By Hadayt Nazami
President Massoud Barzani’s call for a referendum on self-determination should not fall from the Kurdish government’s agenda because of the war with the Islamic State (IS/formerly ISIS) or a potential Kurdish participation in the Iraqi government.
An independent Kurdish state, even if it is only for the Kurds of Iraq, is an imperative precondition for the survival of the Kurdish culture. A Kurdish state is also in the interest of peace and security in the region.
Declaration of independence by Iraqi Kurdistan will find unequivocal support in international law.
The Kurds did not take for granted opportunities presented to them by particular geopolitical events in the region such as the US-led invasion of Iraq, the overthrow of Saddam Hussein and total dismantling of his security system.
The Kurds were the incidental beneficiaries of these events, but they should also be credited for grasping the nature of these developments and playing an essential role in restoring order with their strong social and political cohesion.
In their own sphere of jurisdiction the KRG has also achieved what most experts would have thought impossible, that of appeasing their hostile neighbors Turkey, Iran, and Syria.
The landlocked Iraqi Kurds were realistic. They made their large oil reserves and natural resources as well as the need for building infrastructure a great incentive for investors across the world. The Kurds set in motion the law and order necessary for economic growth for themselves and their neighboring states. Through the economy they trumpeted their neighbors’ centuries-long chauvinism.
Declaration of independence by Iraqi Kurdistan will find unequivocal support in international law. 
Furthermore, they reassured their neighbors who have their own restive Kurdish population that the KRG is not an expansionist or pan-Kurdish nationalist project. If anything, they helped reduce ethnic conflict in those countries without alienating their Kurdish brethren.
After nearly a century of struggle for their fundamental rights, the Kurds of Iraq showed to the world -- once given the chance -- the capability for self-rule and they now have all the trappings of a modern nation state.
It was these qualities that rallied the world on the side of the Kurds in their fight against the Islamic State. But still, it will be a big mistake for the Kurds to remain part of Iraq in a federal system. They either go for independence with rights and guarantees, or see themselves dragged into one conflict after another.
It is evident that the Shiite-dominated government has tried to roll back any concessions or decentralization of power enshrined in Iraq's new constitution. They exerted immense pressure on the KRG to disarm Kurdish security and Peshmerga forces, and have for months blocked Kurdistan’s share of the budget that is guaranteed by the constitution, all the while doing what they can to deprive the Kurds of alternative sources of revenue.
The central government’s conduct towards the Kurdistan Region has been hostile in times of peace or war. In the midst of IS’s invasion of the Sunni regions of Iraq, Shiite members of parliament were busy threatening to “crush the Kurdish heads.” It is this kind of attitude from Baghdad that gives credence to the Kurds’ claim that Iraq’s motivation for purchasing American F16s was their possible use against the Kurds.
Notwithstanding the removal of Mr. Maliki, who was blamed for much of Iraq’s crisis, Baghdad is now warning foreign countries against arming the Peshmerga in their fight against the IS and protection of Yezidis and Christians. It appears that the Iraqi government is more concerned with quelling the Kurdish influence than with the massacre of its citizens.
The problem is not the leadership in Baghdad as much as it is the social and political realities of that society and their understanding of federalism. Federalism recognizes the diverse components of a country and distributes power in such a way that meets everyone’s interests and preserves that diversity. Federalism cannot survive without respect for diversity, mature democratic principles and the Rule of Law.
To ensure their survival the Kurds of Iraq have no choice but to exercise their right to self-determination.
As a society, Iraq has no experience with federalism, and as a state it has never been informed by or subjected to democratic principles. For this very reason Baghdad has tried to make the Kurdish autonomy impracticable and insecure by putting them under imminent threat and pressure. When a people’s right to internal self-determination is denied, they are permitted under international law to declare external self-determination.
The pronouncement of the Supreme Court of Canada is of great importance in this regard. Its findings relate to a system of constitutional federal rule used in drafting the Iraqi constitution. The Court found that there are three criteria for granting the right of self-determination, all of which are met by Iraqi Kurdistan. They include: firstly, situations of former colonies; secondly, where a people is oppressed, for example under foreign military occupation; and thirdly, a definable group is denied meaningful access to government to pursue their political, economic, social and cultural development.
The Court further acknowledged that the right to self-determination is now so widely recognized in international conventions that it has acquired a status beyond convention and is considered a general principle of international law. The two most widely referred to are the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights (both approved by the UN General Assembly in 1966, entered into force in 1976). Article 1 of both Conventions is identical. It states: “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”
The Kurdish experience shows that their autonomy is under a perpetual threat from Iraq, a country with a history of repression and total disregard for democratic principles. The region as a whole is prone to dictatorial rule and sectarian conflict. Therefore, to ensure their survival the Kurds of Iraq have no choice but to exercise their right to self-determination and become a recognized member of the international community. The international law is firmly on the Kurdish side. A referendum by the people of Kurdistan can only add further legitimacy to the democratic nature of the Kurdish struggle.
* Hadayt Nazami is a Kurdish human rights lawyer based in Toronto, Canada.
