Kuwait-University-Journal-of-Law-header
Search
Journal of Law

Previous Issues

Advance Search
Year : From To Vol
Issue Discipline:
Author

Volume :19 Issue : 72 1994      Add To Cart                                                                    Download

IRAQI ALLEGATIONS AGAINST THE STATE OF KUWAIT UNDER INTERNATIONAL LAW

Auther : By: Dr. Rashid Hamad Al-Anexi

 

On August 2nd, 1990, the Iraqi troops invaded Kuwait in unprecedented aggression in the modern history of the Arab Nation. Thereafter, it advanced a claim against the sovereignty and independence of Kuwait in an attempt to justify its aggression and subsequent occupation.  Kuwait, according to the claim, was once an Iraqi Province under the Ottomans and was detached later by Great Britain.  The claim, historical in essence as it appears, raises critical questions of international law, the most important of which are state succession and recognition.

            This study is an academic attempt to analyze the validity of the claim accord to accepted rules and principles of contemporary international law in two chapters.

           Chapter One deals principally with state succession as envisaged by the Peace Treaty of Lausanne ( 1923 ).  Since the validity of the Iraqi claim depends on two propositions;  whether the Ottoman Empire had exercised sovereignty over Kuwait prior to its dismantlement following its defeat in First World War and whether Iraq was the successor (by virtue of the provisions of the Peace Treaty of Lausanne) to any authority (whatever it may be) the Ottomans may have had over Kuwait.  The relationship between the Ottoman Empire and Kuwait is discussed in this Chapter from both historical and legal perspective.  The conclusion reached is that historically Kuwait was once part of the Ottoman Empire, but just when and how are matters of considerable controversy; what may be claimed to be certain is that the relationship was normal;, being one between an Islamic Caliph and a Muslim Principality.  Such relationship is classified by international lawyers as inducing a vague form of suzerainty which is a kind of international guardship, but may not be classified as sovereignty, since sovereignty connotes an actual practice of the functions of a State.  The Agreement between Great Britain and Kuwait in 1899 severed further the already nominal relationship and the break out of First World War terminated de facto Ottoman’s relationship with Kuwait which became, then, and for all purposes, a  British Protected State.

           The Peace Treaty of Lausanne (1923) dismantled de jure the Ottoman Empire.  Nothing in the Treaty appears to give Iraq any legal title over Kuwait or any territory other than that actually under British Mandate.  Iraq was, therefore, not a successor of Turkish rights over any territory other than its own territory which had already been put under the British Mandate since 1920 pursuant to Article 22 of ht Covenant (1919) and the subsequent Agreement of San Remo (1920.  It seems, therefore, inappropriate to invoke the principles of state succession in support of the Iraqi claim to the territory of Kuwait.

           Chapter Two deals principally with the impact of recognition of States, de facto or de jure, upon the validity of the Iraqi allegations against the sovereignty of Kuwait.  Two main issues were therefore outlined: the delimitation of Iraq / Kuwait boundaries in the Exchange of Notes of 1932 and an Official Iraqi recognition of Kuwait in the Agreement of 1963.

           The delimitation of the boundaries between Iraq and Kuwait was first introduced in the Draft Treaty between Great Britain and the Ottoman Empire in 1913 and later by correspondence between the British Authorities in both Iraq and Kuwait, since Great Britain conducted international affairs of both Kuwait and Iraq; being the Mandatory Power over Iraq and the Protecting Power of Kuwait.  But when Iraq attained independence in 1932, it entered with Kuwait in an international agreement in the form of Exchange of Notes.  The Exchange of Notes of 1932 was a binding treaty between two separate states for the delimitation of their common boundaries.  It may also be considered an indication of recognition de facto according to the accepted criteria in international law and modern practice of states.  It was in fact a recognition of the right of Kuwait to exercise sovereignty within its own territory, a fact which was not challenged by Iraq except rarely; and certainly, in circumstances peculiar to domestic politics in Iraq rather than a policy towards Kuwait itself.  Consequently, after a successful coup d’etat in 1963 against Kasem’s regime (who had vowed a claim against the sovereignty of the State of Kuwait), the new regime displayed good will towards Kuwait.  The relationship between the two states was officially normalised by a memorandum of understanding between the two States in 1963.  This instrument is also considered by international lawyers as a binding international agreement.  Hence Iraq recognized de jure the existence of Kuwait with its fixed boundaries delimited by the Exchange of Notes of 1932.  As rules of International Law, pacta sunt servanda and estoppel prevent Iraq from claiming any rights over Kuwait.

           In conclusion the study reaches that the Iraqi claim against the sovereignty and independence of Kuwait was political in nature and was baseless both historically and from an international law point of view.

 

Journal of Law
Journal of Law

You are Visitor No.

75781

Journal of Law
Journal of Law
Tell your friendsJournal of Law
Journal of Law

Last Updated

May 18, 2017

Journal of Law
Journal of Law
Journal of Law

Please enter your email Here to receive our news

Journal of Law