The Kurdish Referendum – Is it Legal?

09/15/2017 02:44 pm ET

Co-authored by Margaux J. Day

Kurdistan plans to hold a referendum on September 25, 2017 to determine whether its people would like Kurdistan to become an independent state. Iraq objects to the referendum.

A number of commentators have addressed the question of whether or not Kurdistan has a right to become an independent state, as well as the legitimacy of its political claims against Iraq. This article addresses the question of whether Kurdistan is prohibited by international law from holding its referendum and from declaring independence, and the significance of Iraq’s objection to the referendum.

Is the Kurdish Referendum prohibited by international law?

The question of whether sub-state entities may declare independence was directly addressed by the International Court of Justice in its Kosovo Advisory Opinion. In 2008, the Kosovo provisional government unilaterally declared independence. Serbia objected that this violated international law. At Serbia’s request, the UN General Assembly referred the question to the International Court of Justice. The International Court of Justice rendered its advisory opinion two years later in 2010.

The Court held that “general international law contains no applicable prohibition of declarations of independence.” More specifically, the Court determined that Kosovo’s unilateral declaration of independence from Serbia did not violate international law.

The Court’s reasoning was based first on a review of state practice between the eighteenth and twentieth centuries, which revealed no prohibition on unilateral declarations of independence.

Second, the Court did find that a sub-state entity’s declaration of independence might not comply with international law in the narrow circumstance of when a UN Security Council resolution or other lex specialis forbids it. For example, UN Security Council resolutions expressly denied the legality of declarations of independence by Southern Rhodesia, Cyprus, and the Republic of Srpska. In the case of Kurdistan, there is no such resolution or lex specialis.

Third, and most importantly, the Court determined that the principle of territorial integrity “is confined to the sphere of relations between States” and thus does not prohibit a sub-state entity’s ability to declare independence.

While the Court’s decision was regarding a declaration of independence, given that the Kurdish referendum is a prelude to a declaration of independence, it would be covered by the same legal rationale. In fact, a dissenting opinion in the Kosovo case argued that it would have been preferable for Kosovo to hold a referendum to assess the will of the people prior to its declaration of independence.

What is the significance of Iraq’s objection?

Over the past century, a surprising number of sub-state entities have held independence-related referenda. Between 1905 and 1991, 52 sub-state entities held independence-related referenda. Since 1991, 53 independence-related referenda have been held, for a total of 105. In addition to Kurdistan’s, there are three referenda scheduled to happen by the end of 2019 (Catalonia, New Caledonia, Bougainville).

Of the 53 referenda since 1991, 26 were without consent of the national state. Interestingly, a number of sub-state entities that held independence referenda without the consent of the national states did in fact eventually become independent states. For instance, all of the states that were formerly members of the Soviet Union held independence referenda without the consent of the Soviet Union, and the Soviet Union initially objected to their subsequent declarations of independence. They are all now independent states.

Similarly, four of the states that were formerly members of Yugoslavia held independence referenda over the objection of Yugoslavia. They are all now independent states. And in the case of Kosovo, to date, 111 states recognize Kosovo as an independent state, over the continuing objection of Serbia.

In the event that the outcome of the referendum is in favor of independence, the next steps include negotiations with Baghdad, and if Kurdistan continues to pursue independence after those negotiations, there would be an assessment of whether Kurdistan meets the criteria of statehood under international law, and a process of seeking recognition of that statehood by the international community. As Kurdistan moves through this process, it is important to bear in mind that contrary to the prevailing public commentary, Kurdistan’s initial step of holding an independence referendum is not inconsistent with international law.

Dr. Paul Williams holds the Rebecca I. Grazier Professorship in Law and International Relations at American University and is the co-founder of the Public International Law & Policy Group (PILPG). He is a leading world expert in peace negotiations, post-conflict constitution drafting, and war crimes prosecution. In the course of his career he has assisted in over two dozen peace negotiations and post conflict constitutions.

Margaux J. Day is Senior Counsel at Public International Law & Policy Group, where she works on matters in Iraq, Sudan, Syria, and Yemen. Ms. Day previously was the Deputy Chief Compliance Officer of Diebold Nixdorf, an Associate at the law firm of Jones Day, and an Adjunct Professor at Case Western Reserve University School of Law. She earned her juris doctorate from Case Western Reserve University School of Law.

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