By: Rachel Bauer
In a referendum on September 25, 2017, approximately 92% of the 3.3 million Kurds and non-Kurds in northern Iraq voted to back secession. The Kurds have been semi-autonomous since the end of the Gulf War in 1991; however, they remain officially part of Iraq, and as such cannot act entirely independently. This means that they are still using Iraqi passports. The referendum came shortly before November 1, the tentative date for Kurdish Government elections. Kurdish Regional Government President Masoud Barzani argues that this referendum opens the door for independence through negotiations with Baghdad, though many see his push for independence as a way to bolster his public image. Despite Barzani’s claims, the Iraqi response was anything but diplomatic. Rather than opening the door to independence negotiations, the referendum has sparked conflict and drawn international criticism due to the Kurdish Peshmerga’s operational role in the concurrent fight against ISIS. Days after the referendum, the Iraqi Security Forces (ISF) entered the area and began taking back disputed cities, including the oil-rich city and province of Kirkuk.
These clashes now put the United States in an unpleasant position. Prior to the actual referendum, the US called for talks rather than a vote in an effort to avoid conflict between the Kurdish Government and Baghdad. From a military perspective, the Kurdish Peshmerga have helped the US and its allies, including Iraq and Turkey, push back against ISIS. However, the US alliance with Iraq, as well as its NATO alliance with Turkey, may force the US to choose between the Kurds and its two nation-state allies. If the Kurds do not make an actual claim of independence, this will alleviate the need for the US to choose sides between the military forces.
If a claim of independence is asserted, the US will have to assess whether to continue supporting its Kurdish allies despite potential conflict with Iraq and Turkey, both of whom strongly oppose Kurdish independence for political reasons. In determining support allocation, the US would consider both international law and policy implications. International law will likely not support independence due to a strong norm against secession.
The basis for international recognition of a new state born out of secession is based on the right to self-determination. Article 1 of the United Nations (UN) Charter states that a purpose of the UN is to “develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples.” This provision appears to mean the self-determination of individuals and groups, rather than external self-determination, which allows for the creation of new states. Further, the 1970 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations (1970 Declaration) states that while self-determination and the protection of minorities is a high priority, secession is not favored unless there is no representative government and the minority population is oppressed.
In this case, Kurdish independence will likely not be recognized by the international community—at least not at this time. The region lacks the environment necessary to enable the international community to overlook changing a State’s sovereign territory. Kosovo and South Sudan gained recognition, in part, because there were other factors that made independence a better option for ensuring international peace. South Sudan already had a peace agreement in place with Sudan, its own regional government, and international support for a solution to the civil war. Kosovo’s independence was a product of multiple Security Council resolutions coupled with a desire to end years of violence. However, even after the International Court of Justice upheld Kosovo’s independence legal under Security Council resolution 1244, Kosovo remains unrecognized by Russia and Serbia and has not been admitted to the UN. Conversely, the Turkish Republic of Northern Cyprus is by many still considered an occupation, and the international community recognizes Cyprus as one nation, rather than two states.
The Kurds will most likely follow in the footsteps of the Turkish Cypriots. Given the importance of a unified front against ISIS, and that the ISF is now being diverted, in part, to the north to regain control and retain a unified Iraq, it is unlikely that the Kurds will gain international recognition. The Kurds have garnered international sympathy for decades, particularly after their oppression under Saddam Hussein, and respect for their military abilities in pushing back ISIS. Despite this, the timing diminishes much of their chance for international recognition. ISIS has not been eradicated, and to do so requires a united military front, especially between the US, Turkey, Iraq, and the Peshmerga. The referendum has threatened to make that far more difficult. From a policy standpoint, attempting to force the international community to recognize their independence, despite a focus on defeating ISIS, puts them at odds with international goals for global security. Further, if the referendum were to lead to a declaration of independence via secession, it could force the US to make a choice between its regional allies, one a NATO member, and a military force instrumental in pushing back ISIS territorial control.
Legally, there is no international right to secession, and no international law stating that those who secede will gain recognition. Regardless of whether the Kurds have a right to an independent state or should in the future seek independence, the current international response will most likely be that under the UN Charter, the semi-autonomous state and regional government protects their self-determination. The Kurdish referendum does not signal immediate trouble but poses a myriad of issues regarding the future of the coalition and regional alliances.