Self-Determination under International Law: Baluchistan, Al-Ahwaz, Kurdistan, and Azerbaijan Cases

Self-Determination under International Law: Baluchistan, Al-Ahwaz, Kurdistan, and Azerbaijan Cases

By

Dr. M. Hossein Bor

The right of all peoples to self-determination is recognized as one of the core principles of international law. It is mostly due to the exercise of this right that the UN member states have multiplied from 51 in 1945 when founded to 193 in 2018. (1) This paper addresses two inter- related questions. First, whether or not “the principle of equal rights and self-determination of peoples” in the UN Charter applies to the Baluch, Arabs, Kurds, and Turks in Iran? The answer is definitely yes. The second question is whether or not these peoples can rely on international law and invoke the principle of self-determination to support their claims for independence? The answer is a qualified yes as follows.

Self-Determination

The right to Self-Determination is enshrined in the opening chapter of the United Nations Charter as one of the main “purposes and principles’” of the UN. Under Article I, the UN Charter clearly requires all member states to respect “the principle of equal rights and self-determination of peoples.” (2) In addition to its Charter, the UN affirmed the right to self-determination of all peoples under international law in its 1960 Declaration on the Granting of Independence to Colonial Countries and again through its 1970 Declaration of Friendly Relations adopted unanimously by the United Nations General Assembly (GA) (3, 4). The Declaration of Friendly Relations clearly defines the general parameters of self-determination under international law:

“By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter.” (4)

The right to self-determination was first recognized in the context of decolonization in the aftermath of WWII. As evidenced by the afore-mentioned UN Declarations, the numerous human rights instruments including the International Covenant on Economic, Social, and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR), state practices, and court cases, international law has extended the application of the right to self-determination to all peoples suffering from colonialization and oppression under existing states. As articulated by Professor Milena Sterio, a preeminent legal scholar, “The theory of self-determination, as justifying the secession of a people from its existing mother state as a matter of last resort only, in situations where the people is oppressed or where the mother state’s government does not

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legitimately represent the people’s interests, has remained constant throughout the 20th century development of international law.” (5)

Although the principle of “self-determination of peoples” is firmly rooted in international law, the term “people’ has not been defined by any international treaty or convention. However, there is a two-pronged test used by some legal scholars to classify members of a group as “people” in the context of self-determination. The first is a subjective test based on a common belief among members of a group that they constitute a unit or people based on their shared characteristics and beliefs. In other words, they identify themselves as such and are viewed by other groups as such. The second test is objective in that members of a group share, inter alia, a common homeland, a common language, a common culture, and a common history, which form the cohesive basis of their unit as a people and define their national or ethnic identity. (6)

Therefore, Baluch, Kurds, Turks and Arabs clearly qualify as “peoples”, with an inherent right to self-determination for each people under international law. They meet both the subjective and objective tests mentioned. For example, all persons identifying themselves as Baluch form the Baluch people or Baluch nation based on their shared beliefs and characteristics. They also share a common homeland named after them as Baluchistan, share a common Language called Baluchi, share a common history, and enjoy a common culture and heritage. That is also the case with the Arabs, Turks, Kurds, Persians, Turkmens, and Lors.

The UN member states are obligated not only to respect and to promote this right, but also to refrain from any use of force to suppress the realization of this right. As stated by the Global International Humanitarian Law Centre of Diakonia:

“In particular, the use of force to prevent a people from exercising their right of self- determination is regarded as illegal and has been consistently condemned by the international community. The obligations flowing from the principle of self-determination have been recognized as erga omnes, namely existing towards the international community as a whole. The International Court of Justice (ICJ) has recently reiterated the erga omnes status of the general principle of self-determination in its Advisory Opinion on the Wall” [in the Arab-Israeli conflict]. (7)

External Self-Determination and Secession

While international law affirms the principle of territorial integrity of existing states, it has also accepted remedial secession and external self-determination for peoples subjected to colonialization and extreme oppression by a mother state, as was the case in Kosovo. Under this interpretation of international law and as applied in Kosovo, gross human rights violations and denial of internal self-determination are instances of severe oppression justifying remedial secession and independence from a mother state. (8) Fourteen states submitted briefs to this effect to the International Court of Justice in its Advisory Opinion on Kosovo to advocate for Kosovar independence. (9) As an example, this reasoning was clearly articulated and invoked by Germany and Finland in their arguments to ICJ in favor of Kosovo’s independence. (10)

