form of the right to self- determination from the independent State of Syria. The Kurds desire to practice their culture and live their true identities without the fear of discrimination, violence or repression.
4.2 External Self determination
External self-determination can manifest itself through the formation of an independent State, the integration in, or association with a third State.276 It may be exercised through the dissolution of a State, State union or merger with another state, or through secession.277 Noticeable, the Syrian Kurds have refrained from claims of external self-determination. This form of external self- determination remains however vital when discussing the Kurdish issue in Syria. Although Syrian Kurds have prompted autonomy and a federal government, it is important to note that an external form of self-determination might not be omitted in the future.
272 J. Castellino, International Law and Self-Determination: The Interplay of the Politics of Territorial Possession with Formulations of Post-Colonial ‘National’ Identity, Martinus Nijhoff Publishers 2000, p. 67 273 Human Righst Watch https://www.hrw.org/report/2009/11/26/group-denial/repression-kurdish-political-and- cultural-rights-syria 274 International Court of Justice, East Timor, Portugal v Australia, ICJ Reports 90, ICGJ 86, 30 June 1995, p. 102. 275 J. Tejel, Syria’s Kurds, History, Politics and Society, New York: Routledge 2009, p. 35 276 Article 73 of the UN charter; International Court of Justice, East Timor, Portugal v Australia, ICJ Reports 90, ICGJ 86, 30 June 1995, p. 92; General Assembly Resolution 1541, UN GAOR, no 16, UN doc. A/4684, 1960; G.H. Fox, ‘Self-Determination in the Post-cold War Era: A new Internal Focus?’, Michigan Journal of International law, 1995, p. 734. 277 S.F. van den Driest, Remedial Secession. A right to external self-determination as a remedy to serious injustices?, Cambridge: Intersentia 2013, p. 84-86 ; D. Raič, Statehood and the law of self-determination, Book Review, the Hague: Kluwer Law International 2002,, p. 289 In many ways, Rojava is similar to the Kurdish Regional Government (hereinafter KRG) in Iraq. After the American invasion of Iraq in 2003, Iraqi Kurds chose to be a federal entity of Iraq rather than declaring independence in a landlocked region.278 Today, Syrian Kurds are calling for the same thing: federalism and not outright secession.
The outset of 2003 signalled great possibilities for the Kurds in Iraq. After the war, areas inhabited by Kurds fell outside the sphere of influence of the government of Baghdad, leading to the recognition of the KRG in 2005.279 At the time, the Iraqi Kurds expressed a desire of autonomy rather than independence, choosing pragmatism over idealism. 280 The northern territories of Iraq became officially recognised as the Autonomous Region of Iraqi Kurdistan, with an army of their own controlling roughly 40.600 square kilometres of territories, including many of northern Iraqi’s oilfields and the cities of Erbil and Kirkuk.281 As mentioned in chapter three, In September 2017, the Iraqi Kurds pushed for independence, and passed the referendum for independence with overwhelming majority.282 In this delineation, the following question arises ‘what stops Syrian Kurds from a similar recourse in the future?’.283
The Syrian war is a continuous war with no end in sight. The chaos in the country, the multi-ethnic background of the country and the enduring fight against ISIS, might indeed change the recourse for Syrian Kurds and their aspirations of the right to external self-determination through secession.
