Qatari Jets, KRG and Iraqi Airspace Sovereignty in the Hashemi Case

There are many interesting aspects to the recent departure by Vice-President Tareq al-Hashemi from Erbil in the Kurdistan Regional Government (KRG) area of Iraq to Doha, the capital of Qatar.

Among those aspects is one that has yet to receive the attention it deserves: The means of travel used by Hashemi – who is sought by the central government in an alleged criminal case - from Erbil to Doha.  Most accounts simply state that Hashemi arrived in Doha on 1 April en route from Erbil. Some Kurdish interior ministry officials even went on record saying they had no knowledge about Hashemi’s departure.

The picture of Hashemi arriving in Doha, published by the website of the vice-president, is clear enough. It shows Hashemi stepping out of a Qatar Airways jet, apparently onto a red carpet and with ministers waiting to welcome him.

So, Hashemi arrived with Qatar Airways. It is true that they have announced plans for an Erbil–Doha service. But that service will not commence until May. Also, it will be operated by Airbus 320s. The aircraft on the picture looks slimmer than an Airbus, perhaps more like a Bombardier?

The question of Iraqi airspace sovereignty has received some attention lately, both with dramatic declarations that Iraq would “close its skies” for the Arab League summit, and in relation to reports that Iran is continuing to send weapons and fighters to Syria on flights crossing Iraqi territory.  What this picture seems to indicate is that a foreign country, Qatar, can in fact send its aircraft in and out of Iraq with impunity, even on missions perceived as hostile by the Iraqi prime minister, Nuri al-Maliki. Whether the jet actually flew straight down to Gulf (as is most likely) or headed via Turkey and Jordan to avoid “central government” territory is somewhat academic. Guarding Iraq’s borders is a central government prerogative anyway and it seems entirely unrealistic that the Qatari jet landed in Erbil without the express permission of the Kurds.

On top of persistent conflicts related to Kurdistan in the oil sector and the judicial extradition battle for Hashemi, the latest Qatar Airways episode once more raises questions about the true nature of the so-called Iraqi federation. It is becoming increasingly unclear whether the country is anything more than a very loose confederation.

Triumph for Maliki as Iraq Passes the Annual Budget

It took even longer than last year, but the Iraq annual budget finally passed in parliament today with a solid majority.

Many aspects of the budget are similar to last year, with small increases to all the main posts, roughly following the draft that was introduced in December 2011. The big money still goes to the central government and Kurdistan, with some added perks for the ordinary governorates. It is noteworthy that spending on electricity is sharply up compared with 2011, which must be a good sign.

Some special features of the last-minute changes to the original draft call for comment.

The Sadrists had demanded a petrodollar scheme by which a portion of Iraqi oil revenues would go directly to Iraqi citizens. This idea has indeed been included and was celebrated by the Sadrists as a win for their leader Muqtada. However on closer inspection it seems the money that will actually go to the citizens is whatever surplus is left after deficits have been covered, meaning that unless the oil price increases enormously, there may not be that much money to distribute after all.

Money has also been specifically guaranteed for the sahwa pro-government militias in Diyala and Nineveh. This is a response to a demand from the Wasat sub-bloc of the Iraqiyya coalition, and some parliamentarians suggested it constituted the main concession by the government in obtaining Iraqiyya support for the budget.

Last year, the Kurds pressed hard to obtain cost coverage for foreign oil companies operating in Kurdistan. This heading still exists, but the main Kurdish achievement this year seems to be the privilege of having the central government financing their electricity sector outside their fixed 17% share of the budget (at least, that is how some Kurdish politicians interpret the new arrangements). By way of contrast, oil is referred to in the same way as last year but with a somewhat Delphic reference to payment of costs to foreign companies “according to all articles of agreement between the oil minister in Baghdad and the KRG energy minister”. Whether this refers to the existing pragmatic cost-oil recovery scheme or something else (and maybe future) remains unclear.

As regards the governorates, the role of the governor in implementing investment projects seems somewhat strengthened and in some cases is defined as an exclusive prerogative. The petrodollar scheme for producing governorates also continues, and there is money for the pilgrimage cities (Karbala gets the lion’s share followed by Najaf).  Not all of the enhanced governorate focus is necessarily progressive – there are now for example governorate quotas for foreign scholarships. Also, regardless of what the budget says, much of this will depend on implementation capacity in the governorates, which is often substandard.