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The principle that both categories, colonialized as well as severely oppressed peoples, have the right to external self-determination via remedial secession has gained widespread acceptance in international law. The principle was upheld in the Canadian Supreme Court opinion with respect to the Quebec claim for secession from Canada in 1998. The Court held that secession is justified as a remedy only for peoples subjected to conquest, colonialization, and perhaps oppression. The Court, however, did not issue a final ruling on extreme oppression. The Court also ruled that Quebec was not entitled to remedial secession because it did not meet those criteria and enjoyed full internal self-determination. (11)

As interpreted in Kosovo case, the principle of external self-determination in instances of severe oppression is clearly applicable to the cases of Baluchistan, Kurdistan, Azerbaijan and Al- Ahwaz/Khuzistan in Iran. Each of them can invoke this principle in support of its claim for remedial secession or independence from Iran. While clearly qualified as “peoples” in the context of self-determination under international law, the Baluch, Kurds, Turks, and Arabs have been denied any semblance of internal self-determination by Iran. They have been severely oppressed as demonstrated by the gross human rights violations perpetrated by Iran and the suppression of each people’s demand to form and to have its own representative government.

In addition to severe oppression, they can also rely on the decolonialization exception under international law to argue in favor of their respective claims for independence. This argument is supported by the fact that their territories were forcibly annexed by Iran in the 1920s, thus reducing them to colonies under occupation and without any recourse to any form of self- government. For example, Baluchistan and Al-Ahwaz were annexed by force of arms in 1928 and 1925, respectively.

Based on this analysis, each of the cases of Baluchistan, Al-Ahwaz (the Arab region referred to as Khuzistan in Iran), Kurdistan, and Azerbaijan falls within the category of severely oppressed and colonized peoples under international law. Accordingly, the right to external self-determination applies, enabling the Baluch, Arabs, Kurds, and Turks to exercise it through remedial secession and independence.

In conclusion, it should be pointed out that international law is neutral on the question of secession. It does not prohibit secession, and allows it under the circumstances outlined herein. The international community will accept secession and independence by each of the peoples mentioned as long as it is (1) pursuant to the exercise of that people’s right to self-determination; (2) reflective of the will of that people to freely determine its political fate through a general referendum or other internationally sanctioned means; and (3) realized within the confines and provisions of international law and the UN Charter governing external self-determination and remedial secession.

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About the Author: Dr. M. Hossein Bor is a Washington-Based Attorney and former professor of law. He serves as the Chairman of the American-Baluch Council and is the author of Iran and Its Nationalities: The Case of Baluch Nationalism (2000).

Sources:

1- United Nations, Growth in United Nations Membership, 1945-present (2018),

http://www.un.org/en/sections/member-states/growth-united-nations-membership- 1945-present/index.html 2- United Nations, Charter of the United Nations: Chapter 1 (1945),

http://www.un.org/en/sections/un-charter/chapter-i/index.html 3- UN General Assembly, Declaration on the Granting of Independence to Colonial

Countries and Peoples, 14 December 1960, A/RES/1514(XV), https://www.refworld.org/docid/3b00f06e2f.html 4- UN General Assembly, Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, 24 October 1970, A/RES/2625(XXV),

https://www.refworld.org/docid/3dda1f104.html 5- Milena Sterio, Self-Determination and Secession Under International Law: The Cases of

Kurdistan and Catalonia, 22 Amer. Soc. Int’l L. (2018), https://www.asil.org/insights/volume/22/issue/1/self-determination-and-secession- under-international-law-cases-kurdistan 6- Id. Michael P. Scharf, Earned Sovereignty: Judicial Underpinnings, 31 Denv. J. Int’l L. &

Pol’y 373, 373–79 (2003). 7- Diakonia, International Law and Self-Determination,

https://www.diakonia.se/en/IHL/The-Law/International-Law1/IL–Self-Determination/ 8- Marko Milanovic, A Footnote on Secession, EJIL: Talk! (Oct. 26, 2017),

https://www.ejiltalk.org/a-footnote-on-secession/. 9- Id. 10- Id. 11- Reference re Secession of Quebec, [1998] 2 S.C.R. 217. 4

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