THE INTERNATIONAL JOURNAL OF HUMANITIES & SOCIAL STUDIES ISSN 2321 - 9203 w w w .theijhss.com THE INTERNATIONAL JOURNAL OF HUMANITIES & SOCIAL STUDIES Refer endum as a Legal Tool for Achieving Self-Deter mination: The Case of Kur distan Region, Ir aq Sanh Shareef Qader Lectur er , Depar tment of Law , Sor an Univer sity, Kur distan Region, Ir aq Dr. Haslinda Binti Mohd Anuar Senior Lectur e, School of Law , College of Law , Univer sity Utar a Malaysia, Malaysia Dr. Rusniah Bt Ahmad Associate Pr ofessor , School of Law , College of Law , Univer sity Utar a Malaysia, Malaysia Abstr act: Refer endums on the r ight t o achieve self-deter mination has become a significant tool used in attaining collective political, economic, social and cultur al aspir ation since t he decolonization er a. On 25 September 2017, the people in the Kur dish contr olled ar ea of Ir aq decided over whelmingly to submit a Refer endum to attain self-deter minat ion. This paper seeks to examine the use of r efer endum as a legal tool to achieve self-deter mination. The liter at ur e on the use of r efer endum as a tool for attaining t he goal has been scar ce. The Kur distan Region of Ir aq, like its counter par ts in ot her countr ies, has long been in the str uggle to have their own sover eign state. The paper explor es and utilizes secondar y sour ce mater ials to cr oss-examine ar guments and dr aw conclusions. It is found that r efer endum is an acceptable tool for achieving self-deter mination as demonstr ated in many similar situations acr oss the wor ld. Submissions fr om our findings will impact meaningfully on the Ir aqi gover nment policymaking, the KRG and the inter national community. It will also add to the pool of exist ing wor ks on the subject matter . Keywords: Refer endum, legal tool, self-deter minat ion, Ir aqi Kur distan r egion 1. I ntroduction The attainment of self-deter mination amongst people w ho feel or ar e under cer tain subjugation pr ovides str ong gr ounds for pur suing other means of secession r efer endum. Er itr ea (1993), East Timor (1999), Montenegr o (2006) and South Sudan (2011) (Qvor tr up, 2018), citing a few examples, w er e evidence of how new states activated br eakaw ays and w er e established thr ough r efer endums. In the past, tw o r efer endums w er e held; the fir st was for the sake of justifying the tr ansfer of Cr imea fr om Ukraine to Russia and the second, was in deciding if the United Kingdom should still maintain Scotland as its member . On other par ts of the w or ld, in the coming year s, Bougainville and New Caledonia ar e also planning to vote for independence. Unfor tunately, the Kur dish Ir aqi’s r efer endum, w hich was planned to be held in 2014, w as postponed. Their r egular ity, along with their intention to stir up the division and exacer bate differ ences in volatile situations, makes r esear ch on r efer enda an imper ative ar ea for explor ation (Loizides, 2014). How ever , the Ir aq Kur distan use of r efer endum as the r ight to self-deter mination on 25 September 2017 has become an ar gumentative issue in public inter national law , just like many other impor tant legal issues in inter national law that w er e expr essed in differ ent legal stages. This was exemplified in Ar ticle 1 of the 'Inter national Covenant on Civil and Political Right (ICCPR)' in 1966 as w ell as in the 'Inter national Covenant of Economic, Social and Civil Rights (ICESCR)' in 1966 1 on the subject of establishing the most essential stages in the development of this r ight 2, (Burak & Eymir lioglu, 2005). The issue is contentious because the constitution of the state of Ir aq does not r ecognize or confer any par t of its ter r itor ies the r ight to self-deter mination unless to foster national unity. The people of Kur dish-contr olled Region inside Ir aq decided unanimously thr ough a Refer endum to self-deter mination of KRG w ith the major ity of Kur ds w ho wished to for m Kur distan as an independent state (Ir aq's Kur distan Region Holds Independence Refer endum, 2017). Existing w or ks have r aised ar guments for and against the action of the Ir aqi Kur dish people. For instance, Sr ihar il (2018) maintained that the constitution of Ir aq 3 did not have such pr ovision. Conver sely, the 117 th ar ticle clear ly suppor ts Kur distan as a semi-autonomous r egion under the Ir aqi state. Consequence to this, the Kur dish Ir aqi people have w on their independence in 1991 and 1992 w her e they elected their pr imar y par liament and established a De facto autonomous gover nment called KRG in Ir aq (Sr ihar il, 2018). The gap in this study is to examine the use of r efer endum as a legal tool t o achieve self-deter mination by the Ir aqi Kur ds in KRG. Legal pr ovisions in the Ir aq constitution and jur ispr udence contr adict the KRG action but mor e impor tantly w hat ar e the view s pr ovided by the int er national law ? This study uses secondar y sour ces to conduct a desk liter atur e r eview for both the Ir aqi constitution and inter national law . Pr oper scr utiny in the analysis and synthesis of both the available published and unpublished mater ials w ill be duly under taken. The study is useful to separ atist gr oups, sover eign States, policymaker s and var ious par ticipants 21 Vol 7 Issue 4 DOI No.: 10.24940/ theijhss/ 2019/ v7/ i4/ HS1904-006 Apr il, 2019 THE INTERNATIONAL JOURNAL OF HUMANITIES & SOCIAL STUDIES ISSN 2321 - 9203 w w w .theijhss.com in the inter national community. It w ill also be useful to those nations w ho ar e yet to gain their independence and ar e still str uggling for such right, for instance, Palestinians in the Middle East, Catalonians in Spain and Scottish in the United Kingdom of Gr eat Br itain because this study pr ovides additional infor mation within ar eas of right to self-deter mination especially based on Ir aqi Kur distan's exper ience as the case study. It is focusing on how Ir aqi Kur dish people can get thei r ow n independent state after the r efer endum on 25 Sept ember 2017. 