In this way – and perhaps with the added incentive for Iraqi parliamentarians to show up and vote since they will now get their armoured cars as a result of today’s vote – the budget passed despite a pessimistic outlook earlier in the week.

What it all amounts to is something of a triumph for embattled Prime Minister Nuri al-Maliki. Critics of this interpretation will perhaps say there are individual clauses in the budget that may limit prime ministerial freedom of action more than before. Some of his own deputies soured today and said silly things (Sunayd: “I consider resigning as a deputy because the parliamentary majority defeated me on article 36!”) But that is besides the point. What Maliki has achieved is a situation in which he doesn’t really need the Iraqi parliament for a long time, providing him with the cover he needs to take a relaxed attitude to demands for national conferences and the implementation of the Arbil agreement. To have achieved passage of the budget under adverse circumstances and with Iraq literally under fire from terrorists today is nothing short of a masterful accomplishment in statecraft.

It is quite emblematic of the situation in Iraq that earlier this week, Usama al-Nujayfi, the parliament speaker of the secular Iraqiyya, characterized Iraq as a “derailed train”. Today, Nujayfi went on to play exactly the role Maliki wanted him to play by shepherding the budget vote to a successful conclusion. Maliki plays it well when he manages to buy political support over the budget instead of making political concessions.

Symptomatically, perhaps, the Iraqi media almost forgot that another preparatory meeting for the elusive national conference had to be cancelled today because of the prolonged budget debate. That cancellation might well be a bellwether for Iraqi politics for the rest of 2012.

Towards Asymmetrical Decentralisation in Iraq?

Maybe it was the physical dislocation of the Iraqi cabinet and Iraqi journalists to the southern port town of Basra that was the reason.  Perhaps it had to do with a desire on the part of Prime Minister Nuri al-Maliki to somehow please his constituency in Basra at a time when pro-federal Sunni movements have forced him to take a negative stance on the creation of new federal regions generally. Whatever it was, Iraqi politicians and journalists produced an amazing array of misleading statements subsequent to the first meeting of the Maliki government outside the capital Baghdad yesterday.

In what appeared to be direct quotes from normally reliable people like deputy PM Hussein al-Shahristani and government spokesman Ali al-Dabbagh, there were suggestions that not only had Basra been granted some kind of special status with minister rank for its governor and enhanced spending powers compared with other governorates. Some even suggested that contractual powers for the oil sector were also included:

وقال الشهرستاني في تصريح صحفي ان :” مجلس الوزراء قرر في جلسة عقدها اليوم في البصرة منح المحافظ خلف عبد الصمد صلاحيات وزير فيما يتعلق بصرف المبالغ الخاصة بالمشاريع الخدمية الى جانب ابرام العقود النفطية في خطوة ينشد منها المجلس توسيع صلاحيات الحكومة المحلية في المحافظة “.
واشار الشهرستاني الى ان ” قرار المجلس اعطى المحافظ صلاحية التوقيع على صرف مبالغ تتراوح ما بين 50 الى 100 مليون دولار والتي كانت سلفا حصرا بالوزير ، كما مكن المجلس المحافظ من احالة المشاريع وابرام العقود مع الشركات (بضمنها ا النفطية) دون الرجوع الى الوزارات المعنية بالامر “.

Many observers were skeptical, but for the next 24 hours the stories made their way through Iraqi media anyway – complete with parliamentarians commenting for and against the assumed cabinet decision. After all, the Iraqi cabinet already violates so many fundamental features of the Iraqi constitution (including the right to form federal regions) that it wouldn’t necessarily be shocking for it to introduce yet another infraction, however outlandish.