278 O.B. Galip, Imagining Kurdistan: Identity, culture and Society, IB Tauris, 2015, p. 37 279 Article 113 of the Iraqi Constitution 280 D. Romano, “The Iraqi Kurdish View on Federalism: Not Just for the Kurds,” in: D. Romano and M. Gurses, Conflict, Democratization, And The Kurds In The Middle East: Turkey, Iran, Iraq, and Syria, New York: Palgrave Macmillan, 2014, p.198 ; N. Al-Jeloo,’Post-withdrawal prospects for Iraq’s ‘Ultra-minorities’, in: B. Isakhan, The Legacy of Iraq: from the 2003 war to the ‘Islamic state’, Edinburgh: Edinburgh University Press, 2015, p. 118; D. Natali, ‘The Kirkuk Conundrum, Formerly Global Review of Ethnopolitics, 2008 vol. 7(4), p. 438 281 K. Yildiz, The Future of Kurdistan: The Iraqi Dilemma, London: Pluto Press, 2012, p. 84; Article 58 of the Law Of Administration For The State Of Iraq For The Transitional Period, Coalition Provisional Authority (Iraq: 8 March 2004). 282 M.M.A. Ahmed, Iraqi Kurds and Nation-Building, New York: Palgrave Macmillan, 2012, p. 78; E. Pichon, ‘Iraqi Kurdistan’s Independence Referendum’, European Parliamentary Research Service 2017
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More importantly, the Syrian Kurdish parties have alliances with the KDP (Iraq), the PUK (Iraq) and the PKK (Turkey).284 The Syrian Kurdish parties are basically extensions of the parties in Iraq and Turkey. The PKK, a Kurdish separatist movement founded in 1974, has been fighting the Turkish government since 1984 in an armed struggle for Kurdish independence.285 The PUK, describing its goals as self-determination, human rights and democracy and peace for the Kurdish people of Kurdistan Iraq, was founded in 1975. Consequently, the Kurdish parties in Syria have a long way to go, compared to the Kurds in Turkey and Iraq, fighting the central governments for years. The point however is, that since the Kurdish parties in Syria are affiliated with those in Turkey and Iraq, a similar view regarding secession might not be misplaced in the future. Moreover, a successful claim of the Iraqi Kurds for external self-determination might inspire the Kurds in Syria and influence their aspirations for external self-determination.
Nevertheless, it should be outlined that, the situation of the Kurds in Syria differs and should be regarded in the light of its own history. Unlike the case of the Kurds in Turkey, Iraq and Iran, no unified nationalist ideas existed in Syria until recently. The Kurds have worked to gain claim over the territory of Rojava. Whether the Syrian Kurds will succeed in forming a viable autonomous region also depends on other countries and other Kurdish parties that have reservations about the new system established by the PYD and its allies. 286 The Kurds must work to establish stronger institutions and reduce fighting amongst their political factions. The latter displays the inexperience of the Kurdish parties of Syria, compared to those of the Kurdish population of Turkey and Iraq.
284 Listed by the US and the and the European Union as a terrorist organisation. 285 B. Mandiraci, ‘Turkey’s PKK Conflict Kills almost 3,000 in Two Years’, 20 July 2017, International Crisis Group, < https://www.crisisgroup.org/europe-central-asia/western-europemediterranean/turkey/turkeys-pkk-conflict-kills- almost-3000-two-years> (Retrieved July 4, 2018); M. Gunter, ‘Kurdish Infighting: The PKK-KDP Conflict’, in: R.Olson, The Kurdish Nationalist Movement in the 1990’s: Its impact on Turkey and the Middle East, Lexington, KY: University Press of Kentucky 1996, p. 50 286See also Annex 3; A. Oktar, America’s failure to perceive the PKK, Arastirma Publishing 2015, p. 168 In 2014, the Kurds announced autonomy in the Kurdish city of Qamishlo, to a cheering audience of several hundred people waving Kurdish flags. The PYD, stated that their system is a multi-ethnic one that includes all ethnic and religious groups in the region.287 The question raised here is whether the way the Syrian Kurds announced their autonomous region is permissible? Although permissibility cannot fully be considered, two arguments can be evaluated in this regard. Firstly, the ‘continuous’ element of the right to self-determination requires the periodic consent of those governed. 288 However, when internal self-determination is denied by the State, no consent is needed. It can be reasoned that until 2017 the Kurds were not involved in a representative government nor were their right to internal self-determination acknowledged. On the contrary, Kurds have been discriminated under the Baath regime of Assad and continuously been supressed. Secondly, international law has refrained from defining or elaborating on how the decision to the right of self-determination is to be made nor how the right can be exercised. In this regard, the announcement of autonomy cannot be regard as unlawful or challenging the rules and standards of international law. The Kurds attained the right to autonomy as a last resort to the continuous denial of their rights within Syria.
