The Role of The United Nations in Addressing the Territorial Boundaries of The Kurdistan Region

1) Introduction

Since the Sykes-Picot agreement and the subsequent division of the Middle East, the Kurds, a distinct national identity, have faced persistent threats of expulsion from their lands. They have consistently responded to this situation in diverse ways. Notably, following the Kurdish uprising and widespread attacks on their territory by the Iraqi regime in 1991, UN Security Council Resolution 688 established a protected zone for the Kurds.

Throughout history, the Kurds and successive Iraqi governments have attempted to negotiate peace and end their conflict. However, the dispute over Kurdish territory repeatedly derailed these efforts. With the fall of Saddam Hussein's regime and the adoption of a new constitution, hopes arose for a permanent resolution. However, disagreements over implementing Article 140, which addresses disputed territories, led to renewed tensions and military deployments.

The United Nations intervened by issuing resolutions supporting a legal solution to the border dispute. These resolutions, adopted by the UN Security Council, aimed to reconcile the Kurdish and Iraqi positions. However, the Kurdish authorities haven't considered them. Doing so, according to the text, would strengthen the Kurdish legal position and resolve the border issue definitively.

The text emphasizes the importance of these UN resolutions due to their link to international security and future reconciliation. It suggests that resolving the Kurdish territorial question is crucial for regional stability.

2) The Disputed Areas Between the Kurdistan Region and Baghdad

A long-standing dispute between the Iraqi government and the KRG simmering over disputed territories in northern Iraq, known as 'conflict zones,' raises crucial questions about ownership and control. This complex issue, with deep historical roots, carries significant implications for both parties. 

Prior to 2003, Kurdish aspirations for self-determination lacked legal avenues. However, the 2005 Iraqi constitution, specifically Article 140, provided a potential framework for addressing this issue. This article could be interpreted as offering a path towards Kurdish autonomy or even independence.

3) Domestic Law Procedures for The Resolution of Disputed Areas

Article 140 of Iraq's 2005 Constitution serves as a critical roadmap for resolving the dispute over disputed territories. It outlines three key steps:

Normalization: Addressing the impacts of Arabization policies and facilitating the return of Kurdish refugees.
Census: Conducting a population census in the disputed areas to determine the demographic makeup.
Referendum: Following normalization and the census, holding a referendum where residents can decide their preferred future.
In theory, this constitutional framework should provide the basis for resolving Iraq's territorial disputes.

However, none of these steps have been implemented, leaving the situation in the disputed areas between the Kurdistan Region and the central government unresolved and volatile. This lack of progress has led the UN Security Council to repeatedly issue resolutions, classifying the disputed territories as "internal disputed boundaries" or "internal conflicted boundaries" posing a threat to international security, peace, and stability. These resolutions aim to encourage a peaceful resolution to the conflict.

4) International Peace and Security and Disputed Areas

In 2003, the UN Security Council established UNAMI, a special assistance agency for Iraq. Initially tasked with mediating a border agreement between the central government and the Kurdistan Region, UNAMI saw no progress during its initial term. In 2007, Resolution 1770 broadened UNAMI's mandate, calling on it to assist the Iraqi government in resolving various issues, including those in conflict zones or areas seeking separation. This aimed to re-establish Iraqi constitutional dispute resolution mechanisms.

The unresolved status of disputed areas, particularly following the suspension of Article 140 of the Iraqi constitution, fueled tensions within Kurdistan and beyond, escalating into regional and international concerns. Since 2007, the Security Council has issued numerous resolutions urging parties involved to maintain international peace, security, and stability until a constitutional and peaceful solution to the disputed areas between Iraq and the Kurdistan Region is reached.

The UN Security Council warns that tensions between the Kurdish Regional Government (KRG) and Iraqi government threaten regional peace. This marks a shift, as the Council typically avoids involvement in internal boundaries. Historically, Kurdish gains relied on engaging with the Council. Now, the Council introduces the term "disputed internal boundaries" for contested areas, raising concerns about international security.

