Kurdistan’s distinct case for its constitutional secession from Iraq is elaborated here. It complements its case under international law: Kurdistan has been de facto an independent state since 1991; it meets all the criteria for statehood in the Montevideo convention; and it has a right to self-determination under the UN Charter.
In 2005 Kurdistan formed a voluntary union with Iraq, in which limited powers were granted to the federal government. The provisions of this voluntary union were ratified by referendum in October 2005. A voluntary union may be rightly voluntarily dissolved when one party has failed to fulfill its obligations. Iraq’s Constitution deliberately does not define its territory, render the union permanent, or prohibit secession.
Kurdistan retained its sovereign status in joining the voluntary union, and its commitment to being part of Iraq was conditional on the constitution being honored. As this text demonstrates, Iraq’s violations of the Constitution are extensive. No less than 55 of its 144 Articles have been violated, and a further twelve have not been fulfilled or implemented (see Appendix 1). Therefore, just less than half of the articles have either been violated or are unfulfilled. These failures are persistent and deliberate; they cannot be excused by the presence of insurgencies.
The referendum to be held on September 25 2017 is constitutional, and also lawful under Kurdistan’s own legislation. The federal government has no exclusive powers over referendums (see Appendix 2). Therefore, in this domain regions have legal supremacy (see Articles 115 and 121(2) of Iraq’s Constitution). That Constitution is supposed to respect Kurdistan’s laws since 1992. Therefore, claims that the referendum is unconstitutional and unlawful are without merit.
Iraq has failed to be established as a federation. Twelve years after its constitution was ratified there is no second chamber to protect the rights of regions and governorates. There is no Supreme Court, as per Article 92 (2), so there is no body with constitutional standing to adjudicate disputes. Without a federal second chamber and without a valid federal supreme court Iraq is not a federation; it is a Shiite Arab sectarian and majoritarian state outside of Kurdistan, and aspires to rescind Kurdistan’s rights and powers. There is therefore a federal government in name only.
The Baghdad government has consistently, unconstitutionally, and unlawfully blocked the efforts of governorates elsewhere in Iraq to become regions: that has been the fate of six of Iraq’s eighteen governorates. It has deliberately blocked the implementation of Article 140 that made provision for a referendum in Kirkuk and the disputed territories enabling these places to reunify with Kurdistan by democratic means. That Article was time-tabled for completion by December 2007.
The independent public bodies envisaged by the Constitution have either been suborned or have not been established; and those that have been established have operated in violation of Kurdistan’s rights, notably Article 4, in which Kurdish is supposed to be one of the two official languages of Iraq. Similarly, the flag of Iraq has not been re-designed to symbolize all the components of the federation. The currency, for example, is issued in Arabic and English, but Kurdish is not included.
The Baghdad government has violated the constitutional bargain that accepted that Kurdistan had constitutional ownership and control over its own oil and gas, and has refused to accept the limitations placed on the role of the federal government regarding natural resources, as specified in Articles 110, 111 and 112. It has acted as if Saddam’s laws are still valid.
The Baghdad government has never paid Kurdistan its constitutionally mandated portion of oil and gas revenues from fields in production before October 2005, arbitrarily deducting ‘federal expenses,’ without appropriate law or audit. Since 2014 it has completely stopped making any such payments. While the Baghdad government paid toward salaries and services in ISIS-occupied Mosul, it refused to make any payments toward its alleged federal partner, Kurdistan.
No federal government can be worthy of the name if it fails to protect all its citizens and territories equally. The federal Iraqi army miserably failed to protect Christian, Yazidi and Kurdish citizens from genocidal assaults by ISIS, and the Iraqi government followed this devastating failure of duty by refusing to facilitate the appropriate resourcing of the Peshmerga, who are the constitutionally established regional guards of Kurdistan (see Articles 121 (5) and 141). While refusing to recognize and compensate the Peshmerga the Iraqi authorities have allowed numerous Shiite militias to flourish in flagrant violation of Article 9 of the Constitution. The official Army has also ceased to be representative of Iraq.
The democratic as well as the federal principles of the Constitution have been systematically violated. The rights of women and the rights of religious minorities have been regularly undermined. The rule of law and respect for due process are rendered incredible by gross human rights abuses by militias who operate with impunity. In particular, the rights of nationalities and other minorities have never been upheld in accordance with Articles 14 and 125 of the Constitution. Hundreds of thousands of IDPs currently have refuge in Kurdistan, unsupported by the federal government which has failed to protect their lives or livelihoods.
The promise of power-sharing arrangements within federal institutions has been broken by successive prime ministers’ usurpation of authority, at the expense of the Council of Ministers, and of the Council of Representatives. The sole transitional provisions of the Constitution to have been implemented have been those that allowed for the powers of the Presidency Council to disappear. The operation of electoral laws and of coalition agreements have simply confirmed Kurdistan’s judgment that neither pluralist democracy nor federalism can be expected from any Baghdad government.
This referendum will enable the people of Kurdistan and those in Kirkuk and the disputed territories to express their democratic right to dissolve the Constitution of 2005, which has been irreparably damaged.