If a distinct group of people is systematically denied the right to participate in the government of the State, or the individuals within such a group suffer systematic and gross violations of human rights, their participation within that State would be impossible.289 The Kurds in Syria could in this, rely on the Kosovo precedent based on the argument that international law embraced a principle of remedial secession in case of severe oppression by the mother state. The Syrian government is ruled by Assad and has been unwilling to grant the Kurds in Syria internal self-determination. If the Syrian government respects the Kurdish autonomy rights, in a manner sufficient toward these peoples’ meaningful fulfilment of internal self-determination, then the Kurds are not entitled to claim external self-determination through secession. Since the Syrian government seem to lack in respecting Kurdish autonomy rights, it can be argued that the Kurds in this regard are entitled to claim the right
287 M. Yesiltas & T. Kardas, Non-State Armed Actors in the Middle East: Geopolitics, Ideology and Strategy, Springer 2018 , p. 54 288 The ongoing character is reflected in treaty law, resolutions and declarations of international organisations and conferences, as well as State practice, jurisprudence and doctrine, beyond the traditional colonial context: ICCPR, The Friendly Relations Declarations, the Helsinki Final act; D. Raič, Statehood and the law of self-determination, Book Review, the Hague: Kluwer Law International 2002,, p. 228 289 Reference re Secession Quebec Case, Supreme Court of Judgement, 1998, para. 112; I.U. Libarona, ‘Territorial integrity and self-determination: The approach of the international court of justice in the advisory opinion on Kosovo’, REAF, 2012 vol. 1(16), p. 110; H.J. Blanke and Y. Abdelrehim, ‘Catalonia and the right to self-determination from the perspective of international law’ , Max Planck Yearbook of United Nations Law Online, 2015 vol. 18(1), p. 554; E.M. Brewer, ‘To Break Free from Tyranny and Oppression: Proposing a Model for a Remedial Right to Secession in the Wake of the Kosovo Advisory Opinion’, Vanderbilt Journal of Transnational Law 2012, p. 259
67 of external self-determination through secession. This Kurds could impose the right to secession as a last remedy on the basis of the ‘gross violations of human right’ stirring the country. While should be acknowledged that a civil war is raging in Syria and that such a claim might be challenging territorial integrity, the Kurdish issue in Syria investigated in the light of human rights violation should be considered. Moreover, the human rights abuses, the lack of a representative government and the advances of ISIS, the Syrian regime has failed to promote Kurdish rights and protect their territories within Syria, giving such a claim prospect.
Without an international law ‘right’ to secession, Kurdish independence claims will likely remain governed by domestic law and hopefully resolved through political negotiations. 290 The current Assad regime has not appeared to be willing to grant the Kurdish population in Syria some sort of autonomy. In September 2017, the Syrian foreign minister stated that the Syrian government is open to discussing the idea of granting the Kurds more power once the fight against ISIS ends.291 But whether the Syrian regime and the Kurds would be able to come to an agreement depends on several factors, such as the involvement of Turkey, Russia and the US, but also the impact of such a claim on Turkey, Iran and Iraq and its Kurdish population. It is striking that the Syrian regime solely wants to grant Kurdish rights once the fight against ISIS has come to an end. Since the Treaty of Lausanne, Kurds have been abandoned multiple time by States in relation to the right to self- determination and independence. Waiting for the war against ISIS to end, might on the one hand discourage the Kurds might discourage Kurds into negotiations, and on the other hand provide the Syrian government to retreat their promise of Kurdish power, once the threat against ISIS has disappeared.