In the end, though, it was a false alarm. In the more down-to-earth report by parliament spokesman Dabbagh today, there is no mention of the oil sector, and hardly any suggestion that Basra was given special status – the reported spending cap was made to apply to all governorates. In fact, in the Dabbagh summary, the only special privilege granted to Basra is an apparently simplified governmental approval process for certain kinds of projects. Whether this really constitutes differential treatment in practice remains to be seen, but it is a lot less radical than the initial media headlines suggested:

7.الموافقة على زيادة سقف الحد الأعلى لصلاحية لجان المشتريات في كافة المحافظات الى (100) مليون دينار بدلاً من (50) مليون دينار ورفع صلاحية المحافظ في الإحالة الى (100) مليار دينار. والإيعاز الى محافظة البصرة بعرض المشروعات المحالة من قبلها دون إستحصال موافقة اللجان الوزارية المختصة على اللجان المختصة القطاعية لتدقيقها وإستحصال الموافقات الاصولية بشأنها وعلى اللجان الوزارية القطاعية (لجان الخدمات والشؤون الاقتصادية والطاقة والتعليم) النظر في المشاريع المحالة عليها من الوزارات والمحافظات خلال (14) يوماً من تاريخ استلام الطلب في اللجنة وبخلاف ذلك تعتبر موافقة اللجنة حاصلة ما لم تبادر اللجنة لطلب معلومات إضافية عن المشروع من الوزارة أو المحافظة خلال تلك الفترة وترسل طلبات الموافقة على الإحالة الى اللجان الوزارية المختصة مباشرة دون الحاجة الى إرسالها عن طريق الأمانة العامة لمجلس الوزراء من قبل الجهة المعنية وباليد لتسريع الإجراءات

What this whole little affair has revealed, however, are the large gaps in the legislation regulating centre–periphery  relations in Iraq – as well as considerable ambiguities in the Iraqi constitution itself.

Everyone talks about the “spending cap” for governorates, but where exactly has that been legislated? Is it in the provincial powers law of 2008 or in the annual budgets?? This problem in turn relates to the fact that the provincial powers law of 2008 did not really do much to demarcate responsibilities between governorates and ministries in so-called “shared” areas of government (articles 112 and 114 of the constitution). What it did, first and foremost, was to create a sack-and-appoint procedure whereby local politicians were given a say in the appointment of high-level officials of the central administration working in their governorate (health, police, education etc.).

Similarly, today, the Kurdish MP Bayzid Hassan expressed outrage about the alleged cabinet decision to give Basra contracting powers for the oil sector. This “has to be legislated”, he demanded. But his outrage is misguided. According to article 112, federal regions and producing governorates enjoy exactly the same rights as far as oil is concerned. Basically, if KRG can sign – and that is a big if, depending on how one reads the rest of 112 – Maysan can sign. There is no other possible reading, regions and producing governorates have equal constitutional status as regards energy (and residual powers, article 115), period. Incidentally, this means that if any of the current draft versions of the oil and gas law actually passes in parliament, it will be unconstitutional from the get-go since all versions bestow contracting rights on federal regions but not on producing governorates.

Most commenters dismissed the story about Basra contracting rights as unrealistic, not least given the past record of centralism on the part of Shahristani in particular. What the episode actually highlighted was yet another fundamental contradiction between the Iraq outlined in the constitution of 2005 and the way the country actually works.

The Kurdistan Constitution Is Back on the Agenda: Implications for Iraqi Politics

The project to adopt a constitution for the federal region of Kurdistan (KRG) can be classified as one of the “silent drivers” of Iraqi politics.

The current draft constitution of the KRG was finalized by the Kurdish parliament in 2009. At the time, a referendum on it was expected but it was eventually delayed. Some attribute the delay to internal bickering among the Kurds; others say pressures from Baghdad played a role.

At any rate, Kurdish politicians – and Kamal Kerkuki in particular – are once more talking about the need to have a referendum on the Kurdistan constitution. Reactions from outside Kurdistan have been quite massive. The main reason the KRG constitution is sensitive to Iraqi politicians beyond the Kurdistan region itself is the definition of the Kurdistan region contained in the draft constitution. This includes several areas in the governorates of Wasit, Diyala, Salahaddin, Kirkuk and Nineveh that are claimed by the Kurds but are not currently controlled by them. Politicians in areas claimed by the Kurds in Diyala, Kirkuk and Nineveh are particularly furious about the renewed talk about a referendum.

