Federalism and features of the right to self-determination in the Constitution of the Republic of Iraq for the year 2005

Volume 9 , Issue 2 , December 2021 , Pages 347-404

Authors

Sardar Qadir Mohiuddin 1

1 Department of Political Systems and Public Policies / College of Political Science, University of Salah al-Din - Kurdistan Region of Iraq; Law Department

DOI logo 10.17656/jlps.10209

Keywords

Abstract

The right to self-determination is one of the rights established for nationalities and peoples in the world, and one of the most important political and legal phenomena that peoples have the right to enjoy, and it is one of the principles of the legal system of the international law base, which has supremacy over the domestic legal basis, and it is also one of the principles above the constitutional and political system In the state, it is also one of the peremptory norms of international law rules after World War II. There are many treaties, declarations, charters, and international agreements in this regard, and these collective international covenants are among the normative treaties that concern everyone, and all states must abide by them, even if they are not recognized, but they must create a suitable ground for the implementation of these treaties related to the right to self-determination and others. Related to the Declaration of Human Rights. Those who are addressed in the name of the right to self-determination are the peoples, not the states, and if the peoples approve the referendum, then this is considered his legal opinion, and no authority over him, nor the courts can file a case against him, and it is not permissible to appeal it. The constitutions of all the countries of the world, and even the federal states of them, did not indicate the existence of a text in them on the right to self-determination and separation, for these are two different matters despite their being complementary, considering that the right to self-determination stems from the free will of the people and that others have no involvement in it, except that the separation is through Consensus and agreement between the two parties is not the right of the regions only. But all federal states indicated that the federation is optional and is based on the principles of autonomy and participation, and legal and political guarantees were built for the success of this matter, in particular adherence to the constitution, and if anything else happens, neither independence nor participation, but the state turns either into several states and the union breaks down, or To a simple state that does not take into account any of the human rights and privacy of minorities. Countries have recognized the right to self-determination, and it is incumbent upon them to work in the field, and if they violate international conventions, they must be punished by the international community, and there are more than international committees and institutions to follow up on the implementation of those charters, and a group of international courts has been formed by the Security Council to try the rogue for those principles, Because deviating from the basic principles of the United Nations is a breach of international peace and security, the right to self-determination is one of these objective issues for the United Nations, and it can interfere in the internal affairs of states as a result of their violation of that. The Iraqi constitution approved the federal system that is based on the principle of the right to self-determination in the form of a region and the decentralization of the governorates that have not yet been organized into a region, that is, the legislator approved two types of federalism: on the basis of ethnicity and on the basis of administration, both of which are permissible and constitutional, although these types are not mentioned in The constitution, however, recognized the Kurdistan Region of Iraq as a realistic precedent for the constitution and the freedom to form a region for the provinces and mentioned in this regard specific general mechanisms for the formation of any region within the Iraqi state, but with a voluntary will for the residents of the governorates that were not organized into the regions. Meaning that the constitution recognized the right to self-determination by diagnosing its political and legal system, its constitutional institutions, and how the state manages federalism and that ensuring the unity of Iraq depends on adherence to its federal constitution.

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