Self-determination is a subject that enthralled my interest since I studied World War One in high-school. This interest was aggrandized when I studied modern European and Middle Eastern history in college. Still, at that stage, I never knew the legal intricacies of self-determination; I only the knew the historical context of it and its political repercussions. After I moved to the United States in 2016, I entered law-school the following year, and I enrolled in an international law class with the brilliant international law professor-scholar, Milena Sterio. Finally, through that class, I learned the legal foundation of self-determination and wrote my note about it.
This article does not delve on the semantics of self-determination, as a legal principle; rather, it briefly illustrates its application in Middle East. One need not be an international lawyer to be drawn by this topic. One only needs a slight interest in understanding the dynamics of the Middle East, and why does this region remains in such unrequited turmoil. Is the failure of self-determination to materialize a contributing factor? Perhaps. It remains an open question.
Self-determination is both a convoluted and a controversial subject in the realm of international law. Since its inception, international law scholars debated and still debate the purview of its applicability. Self-determination is an omni-relevant subject because peoples, both in the East and the West, struggle to achieve it — consider the Kurds in the Middle East and the Catalonians in Spain. As instability, disruption, and warfare remain the dominant theme in the Middle East, I wish to shed light on the role that self-determination played in that theme. Particularly, how self-determination failed to materialize in that region, thereby preventing certain peoples, especially the Kurds, from creating their respective state.
Admittedly, when one contemplates the Middle East, one does not perceive self-determination as a contributing factor to the overwhelming devastation in that region; rather, one perceives sectarianism, confessionalism, terrorism, and the other-isms as the leading, contributing factors. Further, I am neither postulating nor suggesting that a direct casual connection exists between the devastation and self-determination. Instead, I am proposing that one considers the failure of self-determination to materialize in the Middle East for better understanding of the political dynamic in that region. No matter how controversial, this failure lends meaning to how the inept governments, in that region, came about. Surely, the topic of ineptness of those government cannot be encapsulated in self-determination. Such topic goes far beyond the reach of legal research and far beyond the scope of this article — with its level of generality. But I hope that the reader enjoys.
Conceptual development of self-determination
One may trace back the inception of the concept of self-determination to both the French Revolution and the American Declaration of Independence. On the one hand, the French Revolution not only marked the collapse of both the monarchy and the feudal system; but also, it signified the establishment of a national identity. The American Declaration of Independence, on the other hand, formulated the conception of self-determination as a democratic entitlement.
Into the 20th century, self-determination witnessed immense conceptual formulation. Indeed, several elements enabled this formulation. Prominent amongst these elements was the dismantlement of both the Austro-Hungarian and the Ottoman empires as a result of the first world war. These empires left in their wake numerous ethnic and religious groups that aspired to form their own respective nations in the Middle East and Europe. By extension, global leaders emphasized the notion that these groups should achieve self-determination. Vladimir Lenin, champion of the Bolshevik Revolution, maintained that colonized peoples must seek emancipation from the colonial sovereign through self-determination; while President Woodrow Wilson envisioned that self-determination ought to be the guiding principle in redrawing the map of Eastern Europe and the Middle East. Despite political support, self-determination did not fructify into an international legal principle in the post-World War One era.
After the second World War, however, self-determination ripened into a legal right, through successive declarations. The Declaration on the Granting of Independence to Colonial Countries and Peoples (1960), which provided that “the subjection of peoples to alien subjugation, domination, and exploitation” constitutes a denial and violation of human rights. The 1970s declaration — Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations — gave birth to remedial secession. In the Quebecois case, the Canadian Supreme Court (1998) further elucidated the concept of remedial secession through distinguishing between internal and external self-determination. Peoples may attain internal self-determination through governmental representation. On the flip side of the token, peoples may attain external self-determination when they are subjected to severe discrimination and when they are devoid of political representation.
Self-determination in the Middle East
The plight of the modern Middle East originated in the failure of self-determination to materialize after the first World War. The newly emerged peoples, in that region did not achieve self-determination. Instead, they were compartmentalized into different states designed by the victors of the war. Through the Sykes-Picot Accord, Britain, France, and Russia — which later rescinded the Accord — partitioned the late Ottoman Empire in alignment with their respective interests. Britain wished to consolidate the Suez Canal and to facilitate an inland trajectory for Iraqi oil. France, comparatively, wished to secure its geopolitical interests in Syria and to fortify its alliance with Christian minorities.
With these colonial objectives in mind, among others, the current states of the Middle East were divided. Such division afforded the colonial interests, but it disregarded the self-determination aspirations of the peoples of the region. Indeed, colonial powers drew the borders of the newly emerged states, without considering the historical, ethnic, and religious complexities of the region. Some peoples, such as the Maronites of Lebanon, did fulfil their aspirations; while others, such as the Kurds, did not.
The Kurdish example
The Kurdish cases represents a perfect illustration of how self-determination failed to materialize in the Middle East. Sykes-Picot separated the Kurdish homeland and its people into four different states: Iran, Iraq, Syria, and Turkey. All four states actively persecuted the Kurds and suppressed their collective identity. Some of these states engaged in Kurdish-ethnic cleansing; some committed massacres against the Kurds, culminating in the Iraqi Anfal campaign; and all prohibited the use of the Kurdish language. None of these states, at the exception of Iraq, conferred minority status upon the Kurds.
Although Britain promised the Kurds a state at the Paris Peace Conference (1919), they did not effectuate that promise. The Kurds also were not amongst the peoples who realized self-determination after the 1960s United Nations’ declaration, even though they were technically colonized. Nor did the 1970s declaration grant the Kurds remedial secession — the remaining viable channel for Kurdish self-determination. Despite the fact that the Kurds constitute a people under international law — they consider themselves a single people and they share common ethnicity, language, religion, history, and cultural heritage — and despite the fact that all four states subjugated the Kurds; they never qualified for remedial secession. Two cardinal international law principles stymie Kurdish qualification for remedial secession, territorial integrity and uti possidetis juris.
In the context of self-determination, territorial integrity ensures the existence of a state within its established borders. In other words, the principle of territorial integrity bars the dismemberment of states. As such, Kurdish self-determination poses an immediate threat to the territorial integrity of Iran, Iraq, Syria, and Turkey. Supposedly, in the event that the Kurds sought remedial secession in historical Kurdistan, all four states shall be dismembered.
In correlation, the principle of uti possidetis preempts the right of the Kurds to pursue self-determination. This principle constitutes a long-standing tradition in the Westphalian hemisphere. It originates in Roman law where it constituted a principal doctrine used by the Roman Praetor to promote and maintain order. Essentially, said principle ensures that the frontiers, drawn by colonizing powers, cannot be displaced or redrawn by an entity that seeks independence. As a result, the Kurds cannot bend the borders established by the Sykes-Picot Accords. And so, the Kurds remain deadlocked within the borders created by these Accords.
Self-determination is an increasingly controversial topic particularly, in an epoch where identity politics is at the forefront of the political debate and specifically, when peoples are in dire need for unity. Still, self-determination, as a legal principle, did not quite serve the peoples in the Middle East, especially the Kurds. They, who long yearned for self-determination, continue to be separated by colonial borders, reinforced by the principles of territorial integrity and uti possidetis juris.
Charles Khalil is a rising third-year law student at Cleveland-Marshall College of Law. He moved to the United States in 2016, after he completed his degree in history at the Université Saint-Esprit de Kaslik (Holy Spirit University of Kaslik), Lebanon. A CMBA member since 2018, he can be reached at email@example.com.