2. Conceptual Clarifications This segment pr ovides conceptual clar ifications on thr ee aspects: r efer endum, the law as the legal tool, and selfdeter mination. The ter m “r efer endum” is a pr ocess w her e both an acceptance and a r eaction of law passed by the legislative sector , can take place based on popular votes. In sever al countr ies, the w or d used is “plebiscite” or a vote on a ballot question (What is a Refer endum, 2018). Gr een defined r efer endum as “the pr inciple or pr ocedur e of r efer r ing or submitting measur es pr oposed or passed by a legislative body to the vote of the elector ate for appr oval or r ejection” (Gr een, 2018). How ever , ‘r efer endum’ can have differ ent definitions in defer ent States. For instance, changing the constitution by voting 'plebiscite' does not affect the constitution in Austr alia. Additionally, Majid defined this as “r etur nable to the people to take their appr oval, opinion or r ejection in any gener al matter that is a legal, constitutional or political subject as an ow ner of sover eignty” (Majid, 1971). Cambr idge Dictionar y defines it as a vote in w hich all the people in a State or a Region ar e r equested to pr ovide their view s about or decide on an impor tant political or social question (Cambr idge Dictionar y). Ther efor e, in the light of the above definitions, “r efer endum” can be der ived as asking the opinion of people to decide on a gener al issue. While the legal fr ont implies being in line w ith the law , being lawful ther efor e, means to be defined as abiding by the law (w hether man-made or God-made).The lawful sover eign r efer s t o w hat is endor sed by law or in tr adition w ith the law, especially as it is w r itten or administer ed by the cour ts (Mer r iamWebster Dictionar y). For t he pur pose of thi s paper and w i t hi n the cont ext , legal t ools imply any legal appar atus or means employed and acceptable by the law of t he Stat e t o r egulate acti on or behavior s of it s people. The ter m “self-deter mination” has var ious definitions. Yadgar (2008) defined it as “an inclusive pr inciple that embr aces economic, political, social, legal r ights and embr aces the r ight of the people to r ule themselves liber ally thr ough democr atic way w ithout any compr ession and intimidation.”Accor ding to Cobuild Advanced English Dictionar y, "selfdeter mination" is the r ight of a countr y for independence against contr ol of pow er by a for eign countr y, and to elect its ow n gover nment system. Synonyms that ar e fr equently used include independence, fr eedom, autonomy, and liber ty (Cobuild Advanced English Dictionar y). "Self-deter mination" is to have the "inter national r ecognition of the r ights of the inhabitants of a colony to choose fr eely their independence or association with another State" or w her e ther e is an evidence of a "collective r ight of a people shar ing similar objective char acter istics to fr eely deter mine their ow n for m of gover nment w hile fur ther developing their economic, social and cultur al status” (Collins, 1980). In the Middle East, the nor ther n Ir aqi r egion is officially called the Kur distan Region of Iraq (Kur dish: Kur distan). Geogr aphically, it is the souther n Kur distan of the w hole Kur dish ar ea that consists of four par ts: south - easter n Tur key at the Nor ther n of Kur distan, nor ther n Syr ia (at Rojava or the Wester n of Kur distan) and nor ther n - w ester n Ir an (at the Easter n of Kur distan). TheKur distan Regional Gover nment (KRG) officially gover ns the r egion w ith ‘Er bil’ as the capital. The Kur dish system is a democr atic par liamentar y w ith 111 member s of par liament (Kur distan Regional Gover nment, 2016 & Bengio, 2014). 3. Literature on Self-Determination Efforts by the KRG Accor ding to the Cour t's pr inciple, the r ight to self-det er mination justifies the independence of Ir aq Kur distan people fr om its existing Ir aqi state. This has been exemplified by tw o United Nations' declar ations of self-deter mination; the fir st, the declar ation on the 'Gr anting of Independence to Colonial Countr ies and Peoples, G.A. Res. 1514' (Dec. 14, 1960); and the second, the 'Declar ation on Pr inciples of Inter national Law Concer ning Fr iendly Relations and Co-oper ation Among States in Accor dance w ith the Char ter of the United Nations, G.A. Res. 2625' (Oct. 24, 1970).4 Never theless, self-deter mination is r egar ded as being mor e contr over sial than w hat was specified in the 'Inter national Covenant on Civil and Political Rights and the Inter national Covenant on Economic, Social and Civil Rights'. In fact, the inclusion of self-deter mination in Ar ticle 1 of the United Nations' Char ter under scor ed its importance in maintaining good r elations and har mony among nations to "str engthen univer sal peace by upholding the pr inciple of equal r ights and self-deter mination" (U.N, 1945). Thus, the United Nations car r ies the r esponsibility to establish an agr eeable platfor m for dialogue in or der for nations to achieve equal r ight and self-deter mination. Mor e impor tantly, these r ights ar e also associated to many other basic concepts of public inter national law . One of the concepts asser ts the r ight of Iraq Kur distan people to independently char t their ow n futur e, thus submitting all people ar e equal. This was the r eality to the aspiration of the many Kur ds (Nanda, 1981). The Ir aq Kur distan cr isis over ter r itor ial integr ity 5 and statehood6 have r emained unsettled. The Kur dish nationals7 make the lar gest ethnic gr oup in the Middle East w ith about thir ty-five million people dispensed over countr ies such as Tur key, Ir an, Syr ia, and Iraq. Histor ically, the mountains separ ating Ir an and Ir aq ar e their ancestr al homelands. Many Kur ds have always dr eamed of having a Kur dish nation-state. Their desir e almost came to r eality after Wor ld War I under the Tr eaty of Sevr es (Ar ticles 62, 63, and 64). The Allied Pow er s (Gr eat Br itain, Italy and Fr ance) and the Tur kish gover nment signed a tr eaty on the 10th of August, 1920, admitting Kur dish people's political r ights. (Peace Tr eaty, 1920). Thr ee year s later , another Tr eaty was discussed w hen Tur key’s Kemal Atatur k took to pow er (Bird, 2004). 