The protestors make reference to the constitutional principle that no law passed in Iraq can contradict the constitution itself. Does the Kurdish constitution contradict the Iraqi constitution? Technically speaking, it certainly does. This is so because the definition of the Kurdistan region in the Iraqi constitution is very clear: Article 142 says article 53A of the Transitional Administrative Law from 2004 shall remain in force; that article in turn says “The Kurdistan Regional Government is recognized as the official government of the territories that were administered by the that government on 19 March 2003 in the governorates of Dohuk, Arbil, Sulaimaniya, Kirkuk, Diyala and Neneveh”. Of course, Kurdish politicians will lose no time in reminding us that also article 58 of the TAL regarding the settlement of “disputed territories” was given extended life through articles 140 and 142 of the constitution; their staunchest opponents say the failure to implement article 140 by the constitutionally mandated deadline in 2007 signified its death.

Irrespective of the legal complexities involved, it is noteworthy that in political terms, key allies of Prime Minister Nuri al-Maliki have previously invested considerable energy in criticizing the Kurdistan constitution for being in conflict with the Iraqi constitution. Importantly, this goes beyond predictable resistance from Turkmen allies of Maliki like Abbas al-Bayati. It also includes people like Sami al-Askari, who in the past has specifically spelt out the differences between the TAL definition of Kurdistan and the definition contained in the Kurdish draft constitution.

The revival of the Kurdistan constitutional referendum question highlights the long-term options before Maliki today.

Maliki can choose to work with the Kurds, support their constitutional referendum plus implementation of article 140 (or the light version proposed by President Talabani). This will inevitably make him look sectarian in the eyes of many Sunni Arabs, who are among the main opponents of Kurdish expansionism – and will in turn likely make him more dependent upon Iran.

Alternatively Maliki can work with Iraqiyya, or with splinters from Iraqiyya, in which case it would be easier to keep Iran at an  arm’s length. But this would also raise the prospect of full secession by Kurdistan, possibly followed by armed conflict to settle final boundaries.

More likely, Maliki will try to avoid making too strong commitments to either side. In the meantime, however, he still needs some political allies to get the annual budget for 2012 passed.

Barzani Throws Down the Gauntlet

In the clearest statement yet, Kurdish leader Masud Barzani has said he will not attend any national conference to deal with the current political crisis if it is held in the Iraqi capital, Baghdad. Barzani’s stance is supported by Ayad Allawi, the leader of the secular and increasingly Sunni-supported Iraqiyya party, and is strongly resisted by the Iraqi premier, the Shiite Islamist Nuri al-Maliki.

The question is whether the move will prove a bridge too far for Barzani. Or rather, the real question is whether Maliki truly needs the national conference, tentatively scheduled for the end of January. 

Maliki has after all spent the weeks subsequent to the US withdrawal in mid-December to signal a complete disregard for the issues that his detractors (and partners in government) want to discuss at the national conference. Above all, Maliki has gone far in saying that the Arbil agreement of November 2010 is mostly unconstitutional (which is true), and that having received his share of the bargain (the premiership) he intends to ignore anything in the agreement that cannot be found in the constitution. This includes calls for the creation of a high council for strategic policies, ethno-sectarian balances in government ministries and ethno-sectarian formulas for the allocation of security ministries.

To some extent, developments over the last weeks have indicated that Maliki may in fact succeed with an audacious policy of ignoring both Iraqiyya and the Kurds at the same time. In the first place, despite the Iraqiyya boycott, parliament has continued to meet and has made some progress on the 2012 budget which needs to be passed over the next month or so. Iraqiyya has seen a flurry of defections, quite a few of which have occurred in Sunni-majority areas and cannot easily be attributed to intimidation by Maliki supporters (as has been claimed with respect to the south). Some Iraqiyya ministers – in particular independents and those from smaller factions like Al-Hall – have continued to take part in cabinet despite an official boycott. When Maliki presides over elaborate military displays and emphasises his role as commander in chief, he is probably thinking of an alliance of his own Shiite coalition and new breakaway elements from Iraqiyya and the White party that alone can reach the critical absolute-majority mark of 163 deputies in parliament.