4.3 Impact The impact of the declaration of autonomy, if not secession in the future, and how other countries could respond, is of great importance to not just Syria, but in other culturally diverse States as well. 292 Syria's increasingly multi-dimensional conflict and the Kurdish call for self-determination would disturb the political order in a world of increasingly multi-ethnic States.
290 https://www.asil.org/insights/volume/22/issue/1/self-determination-and-secession-under-international-law-cases- kurdistan 291 ‘Syria to consider granting Kurds greater autonomy. Discussion on extended powers for Syrian Kurds to begin once Assad government defeats ISIL, foreign minister says.’, 26 September 2017, < https://www.aljazeera.com/news/2017/09/syria-granting-kurds-greater-autonomy-170926121821968.html> (Retrieved August 17, 2018) 292 Example of such States within the region include Iran, Afghanistan, Pakistan, and Turkey. In Iraq, in response to the Kurdish referendum, Iraqi armed forces dispatched troops occupying Kirkuk, territory beyond the semi-autonomous Kurdistan region that Kurdish forces had expanded into in 2014.293 The Kurds had moved into those areas, which included the oil rich city of Kirkuk, after the Iraqi army fled in the face ISIS.294 The Iraqi government stopped most international flights into the international airport of Erbil and Sulaimaniye. Iran closed its border with Iraqi Kurdistan.295 Similar actions by the Syrian government to protect their sovereign territory are imaginable. Especially, since the Kurdish controlled area of Rojava has a lot of profitable resources in the form of oil and agriculture.
In the case of the Kurdish people, divided among four different sovereign, the argument is easily made. The Kurdish issue of Syria, has a major influence on the border countries, in which Kurdish populations reside. The governments of Iran, Turkey, and Iraq fear that internal self-determination might lead to Kurdish nationalism of their own Kurdish population.
The threat to the autonomous region of the Syrian Kurds exists of its location: It is surrounded by hostile powers. Moreover, the Kurdish controlled area of Rojava has a lot of profitable resources in the form of oil and agriculture.296 Rojava also lacks the kind of no-fly zone support that the Iraqi Kurds were granted after the First Gulf War in 1991.297 The territorial discontinuity of Kobane, Afrin, and Jazeera is a demographic and geographic failure to unity. Additionally, living in mixed areas with no natural borders, have hindered Kurdish nationalist from expansion.
293 C. Smith, ‘Independent without Independence: The Iraqi Kurdish Peshmerga in International Law’, Harvard International Law Journal, 2018 59(1); C. Smith, ‘The Kurds Miscalculated with Referendum’, Middle East Inst, 18 October 2017 < http://www.mei.edu/content/article/kurds-miscalculated-referendum> (Retrieved June 11, 2018) ‘Kirkuk: Iraqi Forces capture key sites from Kurds’, BBC News, 16 October 2017,
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The Syria civil war is a multi-dimensional conflict, involving world power countries, such as the US, Russia and Turkey. The involvement of Turkey can be explained by the fact that the YPG fighters are members of the PYD, the Syrian Kurdish affiliate of the PKK, successfully running the Kurdish self-governed autonomous zone in Syria. Turkey fears that western support for the YPG would strengthen the PKK and its wing PYD in Syria. 298
4.4 People & Minorities
The definition of ‘people’ is significant for the scope of application of the right to self- determination.299 Many scholars have tried to define and interpret the term ‘peoples’ in order to identify the holders of the right to self-determination, since no international treaty defines the term “peoples” for the purposes of self-determination.300
Several approaches, outside colonial context, exist when it comes to the definition of ‘peoples’. Some scholars, among which the UN, link the definition of a people to ‘territory’ in order to determine the holders of the right to self-determination.301 Since the adoption ICCPR and the ICESCR in 1966, the concept of self-determination, has been connected to human rights as well. The Friendly Relations Declaration, proclaims that peoples are to be ‘possessed of a government representing the whole people belonging to the territory without distinction as to race creed or colour’. 302 Accordingly, the distinction implies existence of more than one people, and thus subgroups, within a
298 R. Alaaldin, ‘What’s next for Turkey, US and the YPG after the Afrin operation?’, 26 January 2018,
