Why Baghdad should stay firm despite the Kurdish referendum

Baghdad is merely protecting the most fundamental of all rights under international law — its territorial integrity.

2017/10/22 Issue: 128 Page: 2

The Arab Weekly
Fadi Farhat

The non-binding Kurdish referendum on independence clearly illustrated that most inhabit­ants of the autono­mous region of Kurdistan favour an independent state separate from the Republic of Iraq.

There is a lot of talk about the right to self-determination. In a rights-based and rights-orientated culture, this is a buz­zword. Something to mention as a debate-winning clincher.

Somehow, we reached a stage where the right to self-determi­nation is exclusively equated with full statehood or secession from an existing state.

That is not the scope of the right. The right is one of substance. The Kurds already have that self-determination through autonomy — a level of autonomy that is increasingly considerable. The fact that the Kurdistan Regional Govern­ment (KRG) could call, organ­ise, co-ordinate and police such a referendum is indicative of that very autonomy.

Everywhere, one can see references to the right of self-determination enshrined in various instruments of inter­national law. It is in the UN Charter in Chapter 1, Article 1. It is featured in the International Covenant on Civil and Political Rights (ICCPR) and the Interna­tional Covenant on Economic, Social and Cultural Rights (ICESCR).

However, despite such provisions, these covenants, the charter and all other instruments do not, as is often thought, insist on full independence as the best or even necessary method for self-determination. There is a difference between internal self-determination and external self-determination.

The Kurdish people undoubt­edly have a right to self-determination. Indeed, their self-determination has already been operative under Iraq’s new constitution through increasing autonomy.

However, self-determination cannot and should not be un­derstood as undermining the principle of territorial integ­rity, and Iraq has every right to insist on the maintenance of its long established territorial integrity.

Today, while we might think of Kashmir, Catalonia, Chechnya, the Basque Country, Biafra and others as a handful of examples, it may be surpris­ing to note that there are far more self-identified nations without full independence than there are independent states and there is no legal process or right to modify or redraw state boundaries even with the democratic consensus of these peoples.

The Helsinki Final Act of 1975, as well as the United Nations, and the International Court of Justice (ICJ), indicate there is no inherent contradiction between the principles of self-determi­nation and territorial integrity but the latter, one should take note, takes precedence.

This was reaffirmed by the UN General Assembly in agenda items 13 to 18 as recently as December 2008 (recent in international law terms) when considering the conflicts in the GUAM area (Georgia, Ukraine, Azerbaijan and Moldova) and the occupied territories of Azer­baijan.

Professors Thomas Franck, Rosalyn Higgins, Alain Pellet, Malcolm Shaw and Christian Tomuschat — all experts in in­ternational law — indicated in a 1992 document: “[F]ew princi­ples in present-day internation­al law are so firmly established as that of the territorial integ­rity of states.”

One sees, following Kosovo’s unilateral declaration of inde­pendence in 2008, only 69 of the United Nations’ 192 mem­bers recognised Kosovo. This is illustrative of the importance attached to the principle of ter­ritorial integrity.

A leading juridical and aca­demic expert in this field is Al­len Buchanan, author of seven books on self-determination and secession. He supports ter­ritorial integrity as a moral and legal aspect of constitutional democracy and indicates that a group has “a general right to secede if and only if it has suffered certain injustices, for which secession is the appropri­ate remedy of last resort.”

Self-determination is a universal right. However, it is a right with various degrees. Self-determination in the form of secession should be a remedy of last resort.

While the Kurds have, in recent history, been victims of atrocities, particularly during the reign of Saddam Hussein, they have a vibrant and active form of self-determination through autonomy. Iraq, however, has every right to maintain its territorial integrity and point out that there are no grounds for secession.

Baghdad’s stance should not be viewed as the stance of the bad guy. Instead, Baghdad is merely protecting the most fundamental of all rights under international law — its territo­rial integrity.

Fadi Farhat is a lawyer based in Britain.

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