Iraqi Kurdish Self-Determination: A Pathway to Secession? Settling the Questions of Application and Scope
| Pages | 182-202 |
| Date | 01 April 2021 |
| Published date | 01 April 2021 |
| Author | Mohamed Elerian |
Iraqi Kurdish Self-Determination: A Pathway to Secession?182
Iraqi Kurdish Self-Determination:
A Pathway to Secession? Settling the
Questions of Application and Scope
M E*1
A
From the rubble of the U.S. invasion of Iraq, Iraqi Kurds have carved out a
degree of de facto political independence that has been largely sheltered from
the external interference and ethnic infighting that has plagued Iraq since the
fall of Saddam Hussein. This new-found expression of self-deter mination has seen
widespread support amongst Iraqi Kurds for the secession of Iraqi Kurdistan
and an attainment of a fully-fledged independent Kurdish state. Yet the existence
of such a general right to secession does not exist under international law. This
paper aims to assess the extent to which Iraqi Kurds are a people with a right
to self-determination, and whether that right can express itself through remedial
secession. It will be submitted that there is insucient support for the existence of
a positive right to remedial secession or for its progressive development under
international law, but that even if such a right did exist or were to develop in the
future, the situation in Iraqi Kurdistan would not meet the high threshold required
for remedial session to be triggered. In light of this, a political solution based on a
broader autonomy arrangement and increased forms of cooperation is required to
resolve the continuing disputes between the Iraqi Federal Government and Iraqi
Kurdistan, even if this might not fulfil Iraqi Kurdish demands for statehood. Until
* Intern, United Nations Security Council Practices and Charter Research Branch. LLB (QMUL),
LLM (LSE). melerian97@gmail.com.
Cambridge Law Review (2021) Vol VI, Issue i, 182–202
Iraqi Kurdish Self-Determination: A Pathway to Secession? 183
Iraqi Kurds can rely on regional and external political frameworks that provide the
required support for statehood, a Kurdish state will not be viable.
Keywords: self-determination, remedial secession, Iraqi-Kurdistan, political solution, autonomy
arrangement
I. I
Despite the growing calamity in Iraq since the 2003 US invasion, the Kurdish
region of Northern Iraq (‘Iraqi Kurdistan’) has enjoyed relative stability and
unprecedented levels of self-rule following decades of persecution. Nonetheless,
as the Economist describes it,1 the recent 2017 independence referendum in Iraqi
Kurdistan has, however, highlighted how this haven of peace dreams of separating
from Iraq’s sea of turmoil.
Although in the context of decolonisation, self-determination oered a
right to statehood, this has now largely changed as decolonisation has substantially
come to an end.
As self-determination has been reformulated into a human right, its form
of expression has changed. Self-determination now entails a group of internal
rights enjoyed by a people, with the State owing a corresponding duty to protect
those rights. Nevertheless, many of those peoples seeking to express their right to
self-determination, including Iraqi Kurds, continue to seek to express it through
secession and the attainment of independence, even though the existence of such
a general right to secession does not exist under international law.2
This paper aims to assess the extent to which Iraqi Kurds are a people with
a right to self-determination, and whether that right can express itself through
remedial secession. Part I of this paper will briefly highlight the reformulation of
self-determination into a human right. Part II will then determine whether Iraqi
Kurds constitute a people for the purposes of self-deter mination. After determining
that Iraqi Kurds do constitute a people with a right to self-determination, Part
III will carry out a brief assessment of the extent to which a right to remedial
secession exists under current international law, as well as evaluate the assertion
that, even if a right to remedial secession does not currently exist, there is a shift
towards its development within international law. It will be submitted that there
is insucient support for the existence of a positive right to remedial secession
or for its progressive development under international law, but that even if such
1 ‘Does Independence Beckon’ (The Economist, 1 September 2007)
middle-east-and-africa/2007/09/06/does-independence-beckon> accessed 1 May 2020.
2 ‘How Do You Start a Country?’ (Collectiu Emma, 5 August 2017)
article/2724/how-do-you-start-a-country> accessed 9 May 2020.
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