Iraq’s Kurdistan Regional Government has scheduled a non-binding independence referendum for 25 September 2017. Among several interesting questions of international law raised by the referendum is whether Iraqi Kurdistan independence would represent an exercise of constitutional self-determination, and if so, within what boundaries that right could be exercised.
Marc Weller has observed that since the 1990s, international law has given effect to self-determination claims derived from constitutional orders that gives separate legal personality to a constituent part or parts of the state. This doctrine of constitutional self-determination developed in response to the ‘negative, disenfranchising’ effect of the classical doctrine of self-determination, which was available only to peoples seeking independence within existing colonial boundaries, but not to peoples, such as the Kurds, who opposed their integration at the point of decolonization and ‘see[k] to reply its decision.’ According to Weller, a claim of constitutional self-determination may arise through an express constitutional provision granting the right to self-determination, as with Ethiopia and Liechtenstein, or may be implied from the recognized ‘nationhood’ of a constitutionally-defined territory, as with Quebec and Scotland.
The 2005 Iraqi constitution does not give regions an express right of secession. However, the constitutional order, including the special status and treatment it accords the Kurdistan region, suggests an implied constitutional self-determination status. Previously defined as a unitary state of indivisible territory, the 2005 constitution recognizes Iraq as a state of multiple nationalities and brought together in ‘free union.’
The constitution recognizes the Kurdistan region as it has existed since 1992, including its authorities and its laws, while all other regions were to be established anew in accordance with the constitutional framework. Further, the constitution requires the central government to complete the process established in the 2004 transitional administrative law to reverse the Baath regime’s ‘Arabization’ of northern Iraq, facilitated through its systematic repression of Iraq’s Kurdish and other non-Arab populations. This process specifically includes remedies for forced population transfers, including repatriation of the non-Arab population, and changes to administrative boundaries altered during the Baath era. The constitution stipulates that the process should culminate by the end of 2007 with a census and referendum in Kirkuk and other territories disputed by the Kurdistan region and the central government (the boundaries of which were left to a committee to decide and remain in controversy) ‘to determine the will of their citizens’.
This constitutionally-mandated remedial program, including the census and referendum, has not been implemented. In lieu of a referendum, Stefan de Mistura, then head of the UN mission in Iraq, proposed that part but not all of the Kirkuk district be incorporated into the Kurdistan Region. The Iraqi government rejected the proposal. Although the current Iraqi prime minister has said that he supports holding the referendum once the security situation allows, that’s almost certainly empty rhetoric. A vote in favor of Kirkuk’s integration into the Kurdistan region would raise the stakes of Kurdish separatism. In all likelihood, the Iraqi government will never hold the Kirkuk referendum, which all significant external stakeholders oppose, including the US, Turkey, Iran and Saudi Arabia.
Thus, the Iraqi constitutional order recognizes the ‘nationhood’ of the Kurdish population, the autonomy of the Kurdistan region, and its free association in a federal Iraq. A right of constitutional self-determination within the recognized borders of the Kurdistan region might be implied on this basis.
But the Iraqi constitutional order goes further. It obligates the federal government to take measures towards restoring the pre-existing demographic character of northern Iraq, and thereafter to facilitate the internal self-determination of the citizens of the disputed territories claimed by the Kurdistan region. Effectively, the constitutional order recognizes as illegitimate the existing internal boundaries of northern Iraq for self-determination purposes and directs the federal government to reconstitute legitimate internal self-determination units. Insofar as constitutional self-determination gives effect to a domestic constitutional order on the international plane, one might argue that Kurdish territorial ambitions should not be constrained by the principle of uti possidetis unless the Iraqi government first meets its constitutional obligations towards reconstituting the Kurdish self-determination unit.
Whether a right of constitutional self-determination extends to the disputed territories may require revisiting whether international law recognizes a right of remedial secession, a controversial proposition that the ICJ avoided in the Kosovo advisory opinion. Assuming such a doctrine exists, would the ancien regime’s persecution of Iraq’s Kurdish and other non-Arab populations, coupled with the current regime’s failure to implement agreed remedial measures, give rise to the right? If so, would the exercise of remedial secession justify commandeering the Iraqi government’s constitutional prerogative to hold the referendum? And would a referendum held while the territory is under the control of Kurdish forces (albeit with the acquiescence, at least for now, of the international community and the Iraqi government) represent a legitimate expression of self-determination?
To be continued
 Constitutional self-determination may also result from the effective dissolution of a federal state, as occurred in the former Yugoslavia.
 1925 Iraqi constitution, art. 3.
 2005 Iraqi constitution., art. 3 and preamble.
 Id., articles 117, 141.
 Id., art. 140(1). Specifically, article 140(1) requires the federal executive to fulfil the obligations set forth in the 2004 Transitional Administrative Law, namely ‘to take measures to remedy the injustice caused by the previous regime's practices in altering the demographic character of certain regions, including Kirkuk, by deporting and expelling individuals from their places of residence, forcing migration in and out of the region, settling individuals alien to the region, depriving the inhabitants of work, and correcting nationality.'
 Id., art. 140(2).
 Although Kurdish autonomy in Iraq has existed de jure since 1970, the territory of the autonomous area and the degree of autonomy ebbed and flowed with the Baathist regime's ability to 'pacify' northern Iraq.