By: Marlene Zieah
Iraq’s central government and the Kurdistan Regional Government (KRG) are not in a great place lately and the cause appears to be constitutional. It all started when the KRG held a referendum on independence on September 25, 2017. In response, the Iraqi government used military force to re-claim the disputed city of Kirkuk, which the KRG has claimed since the rise of ISIS in 2014. The Iraqi government has since invaded other KRG controlled disputed territories, many of them even farther north than Kirkuk. The KRG’s independence initiative depended heavily on Kirkuk because of its richness in oil and gas, which would allow the Kurds to develop their own economy.
Although both the KRG and the Iraqi government agreed to a ceasefire, the upcoming negotiations may not dispose of the underlying issues. Both the KRG and the Iraqi government have asserted the Iraqi constitution as the basis for their recent actions. The Iraqi government claimed that the constitution granted it rights to reinstate federal control, and reclaiming Kirkuk was a move in that direction. The KRG claimed that the constitution granted it rights to self-government, and they exercised those rights through their referendum on independence. Thus, it is clear that the upcoming negotiations between the Iraqi government and the KRG would have to center around the Iraqi constitution, specifically Article 140 – which deals with the disputed territories, and Article 112 – which deals with claims to oil and gas. A successful solution between the parties would have to be compatible with the Iraqi constitution and implemented with international consensus.
Part of the reason the Iraqi government and the KRG were both able to rely on the Iraqi constitution for drastically opposite conclusions is because the document itself has several defects. The language used is deliberately unclear because it was supposed to be amended in 2007 – after sensitive political issues were expected to be resolved. These ambiguities have made way for essentially an “anything goes” mentality in the nation, allowing the KRG to obtain control over several disputed areas in northern Iraq for decades. Those of particular interest in this dispute are located on the southern border of the Kurdistan Region, which are extremely rich in oil and gas. Even though the KRG started to build settlements in these disputed areas even before 2007, the Iraqi government has not been very active in preventing the expansion. It was not until the recent referendum on independence that the Iraqi government decided to take action on an issue the nation faced since 2003.
After the U.S. invasion of Iraq in 2003, the Iraqi government adopted Article 140 of the Iraqi constitution to deal with the issue of disputed territories. Article 140 requires a census and referendum, but it does not indicate how the status of the disputed territories will be determined. Nonetheless, it establishes a deadline of December 31, 2007, which was not met and remains to be seen. In 2010, Iraqi Prime Minister, Nouri al-Maliki, recommended amending Article 140 because it was written in a way that could not possibly lead to a solution for either side. Al-Maliki’s theory may have been correct given that the KRG claimed that it satisfied the requirements of independence under Article 140 by obtaining control of the disputed territories post-ISIS and completing the referendum. The Iraqi government disagreed, and the driving force behind its position was Article 112.
Article 112, which is just as ambiguous as Article 140, allocates Iraq’s oil and gas reserves. Article 112 states that the federal government, along with regional governments, shall manage oil and gas removal and implement related policies. However, no such policies or laws have been passed successfully since the Iraqi constitution was ratified in 2006. The Iraqi government argues that Article 112 grants it sole authority over managing oil and gas, but the KRG relies on the language of “present fields” to argue that new oil and gas are reserved to regional governments. This is part of the reason why the KRG entered into its own contracts with international companies, many of which included oil and gas from disputed territories. The Iraqi government viewed these contracts as illegal and would only allow the KRG to use its pipeline system if it received a cut of the profits. Even after the KRG developed its own pipeline in 2013, the Iraqi government sought to enjoin it, and filed multiple lawsuits challenging its constitutionality. The Iraqi government’s focus on the oil rich city of Kirkuk and Kurdistan controlled borders demonstrates that its central goal is to eliminate any chance the KRG has at sustaining an independent economy.
Although not likely to take place until after the upcoming elections, the Iraqi government and the KRG have options for resolving the constitutional issues they face. One option is to amend the current Iraqi constitution, which would require approval by two-thirds of the members of Parliament, approval by the people through a unanimous referendum, and the President’s ratification of the changes within seven days. This may be difficult to accomplish given the nation’s current political climate and extremely recent liberation from ISIS. A better option is to find a way to make the current Iraqi constitution work as-is. For instance, Article 112 allows the KRG to implement “strategic policies” with the Iraqi government, even if it means that the Iraqi government’s version of the final policy controls. Further, Article 140’s referendum requirement does not specify what type of referendum is required, giving both parties ample room to devise a solution that works in their favor. In its attempt to help the Iraqi government and the KRG reach a negotiation, the U.N. explained that Article 140 merely requires “a political agreement among the parties and then some form of a confirmatory referendum.” The U.N.’s support makes it likely that the international community will recognize any agreement reached between the parties and makes it less likely to be invalidated as unconstitutional by the Iraqi Supreme Court.
While an agreement between the Iraqi government and the KRG is essential to deescalating recent tensions between the parties, the fact that none has been reached for nearly fifteen years makes it unlikely. Whatever the outcome, a consensus on how the Iraqi constitution should be interpreted will continue to be a necessary component to prolonged peace between the Iraqi government and the KRG.
 Zack Beauchamp, Why Iraq and the Kurds Are Fighting Over the City of Kirkuk, VOX (Oct. 16, 2017, 4:20 PM), https://www.vox.com/world/2017/10/16/16481952/iraq-krg-kirkuk-seize.
 Saeed Kamali Dehghan & Martin Chulov, Iraqi Forces Claim Rapid Progress in Operation to ‘Impose Security’ On Kirkuk, Guardian (Oct. 16, 2017, 9:43 AM), https://www.theguardian.com/world/2017/oct/16/iraqi-army-advances-kirkuk-kurds.
