Pouring Oil on Iraq’s Fragile Power Sharing Arrangement: Kurdistan’s Autonomy and the Kurdish Oil Judgment of 2022

Daan Smeekens, Simon Mazidi and Eva Maria Belser

Daan Smeekens is a Research Fellow at the Institute of Federalism, University of Fribourg, Switzerland. He holds an LL.M. from the University of Antwerp in Belgium, majoring in international public law, during which he attended a semester at the Centre for Human Rights of the University of Pretoria. His research interests lie in the fields of public international law, federalism and conflict resolution.


Simon Mazidi is a Research Assistant at the Chair of Constitutional and Administrative Law at the University of Fribourg and a PhD student. In his dissertation, he examines the extent to which Swiss courts observe and apply international law and how they proceed in conflicts between domestic law, in particular constitutional law, and international obligations.



Prof. Dr. Eva Maria Belser holds a Chair for Constitutional and Administrative Law at the University of Fribourg and a UNESCO Chair in Human Rights and Democracy. Since 2008, she is Co-Director of the Institute of Federalism and heads its international center. She is a member of the board of the Swiss Centre of Expertise in Human Rights a member of the board of advisors of International IDEA. Her research interests lie in the field of Swiss and comparative constitutional law and cover the topics of fundamental and human rights, democracy and the rule of law, as well as federalism, decentralization and conflict resolution.


Iraq’s constitution of 2005 was a promising one: it had been accepted in a popular referendum and implemented a federal agenda for the central government and the Kurdistan region. However, a closer look reveals that the constitution-making process was severely flawed. Indeed, some essential features of the federal system are either missing or remain largely undefined. In this short contribution, we expound on the extent to which the constitution essentially provides for a federal structure, and whether it has been properly implemented. Further examination reveals that the absence of federal regions (besides the Kurdistan region), the unclear distribution of rules, as well as the missing bicameral parliament and the law on the Federal Supreme Court, all contribute to the lack of federal practice in Iraq – leading to important anti-federal consequences, such as the 2022 Iraqi Oil Judgment.



After the US-led coalition invaded Iraq (Holden 2012), the United States and Iraqi opposition groups put forward the idea of a federal system for the polity of post-war Iraq (Alkadiri 2020). Given the deeply divided post-conflict situation in which the country found itself, federalism had been identified as the best way to accommodate and promote the rights of ethnic or religious minorities, to prevent the return of dictatorship and to hold the country together (Anderson 2007; Natalie 2011). Following this line of rationale, the Iraqi population approved in a popular referendum a new constitution in 2005 which defined Iraq as a federal state (Johnson 2020; McGarry & O’Leary 2007). However, the constitution-making process was severely flawed: the power-sharing arrangement had to be conjured up under enormous (largely external) time pressure (Belser 2020), and the Sunni elites only became involved at the very end of the process. They mostly did not accept the outcome, yet their refusal was considered negligible (Morrow 2005). As we will show, these democratic and federal shortcomings of the process, as well as the ambiguity of the constitutional text, are among the root causes of constitutional and political instability and ongoing conflict (further reading on the flawed constitution-making process: Belser 2020).

A closer look at the federal set-up codified in the Iraqi constitution reveals that some central features of the federal system are either missing or remain largely undefined. In this regard, Ronald Watts very early on argued that the Iraqi constitution was merely “[…] intended to be federal in form […]” but was actually “[…] either ambiguous or incomplete […]” (Watts 2008). This contribution examines the extent to which the constitution actually provides for a federal structure, and finds that the federal agenda has not been implemented. We will identify which instruments of a proper power-sharing arrangement are missing in the Iraqi constitution by looking at essential features of self-rule and shared rule. We will then look at a case recently decided by the Iraqi Federal Supreme Court, which shows the consequences of the ambiguous constitutional terms included in the Iraqi constitution. Furthermore, the decision also illustrates that such an application of the constitution could have serious consequences for the autonomy of the Kurdistan Region, and consequently for Iraqi federalism as a whole.


