Taking Self-Determination Seriously: When Can Cultural and Political Minorities Control Their Own Fate?

I. INTRODUCTION In the late 1980s, Iraqi warplanes dropped chemical weapons on Kurdish villages, causing thousands of civilian deaths. The international community took no significant steps to punish this action; in fact, countries continued to supply Iraq with weapons. This inaction stands in stark contrast to the international response to Iraq's invasion of Kuwait a few years later. The international community took no action against Iraq for gassing Kurds because most countries regarded the action as an "internal matter" rather than a violation of international law. Whether international law could prevent or punish mass murder of minorities is the question that this Development seeks to answer. One possible way to bring mass murder under international law is to abandon the principle of territorial sovereignty, that is, the idea that the "internal matters" of a state are subject only to the national laws of that state. This idea is commonly traced back to the Treaty of Westphalia of 1648, which ended the Thirty Years War. Alleged mistreatment of religious minorities had been put forth as sufficient justification for one country to invade another, but the Treaty of Westphalia decreed that how governments treat their own subjects would be regarded under international law as an internal matter.1 The doctrine of national sovereignty remains a cornerstone of international law. The UN Charter Chapter 1 (Purposes and Principles) declares: "[njothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter."2 Regardless of the practical arguments in favor of abandoning the Westphalian principle of national sovereignty, it is safe to say that such a change would be a radical departure from existing and long-standing precedents of international law. This Development seeks to demonstrate that existing provisions of international law regarding self-determination (especially as that concept has developed just in the last few years) already contain a framework for preventing the mass murder of minority groups. II. SELF-DETERMINATION IN INTERNATIONAL LAW The United Nations Charter declares that one of the fundamental purposes of the United Nations is to "develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples."3 Moreover, the International Covenant on Civil and Political Rights ("ICCPR") begins with the declaration, "[a] 11 peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development."4 The ICCPR goes on to declare that the "[sjtates Parties to the present Covenant. . . shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations."5 Thus, the idea of "self-determination of peoples" is a fundamental principle of international law.6 Despite the fact that self-determination has been a basic concept of international law for decades, until recently, preserving the territorial integrity of existing states took precedence. In the last decade, however, the international community has sanctioned the independence of minority groups within previously existing states as a method of resolving conflict and oppression. A weakness, however, is that a minority group's right to self-determination appears to receive little or no support from the international community until a genocide or ethnic cleansing is well under way. This Development concludes that if the right to self-determination is going to serve its purpose of preventing conflict, it must be an inherent right of cultural and political minorities before persecution begins, not after. …