The Iraqi constitution offers a solution through Article 140, outlining a process for resolving the dispute through normalization, census, and referendum. However, this process stalled in 2007, prompting renewed intervention by the Council.

The Council reiterates its use of "disputed internal boundaries" since 2007, stressing that the unresolved Article 140 jeopardizes regional stability. This warning appears to have not considered among the Kurds.

5) Consideration of Security Council Resolutions on Disputed Internal Boundaries

The UN Security Council typically avoids intervening in internal state affairs, except when such situations threaten international peace and stability. In these cases, the Council can take measures to maintain security and promote reconciliation, as authorized by Article 24 of the UN Charter.

Security council believes the ongoing dispute between the Kurdistan Region and Iraq, along with violations of Article 140 of the 2005 Iraqi Constitution, constitutes a threat to international security, peace, and stability. This view is reflected in their repeated calls for a peaceful resolution in numerous resolutions.

Significantly, these resolutions mark the first time the UN Security Council has addressed internal boundary disputes within a federal state. If left unresolved, such tensions could escalate and pose a significant risk to international security.

UN Security Council Resolutions on Iraq's Disputed Internal Boundaries:

Resolution 1770 (2007): For the first time, UN Security Council Resolution 1770, adopted in 2007, acknowledged the existence of "disputed internal boundaries" within Iraq. Recognizing the significance of this issue, the resolution urged the Iraqi and Kurdish Regional Government (KRG) to engage in "constructive dialogue" to find a solution.
Resolution 1830 (2008): The resolution emphasized the critical role of the United Nations, particularly the United Nations Assistance Mission for Iraq (UNAMI), in assisting the Iraqi people and government in resolving their internal conflicts. This includes issues related to the status of disputed territories and the demarcation of the Kurdistan Region's boundaries.
Resolution 1883 (2009): Reaffirming its earlier position, the Security Council emphasized the need for dialogue and implementation of Article 140, which, in the opinion of the Security Council, provides a roadmap for the settlement of disputes. Through this resolution, the Security Council reiterates its call on both sides (referring to the authorities of Erbil and Baghdad) to reach a comprehensive solution in order to preserve national reconciliation and unity and prevent division Distribution of resources and natural resources and providing a way to resolve internal border issues fairly.
Resolution 1936 (2010): Reiterated the importance of full implementation of Article 140.
Resolution 2001 (2011): Resolution 2001, adopted in 2011, extended the UN Assistance Mission in Iraq (UNAMI) for twelve months. One key responsibility entrusted to UNAMI was to "facilitate the development of mutually acceptable processes for resolving disputed internal boundaries within Iraq."
Resolution 2061 (2012): highlights the importance of all Iraqi communities participating in the political process and engaging in comprehensive dialogue, while avoiding actions or statements that fuel tensions. It calls for a solution to the distribution of resources that ensures stability and develops a fair and just resolution for disputed internal boundaries.
Resolution 2169 (2014): highlights the crucial role of the United Nations, particularly UNAMI, in supporting the Iraqi people, including both government and civil society, in strengthening democratic institutions, fostering inclusive political dialogue, and promoting national reconciliation in accordance with the Iraqi constitution. The resolution also calls for the development of a mutually agreeable process to resolve disputed internal boundaries.
Resolution 2233 (2015): Urges a political settlement of the disputed areas of Iraq between the Iraqi government and the Kurdistan Regional Government.
Resolution 2299 (2016): Urges the Iraqi and Kurdistan Regional Governments to collaborate in good faith and strengthen national unity, particularly through resolving internal border disputes. Notably, this resolution marks the first time the Security Council has set conditions for enhanced cooperation between the two governments. It can be argued that the resolution elevates the KRG's status, granting it legal parity with the Iraqi government in negotiations over disputed boundaries.
Resolution 2367 (2017): The resolution prioritizes finding a fair and suitable solution for the disputed boundaries within Iraq. It stresses the importance of both the Kurdistan Regional Government and the Iraqi government working together, ensuring they have equal say in the process.
Resolution 2421 (2018): This resolution reiterated the UN's stance on dialogue and enforcing Article 140, acknowledging the persisting tensions and stalled progress. It further emphasizes the importance of securing the safety of all communities within the conflict zones.
Resolution 2470 (2019): The resolution acknowledges the importance of disputed areas between the Iraqi government and the Kurdistan Regional Government and stands ready to facilitate dialogue and negotiations for a peaceful, constitutional resolution.
Resolution 2522 (2020): This resolution builds on previous UNAMI resolutions, reiterating both the mission's responsibilities and the ongoing challenge of disputed internal boundaries.
Resolution 2631 (2022): This resolution offers advice, support, and assistance to the Iraqi Government and the House of Representatives on revising the constitution and implementing its provisions. Moreover, it emphasizes the importance of developing legally sound processes for the Iraqi Government to resolve disputed internal boundaries.
Resolution 2682 (2023): Acknowledging the ongoing security concerns and the potential for renewed conflict, this resolution underscores the need to uphold previous resolutions and fully empower the United Nations Assistance Mission in Iraq (UNAMI) to fulfill its mandate.
The UN Security Council resolutions on Kurdistan and Iraq reiterate several crucial points. Firstly, they acknowledge a disputed internal border between the two, unlike typical international boundaries. This distinction elevates both Erbil and Baghdad to equal legal and political positions. Additionally, the resolutions incorporate Article 140 of the 2005 Iraqi Constitution, making it immune to solely political or sectarian shifts in Iraq. Importantly, the disputed boundaries have transcended the scope of Iraqi law and gained international legal standing. Finally, the issues surrounding the disputed regions are intrinsically intertwined with broader international concerns for security, stability, and reconciliation.

