On 15 September 2017, the Iraqi Kurdish parliament voted to hold an independence referendum in Iraq’s autonomous Kurdistan region, and today, that referendum is taking place. Western and regional powers ― including Baghdad, Turkey, Iran, United States and the EU― have expressed their opposition to the referendum because they believe that the referendum would detract from the fight against the Islamic State group. In this regard, the question is whether the Kurdistan Regional Government (KRG) can invoke the right of self-determination by holding a referendum, and under which conditions the referendum could be legitimate.
The struggle for Iraqi Kurdish independence has been long. After the fall of Iraqi dictator Saddam Hussein in 2003, the Iraqi Constitution, ratified in 2005, recognized an autonomous Kurdistan region in Northern Iraq, run by the KRG. Kurdistan is constituted of three regions: Erbil, Dohuk and Sulaymaniyah. The new Constitution was the first democratic, secular and federal system in Iraqi political history. It provided that Kurdish minorities would be able to maintain their political, economic and social rights and interests in their own autonomous region, which shared power with the central government in Baghdad.
Under the Shi’ite authorities’ rule from 2006 to 2014, the political position of the KRG was increasingly undermined by the central government, under the administration of Nouri al-Maliki. In early 2014 the central government, in violation of Article 109 of the new Constitution, decided to deny the KRG proceeds from their oil and gas resources, which amounted to 17 % of Iraq’s national budget, and almost the entirety of the KRG budget. Baghdad had hoped this move would increase its control over the KRG. It is this sort of treatment which has pushed the Kurdish people to seek independence.
The independence referendum will be held in Iraqi Kurdistan and the disputed territories such as the oil-rich city of Kirkuk, which is under the control of the Kurdish Peshmerga forces. In disputed territories, only Kurdish people will have a vote. The question will be whether Iraqi Kurdistan should become independent. The outcome of the referendum will not be binding: it will merely give the KRG more ground to demand separate statehood in northern Iraq.
What is the international legal position? According to Article 1(1) of the International Covenant on Civil and Political Rights, all peoples have the right of self-determination, the right to freely determine their political status and pursue their economic, social and cultural development. The importance of the right of self-determination is affirmed in Article 1 of the UN Charter, as one of the purposes of the UN.
So, would Kurdistan be able to secede as a matter of international law? The right to self-determination would only seem to permit this in cases of political oppression and large-scale violations of the human rights of people or groups. The right to self-determination allows dependent peoples to claim independence from their former masters where there are widespread human rights violations and political discrimination.
In this regard, the cutting of the entire budget of the autonomous region of Kurdistan by the central government of Iraq could be considered a violation of the fundamental human rights of the Kurdish people, denying them political power in the country and their own regional government. It seems likely that after the constitutional violations of the central government, the Kurdish people have right to hold a referendum as part of the fundamental right to self-determination. However, since not everyone in Iraqi Kurdistan is Kurdish, the legality of the referendum under international law depends on the participation of all of the residents in the voting process. In other words, the independence of the Kurdistan region must be a decision of everyone in the region. The referendum has already been boycotted by all Arab and Turkmen members of the Kirkuk Provincial Council. Therefore, it seems that the referendum will be held only with the participation of a part of people, not the whole of it. In addition, non-Kurdish people will not be entitled to vote in the disputed territories. This leaves the legal position of the vote, and possible Kurdish independence, very unclear.