Over the centuries the Kurds have been able to keep their language and bloodline relatively intact. Their geographical location put them at the crossroads of many empires in the Middle East. The Kurds have populated the Kurdish region for many centuries, within the boundaries of Turkey, Iraq, Syria and Iran. For that reason, areas inhabited by the Kurds remained relatively isolated throughout the centuries. The Kurdish language, an Indo-European language, has several dialects, Kurmanji, Sorani, Zaza and Bahdini, which are not universally understood among the Kurds but have remained relatively intact. In Syria, the Kurds inhabit three fragmented regions in the northern part. Kobane, Afrin and Jazeera, also known as Rojava,304 The majority of the Syrian Kurds speak Kurmanji 305and are Sunni Muslims with the exception of Yezidi’s.306
International law protects the identity of minorities and prohibits discrimination against them. As stated in article 27 ICCPR, self-determination guarantees the right of minorities to actively participate in the public and cultural life of society. This means that a State cannot prevent a minority from using its language or setting up an association. On the contrary, a State is under a positive duty to ensure that a minority can set up associations, participate in decision making, and publish in its own language without discrimination.307 According to the Human rights committees report in 2004, ‘the practical enjoyment by the Kurdish population of their Covenant rights is not fully guaranteed’ in Syria. 308
303 D. Raič, Statehood and the law of self-determination, Book Review, the Hague: Kluwer Law International 2002,, p. 284; J. Crawford p. 108 304 The Jazeera region is the largest of the three regions with Qamishlo as the administrative center. 305 A Kurdish majority is spoken in Turkey and north-eastern Iraq and Iran. 306 Kurdish Democratic Politburo, Central Bureau for studies and Research, Kurdistan: An Economic, Geographic and Historical brief Explanation, No. 33, Kurdistan, 1999, p. 6; J.D. Eller, From Culture to Ethnicity to Conflict: An Anthropological Perspective on International Ethnic Conflict, Ann Arbor: University of Michigan Press, 1999, p. 153; The Kurdish language, an Indo-European language, has several dialects, Kurmanji, Sorani, Zaza and Bahdini, which are not universally understood among the Kurds. 307 See Human Rights Committee, General Comment No. 23: The rights of minorities (Art. 27): 08/04/94 308 UN Human Rights Committee, Consideration of Reports Submitted by States Parties under Article 40 of the Covenant. Concluding Observations of the Human Rights Committee, Syrian Arab Republic, 9 August 2005.
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Syria has denied the Kurds the right to participate effectively in decisions affecting them. As mentioned earlier in this thesis, Syria has long been suppressing any effort by Kurds to organize or advocate for political and cultural rights. The authorities restrict the use of the Kurdish language, refuses to register children with Kurdish names, replacing Kurdish place names with new names in Arabic, prohibiting Kurdish private schools, and books and other materials written in Kurdish.
Interim Conclusion The objective of this chapter was to scrutinise the case of the Kurds and their aspirations of autonomy within rules and standards of the right to self-determination. Despite the fact that the Syrian Kurds have claimed internal self-determination through autonomy, chapter four evaluated both the internal and external form of self-determination
The Kurds do not possess a representative government in Syria, suffering years of oppression under the Assad regime. The Syrian government instigated the use of force against the Kurds in their aspirations to self-determination, disputing international law. Kurdish aspirations of political involvement remained suppressed by the Syrian government even when the Syrian civil war started. The erga omnes status of the right to self-determination containing the responsibility of a State to ensure that the right to self-determination is realised, has been neglected.309 The declaration of autonomy by the Syrian Kurds regarded as a contemporary aspiration is fuelled by the Syrian civil war. The aspirations of the Syrian Kurds can be regarded as an internal form of the right to self- determination from the independent State of Syria. The Kurds’ desire is to eventually practice their culture and live their true identities without the fear of discrimination or violence. It can thus be argued that the Kurds, within the rules and standards of international law, have a valid claim for internal self-determination.
