Federalism, Secession, and International Recognition Regime

Iraqi Kurdistan

Alex Danilovich

• Publisher: Routledge
• Year: 2018
• eBook ISBN: 9780429827655
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Diplomacy & Treaties
• Index: Politics & International Relations

Federalism is widely believed to be an efficient tool to quell ethnic conflict, yet recently there has been a pronounced global tendency among ethnic minorities to break away from larger nations. Iraqi Kurdistan, a region within the newly established Iraqi federation, also harbors plans to proclaim its own sovereign state. This volume analyses the factors that have caused the Kurds to change their minds about living in a federal Iraq, and the reaction of their neighbors and the international community at large.

Using a broad theoretical framework of federal studies and secession theory, this book examines the causes for the breakup of ethnic federations fuelled by nationalism as well as the international regime of recognition of newly formed entities. It provides a first-hand account and theoretically informed interpretations of the Iraqi situation, showing that federalism is not always a universal remedy for ethnic and religious conflicts; it also emphasizes that the international recognition regime is a significant variable in peoples' actions and aspirations to sovereignty.

Enriching the ongoing debate on federalism and self-determination, this volume will appeal to scholars and students of politics, international relations, and comparative politics, as well as those interested in federalism, the Middle East and Kurdistan.

Part I
Federalism, domestic politics and secession

1
The paradox of federalism and the Iraqi federation

Hemin R.A. Akreyi

Introduction

This chapter investigates the development of federal relations in Iraq since the adoption of the new federal constitution in 2005. Federalism is usually prescribed as a solution for a country with internal social division and ethno-linguistic conflict. It is believed that in ethno-federations, federal arrangements can ease conflict, but only in the short run; in the long term they could foster subregional nationalism and encourage secession. This is because federalism inevitably paves the way for federal units to establish their own state structures. Federalism also gives subnational units political resources that can be deployed in the service of a secessionist movement. Therefore, federalism is paradoxical, as it can be both independence-preventing and secession-inducing.

This chapter seeks to explain why Iraq’s new Constitution, which introduced a federal system, was not fully implemented, and why the Kurdistan federal region held an independence referendum. Particular attention is paid to other factors that have contributed to separatism, such as regional natural resources and security.

There is undoubtedly a gap in the literature that this chapter seeks to address on the paradox of federalism in general and certainly on the peculiarities of the current Iraqi federation. The case of Iraqi Kurdistan, it is argued, helps us better understand the causes leading to the failure of federal systems, which can drive federal units toward independence.

Supporting primary data is collected through interviews; secondary data was obtained through official statistics and documents, newspaper articles, journal articles and official websites.

Literature review

Federalism and its paradox

The federal system in Iraq proposed by Iraqi opposition parties and supported by the United States “was perceived as the best way to guarantee minority group rights, prevent a return of dictatorship and keep the country together” (Natali, 2011: 1). Federalism is also perceived as paradoxical because it is an attempt to keep an ethnically and religiously diverse country together but paves the way for its breakup (Danilovich, 2014: 20).

Federalism is usually prescribed as a solution for a country with territorial divisions, divided societies and ethno-linguistic conflicts (Erk and Anderson, 2010: 1). Federal arrangements can ease conflict in the state, but only in the short run; in the long term they could facilitate separation because “federalism boils down to the creation of a state structure at the local level” (Danilovich, 2014: 20). Cameron also believes that “federalism gives subnational units political resources that can be deployed in the service of a secessionist movement” (2010: 116). According to Anderson, for some, federalism is regarded as a panacea for resolving conflicts linked to territories, maintaining diversity and preventing secession, while some others see it as ‘a pit stop’ on the way to full independence (2010: 130).

Therefore, federalism is paradoxical because it can be both secession-inducing and independence-preventing (Erk and Anderson, 2010). Federalism can challenge the unity of a state; in this regard, Ghai notes that federalism may serve as ‘a springboard to secession’ (2000: 501). However, Cameron points to a significant fact, that “[f]ederalism is unlikely to hold an unjust regime together; but, equally it is unlikely to pull a just regime apart” (2010: 125). Huglin and Fenna note that “[i]n federal systems, the region in question already possesses rights of political autonomy; its government can promote, fuel, and channel the separatist agenda; and there may be a sense that having entered a union voluntarily, a member should have the right to withdraw” (2006: 45).

Horowitz holds that in order to prevent secession, interests of groups within the state should be taken into consideration, suggesting that “the most potent way to assure that federalism or regional autonomy will not become just a step to secession is to reinforce those specific interests that groups have in the undivided state” (1985: 628).