 Maher Chmaytelli, Iraqi Forces, Kurdish Peshmerga Agree On Ceasefire, Kurdistan Says, Reuters (Oct. 27, 2017, 8:01 AM), https://www.reuters.com/article/us-mideast-crisis-iraq-kurds-ceasefire/iraqi-forces-kurdish-peshmerga-agree-on-ceasefire-kurdistan-says-idUSKBN1CW1LG.
 See id.; see also Haider Al-Abadi, Iraq Will Remain United, N.Y. Times (Oct. 18, 2017), https://www.nytimes.com/2017/10/18/opinion/iraq-will-remain-united.html?_r=0.
 Dehghan & Chulov, supra note 4.
 Omar Yousef Shehabi, The Kurdistan Independence Referendum and Constitutional Self-Determination, Verfassungsblog (Oct. 22, 2017), https://verfassungsblog.de/the-kurdistan-independence-referendum-and-constitutional-self-determination/.
 Iraq Const. arts. 112, 140; see Robert Ford, Kurdish Referendum: Thinking, Not Threats, Asharq Al Awsat (Sept. 23, 2017), https://eng-archive.aawsat.com/robert-ford/opinion/kurdish-referendum-thinking-not-threats.
 See Ford, supra note 10.
 See Andrew Arato, Constitution Making Under Occupation: The Politics of Imposed Revolution in Iraq 162-64 (2009); see also Zaid Al-Ali, Here's What Old Constitutional Debates Tell Us About the New Crisis in Iraqi Kurdistan, Wash. Post (Oct. 30, 2017), https://www.washingtonpost.com/news/monkey-cage/wp/2017/10/30/heres-what-old-constitutional-debates-tell-us-about-the-new-crisis-in-iraqi-kurdistan/?utm_term=.db34bc863f11.
 Iraq Const. art. 140; Arato, supra note 12, at 340.
 Beauchamp, supra note 1.
 Till F. Paasche & James D. Sidaway, Transecting Security and Space in Kurdistan, Iraq, 47 Env’t & Planning A 2113, 2114, 2123 (2015).
 Al-Ali, supra note 12.
 Id.; Iraq Const. art. 140.
 Iraq Const. art. 140; The Constitutional Case for Kurdistan’s Independence, Report, KRG Cabinet 27 (2017), available at http://cabinet.gov.krd/uploads/documents/2017/Constitutional_violations_Sept_24_2017.pdf.
 See Sangar Ali, Iraqi Parliament Speaker Calls for Amending Constitution, Kurdistan 24 (July 17, 2016, 5:37 PM), http://www.kurdistan24.net/en/news/04d9517f-771b-47e2-84bb-07643527b324/Iraqi-Parliament-Speaker-calls-for-amending-constitution.
 Shehabi, supra note 9.
 Id.; see Ford, supra note 10.
 Iraq Const. art. 112; Arato, supra note 12.
 See Iraq Const. art. 112.
 Lionel Beehner & Greg Bruno, Why Iraqis Cannot Agree On an Oil Law, Council on Foreign Rel., https://www.cfr.org/backgrounder/why-iraqis-cannot-agree-oil-law (last visited Jan. 24, 2018).
 Iraq Const. art. 112; Dehghan & Chulov, supra note 4; Press Release, KRG Ministry of Natural Resources, Statement On Oil Exports (June 20, 2014), available at http://mnr.krg.org/index.php/en/press-releases/379-krg-statement-on-oil-exports.
 Alice Fordham & Dan Morse, Exxon Mobil Dispute Deepens Arab-Kurd Split in Iraq, Wash. Post (Apr. 5, 2012), https://www.washingtonpost.com/world/middle_east/exxon-mobil-dispute-deepens-arab-kurd-split-in-iraq/2012/04/05/gIQAbg2txS_story.html?utm_term=.c8188126ee3b.
 Id.; see Orhan Coskun & Humeyra Pamuk, Iraqi Kurdistan Poised to Pipe Oil to World Via Turkey, Reuters (Apr. 17, 2013, 4:05 AM), https://www.reuters.com/article/us-iraq-kurdistan-oil/iraqi-kurdistan-poised-to-pipe-oil-to-world-via-turkey-idUSBRE93G08Q20130417.
 Coskun & Pamuk, supra note 29.
 See Beauchamp, supra note 1.
 Suliman Mulhem, Baghdad Yet to Lift Sanctions on Iraqi Kurdistan or Provide 2018 Budget, Foreign Pol’y J. (Feb. 15, 2018), https://www.foreignpolicyjournal.com/2018/02/15/baghdad-yet-to-lift-sanctions-on-iraqi-kurdistan-or-provide-2018-budget/.
 Iraq Const. art. 126.
 See Mulhem, supra note 32.
 Iraq Const. art. 112; see Ford, supra note 10.
 See Iraq Const. art. 140; see also Ford, supra note 10.
 Press Release, United Nations Assistance Mission for Iraq, UNAMI Submits Its Reports On the Disputed Internal Boundaries (Apr. 22, 2009), available at http://www.uniraq.org/index.php?option=com_k2&view=item&id=307:unami-submits-its-reports-on-the-disputed-internal-boundaries&Itemid=605&lang=en.
 Oil and Borders: How to Fix Iraq’s Kurdish Crisis, Crisis Group Middle East Briefing No. 55, Int’l Crisis Group (Oct. 17, 2017), available at https://d2071andvip0wj.cloudfront.net/B055-oil-and-borders-how-to-fix-iraqs-kurdish-crisis%20.pdf#page=11.
 Al-Ali, supra note 12.