The Kurdistan Independence Referendum and Constitutional Self-Determination

Iraq’s Kurdistan Regional Government (KRG) held a non-binding independence referendum on 25 September 2017. Voters were asked: ‘Do you want the Kurdistan Region and the Kurdistani areas outside the region’s administration to become an independent state?’ Voting occurred in Kirkuk and the Kurdish-controlled parts of other territories in northern Iraq whose disputed status is recognized in the Iraqi constitution. In retrospect, Kurdish leaders seem to have overreached politically, as the Iraqi armed forces and allied militias have in recent days seized Kirkuk Governorate from Kurdish control. But was it legal overreach?

Drawing from the Quebec secession case, Martin Scheinin recently argued in the Catalan context that it is always lawful for a group peaceably to ‘come forward with claims of peoplehood, self-determination and secession,’ and to design modalities for internal consultation, including a referendum. Presentation of that claim obligates the existing state to act in good faith, an obligation it violates by declaring its constitution ‘a non-negotiable bar’ to concessions or even negotiations. With respect to İlker Gökhan Şen’s thoughtful analysis of the Kurdistan referendum, which he finds ultra vires under the Iraqi constitution and groundless under international law, I agree with Scheinin on these points.

Thus the question: assuming the referendum was lawful within the present boundaries of the Kurdistan Region, was it also lawful with respect to the disputed territories?

Considering this question may strike of putting the cart before the horse. Anne Peters has argued convincingly that the question of boundaries arises only once independence has been obtained, and as such, uti possidetis is agnostic on the legal grounds of statehood. In that view, there is no clear reason why an expressly non-binding (i.e ...

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