The Aspirations for Independence by the Kurdish Autonomous Region of Iraq
This advisory letter is intended to identify the relevant legal standards and principles and to use them to outline the applicable legal framework within which political considerations and choices must be made, for instance in relation to the Kurdish Autonomous Region (KAR) of Iraq. The advisory letter covers three sub-topics:
- the substance and role of the Montevideo criteria;
- the role of the right of self-determination;
- the legality of a possible unilateral secession and the role and legal implications of recognition by other states.
The CAVV notes that the process by which a state is created must not be accompanied by violations of fundamental principles of international law. The only possible basis under international law for a unilateral secession from Iraq by the KAR would be the exercise of the right of self-determination by the Kurdish population in Iraq.
Recognition by other states is not a constitutive requirement for the creation of a state. There is no international law obligation to recognise an entity as a state if it fulfils the Montevideo criteria, even if the population can be regarded as a people that is lawfully exercising its right of self-determination. If the creation of a new state is accompanied by violations of peremptory norms of international law (jus cogens), there is an obligation of non-recognition.