22 Vol 7 Issue 4 DOI No.: 10.24940/ theijhss/ 2019/ v7/ i4/ HS1904-006 Apr il, 2019 THE INTERNATIONAL JOURNAL OF HUMANITIES & SOCIAL STUDIES ISSN 2321 - 9203 w w w .theijhss.com 'The 1923 Tr eaty of Lausanne'(Mar shal, 1927) r ecognized a new Tur kish r epublic. Unfor tunately, Kur ds and their State w er e not mentioned (Ever est, 2004). 'The Lausanne Tr eaty' completely disr egar ded the Kur dish demand to any for m of independence. Consequently, the Kur ds w er e separ ated into four countr ies, namely: Ir aq, Iran, Syr ia and Tur key (Sluglett, 2007). Such has exacer bated the str uggle to achieve an independent state. The status of independent r efer endums acr oss the Wor ld, and the benefits on “ethnic identity” (Chandler & Munday, 2016) 8 in the Kur dish national movement have r edir ected the sectar ianism (Rober ts, 2017) and this pose justified concer ns for the Ir aqi Kur dish people. The impor tance of “ethnicity identity” is used as “political mobilization and myth building” tool by the Ir aqi Kur dish people to influence the distr ibution of pow er (Yavuz, 2001). The Kur dish people consider ed themselves as an ethnic nation and thus eligible to for m an independent nationstatehood and this is achievable in futur e. Mor eover , ther e has been an investigation of the natur e of the independence. Results r evealed that the plur alistes of feder alism is the ideal and achievable political ar rangement to tackle the matter of Kur d’s self-det er mination in Ir aq (Mohammed, 2013). Feder alism is a moder n system that divides pow er s among str ong Feder ated entities and smaller local gover nments w ith Feder ated entities holding significant pow er . In the constitutional law and feder al system, it is challenging for the Feder al State and the Feder ated entities to achieve har mony because of sever al complexities. In fact, it is not possible for the complexities to be addr essed and solved by mer e constitution solely. One of the cr itical issues that feder alism is facing is “contr adiction of feder alism” w hich minimizes the effectiveness of the “technological solution” (Pound, 2017). Feder al system was adopted to end public conflicts and w ar s betw een national par ties. (Law, 2013). Besides, the Feder al pr ocesses ensur e a smooth br eakup of that feder ated countr y (Danilovich, 2017). The “emer gent” Ir aqi feder ation (Burgess, 2012) explains the natur e of the contr adictions that happened. As an example, the Kur dish's pr esence in the new Ir aqi feder ation r eflects the ability to have w hat Danilovich defined as “selfgover ning state with a par liament, a pr esidency and cabinet, specialized depar tments, including for eign r elations, defence and secr et ser vices, all of w hich w ould ser ve them w ell if the Kur distan leader s decided to br eak away” (Danilovich, 2017).Mor eover , the feder al state has assur ed the development of the Kur d’s economical public and inter national r elationships (Aziz and Mustapha, 2016). The local political player s accepted the Ir aq feder al system as a step to ease the challenging conflict betw een Ar abs and Kur ds. The adoption of the Ir aqi constitution, w hich monitor ed feder alism by r efer endum in 2005 follow ing a devastating w ar and r egime change, degr aded ser ious separ ation in Ir aq (Danilovich, 2017). The scale of feder alism was inser ted in Ir aqi system by the constitution adopted by the occupying pow er - the United States. The constitution r efer endum was lar gely boycotted by Ar ab Sunnis w her e Saddam pow er base r egimes r ender ed its legality uncer tain. Never theless, this contr over sial feder alism intr oduced in Ir aq pr evails in order to defend the feder al system. Consequently, the feder al pr inciple is r etained in the constitution. The same constitution could have been amended by easier pr ocedur e, besides the basic constitutional pr ovisions, but it did not. 'Ar ticle 126' pr ovides that “the constitution cannot be amended if such amendments take aw ay the pow er of the r egions” (Saad, 2013). Regar dless of Baghdad's effor ts and systematic safeguar ds in the constitution, a br eak-up of the feder ation as a r esult of feder alism's contr adiction and mistr ust among its par ties was cer tain. The Ir aqi constitution in both ar ticles 1 and 2(1) 9 highlights a differ ent take fr om the usual local scenar ios especially in political cultur e and tr aditions. The mar ked differ ence can be found in the intr oduction of a par liamentar y r epublic, w hich was for mer ly str ong in its pr esidential, and in secularism for Islam and unitar y for feder al. Bur gess on the other hand used “the absence of the feder al spirit” (Bur gess, 2012) in descr ibing the Ir aqi feder al model. This, r educed inter -gover nmental r elations to r udimentar y. This distanced the Kur dish people fr om any kind of bond tow ar ds feder al par tner s and attempt to blame the Kur distan r egion's encounter s for