In light of the antecedence of the Kurds in Iraq and their claim for independence, the recourse of the aspirations of the Syrian Kurds for external self-determination was evaluated. As assessed, the case of Rojava is in many ways similar to the case of the KRG in Iraq. After the American invasion of Iraq in 2003, Iraqi Kurds chose to be a federal entity of Iraq rather than declaring independence in a landlocked region. 310 Syrian Kurds seem to call for the same thing: federalism and not outright secession. In September 2017, the Iraqi Kurds pushed for independence, and passed the referendum for independence with overwhelming majority, displaying that their aspirations of autonomy have developed into one of independence.
309 International Court of Justice, East Timor, Portugal v Australia, ICJ Reports 90, ICGJ 86, 30 June 1995. 310 O.B. Galip, Imagining Kurdistan: Identity, culture and Society, IB Tauris 2015, p. 37
The Syrian war is a continuous war with no end in sight. The chaos in the country, the country’s multi-ethnic background, and the enduring fight against ISIS, might change the recourse for Syrian Kurds and their aspirations of secession. Correspondingly, the Syrian Kurdish parties are affiliated with Kurdish parties in Iraq and Tukey. Having experience and a history of fighting for self- determination against powerful States such as Turkey, might inspire the Kurds in Syria for ambitions concerning external self-determination. Despite these argument, it remains crucial to acknowledge that the situation of the Kurds in Syria differs from that in other countries.
The Syrian government is ruled by Assad and has been unwilling to grant the Kurds in Syria internal self-determination. If the Syrian government respects the Kurdish autonomy rights, in a manner sufficient toward these peoples’ meaningful fulfilment of internal self-determination, then the Kurds are not entitled to claim external self-determination through secession. The Syrian regime has showed willingness to grant the Kurds more power once the fight against ISIS has ended. As long as the Syrian government is willing and negotiating with the Kurds about Kurdish rights in light of the right to internal self-determination, the Kurds are not entitled to a claim for external self- determination through secession.
The Kurdish people are dispersed over the modern States of Turkey, Iran, Iraq, and Syria. Any claims of the right to self-determination will be blocked by the States, in the hope to prevent any Kurdish claims of the right to self-determination within their own country. Turkey, in this regard, has involved themselves more than once in Syria, launching military operations in Afrin and Kobane, due to the fear of a strong Kurdish party in Syria. There is also the involvement of Russia the US. Lastly, the war in Syria should be acknowledge as one of multi-dimensional conflict, even harder to solve with the multi-ethnic background of Syria.
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General conclusion
The central question, raised in the beginning of this dissertation was ‘To what extent does the right to self-determination provide in the aspirations of the Kurds in Syria within the rules and standards of international law?’ To answer this question, several sub questions were formulated, leading to three key chapters of this dissertation.
As highlighted in chapter two, the right to self-determination is a legal right under public international law and human rights law, although its exact scope is not clear and it is doubtful that it ever will be given the political nature of the right. The right, in the context of colonisation seems to be free from contentions. This is, however, not the case when it comes to the meaning of self-determination in its external form. As evaluated, self-determination is regarded as peoples’ right to determine their own destiny, conflicting the principle of territorial integrity, unity and the right to freedom from intervention and interference. There is no consistency in State practice and the application of the right to self- determination to guide those wanting to claim such a right. The right to self-determination remains vague and of political nature. As evaluated in the Kosovo case, some exceptions are made when it comes to remedial secession.
Chapter three allowed us to gain some general knowledge on the Kurds and their history and the aspiration of the Kurds, arising as a consequence of the Syrian civil war.
