Kurdistan After the Referendum of September 25, 2017: Statehood, Recognition, and International Law

• Publication year: 2018

KURDISTAN AFTER THE REFERENDUM OF SEPTEMBER 25, 2017: STATEHOOD, RECOGNITION, AND INTERNATIONAL LAW

Thomas D. Grant^*

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Table of Contents

I. Introduction...............................................................................370

II. The State in the International Law System.........................371

III. How International Law Tells Whether a State Exists.....372

IV. Recognition and a Kurdish State: Objections.....................375

A. Domestic Legality and Recognition.........................................377
B. Territorial Integrity of Neighboring States..............................381
C. Territorial Integrity as a General Principle.............................384
D. Other Concerns Under General International Law................. 385

1. Breaches of Peremptory Norms in the Creation of the State ................................................................................... 385
2. Future Conduct of the New State as an International Legal Person...................................................................... 387

E. Security Council Practice and Iraq..........................................387

V. Emergence of an Independent Kurdistan: Possible Justifications and Their Difficulties.....................................389

A. Conduct of the Referendum......................................................390
B. Good Faith Efforts to Negotiate a Settlement..........................392
C. History of Repression Against Kurdistan.................................393
D. Iraq's Constitutional Crises and Their Settlement: The Riposte to Secession.................................................................396

VI. Conclusion...................................................................................400

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I. Introduction

The Kurdish Regional Government of Iraq on September 25, 2017, held a referendum on independence. The following question was put to the electorate on the referendum ballot:

"Do you want the Kurdistan region and the Kurdistani areas outside the region's administration to become an independent state?"¹

The result was overwhelmingly in the affirmative.²

A referendum, without more, does not constitute a declaration of independence.³ And a declaration of independence, without more, does not constitute a State.⁴ However, the referendum of September 25, 2017, in Kurdistan⁵ seemed to reflect an intention, shared by the government of the region and a large⁶ part of its population, to proceed toward de jure separation from Iraq. The referendum, accordingly, occasions reflection on the difficulties that Kurdistan, if it came to assert independence as a State, likely would face in achieving international recognition.

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The present piece is adapted from remarks that the author delivered at a conference hosted by the University of Kurdistan Hewlèr and Office of the Prime Minister of the Region in May 2017 and expands upon those remarks in view of subsequent developments. It starts with some considerations about the position of the State in the international law system (Part II) and the function of recognition in that system as a response to independence claims (Part III). It then turns to consider objections against recognition of an independent Kurdish State (Part IV), and it concludes with some considerations that might provide a response to the objectors but which also present fresh questions about the wisdom of a present move toward independence (Part V).

II. The State in the International Law System

Necessary in any legal system is a mechanism to say who the subjects of the system are. That is to say, the system needs a way of identifying the entities that possess legal personality.⁷ Legal personality is the capacity to hold rights and to owe obligations under the laws of a given legal system.⁸ National legal systems recognize that individuals have legal personality. National legal systems also contain rules that identify certain organizations as legal persons. Companies, for example, are legal persons. A company, under national legal systems, is created in a manner specified in the laws of that system,⁹ and the system contains mechanisms for recording the existence and identity of companies.¹⁰

Under international law, the main legal actor is the State.¹¹ The State acts through various organs and individuals.¹² It holds rights. It owes

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obligations. It has independent capacity to enter into treaties and contracts in its own name. A State conducts its own affairs on the international plane, and it conducts its own affairs subject only to the general rules of international law¹³ and any particular treaty rules that it has voluntarily accepted.¹⁴ To put it another way, the State has full competence at the international level—the fullest competence that international law allows any entity to possess.¹⁵ If there is any right or freedom that international law permits an actor to hold, then it permits the State to hold that right or freedom. It is in this sense that we sometimes identify the State as the central or main example of an international legal actor.¹⁶

III. How International Law Tells Whether a State Exists

Given how important States are to the international system, one might think that international law would have a well-developed procedure for determining when a State has come into existence. However, unlike domestic law, which has mechanisms that tell us when a company has come into existence, international law is much less systematic. International law contains no codified rules, no repository of records, and no central mechanism for determining when a State has been born.¹⁷ International law certainly has no court with general competence to determine that question.¹⁸

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There do exist courts that deal particularly with international law.¹⁹ But only in exceptional cases have courts dealt with the question of whether a State has been born. And, even in those cases, where the existence of a State has been a question, the question has been in the background of the case. It has seldom, if ever, been the main question. This was so in the Kosovo advisory proceedings at the International Court of Justice (ICJ), where the Court expressly did not decide whether there was a state of Kosovo, whether the emergence of such a state, as such, would accord with international law, or whether international law had anything to say about the lawfulness of recognition of Kosovo as a State.²⁰ The Supreme Court of Canada in its advisory opinion concerning Quebec took a different approach than the ICJ (as would be expected, as the questions that it was answering were different from that put to the ICJ); it addressed statehood and recognition more directly but still in the frame of other questions.²¹ So too might it be said that Dana Gas v. Kurdistan Regional Government,²² where the claimant sought to enforce an arbitration tribunal's order of provisional relief in English court,²³ involved a question of the emergence, if not of a new State, of a separate sovereign entity, but, like the other cases, the arbitration tribunal and the national court were not there for purposes of settling the question of whether a new sovereign had emerged. There is no court specifically empowered to deal with that question as a general matter when it arises, and few courts, when addressing related matters, have had much to say about it.

In court cases, we sometimes see evidence of the existence of a new State,²⁴ but court cases are not the main mechanism under international law for determining the existence of a State. The main mechanism for

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determining that question under international law, instead, is recognition.²⁵ Recognition is a statement by an existing State that it is ready to accept the claim by another community to constitute a State.²⁶ Existing States recognize, or decline to recognize, a claim by a community to constitute a State.²⁷ For the most part, an existing State recognizes a new State individually or unilaterally.²⁸ A State may be mindful of how other States are responding, but it is still only exceptionally that States coordinate their recognition in any centralized or multilateral way.²⁹ There is no rule of international law telling them to use a particular procedure when they recognize a new State.³⁰ There is no rule of international law telling them to recognize a new State at all.³¹ Recognition is, in large part, unregulated,³²

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and it is decentralized. However, whatever its gaps and deficiencies, recognition is as close as international law gets to an authoritative determination of whether a new State has come into existence.³³

IV. Recognition and a Kurdish State: Objections

What, then, should Kurdistan expect the reaction to be, if it declares independence and seeks recognition as a State? Objections to a declaration of independence are to be expected from a number of parties; few if any States would likely grant recognition in the aftermath of such a declaration. Among the parties and their concerns, the following merit particular consideration:

First, there is the objection of Iraq.³⁴ Kurdistan today, as far as other States are concerned,³⁵ and as far as the constitution of

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Iraq is concerned,³⁶ is part of Iraq. It follows that the constitution of Iraq governs how people in Iraq—including the people in Kurdistan—might amend their constitutional relations, including how, if at all, they might lawfully dissolve those relations. Iraq will not lightly accede to such a dissolution.
Second, there are Kurdistan's neighbors, Iran and Turkey. Iran and Turkey are likely to object.³⁷ They will say that the independence of Kurdistan increases the risk that Kurdish people in Iran and Turkey³⁸ will seek to separate from those countries.
Third, the international community as a whole,³⁹ or at least some States in and beyond the region, have already made clear that the independence of Kurdistan would challenge the principle

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