pr oblems r elating to economy, finances or politics. Consequently, the idea to break fr om the feder ation took place w hen the r egional gover nment of Kur distan (KRG) began to suffer fr om the consequences of the falling oil pr ice, namely the financial crisis (Danilovich, 2017). Thus, r esistance accumulated against the feder al gover nment and the idea of self - deter mination w as helpful. This has led to the r ecent development that 93 % of Kur ds people voted in favor of the self-det er mined r efer endum on September 25, 2017, or ganized by Kur distan Regional Gover nment (KRG), (Grant, 2017). The r efer endum w as then opposed by the Ir aqi state gover nment and consequently led to r ejection on claims for independence by the Kur dish people. Ther e ar e tw o par ts that contr ibute to the claim made by the Kur dish people' r ight to self-det er mination: fir stly, the inter national law s guar anteed the r ight to self-deter mination for the Kur dish people, and secondly, Ir aq Kur distan r egion did not par ticipate in exer cising the feder al and constitutional pow er s along w ith Ir aq feder al gover nment. 4. Theoretical Framework Vast amount of liter atur e has been w r itten r egar ding Kur dish split fr om Iraq. Economically, the disadvantages of a self-gover ned Kur dish state ar e tiny compar ed to its advantages (Bolton, Roland, & Spolaor e, 1996). This could r esult fr om a cost - benefit tax analysis, as discussed by Buchanan (Buchanan, 2003). He said the r ich w ould enjoy better advantage, as the tax r ate incr eased, if they could exclude themselves fr om the boundar ies set for th by the tax author ity. That is to say, public goods pr ovided by the gover nment w ill be lost. How ever , the Kur ds could handle them in a mor e cost-effect manner by instead highlighting on their detachment fr om the r icher r egions like Er itr ea, Cr oatia and 23 Vol 7 Issue 4 DOI No.: 10.24940/ theijhss/ 2019/ v7/ i4/ HS1904-006 Apr il, 2019 THE INTERNATIONAL JOURNAL OF HUMANITIES & SOCIAL STUDIES ISSN 2321 - 9203 w w w .theijhss.com Slovenia. It w ould also be necessar y to concentr ate these benefits spatially in or der to dr ive separ atism for economic advantage especially w her e natur al r esour ces w er e concer ned and found. (Collier & Hoeffler , 2002). While legitimacy maintains as the main focus, based on the inter national law r easons for self-deter mination and secession ar e just second to legitimacy. In the local context, the people consider ed themselves as distinct. How ever, in the ''statist'' view, this posed a mor e r estr icted inter pr et ation because the integr ity of exter nal bor der s is consider ed 'ir r efutable pr inciple' (Br ilmayer , 1991 & Wellman, 2010). This was lar gely acknow ledged until r ecently. Even in the pr ocess of decolonization, r edr aw ing the exter nal bor der s as exemplified by Biafr a and Bangladesh w ould never gain tr action with the inter national community (Hor ow itz, 2003 & Buchanan, 1997). Secession could only occur for a “cause” and one of such example was the decline of annexed ter r itor ies or the emancipation of discr iminated communities w hich w er e excluded fr om national political pr ocesses (Buchanan, 1997, Br ilmayer , 1991 & Her aclides, 1992). This situation is suppor ted by mor al view s, apar t fr om defending the inter national status quo. Accor ding to the nationalist view , the minor ities should not be allow ed to impose their view s by seceding or thr eatening t o do so (Br ilmayer , 1991, Buchanan, 1997 & Or ent licher , 2003).Conver sely, a second claim indicates that states would be unjustified if they w er e meant to be displaced (Buchanan, 1997). Both the basis on w hich the thir d fundamental consider ation was built and to w hom it was given the r ight to sover eignty was the most impor tant issue r aised (Br ilmayer , 1991 & Buchanan, 1997). The 4th place consider ation demanded nations to become politically and cultur ally independent, w hile the fifth touched on decision-making on secession as the most needed (Or entlicher , 2003) in that debate. Whether a vote by a separ atist r egion's population be sufficient or not, it is necessar y to fair ly consider the population’s feedback in the r est of the countr y (Buchanan, 2003).The last was r elated to i solating Yugoslavia and could become cr ucial in Spain's futur e (Ander son, 1995). The 'Unilater al Declar ation of Independence of Kosovo' (2009) has totally shifted with taking into account the histor ical tr eatment of separ atism.Ser bia's secession has not been mutually agr eed upon, nor has it sought to go back on the annexation. Rather , the r easoning pointed on decolonization as it was based on discr imination on the minor ity as w ell as violation of human r ights (Coppieter s, 2010 & Muhar r emi, 2008).The unilater al issue dr agged us on a mor al ar gument on w hose decision should it be w hen it comes to secession. In the case of Yugoslavia, Cr oatia deter mined the futur e of Bosnia. 5. Discussion 5.1. Self-deter mination Refer endum This r efer endum intends to take the people’s aspir ation w hether to be an independent state or to stay in a state. For example, Kur distan Region people's r efer endum that w as heldon 25 Sept ember 2017 indicated a separ ation fr om Ir aq for them to be r ecognized as independent (Ir aq's Kur distan Region Holds Independence Refer endum, 2017).Other examples included the Catalan people's r efer endum that was held on 1 October 2017 to also separ ate fr om Spanish (Alandete, 2017), as w ell as Austrian people's r efer endum that took place after Wor ld War I to stay w ith Ger many (Nohlen & Stover , 2010). 