Followed by the methodology presented above, this thesis will be structured in seven Chapters.
Chapter 1: is the introduction of the thesis as shown in this chapter.
Chapter 2: comprehensively presents the relevant legal issues and literature review.
This chapter deals with the right of self-determination, the rights of minorities, the act of recognition, the law of statehood and secession. It considers that, for a group to be entitled to exercise its right to self-determination, it must qualify as a ‘people’. It will examine how the exercise of the right of self-determination should not violate the ‘territorial integrity’ of a State that the right is normally to be exercised within the framework of an existing sovereign State.
This chapter evaluates how to identify a group as a minority. It will argue how the right of minority groups or sub-groups is distinguishable from the right to self-determination. The focus of this chapter will be the concept of statehood in international law. It will outline the
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classic statehood criteria and the development of the additional criteria and analyse the role and the significance of recognition. It will argue how recognition lets the State enjoy the usual legal consequences within the domestic legal order and international community. It will examine the obligation to withhold recognition and the additional statehood criteria to see if they are problematic in light of the perceived role of recognition in contemporary internal law. The chapter will then overview the fundamental debate about secession. It will argue that, secession, as a last resort may be available in certain exceptional circumstances. It will analyse how the international community needs to overcome the default presumption against secession, on the other hand, it needs to establish a means to assess and recognise secession claims within an international law framework.
Chapter 3: is (Theories of secession) and the evaluation of the concept of (Earned Sovereignty and plebiscite), as an additional option outside of the traditional legal dispute resolution mechanisms.
This chapter reviews theories of secession, and identifies what they have in common and where they differ. It will argue, under what conditions a group within an existing community may, with justification separate from the larger group in order to establish its own self-governing community. It begins the task of remedying the controversial debate on moral secession, evaluating under what grounds and under what conditions is secession morally justified. It will argue how international law should deal with secession. It examines whether the international law of self-determination authorises a right to secession as a remedy for the violation of the right to self-determination of peoples.
Normative theories of secession provided by Allen Buchanan and Lea Brilmayer will be taken as representative examples of just-cause theories. Thereafter, Beran’s account on liberal democratic theories will be examined. The chapter will then turn to discuss the legal aspects of secession, especially as it relates to the constitutional laws of sovereign States. It evaluates rules for achieving independence, arguing international law may provide guidance on how it may be achieved, especially when a people are entitled to restore remedial secession.
Thereafter, the chapter will examine the role of plebiscite in recognising the creation of a new independent State. It will illustrate how the will of the people occurs through the legal norm of plebiscite. The chapter will then turn to discuss the legal aspects of secession, especially as
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it relates to the constitutional laws of sovereign states. The chapter will address the theoretical justifications for constitutional secession.
Later, the chapter will turn to explore a fresh balanced theory on the external right to determination (Remedial Earned sovereignty), as a remedial approach to the right of self-determination in international politics. It will discuss both advantages and disadvantages of the theory, and drawing some cautious policy conclusions from the approach. Accordingly, this chapter will be arguing both politics and legal theories of secession, as multidisciplinary approaches seems to be the most effective way to approach secession and self-determination.
Chapter 4: is the assessment of State practice, to illustrate the discrepancy of results attached to the self-determination struggles by different people.
This chapter presents different cases around the world. It articulates a variety of arguments that purport to justify secession under certain circumstances. It will address whether international law and State practice really declines the support for secession, or rather is allowed only in certain circumstances. Recent endorsement of Kosovo, South Sudan and Quebec, have indicated that the premise that the separation of ethnic groups is supposedly legitimate in certain exceptional cases. This applies alternatively when the mother State rejects every compromise solution in a conflict situation, or when there is no realistic prospect of a conflict being resolved, especially when the methods of peaceful conflict resolution appear to have been exhausted.
Chapter 5: is the Kurdish question in Iraq:
The chapter in part (1) provides an overview of the roots of the Kurdish question in Iraq, (Historical Perspective). The chapter evaluates the Kurdish origins to demonstrate the distinctive Kurdish cultural identity and the Kurdish claim to territory. It analyses a historical explanation for the unjust annexation of the Kurdistan Region into the Iraqi State, arguing how the Iraqi Kurds were oppressed and subjected to some of the worst atrocities of humanity through their history. It outlines the elements of self-determination and considers whether the Iraqi Kurds possess this right. Then the chapter in part (2) will turn to evaluate the constitutional framework between Iraq and the IKR. It will critically analyse why the
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Kurds supported the constitution in 2005, as it appeared to meet their significant demands as well as, not only to preserve the Kurdish autonomy, but also to include the Kurds insistence on de-facto-federalism or a formal creation of each region with its own regional government.
Finally, the part will examine the Kurdish drive for secession based on a constitutional framework, identifying challenges facing the Iraqi Kurds’ quest for independence and statehood. The ramifications of the impending Iraqi federalism for the future of Iraq as a country will be discussed also.
Chapter 6: Is the application of the reconceptualised theory of ‘RES’ to the situation of the IKR.
The chapter will apply the concluded work presented in chapters II, III, IV, and V, in the IKR situation in northern Iraq. In order to assess the claim of the IKR to independence or secession, this chapter will turn to the examination of the three core issues described above, statehood, secession, and recognition, under international law as it applies to the situation of the IKR. This chapter will argue that for an entity to become a State, it has firstly to fulfil the requirements of statehood and secondly, to have been created lawfully. Later, it will examine the Kurdish drive for self-determination based on the theory of ‘Remedial Earned Sovereignty’ as a settlement short of secession and alternative to change established international boundaries. The chapter will argue that for the Kurds to obtain international legitimisation andgain some degree of self-determination, they must fulfil several guidelines.
Eventually, it will demonstrate issues surrounding the IKR independence.
Last, Chapter 7: is the conclusion of the thesis. The chapter evaluates important questions regarding the modern-day understanding of the right of self-determination and of the international legal theories of secession, statehood, and recognition. Moreover, it challenges to assert new theories as justification for the IKR persuading for the creation of an independent entity from its mother-state through the process of RES. The chapter will argue that for a successful self-determination struggle it is important for the Kurds to demonstrate to the outside world that it has achieved statehood, and view its struggle as legitimate to the superpower States. Rather, it suggests that a possible peaceful solution should have been considered especially for disputed areas before any declaration of independence or secession, which may probably, embraced the neighbours’ countries and the international community.
This chapter will conclude that as a remedial approach, ‘RES’ will be a useful and legitimate
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tool to address ongoing post-colonial self-determination cases and guide international responses in future if the self-determination claim itself is denied or deferred by the State.
This approach can be used as a fresh way of looking at the content of the right to self-determination, and providing grounds for overcoming the default presumption of territorial integrity.
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