Territorial Integrity v. Self-Determination: Evaluating the Kurdish Independence Referendum

On September 25, 2017, the people of Iraqi Kurdistan voted decisively in favor of independence. [1] Since that referendum, the Kurds have faced a rude awakening at the hands of the Iraqi government, in the form of military action and resistance to negotiation on a pathway to independence. [2] While the reality on the ground may suggest that the prospect of an independent Kurdistan in the near future is bleak, it is still worth evaluating whether the referendum was legal in the first place. The main argument against the referendum, under international law, is based on the principle that all states have a right to territorial integrity. [3] Therefore the Kurdish referendum for independence compromised Iraq’s territorial integrity. [4]

A contrary argument can be made that Iraq’s territorial integrity was not compromised, because the principle of territorial integrity is derived from a prohibition on the use (or threat of use) of force by another state. [5] [6] Thus, it can be argued the Kurds have not violated international law since a referendum is internal rather than external. The Kurds certainly did not amass an army to march on Baghdad, and the referendum seems to have gone peacefully. [7]

However, the territorial integrity right may not be limited to external threats. [8] One author argues the principle of territorial integrity applies to internal disputes, and that any right of self-determination is generally reserved for colonial territories only. [9] Under this view, the vote to declare a portion of Iraqi territory to be a separate state (Kurdistan), was in violation of Iraq’s territorial integrity.

Opponents respond to this expanded view of territorial integrity with the ruling in a well-known International Court of Justice case, involving Kosovo’s declaration of independence in 2010. [10] The court ruled against Serbia’s claim, that Kosovo’s declaration of independence violated Serbia’s territorial integrity and was therefore illegal, ruling territorial integrity “is confined to the sphere of relations between States.” [11] Under this view, it can be argued that since Iraqi Kurds do not have a separate state beyond the control of Iraq, it would not have infringed upon Iraq’s territorial integrity for them to have the referendum.

Even if we assume that unilateral declarations of independence are impermissible, still, that is not what the Kurds did. Rather, they held a referendum to seek independence, and sought negotiation with the Iraqi government to discuss their movement towards independence. [12]

Furthermore, proponents of the Kurdish referendum’s legality, argue that there is no international custom against unilateral declarations of independence, and that such declarations have been happening for hundreds of years. [13] Thus, any suggestion that the Kurdish referendum was categorically illegal simply because it was unilaterally done, does not have much merit.

Nevertheless, whatever weaknesses there are in the legal arguments against the referendum, the Iraqi government has chosen to condemn the referendum on more pragmatic grounds. [14] Also the staunch opposition from surrounding countries and the United States, makes the prospect of Kurdish independence unlikely, regardless of the referendum’s legality under international law. [15]

This post is a student blog post and in no way represents the views of the Fordham International Law Journal.