In Iraq’s case and specifically in the Kurdistan Region, which is the subject of our case study, federalism during the period of 2005–2017 was more independence-inducing than independence-preventing because the Constitution, which is “a guarantor of the unity of Iraq” (Section 1, Fundamental Principles, Article 1), was not respected and fully implemented. Cameron notes that Iraq’s constitution is “now being fitfully implemented” (2010: 121) So according to the Constitution, not respecting and implementing it gives an implicit right to the Kurds in Iraq to seek independence.

In the following subsections, empirical facts will be provided to illustrate the factors that caused the failure of Iraq’s federal system and pushed Kurdistan to hold an independence referendum on September 25, 2017.

Iraq’s federal experiment

Constitutional issues

In the opinion of many Kurdish policy-makers, the dispute between Erbil and Baghdad was not only about control of the Kurdistan Region’s natural resources (i.e. oil and gas) but also about the mentality of the rulers in Baghdad who look at the constitution through their own lenses and are selective in its implementation.

The Kurdish leadership hoped that the post-Saddam Iraq would usher in a new era when the Kurds, a suppressed people under Saddam, would enjoy their political rights in a federal Iraq. However, the reality was quite different. Masoud Barzani, the president of the Kurdistan Region, expressed his disappointment:

With the overthrow of Hussein’s Baath regime, the Kurds worked hard to build a new Iraq, including drafting a constitution that guaranteed Kurdi-stan’s autonomy and protected the rights of all Iraqis. Fourteen years later, Baghdad has failed to implement key provisions of that constitution, and we have good reason to believe that it never will. This failure of the political system is also responsible for the drastic deterioration of relations between Sunnis and Shiites that led to the rise of the Islamic State, with disastrous consequences for all Iraqis, including the Kurds.

(Barzani, Washington Post, 2017)

The issue of disputed territories remains one of the most serious problems in the relations between Erbil and Baghdad. It should be noted that the Constitution explicitly states that it should be resolved through conducting a census and a referendum in Kirkuk and other disputed territories and sets a timeline – ‘by a date not to exceed the 31st of December 2007’ (Iraq’s Constitution, Article 140).

In an interview, Hanan Fatlawi, one of the leading legislators of the Shiite block in the Iraqi Parliament, admitted and proudly said that it was she who did her utmost and prevented the committee responsible for Article 140 to carry out a referendum on Kirkuk (Dijla Satellite TV, 6 June, 2014). Thus, President of the Kurdistan Region Masoud Barzani expressed his disappointment about respecting the Constitution, including implementing Article 140, and he noted: “Despite a Dec.31, 2007, deadline, the Iraqi government refused to implement a key constitutional provision, Article 140, that would have the people of the disputed areas decide their future democratically” (Barzani, Washington Post, June, 2017).

The Kurdistan Region’s leaders claim that there is other serious evidence of not respecting the Constitution, such as the issue of the ‘unlawful’ cut of the 17 percent federal budget allocation to the Kurdistan Region that includes monthly salaries of its civil servants. Nechirvan Barzani, the prime minister of the Kurdistan Regional Government (KRG), in an interview broadcasted live on the second day of a MERI forum said, “I was told by the Iraqi Finance Minister in early 2014 that at the order of Nouri al-Maliki, the Prime Minister and commander-in-chief of armed forces[,] we cut the budget of the Kurdistan Region” (MERI forum, 26 October, 2016)[emphasis added]. This statement by Iraq’s finance minister was interpreted by many in the Kurdistan Region, including the prime minister, as a threat, as there was no justification for mentioning that al-Maliki was commander-in-chief of armed forces for a mere civilian issue.

From the KRG’s perspective, on top of the aforementioned violations of Iraq’s Constitution, since the adoption of the constitution until now, the Council of Union or the Federation Council,¹ which is one of the most important pillars of any federal system, has not been formed (Hussein, 2017).

Hoshyar Zebari, a prominent Kurdish politician and former foreign minister of Iraq, also criticized the federal government for not respecting the Constitution, but he mentioned the Kurdistan Region’s responsibility as well (Zebari, Rudaw TV Live, 25 July, 2017). Speaking in a panel discussion about the referendum on the independence of the Kurdistan Region that was held in Amedi in the Duhok governorate, Zebari said that the Kurdistan Region may have been also partly responsible in this regard, but since Baghdad had all the resources in its hand, it bears the responsibility, and it was Baghdad that didn’t allow the formation of the Federation Council, an institution fundamental for the federal system to be successful (ibid).