When the national borders of modern Turkey were drawn up by the major imperial powers and reshaped, the Kurds found themselves on the losing side. The Kurds are still suffering the consequences of that settlement in the modern day States of Turkey, Syria, Iraq and Iran, where the central governments fail to take account of their rights or existence. Syria's Kurds have long been suppressed and object of specifically discriminatory policies. Following the Arab Spring in 2011 subsequently the Syrian civil war, with the emergence of new wars and forms of terrorism, the Kurds in Syria draw attention. The Kurds, being the largest ethnic minority in Syria, played a significant role involving themselves directly in the fight against ISIS. The ongoing battles empowered the Kurds and challenged the existing political map of the Middle East. The PYD emerged as a potential game changer in the Syrian civil war making advances towards of self-government, but refraining from a claim of external self-determination.
The objective of chapter four was to scrutinise the case of the Kurds and their aspirations of autonomy within rules and standards of the right to self-determination. The chapter evaluated that the Kurds do not possess a representative government in Syria, suffering years of oppression under the Assad regime. Kurdish aspirations of political involvement remained suppressed by the Syrian government even after the Syrian civil war started. The declaration of autonomy by the Syrian Kurds
75 can be regarded as a contemporary aspiration, fuelled by the Syrian civil war. The aspirations of the Syrian Kurds can be regarded as an internal form of the right to self-determination from the independent State of Syria. The Kurds’ desire is to eventually practice their culture and live their true identities without the fear of discrimination or violence. It can thus be argued that the Kurds, within the rules and standards of international law, have a valid claim for internal self-determination.
A further assessment is made in the light of the KRG case, where similar internal aspirations were perceived in the aftermath of the American invasion in 2003. In September 2017, the Iraqi Kurds pushed for independence, and passed the referendum for independence with overwhelming majority, displaying that their aspirations of autonomy have developed into one of independence. Although today, the Syrian Kurds claim the internal right to self-determination, Kurds in Syria might follow the example of Iraqi Kurds in the future. Particularly since the Syrian war is a continuous war with no end in sight. The chaos in the country, the country’s multi-ethnic background, and the enduring fight against ISIS, might change the recourse for Syrian Kurds and their aspirations of secession.
The Syrian government is ruled by Assad and has been unwilling to grant the Kurds in Syria internal self-determination. If the Syrian government respects the Kurdish autonomy rights, in a manner sufficient toward these peoples’ meaningful fulfilment of internal self-determination, then the Kurds are not entitled to claim external self-determination through secession. The Syrian regime has showed willingness to grant the Kurds more power once the fight against ISIS has ended. As long as the Syrian government is willing and negotiating with the Kurds about Kurdish rights in light of the right to internal self-determination, the Kurds are not entitled to a claim for external self- determination through secession. As a last resort, Kurds can invoke the claim to remedial secession in the light of the gross human rights violation in Syria.
This dissertation shows that the Kurdish dilemma is not as simplistic as redrawing borders. The Kurdish people are dispersed over the modern States of Turkey, Iran, Iraq, and Syria. Any claims of the right to self-determination will be blocked by these countries, to prevent any Kurdish claims of the right to self-determination within their own country. Also, other ethnicities with similar desires for self-determination could regard it as an opportunity to seek independence. The war in Syria should be acknowledge as one of multi-dimensional conflict, even harder to solve with its multi-ethnic background. Although victories of the Kurds in Syria, fighting ISIS boosted its image and brought together unlikely allies, the establishment of an independent Kurdish state seems doubtful in the distant future.
Annexes
Annex 1
Source: Central intelligence Agency
Annex 2: The three Kurdish cantons in Syria, Afrin, Kobane and Jazeera, also known as Rojava.
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Annex 3 The situation in Syria in 2015 as to who controls what.
