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Erbil, Kurdistan Region, Iraq - The Kurdistan Regional Government Council of Ministers held a meeting chaired by Prime Minister Nechirvan Barzani to discuss the independence referendum held on September 25th.

The meeting was also attended by Deputy Prime Minister Qubad Talabani.

The Council of Ministers commended and congratulated the people of The Kurdistan Region for the success of the Referendum through which the people expressed their free will to the world in a civil and democratic process that is consistent with the Constitution of Iraq, international law, and the Universal Declaration of Human Rights.

It reiterated that the Kurdistan Region is ready, willing, and able to settle all issues with Baghdad through dialogue and negotiation.
The Council of Ministers reassured regional and neighbouring countries the Referendum process in no way poses any threat to their national security.

The Kurdistan Region's Government and people have proven during the past 25 years they have been, and always will be, a factor for stability and security in the region. The Council of Ministers also reaffirmed they will remain fully committed to peaceful relations with all neighbouring countries in accordance with the highest standards of mutual respect and mutual interest.

The Council of Ministers rejected all decisions of the Iraqi Parliament and Government which it considered as aggressive and hostile to the people of the Kurdistan Region. It stated that the decisions are legally and constitutionally baseless and reflect the precise mindset that failed to accept and implement the principle of partnership and honour the constitutional rights of the people of the Kurdistan Region.

The Council of Ministers regards these decisions as collective punishment against the people of the Kurdistan Region.

It reaffirmed its commitment and readiness to dialogue and begin negotiations with Iraq to resolve these issues. At the same time, it confirmed it will pursue measures that illustrate the illegality and unconstitutionality of the decisions.

Regarding banning of commercial flights from international airports of the Kurdistan Region, the Council of Ministers asserted this decision is illegal and unconstitutional, and against international conventions and laws, notably the Chicago Convention on International Civil Aviation that stipulates airports should in no way be used to cause harm or bar civilians from travelling.

For this reason, the Council of Ministers has recommended the Minister of Transportation and Communication of the KRG to start negotiation with relevant parties in Baghdad. It also recommended working at the international level to explain the illegality and unconstitutionality of decisions in terms of Iraqi laws, international law and conventions, and take all possible appropriate measures.

The Council of Ministers reaffirmed that despite financial and economic strain on the Kurdistan Region, assistance to refugees and Iraqi IDPs will continue without hindrance. The unfortunate and regrettable decisions of the Iraqi Parliament and Government will in no way adversely affect treatment of refugees and IDPs by the government and people of the Kurdistan Region.

Below are legal notes and observations on decisions of the Iraqi Parliament and Government:

A. Regarding decisions of the Iraqi Council of Representatives in their meeting No. 23 on September 27th 2017 that focused on reacting to the Referendum held in the Kurdistan Region, including Kurdistan areas outside the Kurdistan Region, the KRG Council of Ministers stated:

According to Article 121 Section 2 of the Iraq Constitution, decisions by the Iraqi Council of Representatives categorically cannot be implemented unless ratified by the Kurdistan Region Parliament, a parliamentary norm since the Iraqi Constitution of 2005 came into force. Thus, the Council of Ministers requests the Kurdistan Parliament to decide on Iraqi Council of Representatives’ decisions that the KRG Council of Ministers considers as inappropriate and unconstitutional as outlined below:

1. The preface of Section 1 of the Iraqi Council of Representatives decision completely contradicts the principle of democracy, a pillar of the federal government as stipulated in Article 1 of the Iraq Constitution. The Iraqi Council of Representatives considers exercising the right of expression by referendum by the people of the Kurdistan Region as a crime and urges legal action against those who participated in the process. Article 1 holds that referendum is a practice of democracy based on the principle that the will of the people is the source of power. Further, Article 38 Section 1 of the Constitution clearly allows referendum as a guaranteed freedom and right of expression. There is no constitutional provision preventing exercising this right. The Iraqi Council of Representatives has, thus, breached its authority by deciding collective punishment of the people of the Kurdistan Region because of their participation in the Referendum.

2. The Council of Representatives has misused its authority such as its negative reactions and collectively punishing the citizens of the Kurdistan Region for having held the referendum.

