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By Mufid Abdulla:
Part 1 of a three-part study
Introduction
For the last two decades Kurdish nationalism has remained more alive than at any other time in the history of the Kurdish struggle. Strategies to establish our own country have never been far away. The slogan of an independent Kurdish state has never been relinquished.
More than a century ago, Sheik Ubadulla Shamzini’s uprising spread throughout Kurdistan – comprising, Iranian Kurdistan and Ottoman Kurdistan – encompassing the region in 1880. Most Kurdish historians have analysed this as one of the most powerful uprisings. Sheik Ubadulla Shamzini demanded the formation of a Kurdish state. The slogan of independence for the Arabs came later – around 1916, from the Sharif of Mecca – and with the help of the British. Even though the Arab nation held a conference in Paris they only managed to raise the slogan of decentralisation rather than independence. The first Kurdish newspaper – ‘Kurdistan’, published in Cairo in 1898 – had as its main slogan, ‘an independent Kurdistan, and nothing less’. The content of all its articles adopted this principle.
Hadji Kadir Coie , the famous Kurdish poet, always advocated Kurdish rule, and independence for Kurdistan (he died in Istanbul in1897). Most of the time his poetry spoke about a Kurdish state. In 1922 Sheik Mehmood created a Southern State of Kurdistan, and for the first time we had our own stamps and a Kurdish cabinet. When Sheik Mehmood declared an independent Kurdistan he was sitting next to Captain Noel, the British representative. In 1919, at the peace conference , Sharif Pasha gave a detailed report about Kurdish independence to the Alliance Powers.The Pact of Sever had chapters and sections (62.63,64) devoted to Kurdish independence, which has never been implemented.
Qazi Mohamed formally proclaimed his Kurdish people’s government on January 22, 1946 in Chwar Chira square, where the town’s only two paved streets crossed. In attendance, as he raised the Kurdish flag, were Iranian tribal chiefs, KDP officials, three Soviet officers in a jeep with machine guns, and Barzani, soon to be seen decked out in a Soviet general’s uniform, with high boots and stiff shoulder straps.
We need to understand the concept of state, law, the regulations behind the state and national powers, and to analyse international law underpinning the nation state. Finally, to enrich our essay we will consider vivid examples of newly-built nation states throughout history.
The State – definitions
A state is a set of institutions that possess the authority to make the rules that govern the people – having internal and external sovereignty over a definite territory. According to Max Weber’s influential definition, ‘a state has a monopoly on legitimate violence‘. Hence the state includes such institutions as the armed forces, civil service or state bureaucracy, courts, and police. The actions of private justice or of private corporate armies, both characteristic of feudalism, are in the modern world the symptoms of a ‘failed state’. For theorists of international relations, recognition of the state’s claim to independence by other states, enabling it to enter into international engagements, is key to the establishment of its sovereignty.
Although the term often refers broadly to all institutions of government or rule – ancient and modern – the modern state system bears a number of characteristics that were first consolidated in western Europe, beginning in earnest in the 15th century. In the late 20th century, the globalisation of the world economy, the mobility of people and capital, and the rise of many international institutions all combined to circumscribe the freedom of action of states. However, the state remains the basic political unit of the world, as it has been since the 16th Century. The state is therefore considered the most central concept in the study of politics, and its definition is the subject of intense scholarly debate. Political sociologists in the tradition of both Karl Marx and Max Weber usually favour a broad definition that draws attention to the role of the coercive apparatus.
Since the late 19th century, the entirety of the world’s inhabitable land has been parcelled up into states: earlier, quite large land areas had been either unclaimed or uninhabited, or inhabited by nomadic peoples who were not organised as a state. Currently more than 200 states comprise the international community, with the vast majority of them represented in the United Nations. In casual usage, the terms ‘country’, ‘nation’ and ‘state’ are often used as if they were synonymous: but in a more strict usage they are distinguished.
In the socialist schools of thought, the state is a special organization of force: it is an organisation of violence for the suppression of some class. The exploiting classes need political rule to maintain exploitation, in the selfish interests of an insignificant minority against the vast majority of people. The exploited classes need political rule in order to completely abolish all exploitation. The proletariat needs state power, a centralised organisation of force, an organisation of violence, both to crush the resistance of the exploiters and to lead the enormous mass of the population -the peasants, petty bourgeoisie, and semi-proletarians – in the work of organising a socialist economy.
‘Country’ is the geographical area. ‘Nation’ designates a people. However, nationally and internationally there is confusion pertaining to what defines a state. In international law, ‘state’ refers to a set of governing institutions with sovereignty over a definite territory.