6) Conclusion

The UN Security Council will only intervene in situations where international peace and stability are threatened; or be in danger. With regard to the Kurdistan Region, it takes a position in two different situations. The first was in 1991 and created a protected system for the Kurds at that time; That it will no longer be destroyed. The second situation includes the conflicts with the Iraqi government that the Kurds have fought for throughout the post-establishment history of Iraq; It is the issue of territory and boundaries. The spread of these conflicts would endanger international peace and stability, so the Security Council calls on the governments of Baghdad and Erbil to prevent these threats from destroying peace and stability before the outbreak of war and tension through its recommendations and proposals resolve conflicting internal issues; so that international peace and stability are not threatened. But the Kurds have not taken advantage of this opportunity. The significance of these resolutions is that, in part, they coincide with the referendum on secession from Iraq and Kurdistan's independence. Failure to see and ignore these opportunities was the destruction of the most important achievement of the Kurdistan Region; That could have led to a final solution to all Kurdish problems in Iraq. It was important for the Kurds to read and understand the unwritten lines in these resolutions through the legal interpretation of their texts; and then step up to his other demands. Failure to read this opportunity as it is, weakened the legal position of the region and lost sovereignty over a large part of its territory and wealth and delayed the solution of the territorial and geographical issue indefinitely.

All Security Council resolutions adopted from 2007 to 2023 on the situation in the separatist areas and disputed internal boundaries state that if this issue is not resolved, it will endanger domestic and international security, peace and stability. The opposite of this view is that if the Iraqi government is not willing to submit to the implementation of the constitution and a peaceful and constitutional solution in these areas, then a situation will arise that threatens international peace, security and stability. This is the option available to the Kurds, as the unwritten lines of the resolution speak of. That option and the conditions for the situation are something that the Kurds can tension or slow down. In the absence of a peaceful solution, creating tensions and exacerbating conflicts [in any way] and confusing them with the issue of deteriorating international peace, stability and security is an option that will follow in the form of 1991-style intervention.

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Ebad Rouhi, Assistant Professor of Public International Law, Department of Law, Cihan University of Sulaymaniyah, Kurdistan, Iraq. Email: [email protected] & [email protected]

+964(0)774-142-8242