1.4.1. Technical approaches
The thesis approach draws on a traditional international law methodology, relying on the doctrinally accepted ways of sourcing international law, with a practical focus on customary international law. It is a conventional ‘black letter legal analyse’. Accordingly, the thesis proposes the following methodology:
1.4.2. Conceptual approaches
Firstly: This thesis will examine the right to self-determination as an important legal principle in international law, defined in Articles 1-(2) and Article (55) of the United Nations Charter. This review will show that the right has generally been overlooked as a viable option for the people. I will critically discuss whether the right carries with it a right of secession. It shall be illustrated that the entitlement of every ‘people’ to self-determination under international law leaves some questions unanswered, namely, what does self-determination mean, and what is a ‘people’?
To illustrate this methodology, two arguments should be noted:
1) -The ICCPR states that peoples ‘freely determine their political status.’ ‘This language strongly suggests the ability to determine political dependence or independence, and in fact, General Assembly Resolution 1514 declares that self-determination includes the right to complete independence, at least in the colonial setting.’
2) -Nevertheless, self-determination is not limited to a simple alternative between independence and dependence. General Assembly Resolution 2625 speaks of several different modes of exercising self-determination: ‘The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people.’
23
Second: After analysing the right of self-determination, the thesis explores whether the right of self-determination includes the possibility of secession, in other words, does the right of self-determination suggest a right of secession? Here three arguments should be considered:
1) Whether the right of self-determination carries with it a right of secession that will be argued in both the colonial and post-colonial era. It will be argued that the right has no relevance to decolonisation, and secession is also irrelevant to the ongoing entitlement of peoples to self-determination in the post-colonial era.
2) Whether minority rights allow for self-determination. To answer this question the thesis will argue The Joint Opinion prepared in 1992 in Quebec, and the First Badinter Opinion regarding the status in SFRY, arguing that in extreme circumstances there may be a right to secede if minorities’ rights are being violated in an irredeemable way.
3) The thesis will essentially evaluate the post-Cold-War State practice creation. Mainly, the statehood criteria and recognition theories will be outlined. It shall consider which statehood criteria have effects on the law of statehood, what is the role of effectiveness, sovereignty, human rights, and recognition, do they have a central role in the creation of a new State in pre-1991 practice? The thesis will create an argument in favour of the concept of the additional statehood criteria, and the relationship between the statehood criteria and recognition requirements, between recognition and non-recognition through doctrinal law methodology,as it tries to clarify the importance of some additional basic criteria of creating new States and to examine the post-Cold era State practice.
Third: the thesis will discuss and critically examine Allen Buchanan’s theory of secession. It will analyse both primary right theories and remedial right only theories, it will question the continued value of the concept of nationhood in this context. Buchanan’s remedial right only theory of secession will be compared with some primary right theories. On the other hand, to analyse and resolve secessionist disputes, the thesis will evaluate Brilmayer’s proposed framework regarding the relative legitimacy of competing territory claims, as the best way to end the disputes. Thereafter, the thesis will deal with the problems of normative and liberal theories, special rights to secede, and conditions of groups and ask if constitutions should
24
include a right to secede.Eventually, after excluding the existence of a general right to self-determination and secession, excluding the existence of a general right to secede, the thesis will turn to bridge the gap between the right of self-determination and sovereignty of the State through the theory of Remedial Earned Sovereignty ‘RES’. By providing a mechanism whereby some sub-State entities may be guided through a process of transition to heightened autonomy or statehood in such a way so as not to undermine the legitimate interests of parent States and of the international community. Such a viable option could have been envisioned to the situation of IKR if the Kurds have failed to break away from Iraq in democratic fashion, RES, can be a useful and legitimate tool for the exercise of external self-determination, ultimately leading toward remedial secession and independence.
Fourth: the research picks up several case studies, the specific disputable situation of Kosovo’s Declaration of Independence. These include the right of self-determination, statehood criteria, recognition, and remedial secession theory. Quebec and South Sudan, as a struggle by a group against an existing State. The thesis evaluates that groups can only have a meaningful communal existence if they are a ‘people’ and their right to internal self-determination has been directly or indirectly violated, not if there is no violation of human rights and no oppression, not if they have a genuine (federal or autonomy political system).
The will of the people, those seeking separation or autonomy and presumably resistance by the State to preserve its territorial integrity will be considered properly.
Fifth: after providing an overview of the right to self-determination and the legality of the right to secession in both theory and practice and minority rights, this thesis turns to analyse the Kurdish question in Iraq. To illustrate this methodology two arguments should be noted:
1)-The thesis argues how the Kurds in Kurdistan of Iraq have made a significant achievement in securing their rights, and controlling their region since 1991. The factual situations, what the Kurds have achieved, upon the Iraqi occupation of Kuwait in 1990, and how far these situations have given rise to Kurdish expectations of greater autonomy and Federalism.
2)-The thesis analyses, how the Kurds and Iraqi government are sharply divided over the most fundamental issues in the constitution relating to the nature of their future State and to the governmental system that is to play a role in it. In particular, whether the Kurdish region
25
will be defined territorially or ethnically, and whether it will include Kirkuk. A continuing territorial dispute between the central government in Baghdad and Kurdistan Region Government over the area in and around the city of Kirkuk may be at the crux of a stable Iraq. It will argue, how long the Iraqi Kurds can be persuaded to remain part of a federal Iraq.
A constitutional framework will closely examine the major controversial issues between the IKR and the State.
Finally: The methods used in the investigation forming the basis for this thesis follow the traditional pattern of research and States practice, case law, and doctrine. This project relies on materials from a varied assortment of sources, chief among which are the international legal instruments and the case law pertaining to the right to self-determination and the creation of States on grounds of this right. All of the sources referred to in the investigation are listed in the bibliography at the end of the thesis.