3. Regarding the Iraqi Council of Representatives decision requiring the General Commander of the armed forces to redeploy federal armed forces in Kurdistan areas outside the administration of the Kurdistan Region, Article 9 Section 1 of the Constitution expressly forbids the use of Iraqi armed forces against the citizens of Iraq.

4. The Iraqi Council of Representatives decisions exceed its exclusive authorities as stipulated in Article 110 by attempting to diminish the authorities of the Regional Government. Article 126 Section 4 of the Constitution disallows the federal authority from diminishing the authorities of the Regional Government.

5. The decisions of the Iraqi Security Council, mentioned in section 3 of the Iraqi Council of Representatives decisions, have no jurisdiction in the Kurdistan Region as they are outside the exclusive authorities of the federal government. At the same time, based on its law 4 of 2011, the Kurdistan Region has its own Security Council.

6. Decisions pertaining to border closings are not within the authorities of the federal government listed in Article 110 of the Constitution. Further, according to Article 115 of the Constitution, where the federal government does not have explicit authority, the authority of the Region prevails. 

7. The disposition of oilfields is not mentioned in Article 110, but is resolved in Article 112, and is not considered explicitly under the authority of the federal government.

8. Regarding the Iraqi Council of Representatives’ decision of closure of consulates and other official offices of foreign governments, the presence of these offices is an earned right of the Kurdistan Region. Closure of such offices at time when there is no deficiency that adversely affects their presence Kurdistan Region is considered inappropriate. Further, this matter is within the limits of international law as diplomats and consular activities are regulated by the Vienna Convention on Consular Relations (1963).

B. Regarding Iraqi Federal Government’s Council of Minister’s decision on 26 September 2017, to ban international flights from Erbil and Suleimaniya airports and the issue of border crossing points with neighbouring countries, the KRG Council of Ministers considers this decision illegal and inappropriate due to the following:

1. In the preface of their decision, the Iraqi Council of Ministers has relied on the first, second, and third sections of Article 110 of the Iraqi Federal Constitution when none of these sections grant it such authorities. These sections state how policies can be formulated, they do not give authority for closing border crossing points and civil airports, nor do they allow the assignment of federal employees to run them instead of regional employees.

2. The Iraqi Council of Ministers decision to stop international flights to and from the Kurdistan Region relied on Law 148 (1974) of the Iraq Civil Aviation Authority (ICAA) that is a centralized law from the era of Ba’ath regime. This law does not align with the principles of the federal state according to the Iraq Constitution of 2005 and is in contradiction of Article 13 of the Constitution that states no law will be applicable if it is against the provisions of the Constitution. Further, both Erbil and Suleimaniya airports have been under observation of the ICAA since their activities began and they have complied with the same instructions, conditions, and rules applicable at all other airports in Iraq.  ICAA teams have inspected both airport regularly and the federal Minister of Transportation has certified they are in full compliance. As such, both international airports in Kurdistan Region have not breached any rule to compel the Iraqi Council of Ministers to ban flights from them. The Kurdistan Region has, however, enacted Law 18 (2008) pertaining to its civil airports, with reference to Article 121 of the Iraq Constitution that stipulates where there is a dispute between federal and regional law, then regional law prevails.

3. Regarding civil aviation authority law on which the Iraqi Council of Ministers relied to ban flights into and out of the airports of the Kurdistan Region, Article 3 states that where international agreements and conventions are inextricable with that law, the federal government is required to implement them, notably the Chicago Convention on International Civil Aviation (1944) that states in Article 4 that civil aviation should not be used for any purpose inconsistent with the aim of the convention. Additionally, according to Article 13 of the Universal Declaration of Human Rights that everyone has the right to freedom of movement and Article 12 of the International Covenant on Civil and Political Rights preserves the right of travel to everyone.

4. The Iraqi law of Border Ports Agency number 30 (2016) has not been ratified by the Kurdistan Parliament, hence the law is not enforceable in the Kurdistan Region. Per Article 121 Section 2 of the Iraq Constitution, the Iraqi Council of Representatives has used the principle of majority for enacting the law. Enforcing this law diminishes the authority of the Kurdistan Region in contradiction of Article 126 Section 4 of the Constitution because the majority members of the Border Ports Agency are representatives of the federal ministries.

5. While it is correct that opening any border point or airport needs prior approval of the federal government due to international implications, this does not necessarily imply or mean that closing or running the airports are exclusive authorities of the federal government.