The 25th of September, 2017 marked one of the most historical events in the contemporary Middle East. The Kurds, an ethnic minority group in the north of Iraq, held a referendum to secede from Iraq, citing the federal democratic government’s failure to protect their rights as citizens, genocide and racial oppression as reasons. While the Kurds, who overwhelmingly voted in favor of secession viewed this referendum as a legitimate action, critics of the referendum argued that it overstepped the right of self-determination, and was unjustified by both the Constitution of Iraq and principles of international law. This article aims to analyze the legality of the arguments put forward by the Kurds to justify the referendum in the context of the Constitution of Iraq, and the international law on self-determination.
The autonomous territory of the Kurds is governed by the Kurdistan Regional Government (KRG), which, according to Article 117 of the Iraqi Constitution, is a ‘region’ or a federal unit. This provision further recognises the legal autonomy of the Kurdish region, and upholds the validity of any legislation, court decisions and contracts of Kurdistan, unless the same has been annulled by the Kurdish government through any subsequent laws. These, further, should not contradict the Iraqi Constitution.
Like most nations’ Constitutions, the Iraqi Constitution does not confer upon any region the right to secede from the Iraqi union. Even though territorial integrity, an important principle of the law against secession, is not explicitly mentioned in the constitution, principles such as ‘unity of Iraq’, ‘full sovereignty’ and the ‘supremacy of the Constitution as a guarantor of unity of Iraq’ as mentioned in Article 1 of the constitution show its implicit recognition. Nonetheless, the Kurds have tried to justify the constitutional validity of the referendum on three main grounds.
Firstly, they have argued that the perambulatory clause to the Constitution, which states that Iraq is a ‘free union of people’ shows the voluntary nature of the union and grants its constituting members the right to secede anytime from Iraq. However, this interpretation, which implies the fully autonomous nature of Kurdistan, is fundamentally flawed. This is because Article 117 of the same Constitution clearly provides that Kurdistan is a semi-autonomous region under the Iraqi government.
The second ground which the Kurds have relied on to justify their legal claim of secession is Article 140 of the Iraqi constitution, which permits referendums to be held in conflict-ridden regions ‘to determine the will of the citizens’. They argue that the sustained conflicts between the ethnic Kurds and Iraq permits invoking this provision. This argument however also lacks merit because though Article 140 provides for referendums to decide the free will of the citizens, it only applies to conflict ridden areas such as Kirkuk. Even in those areas, referendums are permitted only to determine whether the citizens of such regions would live in the KRG or Iraq. Such a provision which provides for internal self-determination cannot be extended to the KRG as a whole for its unilateral self-determination.
Lastly, the Kurds have argued that the right to manage internal affairs is not a federal function, and therefore the regional government has the right to hold a referendum for self-determination without federal involvement by virtue of Article 115. This provision provides that in the case of a conflict between the central law and a regional law, the regional law would take precedence. The KRG passed a law in 1992 legalising such unilateral referendums, and therefore claims that the referendum is valid. However, as any law under Article 115 is subject to the fundamental limitation of being in accordance with (and not contradicting) the Iraqi constitution, this law which contradicts the territorial integrity of Iraq would be invalid.
While it has been established that the referendum cannot be justified based on the Iraqi constitution, it remains to be considered whether the international law on self-determination can provide a justification.
The right of self-determination in international law is primarily sourced from the Declaration on the Granting of Independence to Colonial Countries and Peoples, and has been recognised under Article 2 of the ICCPR and Article 1 of the ICESR. While these provisions expressly recognise the right of people to freely determine their political status and pursue their economic, social and cultural development, this recognition is in the context of trust and non-self-governing territories, and the same cannot be exercised in contravention to any principle recognized in the UN Charter.
While the Kurds claim that they have been victims of sustained political exploitation and ‘colonial imposition’, Kurdistan is not a trust or a non-self-governing territory under Iraq for these provisions to apply. Further any such unilateral measure would necessarily violate the territorial integrity of Iraq, a fundamental principle recognized by the UN Charter.
However, scholars now recognize another ground for unilateral secession, in the form of ‘remedial secession’, which recognizes the right of unilateral secession in cases where people have been subject to extreme persecution, or have been denied the internal exercise of the right of self-determination. While this right has not been recognized as a principle of customary international law, there is sufficient opinio juris and state practice to suggest that it is a developing custom.
This recognition of remedial secession as opinio juris comes from the unanimous adoption of the Declaration on the Friendly Relations, which, while reiterating the principles of territorial integrity, stated that the same can be ignored if the states are not in compliance with the principle of equal rights and self-determination of peoples. This declaration has been viewed as the ‘most authoritative expression of the scope and meaning of basic principles of international law’, and its unanimous adoption is seen as the development of an ‘instant custom’.
Further, there are also various judicial decisions which serve as proof of an existing or shaping state practice regarding remedial secession. For example, in the Aaland Islands matter, the Commission of Rapporteurs in the League of Nations, despite thoroughly discouraging secession, provided legal space for a group to secede under extraordinary circumstances, such as when the state lacks the will or the power to protect the group at issue. Other instances of state practice can be seen in cases such as the secession of Quebec, and the unilateral declaration of Kosovo.
This principle may provide a legitimate ground for Kurdish independence, as the Kurds, with their distinct ethnic and racial identity would constitute a ‘people’ under international law, who claim to have been subjected to systematic oppression based on ethnicity.
However, as seen from the government’s official statement, even though the Kurds have mentioned genocide and racial oppression as grounds for secession, these claims are largely unsubstantiated and lack any legal backing. Their claim for secession is also based on the administrative failure of the Iraqi government in ensuring the rights of citizens.
Invoking remedial secession however requires a higher threshold than that of administrative failure. In the ICJ’s Advisory Opinion on Legality of the Unilateral Declaration of Kosovo, there appeared to be unanimous consensus among the states that accepted the legal validity of remedial secession that the right can be invoked only in exceptional circumstances, involving serious claims such as sustained human rights violations. The ICJ too followed a similar ratio in the Advisory Opinion, and, despite not commenting on the concept of remedial secession, recognized Kosovo’s referendum as being legally valid on account of various instances of Human rights violations by the Serb government.
The Kosovo Advisory Opinion provides the strongest precedent yet for a possible right of remedial secession, as the ICJ for the first time recognized the right of people to secede unilaterally under exceptional circumstances, such as sustained human rights violations. As mere administrative failure does not fulfill such a high threshold, the only way for the KRG to possibly invoke remedial secession would be to substantiate on their claims of genocide and racial oppression. Unless this is done, it is highly unlikely that their secession, would receive any legal recognition.