A referendum with no clear answers

In a week's time, a referendum will be held in the semi-autonomous Kurdish region of Iraq and other areas under the control of forces of the Kurdish Regional Government (KRG) to determine support for independence.

But can independence even happen? What are the legalities, and is it feasible?

The Montevideo Convention, signed in 1933, and widely accepted as the basis for the establishment of an internationally recognised sovereign country, states, “The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.”

In 2010, the UN's International Court of Justice ruled in an advisory opinion that "International law contains no prohibition on declarations of independence."

Therefore, any community with a permanent population within a territory under government rule can declare independence.

The KRG in northern Iraq has been preparing to hold a referendum on September 25, as a first step to breaking ties with the central Iraqi government and declaring independence. 

KRG's President Massoud Barzani has said a “Yes” vote would not mean a declaration of independence but would lead to negotiations with Baghdad.

Why now?

Experts say the regional government led by Barzani wants to make use of the claim to independence for internal politics. 

“There is political polarisation in northern Iraq where [presidential and parliamentary] elections are going to take place at the end of the year," Can Acun, foreign policy researcher at Foundation for Political, Economic and Social Research (SETA) told TRT World.

He said Barzani has been losing popular support in the region ahead of those elections.

"Barzani wants to use the process of independence through nationalistic sentiments [to bolster his support].” 

He said, "The regional government led by the Iraqi Kurdish President Massoud Barzani misinterpreted the West and thought their alliance with the West gave them the sense of legitimacy for kicking off the one-sided process which they started without consulting the opposition in the parliament."

Risk of clashes

Opposing the independence vote, Iraq's government has warned Erbil that it will launch a military operation “if the referendum results in violence.”

"If you challenge the Constitution and if you challenge the borders of Iraq and the borders of the region, this is a public invitation to the countries in the region to violate Iraqi borders as well, which is a very dangerous escalation," said Iraqi Prime Minister Haider al Abadi on Sunday.

The Supreme Court of Iraq also temporarily suspended the referendum on independence on Monday, in a move backed by Abadi.

Northern parts of Ninevah, Diyala, Kirkuk and Selahaddin governorates of Iraq are defined as disputed areas in the Iraqi constitution.  

These Arab-populated areas were historically Kurdish, Turkmen and Assyrian inhabited areas but were affected by Saddam Hussein’s Arabisation policy. 

Some parts of the disputed areas have been under the control of KRG forces ever since they defeated Daesh in the military operations that started last year in October. 

Areas immediately north of Mosul as well as oil-rich Kirkuk areas that are populated mostly by Arab and Turkmen have become contentious – especially since Barzani declared the referendum will be held in these areas, too. 

“Taking control of the disputed areas with a de-facto movement could lead the country to a civil war,” said Can Acun, referring to Abadi’s statement.

Neighbours’ stance

The KRG's ability to assert any independence will be hampered by its inability, as required by the Montevideo Convention, to enter into formal diplomatic relations with other states.

Neighbours Turkey and Iran have strongly opposed the referendum and it is unlikely that Syria, the other neighbour to the semi-autonomous region would support any move towards independence. And of course the Iraqi government has made its position clear.

“If the regional government takes steps without having diplomatic relations with Iran and Turkey, they won't be able to have a connection with the world even if the West supports their independence,” said Acun.

He said it would be costly to take a step that Turkey, Iran and the Iraq central government oppose.

Turkey held military drills on the Iraqi border on Monday.  

“Any threat to our national security will immediately be met with the necessary response,” said Turkish Prime Minister Binali Yildirim on Monday.

Iranian Supreme National Security Council head Ali Shamkhani announced on Sunday that Iran would close their borders with northern Iraq, saying that all agreements would also be revised. 

UN process of being accepted as a sovereign state

The result of the referendum will not be binding on the neighbouring countries, as it will be up to them to give any form of legal recognition to declaration of independent state.

Gaining wider international recognition will also not be an easy process.

Such recognition would first require an application for United Nations membership as it is the only legal way to gain legitimacy in the international arena. 

The Security Council is the first UN body to vote before it goes to the General Assembly, if the Secretary General approves the application.

The Security Council would have to consider the application, which must garner at least nine votes from the 15-member body. The first big obstacle comes here because none of the 5 permanent members — China, France, Russia, the UK and the US — must veto the application.

In other words, if any one of them votes against the Kurds’ separation from Iraq, the application will rejected.

If there is no veto and it obtains the required nine votes, the Security Council will send it to the General Assembly where the application needs a two-thirds majority to vote in favour.

Western stance 

Of the five permanent members of the Security Council, who hold a veto, the US, one of the strongest allies of the Kurdish regional government, described the decision of holding referendum as “ill-advised” and “ill-timed.” 

Washington does not appear to oppose the idea of an independent Kurdish state at all, but it says holding the referendum now might harm the fight against Daesh in the country.

The UK holds the same stance, complaining about timing.

"We understand the aspirations of the Kurdish people and continue to support them politically, culturally and economically within Iraq," said the British foreign secretary, adding, "But a referendum at this time will distract from the more urgent priorities of defeating Daesh, stabilising liberated areas and addressing the long-term political issues that led to Daesh’s rise."

Last week, envoys of the US, the UK, and NATO met Barzani in Erbil to convince him to postpone the referendum, but Barzani said they offered no “alternative.”

France, on the other hand, has used a more measured tone for the referendum plans.

“I would invite President Barzani to make that referendum, if he wants to hold it, a referendum where they express their will in the Iraqi institutions, not for a separation that will have a negative impact on the rest of the region,” said French President Emmanuel Macron on Tuesday. 

But all these considerations will really only come into play if the referendum's outcome is in support of independence and the KRG acts on it.