Recent reports suggest Maliki is even about to try to reshuffle the Kurdish chief of the Iraqi army. It is not the first time such rumours appear: In December they were heard in relation to Kurdish demands for more power in government; this time it is being suggested the refusal to hand over Vice President Tareq al-Hashemi is part of the equation.

It is high time Iraqi politicians begin to understand Maliki and his modus operandi. In 2010 he promised the Kurds to deliver on their 19 points in exchange for their support for his second term – and went on to discover that most of those points were unconstitutional so it would be difficult to implement them. There is a similar situation with the Sunni-majority governorate of Anbar, which handed Maliki a list of 20 points. Maliki approved, of course, provided that everything was in accordance with the constitution. Needless to say, from 2008 and onwards the federal supreme court has mostly produced rulings in favour of Maliki – certainly on questions of centre-governorate relations where some decisions have placed the provincial powers law of 2008 above the constitution itself. The judiciary also seems sufficiently amenable to Maliki’s desires that it synchronises its business to fit his agenda, probably creating a sense of terror among political opponents not unlike that seen during the run-up and the immediate aftermath of the March 2010 parliamentary elections.

But Maliki can also be pragmatic. He probably does not care much if the Iraqi parliament is left to its own devices for most of the year, but he does need its approval for the annual budget. Exactly one year ago we had a similar situation subsequent to the euphoria of the government formation; Maliki then turned to the Kurds and made compromises on oil exports the basis for a budgetary deal. He went on to ignore most of the Arbil agreement and has continued to consolidate power. Today he is probably weighing whether he actually needs the Kurds – all of the Kurds -  to pass the 2012 budget.

Scenes like these have been played out before. It deserves mention that much of the Arbil conference that led to the formation of the second Maliki government actually took place in Baghdad. The Iraqi football association - just like Iraqiyya dominated by secular and anti-Maliki personalities – long tried to have its summit in Kurdistan but eventually ended up having it in Baghdad anyway.

Maliki must be asking himself why he, as the Iraqi prime minister, should take the trouble of travelling to the Kurdish region to attend a conference he does not really need. Maybe the most interesting question today is whether the rest of the Kurds, and in particular those who are the Kurdish competitors of Barzani, will back up his demand to have the conference outside Baghdad.

Small Victories for Maliki in Parliament

The Iraqi national assembly was it usual self today, with the predictable assortment of idiosyncrasies that are typical of Iraqi politics. However, for Prime Minister Nuri al-Maliki, there was some good news.

This includes the simple fact that the parliamentary sessions continue to take place despite the boycott by the secular Iraqiyya party. Today, once more, signs of tensions between Maliki’s own Shiite Islamist State of Law bloc and the Kurds at one point threatened the quorum of the session, but an amicable resolution was found and the session could resume, technically as an “extraordinary session” since it had been officially terminated during the preceding tension.

With relative peace vis-à-vis the Kurds, Maliki is probably satisfied with the fact that some Iraqiyya members opted to take part in the session, which altogether counted 192 members, thus comfortably above the quorum threshold at 163 and not that much different from the normal attendance level in 2011. Reportedly, those Iraqiyya members present numbered between six and eight. Over and above that, they included at least three deputies who say they are forming a new bloc within Iraqiyya, opposed to calls for Sunni-area federalism and sympathetic to Shiites that have defected from Iraqiyya in the south. These three deputies all nominally belonged to the Iraqiyyun bloc of parliament speaker  Usama al-Nujayfi in the past, and one of them was formerly a prominent advocate of a majority government between Iraqiyya and State of Law.

Conceptually, then, this new tendency seems similar to the White Iraqiyya breakaway faction of Iraqiyya which is reckoned as openly pro-Maliki. (Equally important is the fact that they remain separate and have not joined White Iraqiyya.) Additional Iraqiyya attendants in parliament today reportedly included members of the Hall (Karbuli) faction. It is noteworthy that the assembly today managed to agree on additional judges to the de-Baathification appellate court, which had proved troublesome in the past.