5.2. Legal Base of the Refer endum The pr escr ibed method to independence plebiscites par ticular ly encompasses its legislative law. In ter ms of legitimate r egulation, this has to do with the legal r equir ements that offer and contr ol r efer endums (Al-Helou,2000). In inter national law , this includes either 'inter national accor ds' or 'customar y law '. Mor eover , issues of for mal legitimate appr aisal of autonomous plebiscites have to do w ith the legality of making the nation. This has to appear fr om the inter national law per spective as w ell as the main constitutional pow er 's validity. Suffice to point out opposing natur alist’s and positivist’s per spectives of law on the cogency of legal standar ds and ther efor e totality of the complete legal or der . Natur alists uphold the view that only satisfaction of high caliber mor ality validates legal nor ms. Positivist on their par t believe any law w ithout source is a law hence mor ality is sees beyond the boundar ies set for th by the law , or know n as 'a meta-legal concept' (Beaud, 1997 & Mor mor , 2012). Consequently, in the absence of w r itten law ful gr ound for r efer endums, positivists’ position declined to appr aise them fr om a 'jur idical view point'. How ever 'natur al law theor ists' define appr opr iate mor al nor m as having a legal value despite not fully accounted for in the constitution; int er national agr eements or legal documentations elsew her e. The natur alist view law -making exer cise as r educed to gather ing fr om the law and establishing it. Thomas Aquinas10 sees it as “or dinance of r eason”, hence human r easoning is the main basis of law. The par amount aspect of it is that natur al law theor y view r ationality of law ful standar ds in confor ming to the standar ds ethics. By this position, only the 'holder s of sover eignty' have the jur isdiction to deliber ate on and estr ange their independence. Plebiscites, ther efor e, ar e the "only w ays that establish the legality of the de-facto situations of state and str uctur al cr eation"(Gozler , 1997). The inquir y pushed fr om positivist angle illuminates that independence votes ar e held at the sour ce of such law s. In this case, it may conceive be as a legal or der w her eby a r udimentar y nor m, a str uctur e institute the oneness of a gr oup of nor ms (Kelsen, 2002). These foundations can be illustr ated fr om some cour t opinions as a r efer endum. The Canadian Supr eme Cour t inQuebec Secession depar ted fr om the w r itten law s and came up w ith the “model of optimistic r esponsibilities” by noting “centr al constitutional pr inciples.”Accor ding to the Cour t, “these pr inciples can spr ing ver y scholar ly and wide-r anging 24 Vol 7 Issue 4 DOI No.: 10.24940/ theijhss/ 2019/ v7/ i4/ HS1904-006 Apr il, 2019 THE INTERNATIONAL JOURNAL OF HUMANITIES & SOCIAL STUDIES ISSN 2321 - 9203 w w w .theijhss.com onuses or may r emain mor e definite and pr ecise in natur e." The doctr ines ar e not just expr essive, but they ar e str ongly connected w ith 'nor mative pow er ' that is pr er equisite to cour ts and gover nments alike. Follow ing the asser tions, the Cour t took the position that despite it being unilater al, the plebiscite favor ing the secession w ould enfor ce on Canada and r elated pr ovinces to enter into the fur ther deliber ations (Char tr and, 2003). It, ther efor e, implies that the fundamental legitimizing pr eposition that the constitutional r ules gover ning the secession pr ocess ar e those of consent. A r eliable way to know if a community wishes to secede is thr ough plebiscite (Radan, 2010). 5.3. Sover eign Refer endums in Inter national Law Refer endum, based on the inter national law , is an element composed of (1) the issue at stake for the poll is an inter national law matter ; (2) the legitimate basis of the r efer endum as a tool of inter national law , w hich may be an agr eement or the deed of a univer sal body; (3) the inter national player s dur ing the implementation stage. It seems a must for these cr iter ia to be implemented as far as inter national law is concer ned, though it can be just a matter of thought. Having inter national subjects w ithin the pr oceedings is highly agr eed upon. Unilater al polls w hen held by post-r evolutionar y r egimes and a br eak away fr om the national or ethnic gr oups and w hen w er e not based on any inter national tr eaty, would not car r y any w eight within the context of inter national law. Consequently, these de facto r efer endums may not even establish a state of any geographical adjustment (Gaw enda, 1946). How ever , the concept plebiscite inter national is best meant for r efer endums held in connection to an inter national commitment established jointly or mutually thr ough pacts or thr ough a r esolution achieved by an agr eement of an inter national or ganization. Gener ally, r efer endums held follow ing an act of inter nal sover eignty do not fall w ithin the class of inter national r efer endums, either constitutional or statutor y. 5.3.1 Sover eignty Refer endums Accor ding to Contempor ar y Inter national Law Accor ding to Far r aj, r efer endums situated in the state cr eation is a point for discussion (Far raj, 2001). Academically, based on the view of the state’s independency, the ter ms of har d and soft law should be distinct. The fir st concer ns tw o main r oots: agr eements, and tr aditional law, among other s. The second involves the non - legally binding instr uments used by states and the inter national community in cur r ent inter national r elations. An example of soft law includes an "instr ument such as state declar ations of confer ences, UN instr uments (the r esolutions of the Gener al Assembly), codes of conduct, r ules and appr ovals of inter national or ganizations or supr anational communities" (most notably the