Independent Kurdistan A legal opinion
Shwan Salam
The Kurds are the largest stateless ethic group in the world currently. Divided into four
pieces by the Treaty of Lausanne in 1923, Kurds have been subject to alienation, genocide
and oppression by colonial powers. However Kurds have been able to maintain their
identity amidst all the hardships and have become a beacon of peaceful co-existence in the
Middle East. The Kurds in Iraq were able to achieve a federal government after the fall of
the blood-thirsty Baath regime in 2004 and now intend to hold a referendum on the 25th of
September for independence. Statehood or becoming a state is a complex matter and
political, social, economic and legal considerations need to be made. This column will
concentrate on the legal aspect of becoming a state and gaining recognition from the
international community. There are a very few branches of international law which are of
greater significance for the law of nations then the recognition of states.
Firstly, Declare Independence.
A declaration of independence is a unilateral decision made by the aspiring state and is a
formal process recognized and accepted by international law. The International Court of
Justice in 2010 held that unilateral declaration of independence is not illegal under
international law. There are many examples of unilateral declaration of independence,
some have been recognized by the international community and some have not.
1776 United States Great Britain
1898 Philippines Spain
1912 Albania Ottoman Empire
1919 Irish Republic United Kingdom
1922 Egypt United Kingdom
Republic of the
1960 Katanga
Congo
1965 Rhodesia United Kingdom
1967 Anguilla United Kingdom
1967 Biafra Nigeria
1971 Bangladesh Pakistan
1975 Cabinda Angola
1983 Northern Cyprus Cyprus
1988 Palestine Israel
1990 Transnistria Moldova
1991 Somaliland Somalia
1991 Croatia Yugoslavia
1991 Slovenia Yugoslavia
Republic of
1991 Russia
Ichkeria
Nagorno-
1991 Azerbaijan
Karabakh
1991 South Ossetia Georgia
1999 Abkhazia Georgia
2008 Kosovo Serbia
2014 Crimea Ukraine
Secondly, get international recognition!!
Traditionally there are two theories on the recognition of a state; declarative and
constitutive. The Declarative Theory states that a country declares itself a country or is
declared a country once it has achieved certain criteria. The Montevideo Convention of was
signed by 19 countries. Although this is by no means a majority of countries, the guidelines
set forth in the convention have served as de facto requirements to become a nation.
These requirements are:
a ) a permanent population;
b ) a defined territory;
c ) government; and
d) capacity to enter into relations with the other states.
These requirements seem to make sense; they allow a nation to exist physically and
politically. Despite many nations having signed this document, it is by no means a list of
necessities set in stone. However, these four points are often sought by prospective
countries as goals toward statehood.
The constitutive theory which is recent times seems to have become the norm, argues that
recognition by current states is necessary before a nation may be considered such. Many of
these nations wish to reserve the privilege of nationhood to those nations which gain
recognition by other nations, often as political allies.
Luckily for aspiring nations however, there is no universal agreement on how to become a
nation and because of a lack thereof becoming a nation is all in their own beliefs. That is, a
nation becomes a nation when it believes it is a nation, not because of meeting criteria or
because others believe it is a nation.
Recognition by the international community as a state allows the aspiring state to enjoy a
vast array of privileges. But most importantly the aspiring state becomes a co-partner in
the international community and is afforded all the rights under international law. On the
flip-side non recognition doesnt occur too often in state practice. This is because deeming a
regime as an outlaw not only deprives them of their privileges under international law, but
it also has the undesirable consequence that it cannot be called upon to fulfill its
international obligations and responsibilities. Thus non-recognition is only an option if the
unreliability of the new state as a partner in the community is so serious that the
community refrains from allowing its integration.
Application into the United Nations
The aspiring country needs to send an application letter to the Sectary General along with a
letter declaring that it will follow the UN charter. Article 4 of the charter sets the guidelines
for any application:
Membership in the United Nations is open to all other peace-loving states which
accept the obligations contained in the present Charter and, in the judgment of the
Organization, are able and willing to carry out these obligations.
The application is then considered by the Security Council, where it must get the
affirmative votes of at least nine of the 15-member Council.
If approved, the Council's recommendation for admission is then presented to the General
Assembly for consideration, a two thirds majority must approve the recommendation for
admission into the UN.
Final Thoughts
Recent rejection in the media by so called Kurdish Allies using the term a unified Iraq is a
stronger Iraq provides great ambiguity. If it was the intention of the allied forces to create
a stronger Iraq when they occupied the country in 2003, then they have failed epically.
Saddam Husseins regime politically, economically and in terms of its military was the
height of Iraqs strength. If however it was their will to create a democratic Iraq, then the
will of the people must be heard and respected. Ultimately based on everything discussed,
what seems most necessary for the creation of a nation resides with the creators of that
nation and its citizens, not with anyone else.