The situation in Syria as of February 2018
Source: Aljazeera.com
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Hilpold, Autonomie und Selbstbestimmung: In Europa und im internationalen vergleich, Nomos Dike Facultas 2016. • C. Hunt, The History of Iraq, Greenwood Press 2005. • A. Hurrel, Order and justice in international relations, Oxford University Press 2003. • R.J. Jonston, D.B Knight and E. Kofman, Nationalism, Self-Determination and political geography, Routledge 2015. • M. Khen, Secession, International law perspectives, Cambridge University Press 2006. • V. Lowe , International law, Oxford University Press 2007. • R. McCorquodale, self-determination in international law, Aldershot: Ashgate/Dartmouth 2000. • J. Mella, Kurdistan and the Kurds under the Syrian occupation, Xlibris Corporation 2015. • S.D. Moeller, Compassion fatigue: How the media sells disease, famine, war and death, New York: Routledge 1999. • A. Oktar, America’s failure to perceive the PKK, Arastirma Publishing 2015. • R. Olson, The Kurdish nationalist movement in the 1990’s: Its impact on Turkey and the Middle East, Lexington, KY: University Press of Kentucky 1996. • C. Panara & G. Wilson, The Arab Spring: New patterns for democracy and international law, Martinus Nijhof Publishers 2013. • D. Raič, Statehood and the law of self-determination, Book Review, the Hague: Kluwer Law International 2002. • D. Romano, “The Iraqi Kurdish view on federalism: not Just for the Kurds,” in: D. Romano and M. Gurses, Conflict, democratization, and the Kurds in the Middle East: Turkey, Iran, Iraq, and Syria, New York: Palgrave Macmillan 2014. • D. Romano, The Kurdish nationalist movement: opportunity, mobilization, and identity, Cambridge: Cambridge University Press 2006. • A.S. Schøtt, From the Forgotten People to World-Stage Actors, The Kurds of Syria brief, (Teaching Associate Professor, PhD Student, Royal Danish Defence College), 2017. • M.N. Shaw, International Law, Cambridge University Press 2014. • J.J. Summers, Peoples and international law: how nationalism and self-determination shape a contemporary law of nations, Martinus Nijhof Publishrs: Brill Academic 2007. • N. Sybesma-Knol & J. van Bellingen, Naar een nieuwe interpretatie van het recht op zelfbeschikking?, Brussels, 1995. • N. Talabany, Iraq’s policy of ethnic cleansing: onslaught to change national/demographic characteristics of the Kirkuk Region (unpublished paper) London, 1999. • J. Tejel, Syria’s Kurds, History, politics and society, New York: Routledge 2009. • Tomuschat, Modern law of self-determination, Dordrecht: Martinus Nijhoff Publishers 1993. • L. Wedeen, Ambiguities of domination. Politics rhetoric and symbols in contemporary Syria, Chicago and London: University of Chicago Press 1999. • S. Wiessner, ‘Demographic change and the protection of minorities’, In: E. Klein, Globaler demographischer wandel und menschenrechte, 2005. • M. Yesiltas & T. 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Case law • Reference re Secession of Quebec, Canadian Supreme Court 20 August 1998. • East Timor, Portugal v Australia, International Court of Justice, 30 June 1995. • Western Sahara, International Court of Justice, 16 October 1975. • The Aland Islands Question, Report by the Commission of Rapporteurs, 1921. • Barcelona Traction case, Light and Power Company Limited, International Court of Justice, 5 February 1970. • Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, International Court of Justice, Advisory Opinion of 22 July 2010.
Internet resources • www.reuters.com • www.enotes.com/humanitarian-intervention-reference/humanitarian-intervention • www.UN.org • www.responsibilitytoprotect.org • www.reliefweb.int • www.cfr.org • www.irinnews.org • www.hwr.org
Resolutions • General Assembly Resolution 2625 (XXV): Declaration of Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations (Friendly Relations Declaration) • UN General Assembly Resolution, Declaration on Granting Independence to Colonial Countries and Peoples 1514 (XV) • UN General Assembly Resolution, Defining the three options for Self-determination 1541 (XV) • General Assembly Resolution, Establishing the Special Committee on Decolonization 1654 (XVI)
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