Eur opean Union) (Aust, 2012). Soft law cannot be r egar ded as a law in itself, but it is a pr oof of "existing law or the opinio jur is11deter minant or State pr actice that br eeds new customar y law" (Boyle, 2014). It is know n that the essential differ ence betw een inter national law and state lawis "the pr inciple of states ' sover eign equality w hich excludes a super ior law " - that is in positioning "the body" above the states, as w ell as centr alizing police enfor cement. This cr eates confusion betw een "har d and soft law s" and inspir es the scholar s to avoid excessive for malism and over look the impor tance of soft law tools. Soft law s ar e the conduits pr escr ibed by w hich consent - based legality ar guments flow to and fr om both national and inter national for ums. Though, the indisputable mor al str ength of ar guments of consent-based legality in contempor ar y inter national r elations is w ell r emember ed, it can be ar gued that democr atic customs in the exer cise of political pow er have become pr edominant aphor isms in inter national and national legal or der s (Al-Mehtaibi & Abu Khuzam, 1996). Fur ther mor e, the mer ger of inter national and national legal or der s is pr ogr essing in this r egar d (Gior gio, 1997).Another illustr ates the inter r elationships betw een domestic constitutional law , inter national law and Eur opean law : ther e ar e dir ect and indir ect legal incentives betw een all thr ee legal pr emises, r egulated by one or mor e differ ent legal systems (Lanchmayer , 2007). Fur ther mor e, emer ging inter national constitutional or der , suppor ted by an inter national community, under lined the inter national value system and r udimentar y str uctures for its enfor cement. The egalitar ian customs and basic cr eeds of human r ights now establish the r udiments of the “Inter national Value System” w hich includes all other nor ms str engthened by mor al suppor t. Such w er e included by the states into the nor ms of positive law and has acquir ed a super ior or der ed standing thr ough State pr actice (Er ika De Wet, 2006). The convention of the gover ned i.e. "democr atic entitlement," has become "a new legal pr er ogative" in inter national law for states at the ear ly 1990s (Al-Helou, 2000). This is par tly based on customar y pr actices and par tly based on collective agr eement. Fur ther mor e, it is indicative that the gr owing use of globally adapted r efer endums on sover eignty w as key to a global r ule system that identified the minimal basics of a democratic pr ocess capable of legalizing the use of pow er (Fr anck, 1992). In addition to the legal status of r ules r elating to r efer endums, mor al author ity should be consider ed good by implication. By contr ast, soft law instr uments ' ir r efutably pr odigious author ity over self-deter mination and other democr atic doctr ines of state cr eation distinguishes betw een instr uments of har d and soft law . Pr ior ity consider ation should be given to the issue of har d law . 5.4. Sover eignty Refer endums in Customar y Law The classical view did not see r efer endums as necessar ily par t of customar y law. Sever al accor ds on the br eakaway under taken in the nineteenth centur y that est ablished the session should only be legal in as much as the people subscr ibed to it via plebiscite. Never theless, it cannot be said that inter national law made the situation of ever y session author ized by a plebiscite. Somehow, it can be view ed that the r efer endum in cession agr eements w er e of a facultative natur e and by no means a vital element for the legal cogency of a deed of the session. 25 Vol 7 Issue 4 DOI No.: 10.24940/ theijhss/ 2019/ v7/ i4/ HS1904-006 Apr il, 2019 THE INTERNATIONAL JOURNAL OF HUMANITIES & SOCIAL STUDIES ISSN 2321 - 9203 w w w .theijhss.com Rudr akumar an attempted to r esolve the debate on w hether the pr er equisite of the r efer endum in t er r itor ial compr omise w as a component of inter national customar y law . He r eached a negative conclusion. Fr om the pr emises of state pr actice, he found that the nineteenth centur y and post-WWI polls w er e not held r egular ly and w er e fr equently pr ejudiced by histor ic and pr evalent consider ations. He also supposed that opinio jur is had alw ays been absent in past events: plebiscites w er e employed pr imar ily for r easons of administrative convenience, and not due to seeming legal onuses (Rudr akumar an, 1990). "Plebiscite’s" view er s r ely on the theor ies of natural law and the arguments of "self-deter mination, and national and popular sover eignty" w er e based on consent. The common assumption that ther e must be a public consent w hen it comes to a question of ter r itor ial adjustment can be tr aced back to Erasmus, w ho opposed the r ight to conquer and claimed that any author ity over people is only possible w hen they allow it. This assumption allegedly led to the consultations conducted as gener ally stated in Ver dun Metz and Toul's thr ee bishopr ics. Gr otius states: To r ender the alienation of the w hole public dominion valid and to confir m the tr ansfer of any par ticular por tion, the consent of the w hole body as w ell as of that par ticular member w ill be necessar y: for other w ise such alienation w ould be like the violent separ ation of a limb fr om the natur al body (Gr otious, 1901).12 "The pow er ful annexation of states or ter r itor ies of st ates by other states" can be declar ed void in Per petual Peace. Such acts w er e contr ar y to the or iginal contr act idea (Kant, 2006). In the late nineteenth and ear ly t w entieth centur y, Fr ench and Italian w r iter s sought to incor por ate the fundamentals of the "plebiscite" into the r hetor ic of inter national