The Kurdistan Region Presidency Spokesman, Umid Sabah, in a panel discussion about the referendum on the future of the Region held at the University of Jihan in Erbil, noted that “the Iraqi government in Baghdad violated the federal constitution and did not implement 55 articles of the constitution including Article 140, cutting the share of the KRG budget, not forming the Federation Council, etc.” (Website of Kurdistan TV, 2 August, 2017).

Robert Ford, who was head of the political office at the American Embassy in Baghdad in 2005 during the marathon negotiations between Iraqi political leaders about the new Iraqi Constitution, recalls that the Kurdish leadership accepted being part of the new federal Iraq if the central government respected the new constitution (Asharq Al-Awsat English, 2017). In an opinion article in the London-based Arabic newspaper Asharq Al-Awsat, Ford further noted that, 12 years later, the central government has not respected ‘key obligations’ of Iraq’s Constitution,² despite US pledges to help ensure the implementation of the new constitution (Ibid).

In a large meeting with the Muslim clerics, Masoud Barzani, the president of the Kurdistan Region, said, “If the constitution were implemented many of those problems (between Erbil and Baghdad) might not have happened now” (Rudaw, 9 August, 2017). This means that the failure to implement the constitution led to a deadlock between Erbil and Baghdad and pushed the KRG to take steps toward independence.

While the KRG also violated some articles of the federal Constitution, as described by Ardalan Nuraddin, associate professor of constitutional law and a Kurdish member (from KDP) of Iraq’s parliament, in a telephone interview with this author stated:

The Kurdistan Regional Government violated some articles of Iraq’s constitution including levying customs on the imported goods from border crossings and also from the two international airports in the Kurdistan Region without sending the income back to Baghdad, as it should be. In return, Baghdad since the constitution came into effect, after 2005, has deducted nearly 6 percent of the entitled 17 percent of the KRG share from the federal budget. As for the federal arrangements, what is practiced currently in the Kurdistan Region is more than federal arrangements it is more like confederation, for instance Department of Foreign Relations (DFR) which is a de facto Foreign Ministry of KRG is not allowed according to federal arrangements. However, authorities in Baghdad still deals with those de facto Departments in KRG and, practically, had no significant effect on the failure of federalist system in Iraq.

(3 October, 2017)

Mowaffak Al-Rubaie, former national security advisor of Iraq who currently serves as a member of Iraq’s parliament from the Shiite bloc, said that “[b]oth sides of KRG and government in Baghdad have violated the constitution” but didn’t mention any specific articles breached by the KRG. He also noted that there’s ambiguity, mistakes and even mines in the Constitution. Therefore, it requires redrafting (Rudaw, 8 October, 2017). Iraq has violated 55 out of 144 articles of the constitution (KRG Website, 2017).

In response to KRG officials statements about Iraq violating 55 constitutional articles, Abdulla Zaidi, head of the Kurdish dossier in the national Shiites alliance, notes that Kurds have also violated the constitution and that they were ‘a state inside a state’ (Zaidi, Rudaw, 2017). From the very beginning, when the central government violated the first article of the Constitution, Kurdish members of parliament in Baghdad shouldn’t have been quiet and should have fought for them one by one (Mam Sheikh, NRT, 2017). What Kurds had gained in Iraq no other Kurds obtained across the world (Qasab, Al-Arabia Al-haddath, 2017).

In the meantime, there is an issue which is seen by many Iraqis and international experts as a serious matter regarding the involvement of religion in state affairs. This issue has become a fait accompli in Baghdad. “There are religious references that some are trying to impose as a political reference… now the fatwa given by these religious references precedes the parliamentary vote and the government decisions” (Al-Rashed, 2017). Also, Kurdish and Arabic nationalism played a role in widening the rift between Erbil and Baghdad, as both sides have vested interests in that matter (al-Rubaie, 2017).

In the opinion of some pundits, Baghdad does not perceive the Kurdistan Region as a partner in the state of Iraq, and it wants it only when it needs it for the prestige of the state.

Baghdad’s decision to cut the Kurdistan Region’s budget

Suspending the constitutionally mandated allocation to the Kurdistan Region’s budget by the federal government was regarded as the most severe blow to the federal system in Iraq, and it contributed greatly to independence-inducing because it created economic disparities and grievances as well.

After the new constitution for a federal Iraq was approved in 2005, Kurdistan as a f...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• List of figures and table
• List of contributors
• Foreword
• Introduction
• PART I Federalism, domestic politics and secession
• PART II Recognition regime: global powers and significant neighbors on Kurdistan’s sovereignty aspirations
• Conclusions
• Index