Lacking Self-rule and Shared Rule Features

1.      The Absence of Federal Regions

In order to overcome ethnic conflicts, the Iraqi constitution promised a decentralised system with a multilevel governance structure (Danilovich 2014; Horowitz 2006). Early commentators were very optimistic about this federal project. Indeed, looking at Art. 116 Iraqi constitution, one can easily understand the positive evaluation of the federal project, as the article states that “[…] Iraq is made up of a decentralized capital, regions, and governorates, as well as local administrations.” However, it is now apparent that the constitutional structure has very little real federal impact. In reality, the region of Kurdistan was granted a special status due to the high degree of de facto autonomy that it had enjoyed ever since the introduction of the no-fly zone in 1991 (Anaid 2019; Owtram 2019), and became the only federal region explicitly recognised in the 2005 constitution (cf. Art. 117(1) Iraqi constitution) (Kelly 2010). In this regard, the Iraqi federal system can be described as having ‘coming-together’ (Stepan 1999) qualities, since the quasi-independent region of Kurdistan accepted to rejoin and be an integral part of Iraq after the invasion and the subsequent occupation, on the condition that it retained powers over specific policy areas clearly set out in the 2005 constitution (Anderson 2007; Danilovich 2014; Owtram 2019).

Since the constitution also allows for the creation of other federal regions, there is a theoretical possibility that other subnational units would be granted an autonomous status similar to that of Iraqi Kurdistan. They would have the right to adopt a regional constitution and elect a regional president and legislature (Arts. 117(2) and 119–121) (Danilovich 2014; Johnson 2020). For these parts of Iraq, the federal system seemingly shows ‘holding-together’ characteristics (Stepan 1999; Halberstam 2012), as it contributes to maintaining Iraq’s territorial integrity by acknowledging and accommodating its ethnic diversity (Anderson 2007). However, no other federal region was formed since the procedure’s introduction and the idea of a further federalisation of Iraq has remained highly controversial in domestic politics (Hamoudi 2011). Several other – both predominantly Shiite or Sunni Arab, or even religiously and ethnically mixed – governorates have submitted requests to the central government for autonomy. Yet, the government has always blocked these efforts and denied the governorates their constitutionally enshrined right to hold a referendum, even though all requests met the requirements set out in the constitution (Alkadiri 2020; Isakhan & Mulherin 2018). As a result, the country is largely made up of two parts: a quasi-independent Kurdish region and the rest of Iraq made up of 15 governorates. In this light, Danilovich (2014) argues that the Iraqi federal system resembles “[…] more a federacy than a multi-unit federation, as there is only one federated region – Kurdistan […].” Despite the constitutional possibility of forming federal regions, in reality the system is highly imbalanced. Considering the high degree of autonomy for Iraq’s sole region and a somewhat failed unitary state for the rest of Iraq, it would be wrong to call it a federal state.

2.      Unclear Rules on the Distribution of Powers

Concerning the distribution of powers, as almost all other federal states, the Iraqi constitution follows the principle of enumeration of legislative powers and the residual clause. The enumeration of legislative powers demands that the federal government’s powers be expressively listed in the constitution (Palermo & Kössler 2019). Art. 110 Iraqi constitution provides the federal government with a very limited number of exclusive competences, including inter alia foreign policy, national security, fiscal policy, and the state’s national budget (Kelly 2010). According to the residual clause, all competences which are not explicitly attributed to the federal level are vested in subnational units (Art. 115) (Gamper 2005).

Shared powers between the federal and the regional governments are listed in Art. 114 and contain, inter alia, matters related to custom, electricity, public health and education. In case of dispute over shared competences, the constitution surprisingly provides that the law of the regions and governorates prevail – an extremely atypical power-sharing mechanism (cf. Art. 115). In a similar vein, Art. 121 reads that when regional and national legislation are contradictory in matters falling outside the exclusive competence of the federal government, the regional power shall have the right to amend the application of that national legislation in its region (Hamoudi 2011). Even though Art. 13 of the constitution contains a supremacy clause which considers the constitution as the “[…] supreme law in Iraq […]”, regional legislation can effectively override national legislation by amending it. This is in stark contrast to the general principle in federal systems that national laws take precedence over subnational laws.