law. Accor ding to some in inter national law, the r esidents' appr oval to a valid session had become an "absolute pr inciple" (Hassan, 1991). Some other s also claimed that the r efer endum device w as an integr al par t of inter national law despite its shor tcomings and thus had become a custom (Al-Muzaffar, 1992). Alter natively, some of them w er e mor e specific about the issue of consistent inter national law use of r efer endum, noting that the senior ity of plebiscite pr actice is an indication of its tendency to pr evail in customar y law . Assessing the above, based on the latter exper tise, including "post-WWII and post-communist r efer endums", the gener al assumption may be that histor ical exper tise does not car r y the opinion of the major ity w ith their spor adic statements for political expediency. Instead, the statements ar e habitual r esponses that have been r epeated over time in favor of inter nal histor ical change. It can be deduced that the concepts of "pedigr ee and coher ence assist the r ule of self-det er mination in the histor ical evolution of the contempor ar y system of inter national or ganization and sover eignty r efer endums monitor ing". The ter r itor ial-r elated r efer endum r equir ement can therefor e be assumed along w ith inter national contempor ar y and state-cr eation standar ds (Hafez, 1999). 6. Conclusion The use of Refer endum as a tool for achieving self-deter mination by the Ir aq Kur distan r egion, like other similar cases, has alw ays been contentious. The Ir aqi feder al constitution did not pr ovide for any of its component par ts to br eakaway as put in Ar ticle 1 of the document. How ever , the Kur ds have tr ied to justify the constitutional legitimacy of the r efer endum based on thr ee main sour ces: Fir stly, Kur distan Regional Gover nment (KRG) gover ns the autonomous ter r itor y of Kur distan. This is accor ding to ar ticle 117, which fir stly stated that: “This Constitution, upon entr y into for ce, r ecognizes the r egion of Kur distan as a feder al r egion, together w ith its existing author ities, and secondly: it affir ms new r egions established in accor dance w ith its pr ovisions.” This pr ovision r ecognizes the legal autonomy of the Kur dish r egion, and advocates the legitimacy of any legislation, cour t decisions and contr acts of Kur distan unless the Kur dish gover nment thr ough any subsequent law s has canceled the same legislation. Ar ticle 117 clear ly pr ovides Kur distan as a semi-autonomous r egion under the Iraqi state. Because of this, the Kur dish people in Ir aq achieved independence fr om the Ir aqi r egime in 1991 and 1992 w her e they elected their fir st par liament and pr ogr essed t o build a de facto autonomous gover nment know n as KRG in Iraq. The r ight of the Kur ds to manage inter nal affair s is not a feder al task and thus the r egional state has the r ight to hold Refer endum for self-deter mination without r ecour se to the feder al gover nment. The 115th ar ticle states that author ities of the system possess the w hole pow er of t he feder al state. Mor eover , the feder al state shar es the author ity w ith the r egional pow er s, and it holds pr ior ity in cases of disputes. The r egional law w ould, ther efor e, take pr ecedence in the case of a conflict betw een feder al law and r egional law . On the other hand, the Refer endum is constitutional and law ful based on the Ir aq constitution’s pr eamble that mentions, “The adher ence to this Constitution pr eser ves for Ir aq its fr ee union of people, of land, and of sover eignty”. Thus, it could be said that Ir aq has not honor ed the Constitution that w as the basis for the voluntar y union, and the Refer endum as a Mar ker of Constitutional Dissolution.” Consequently, these compositions give legitimacy to unilater al Refer endums and claimed validity. Self - deter mination is an impor tant standar d of inter national law. In fact, self-deter mination is descr ibed as the tools that take into consider ation the pr inciple of people's r ight in gover ning their politics including how they want to be developed fr om var ious fr onts including social, economy and cultur e. What this means is that ever yone can char t the cour se of how he/ she w ishes to be gover ned as w ell as w ho w ill be gover ning her / him fr om w hich location. Fur ther mor e, the decision to self-deter mination clear ly becomes a political disengagement once Kur ds car e mor e about their ow n than their w hole benefits. 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Retr ieved fr om https:/ / study.com/ academy/ lesson/ w hat-is-a-r efer endum-definition-example.html. lxiv. Yadgar , Talib Rashid. (2008). some of the Inter national legal Aspects of the Countr y's Population, Law &Political magazine. 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 29 Int ernat ional Covenant on Civil and Polit ical Right s, New York, 16 Decem ber 1966, Unit ed Nat ions Treat y Series, Vol. 999, No.14668, p.173, available from ht tps:/ / tr eaties.un.or g/ Pages/ View Details.aspx?chapt er =4&cl ang=_en& mtdsg_no=IV-4&sr c=IND and Int ernat ional Covenant on Economic, Social and Cult ural Right s, New York, 16 Decem ber 1966, Unit ed Nat ions Treat y Series, vol. 993,P. 3, available from https:/ / tr eati es.un.or g/ pages/ Vi ew Details.aspx?sr c=IND& mtdsg_no=IV-3&chapter =4&clang=_en#EndDec. Com m on Art icle 1 st at es, “ All peoples have t he right of self-det erminat ion. By virt ue of t hat right t hey freely det er mine t heir polit ical st at us and freely pursue t heir economic, social and cult ural development .” Burak, Cop and Eymirlioglu, Dogan. (2005). The Right of Self Det erminat ion in Int ernat ional Law t ow ards t he 40 t he Anniversary