- - Wednesday, July 26, 2017

Two hundred and forty-one years ago this month our Founding Fathers declared America’s independence. When they debated the issue, they could not agree on whether the colonies were prepared to be self-sufficient, their internal differences could be resolved, or if they were even ready to withstand the challenges of foreign powers. But they knew they had a compelling legal and moral basis for separating from Great Britain. It was rooted in the principle that governments must derive “their just powers from the consent of the governed,” as Thomas Jefferson wrote.

On June 7, Iraq’s Kurdistan Regional Government (KRG) announced plans to hold a referendum on independence across the already semi-autonomous region. The referendum will be a milestone in the more than 100 year struggle of Kurds living in Iraq under governments they did not choose and which at times delivered such violence, oppression and indignity upon the Kurdish population that they make the American colonists’ list of grievances against Great Britain seem trivial.

The referendum is merely a first step on the path to independence and, should it pass, will not automatically signify creation of a new state. It is, however, a momentous exercise of the universal right of self-determination — a right that flowered in the audacious actions of our Founding Fathers in 1776. The Kurds are on solid legal footing as they take this step.

The analysis of whether a territory such as the Kurdistan Region may seek independence must begin, but not end, with the law of the governing country. Iraq’s 2005 Constitution explicitly recognizes the Kurdistan Region as a semi-autonomous region, but is silent on a process for secession. We must therefore look to international law. Self-determination — defined as the process by which a country determines its own statehood and forms its own allegiances and government — is enshrined as a fundamental right under international law by the United Nations Charter.

Article 1 of the Montevideo Convention sets out the most widely accepted formulation of the criteria for statehood under international law. It provides that states should possess the following characteristics: 1) a permanent population, 2) a defined territory, 3) a government, and 4) capacity to enter into relations with other states. Because the Kurdistan Region has been functionally separate from the rest of Iraq since 1991 and legally recognized as a semi-autonomous region with its own government since at least the ratification of Iraq’s 2005 Constitution, it had a head start on meeting each of these criteria. In many ways, it has already satisfied them.

It is worth reviewing each. Unlike some independence movements, the Kurds in Iraq have a permanent population that is demonstrably different from the rest of Iraq. They are a separate ethnicity with their own language and culture. This has made them a target for oppression, but the area they occupy in southwest Asia has been their home for more than 1,000 years. The territory is defined with reference to the three traditional Iraqi provinces that make up the region, Erbil, Dohuk and Sulaymaniyah. There are also “disputed territories,” on the boundary which include large parts of a fourth province, Kirkuk, whose status needs to be negotiated in the future. But as a base, there is a defined area where Kurds live and which is administered by the KRG.

The KRG developed as a legitimate government over the 27 years since the first Gulf War. It is elected, has separate branches of government, an independent judiciary, its own parliament and other institutions, which though in need of further maturity and transparency, already provide for the basic needs of the people. The KRG has also carved out a highly safe and tolerant area in an otherwise violent country. There is almost no aspect of life in Kurdistan that is touched by the central government of Iraq anymore. Finally, with respect to the capacity to enter into relations with other countries, Kurdistan already engages in diplomacy and foreign relations, has representative offices in 14 countries, and there are 35 foreign countries with consulates or embassy offices in Kurdistan’s capital, Erbil.

In addition to the legitimacy of the group’s claim to statehood (i.e., does the seceding population meet the Montevideo Convention qualifications), it will take actual recognition of Kurdistan’s independence by other countries for Kurdistan to be treated as a sovereign state. Thus far, a few have already indicated they would recognize it as independent. These include Saudi Arabia, United Arab Emirates, Hungary and Israel. More countries, including some in Europe, have expressed general support for the principle of self-determination in Kurdistan, but have not yet indicated they would recognize its independence. Other nations oppose the referendum and any expression whatsoever of self-determination for Kurdistan. These include Kurdistan’s neighbors: Iran, Turkey and Syria. The views of these countries should be taken into account, but legal scholars would be hard-pressed to find a basis under international law to oppose self-determination for Kurds in Iraq because of issues Kurdistan’s neighbors face in their own countries. Other opponents argue Kurdistan is not ready to be independent and its internal political struggles indicate it cannot govern itself. These are all arguments that our Founding Fathers confronted and, obviously overcame, as they stood on the precipice of declaring independence in America.

The referendum will likely pass overwhelmingly. The KRG has indicated if it does, it will begin negotiations for independence. It has already initiated these discussions with Baghdad. The dialogue will become more intense after the referendum, but there is some possibility to negotiate secession on a timetable comfortable for both Baghdad and Kurdistan.

Whether Kurdistan will ultimately be successful in becoming independent depends on multiple factors, some political, but it has already demonstrated it fulfills the criteria for statehood under international law.

David Tafuri is an international lawyer and an adviser and legal counsel to the KRG. Follow @DavidTafuri

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