Legalities
The term ‘state’ has several meanings in law:
- In private international law and conflict of laws, the state can refer to a well defined jurisdiction, with its own set of laws and courts. This jurisdiction may either be a sovereign, independent state, or a part (state, province, territory, etc) of such a state.
- In public international law, the state most commonly refers to a sovereign state, which is the direct subject of international law.
Every ‘state’ within meaning (2) above is a state. Within meaning (1) above, the reverse does not hold. For example, the United States is a state under both definitions, but California is a state only under the first.
This study is primarily about the first definition:
For the purposes of public international law and private international law, a state is a defined group of people, living within defined territorial boundaries and more or less subject to an autonomous legal system exercising jurisdiction through properly constituted courts. The usage of the term state rather than nation and country, refers unambiguously to the legal government of a territory, rather than to its people or culture. However, the term ‘country’ is still sometimes used in this way.
The civilized portion of the earth is divided up into certain units of territory in each of which a particular law proper to that territory alone prevails, and that territory is for legal purposes a unit. What determines the state? It has been seen that the existence of separate legal units within the dominions of a single sovereign state is, in fact, the result of historical accidents. The use of the word state for this purpose is not universally accepted .Some countries and individual authors use country, territorial unit, law unit or law district. In the Australian federation, each state and territory is a law district. The choice of law-rule may select the law of a country that contains more than one legal system. There must be rules to determine which of the several possible laws might apply.
States with more than one legal system, such as Iraq:
1. Where a state comprises several territorial units, each of which has its own rules of law in respect of contractual obligations, each territorial unit is to be considered as a country for the purposes of identifying the law applicable under this convention.
2. A state within which different territorial units have their own rules of law in respect of contractual obligations is not bound to apply this convention to conflicts solely between the laws of such units.
The state and geography, politics, economics, sociology:
For the purposes of disciplines such as geography, politics, economics and sociology, it is appropriate to consider the world as divided into countries and because it is of little significance in those disciplines, simply to add that some of these countries may be federated or otherwise divided into regions or provinces. The focus is on the broad cultural patterns of political allegiance that arise by virtue of citizenship and nationality. The so-called social contract is that the state, in its technical sense, will defend the interests of its citizens in return for the loyalty of its citizens.
The power to make law is an aspect of sovereignty, but it does not follow that the law is the same throughout a single sovereign territory. Differences may arise in two ways: (a) as new territory is added to old; or (b) as two countries are combined under a single sovereign. When new law is to be made, the sovereign may legislate for only part of the territories either because the territory has been divided into separate units – each with its own legislative bodies – or because a single legislative body limits a new law to only a portion of the territory. Public international law exists to provide a framework within which the relationship between sovereign nation states can be regulated.
Factors in the creation of a State
Law:
Law is the set of rules or norms of conduct which forbids, permits or mandates specified actions and relationships among people and organisations. The authority upon which legal rules rest and the extent to which they are formally codified varies between jurisdictions. But most legal systems profess to be engaged in an attempt to assure impartial treatment of those suspected of breaching the rules and to bring about justice. However, some argue that certain legal systems -such as those operating in dictatorships and monarchies – are inherently unjust because they afford majority power to the few. Law is typically administered through a system of courts in which judges preside. Most countries rely upon the police to enforce the law. Police officers most often must be professionally trained in law enforcement before they are permitted to act under the code law.
Civil law:
In reference to legal traditions, civil law usually means a system of law which is codified and subsequently applied and interpreted by judges.
Customary law:
Customary laws are systems of law that have evolved largely on their own within a given country and have been adapted to meet the needs of the particular culture. Note that customary law may also be relevant within jurisdictions following another legal tradition in fields or sub-fields of law where no legislative enactment exists. The only countries in the world today that use this legal system are Mongolia and Sri Lanka.
Religious law:
Many religions contain a body of law – for example, Sharia in Islam and various forms of Canon law for different denominations of Christians. In some cases these are intended purely as individual moral guidance, whereas in other cases they are intended and may be used as the basis for a country’s legal system. This can be in two ways:
- In countries such as Kurdistan, the religious code of Islam is integral to the country’s legal system. In this case civic law is the religious law .Some countries ,where the state exists as a vehicle for a religion-based culture, are known as theocracies (historically run by kings).
- In countries such as the United States, there is no national religion. However, a religious heritage and cultural background is strongly influential in the formation of a legal system.
To be continued.