This particular form of primacy of subnational legislation, combined with the short list of exclusive competences vested in the federal government, in theory allows for a constitutional system in which the Kurdish regional powers are shielded against interventions by the democratically elected Arab majority dominating at the federal level. At the same time, however, this potentially jeopardises the country’s stability, as it means that regions and governorates can enact contradictory laws in areas of shared powers, including on highly contested issues such as the distribution of oil resources (Crawford 2008; Kelly 2010). The lack of clear rules on the distribution of power does not help to overcome the division, but exacerbates it in constitutional terms. So far, no consistency is discernible, as in conflicts relating to shared powers, both the national and the regional level take the position that their legislation takes precedence (Anderson & Stansfield 2010; Deeks & Burton 2007; Hamoudi 2011; Jawad 2013).

3.      The Missing Bicameral Parliament and Law on the Federal Supreme Court

Moving from the highly asymmetric and largely unimplemented vertical power-sharing system to the power-sharing arrangement at the center, we face a similar situation. The institutional participation of subnational units in national law- and decision-making is constitutionally guaranteed. The Iraqi constitution establishes a bicameral parliament. According to Art. 48 Iraqi constitution, “[t]he federal legislative power shall consist of the Council of Representatives and the Federation Council”. Art. 65 specifies that the Federation Council is composed of representatives from the regions and governorates. All further details are, however, left to the discretion of the Council of Representatives which is constitutionally mandated to enact a law regulating “[…] the formation of the Federation Council, its membership conditions, its competencies, and all that is connected with it” (Art. 65). This process is inherently flawed: the Council of Representatives, based on the democratic majority rule, has no incentive to limit its own power by establishing a counter-majoritarian second chamber based on territorial representation of subnational units. It hardly comes as a surprise that the first chamber has been delaying the implementation of Art. 65, and has not established its institutional counterpart yet (Alhassan 2021; Danilovich 2020). In the absence of subnational entities’ institutional representation at the national level, the legislature is a unicameral system and prevents the establishment of “[…] one of the most distinctive features of federal systems” (Palermo & Kössler 2019; Shakir 2017). The lack of a second chamber severely curtails the Kurds’ ability to exert influence at the national level and, given the absence of territorial representation, they have no real incentive to go to Baghdad.

Furthermore, the same flaws affect the establishment of the Federal Supreme Court. Especially in cases such as Iraq, where the constitution is characterised by many broad and ambiguous provisions, an apex court plays a pivotal role in interpreting the exact scope of powers assigned to each tier of government by the constitution, and in resolving conflict over shared competences (Watts 2008). In theory, the Iraqi constitution reflects and acknowledges the importance of this institution in assigning exactly such tasks to the Federal Supreme Court (Art. 93). This Court does exist, but it is a pre-constitutional one (Ismael 2022). Whereas the constitution had to clarify the composition and method of judges’ selection, as well as the tasks of the Court, it did not do so. It left it (again) to the Council of Representatives to enact a law determining these issues (Art. 92(2)). However, it never did. Again, the Council of Representatives has little incentive to limit its own powers by establishing an independent judicial arbiter to provide sufficient checks and balances. Moreover, the current court lacks legitimacy as it is not based on the Iraqi constitution, even though it now performs some of the tasks that the constitution prescribes as the responsibility for a Federal Supreme Court as legally foreseen. Similar to the lack of a second chamber, the absence of a law on the Federal Supreme Court shows the difficulty for the main Iraqi political groups to reach an agreement on such institutional issues (Shakir 2017).