of t he Adopt ion of ICCPR and ICESCR. Percept ions Journal of Int ernat ional Affairs 10(4), 116.Ret rieved from http:/ / sam.gov.tr / w pcontent/ uploads/ 2012/ 02/ Bur akCopAndDoganEymir lioglu.pdf . Srihari, Gopal. (2018). The Kurdist an Ref erendum – Overst epping t he Right of Self-Det erminat ion? Cambridge Int er nat ional Law Journal. Ret rieved from htt p:/ / cilj.co.uk/ 2018/ 04/ 06/ the-kur dist an-r efer endum-over stepping-t he-r ight-of-self-deter mination/ . UN General Assem bly Resolut ion 1514 (XV), Declarat ion on The Grant ing of Independence t o Colonial Count ies and Peoples, A/ 4494(14 Decem ber 1960). Available from undocs. A/ 4494 and UN General Assem bly Resolut ion 2625, (1970). Declarat ion on Principles of Int ernat ional Law concerning Friendly Relat ions and Co-operat ion am ong St at es in accordance w it h t he Chart er of t he Unit ed Nat ions. A/ 8082 (24 Oct ober 1970). Available from undocs. A/ 8082. Cort en, Olivier. (2011). " Territ orial Int egrit y Narrow ly Int erpret ed: Reassert ing t he Classical Int er-St at e Paradigm of Int ernat ional Law ," Leiden Journal of Int ernat ional Law 24, 88. Ret rieved fr om fi le:/ / / C:/ User s/ 2017/ Dow nloads/ OC.LJIL2011.pdf . " Territ orial int egrit y is t he principle under int ernat ional law t hat prohibit s st at es from t he use of f orce against t he " t errit orial int egrit y or polit ical independence" of anot her st at e. It is enshrined in Art icle 2(4) of t he UN Chart er and has been r ecognized as cust omary int ernat ional law ." M ont evideo Convent ion on t he Right s and Dut ies of St at es, M ont evideo, 26 December 1933, available from https:/ / w w w .jus.uio.no/ engli sh/ ser vices/ libr ar y/ tr eaties/ 01/ 1-02/ r i ghts-duti es-stat es.xml , Art . l provides about st at ehood t hat “ The st at e as a person of int ernat ional law should possess t he f ollow ing qualificat ions: (a) a permanent populat ion; (b) a defined t errit ory, (c) gover nm ent ; and (d) capacit y t o ent er int o relat ions w it h t he ot her st at es.” M cDow all, David. (2004). A M odern Hist ory of t he Kur ds. New York: I.B. Tauris." The Kurdish nat ionals" are t he majorit y populat ion in t he aut onomous region of Iraqi Kurdist an, and are a significant minorit y group in t he neighbouring count ries of Turkey, Iran, and Syria, w here Kurdish nat ionalist movem ent s cont inue t o pursue great er aut onomy and cult ural right s. Chandler, Daniel and M unday, Rod. (2016). A Dict ionary of M edia and Com municat ion .Oxf ord Universit y Pr ess. " Et hnicit y ident it y is a dist inct ive ident it y f elt , shar ed, or claimed by individuals or a group, or ascribed t o t hem , based on shar ed charact erist ics associat ed w it h a definit ion in t erms of et hnicit y and for ming t he basis f or t heir subcult ural and/ or polit ical different iat ion from ot her groups in a societ y. A salient aspect of ident it y for individuals fr om et hnic minorit ies." Iraqi Const it ut ion, (2005). Art . 1., st at es t hat “ The Republic of Iraq is a single federal, independent and fully sovereign st at e in w hich t he syst em of government is republican, represent at ive, parliament ary, and Democrat ic, and t his Const it ut ion is a guarant or of t he unit y of Iraq and Art . 2(1) st at es t hat Islam is t he official religion of t he St at e and is a foundat ion source of legislat ion: A. No law may be enact ed t hat cont radict s t he est ablished provisions of Islam . B. No law may be enact ed t hat cont radict s t he principles of dem ocracy. No law may be enact ed t hat cont radict s t he right s and basic freedoms st ipulat ed in t his Const it ut ion. Aquinas not es, in t his line of t hinking, t hat “ a legal norm fails t o be valid if it goes against t he human reason, regardless of t he fact t hat it has been adopt ed by t he st at e” . Quot ed in M urphy, Philosophy of Law : The Fundam ent als, 38-45. What is opinio juris? (2011, April 22). Ret rieved from ht tps:/ / r uw anthikagunar at ne.w or dpr ess.com/ 2011/ 04/ 22/ opi nio-jur is/ . Art icle 38 (1) (b) of t he St at ut e of t he Int ernat ional Court of Just ice explains cust omary int ernat ional law as comprising of “ (1) a general pract ice (2) accept ed as law ” . The general pract ice or st at e pract ice w as discussed in an earlier post . The ICJ, in it s jurisprudence, has r elied on, and int erpret ed, Art icle 38 (1) (b) t o include t w o element s t hat assist t he Court t o det ermines t he exist ence of an alleged cust omary int er nat ional law – st at e pract ice and opinio juris (also know n as opinio juris sive necessit at es). Grot ius, Hugo. The Right s of War and Peace, including t he Law of Nat ure and of Nat ions, t ranslat ed from t he Original Lat in of Grot ius, w it h Not es and Illust rat ions from Polit ical and Legal Writ ers, by A.C. Cam pbell, A.M . w it h an Int roduct ion by David J. Hill. (1901). New York: M . Walt er Dunne. CHAPTER XX: On t he Public Fait h, by w hich War is Concluded; Com prising Treat ies of Peace, and t he Nat ur e of Arbit rat ion, Surrender Host ages, Ret rieved from https:/ / oll.liber tyfund.or g/ t itles/ 553 . Ut i possidet is Law and Legal Definit ion. (2010, August 16). Ret rieved fr om htt ps:/ / definitions.usl egal.com/ u/ uti -possidetis/ .it is a principle in int ernat ional law t hat t errit ory and ot her propert y remains w it h it s possessor at t he end of a conflict , unless ot herw ise provided f or by t reat y; if such a t reat y does not include condit ions regarding t he possession of propert y and t errit ory t aken during t he w ar, t hen t he principle of ut i possidet is w ill prevail. Vol 7 Issue 4 DOI No.: 10.24940/ theijhss/ 2019/ v7/ i4/ HS1904-006 Apr il, 2019