The Federal Supreme Court’s Oil Judgement

The abovementioned institutional shortcomings and the unclear and unimplemented constitutional mandates have failed to constrain politics. In fact, as there was no real consensus among the major groups on how to govern together when the constitution was drafted (a lack of a so-called foedus), the constitution could not fulfil its function of facilitating federal policy- and law-making. Consequently, most ambiguities of the constitution have been lingering on ever since and have not been sorted out – neither by parliament nor by the judiciary. Recently, however, the Federal Supreme Court has interfered in an attempt to judicialise such political conflicts. In February 2022, the Federal Supreme Court ruled that the Kurdistan Regional Government’s Oil and Gas Law of 2007 is unconstitutional – a decision questioning the entire post-conflict set-up in Iraq.

The power over oil and gas is neither listed in the exclusively federal competences of Art. 110, nor in the shared powers of Art. 114 Iraqi constitution (supra B.2). Instead, the separate articles 111 and 112 deal with oil and gas. They are included under Section 4 of the constitution, which provides powers of the federal government, but are not listed as such (Danilovich 2020). Firstly, Art. 111 reads that “Oil and gas are owned by all the people of Iraq in all the regions and governorates.” The Federal Supreme Court relied significantly on this provision to support equal distribution of oil revenue over the whole of Iraq, as well as more transparency on the exact amount of the revenue and how it is distributed. While a fair distribution is an important characteristic of federal systems, Art. 111 is decidedly vague and broadly construed to such an extent that it becomes impossible to derive specific rights from it. Moreover, the provision is difficult to enforce as it does not prescribe any action that could implement it. As a result of this constitutional ambivalence, Baghdad and the Kurdish region continuously disagree over the interpretation of this article (Danilovich 2014).

Secondly, Art. 112 also uses vague terms which allow too much room for interpretation. Art. 112(1) relates to “[…] oil and gas extracted from present fields […]”. This cannot apply to the oil fields in the Kurdistan region, as no oil was extracted from the fields at the time the constitution was written. Consequently, the Kurdish region does not possess “present fields” as defined by the constitution (Crawford 2008). Thus, the federal and the regional government are constitutionally bound to cooperate on the policies to develop oil wealth, suggesting it is a shared competence (cf. Art. 112(2): “The federal government, with the producing regional and governorate governments, shall together formulate the necessary strategic policies to develop the oil and gas wealth […]”). The federal government claimed that the joint management over oil was suspended, seeing that no federal law had been passed yet to regulate it. However, the Kurdistan Regional Government indicated that it had tried to regulate common oil management by law, as is mandatory under Art. 112(1). Yet, the federal government’s refusal to adopt the draft oil and gas law – which was mutually agreed upon – had caused issues over oil and gas to linger on. Therefore, since oil and gas are not listed as one of the exclusive competences of the federal governments in Art. 110, the absence of a federal law means that the oil competence lies with Kurdistan (cf. Art. 115). From these arguments, it appears that the federal government’s own disinclination has made it possible for the regional government to act unilaterally.

As such, the decision by the Court to mandate Kurdistan to hand over all oil production from their fields to the federal government has no constitutional basis, but rather composes a highly problematic interpretation of the constitution. Indeed, the Court explicitly states that the Kurdish government failed “[…] to observe the exclusive powers of the federal authorities regarding oil and gas […]”, whereas the federal Iraqi government does not have any exclusive powers over oil and gas income. As the judgment is not transparent or comprehensively substantiated, it seems the Court is driving to disregard those provisions it considers detrimental to the Iraqi union.

Moreover, the timing of the ruling suggests that political considerations may have influenced the decision. Conflicts related to oil and gas have existed for a long time, and several court cases have already been filed and shelved in the past. However, this was never sufficient for the Court to address these issues. Only now, as Iraq is in the midst of forming a new government and as Tehran’s influence in Baghdad would potentially be limited, has the (Iranian-minded) Court decided to intervene with a judgement.

Regardless of the constitutional legitimacy problem and of the constitutional soundness of the judgment, the court case has huge implications for the Kurdish region’s economic viability. Through interpretations of ambiguous power-distribution provisions, the Federal Supreme Court paves the way for increasingly more centralisation, whereas the original spirit of the Iraqi constitution distinctly is one of decentralisation.



In accordance with Watts’ statement, one must conclude that, while the constitution intends to be federal, the proper implementation of a federal system in Iraq has not taken place yet. Rather, it consists of a largely autonomous Kurdistan region faced with the rest of the Iraqi territory, which is not endowed with the same right to self-rule. Moreover, the distribution of powers remains unclear, which helps the Kurdistan region in theory to protect its legislation from national interference. In practice, however, these and other essential decentralised features are thwarted by existing institutions (i.e. the Council of Representatives and the Federal Supreme Court). Finally, the Council of Representatives’ failure to establish the Federation Council means that there continues to be no institutional representation of subnational units at the national level. As a result, they have no incentive to engage at the federal level as the system rests on a purely majoritarian pillar and since no mechanism forces the majority to accommodate and consider the minority’s views.

These constitutional flaws perpetuate the unstable political system in Iraq. Central and regional governments disagree over constitutional interpretations and distribution of powers. The federal government’s neglect to implement the decentralised mechanisms and institutions enshrined in the constitution leads to internal conflicts and ironically, could potentially lead to stronger calls for independence from the Kurdish government. Such intergovernmental conflicts can only be expected to be resolved once the Council of Representatives fulfils its constitutional obligations: when it enacts a law forming and regulating the Federation Council as a second chamber (representing the regional interests), and a second law forming and regulating the Federal Supreme Court. Moreover, the ambiguous provisions that were left in the constitution in 2005, should once and for all unequivocally be clarified. Effectively, if oil and gas is a shared power, it should be listed with the other shared powers in Art. 114 of the Iraqi constitution. Finally, should the Court’s recent decision be implemented, Kurdistan’s autonomy would be seriously challenged. The ruling shows that there is an urgent need to finally reach an agreement on a federal oil and gas law, in accordance with Art. 112. It additionally demonstrates that it is imperative to strengthen the legitimacy of the Court so that it can act as a proper and independent arbiter between Baghdad and Erbil.

Smeekens, D., Mazidi, S. and Belser, E.M. 2022. ‘Pouring Oil on Iraq’s Fragile Power Sharing Arrangement: Kurdistan’s Autonomy and the Kurdish Oil Judgment of 2022‘, 50 Shades of Federalism. Available at: http://50shadesoffederalism.com/case-studies/pouring-oil-on-iraqs-fragile-power-sharing-arrangement-kurdistans-autonomy-and-the-kurdish-oil-judgment-of-2022//



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ISMAEL, M. S., ‘The Federal Supreme Court of Iraq from Interpreting to Amending the Constitution: KRG’s Oil Judgement as an Example’, I·CONnect Blog (24 March 2022) <iconnectblog.com/2022/03/the-federal-supreme-court-of-iraq-from-interpreting-to-amending-the-constitution-krgs-oil-judgement-as-an-example/>.

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Further Reading

BELSER, E. M., ‘A Failure of State Transformation Rather than a Failure of Federalism? The Case of Iraq’ (2020) 19(4) Ethnopolitics 383-401.

DANILOVICH, A., ‘Federalism in Iraq: A Liberal Idea in an Illiberal Place’, 50 Shades of Federalism (2020) <http://50shadesoffederalism.com/case-studies/federalism-in-iraq-a-liberal-idea-in-an-illiberal-place/>.

DANILOVICH, A., Iraqi Federalism and the Kurds: Learning to Live Together (1st edition, Farnham and Burlington 2014).

HAMOUDI, H. A., ‘Notes in Defense of the Iraq Constitution’ (2012) 14 University of Pennsylvania Journal of International Law 395-410.

ISMAEL, M. S., ‘The Federal Supreme Court of Iraq from Interpreting to Amending the Constitution: KRG’s Oil Judgement as an Example’, I·CONnect Blog (24 March 2022) <iconnectblog.com/2022/03/the-federal-supreme-court-of-iraq-from-interpreting-to-amending-the-constitution-krgs-oil-judgement-as-an-example/>.

SHAKIR, F., The Iraqi Federation: Origin, Operation and Significance (Routledge 2017).


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