In the past, White Iraqiyya has sometimes been dismissed as “Shiite Iraqiyya”, which is not entirely plausible since it also includes vocal Sunni members from Nineveh. Today’s developments stress that there are more Sunnis in the north that are prepared to speak the language of anti-federalism and could be potential allies to Maliki in the north. They come at a time when there are conflicting reports about the exact status of Iraqiyya ministers boycotting cabinet meetings, with some reports suggesting that certain individual ministers are prepared to return. Again, the Hall faction is mentioned as a possible dissenter to the general Iraqiyya line.

To Maliki, this is the ideal scenario: Parliament continues to function, not terribly effective, but enough to get some things done and preventing a formal disintegration of democratic politics. Maliki may well be hoping that similar things could happen at the level of the cabinet , since a situation with too many acting ministers unapproved by parliament in the long run would threaten one of the most basic principles in a parliamentary democracy - that of ministerial answerability to the national assembly.  

It is noteworthy that all these developments point in a different direction than the doom and gloom associated with the Iraqiyya boycott and renewed violence today. Importantly, and often overlooked by Western policy-makers, this is a potential avenue of rapprochement that has nothing to do at all with the Arbil agreement.

The Economics of Federalism in the Iraqi 2012 Draft Budget

The Iraqi government has presented its draft for the annual 2012 budget law.

In light of the recent surge of interest in federalism in Sunni-majority areas of Iraq, the government’s approach to federalism issues in next year’s budget is of particular interest. The allocation of money to central government ministries, ordinary governorates, and federal regions can tell us a lot about the facts of Iraqi federalism in a setting where the legal and constitutional frameworks remain hazy.

What is clear from the 117 trillion Iraqi dinars budget is that it is the existing federal region – the Kurdistan Regional Government – that continues to get the best deal from the allocation of money. The budget envisages that Kurdistan oil exports will amount to 175,000 barrels per day in 2012, which is about 6.7% of the anticipated total Iraqi daily production of 2,6 million barrels. By way of contrast, the KRG will receive a 17% allocation of the expenditure budget (around 16 trillion ID) after the deduction of so-called “sovereign” spending covering mainly external defence and foreign diplomatic service. By increasing its exports, the KRG contribution to the national income is up from about 4.5% in 2011, but it is perfectly clear that the Kurds remain dependent on a big subsidy from Baghdad.

Compare the 16 trillion ID Kurdish share of the budget with what goes to the ordinary governorates. The oil-producing governorates will continue to get their one dollar per exported barrel fee, but this is not expected to make up more than 1.7 trillion ID in total, or just a tenth of the total Kurdish budget share. This despite the fact that a governorate like Basra contributes the lion’s share of Iraq’s total 2.6 million bpd production. Similarly, the pilgrimage fees that were introduced in 2010  will produce a mostly symbolic contribution to the governorates of Najaf, Karbala, Baghdad and Salahaddin. (In 2011 budget this income was given to the border governorates instead.) Additionally, the investment headings for all of Iraq amount to no more than 30 trillion ID in total for the entire country.

It should be clear that in seeking a federal status, many governorate politicians outside the KRG (such of those of Salahaddin) are probably envious of the generous allocations to the KRG in the budget. This in turn highlights the numerous problems related to the discrepancies between how centre–periphery relations are described in the Iraqi constitution and how things actually work. Constitutionally speaking, there should be a central government role in areas of shared government such as health and education. However, in these areas the Kurds actually maintain full sovereignty and do not pay for central government services. They are able to do this because their autonomy (and institutional capacity) has evolved gradually since 1992. If Salahaddin and Basra were to become federal regions in the near future, they would have to build their own health and education sectors from scratch if they were to maintain the Kurdish argument about paying for “sovereign expenses” only.

The budget signals a central government intention to deliver more of the same in 2012: Generous allowances to the Kurds and a relatively centralised government formula for the rest of Iraq south of Kurdistan. Is it realistic to predict the secession of Kurdistan when their current 6.7% of the Iraqi oil production gets closer to the 17% rate with which their share of the expenditure budget is currently determined?

Salahaddin Leaders Turn to Talabani to Solve Federalism Impasse

The 15-day limit for the central government to ask the elections commission to arrange a federalism referendum for Salahaddin has now expired.

The Iraqi government is breaking the law on region formation by not arranging the referendum, but in the past similar requests from the Shiite-majority governorates of Basra and Wasit have been quietly shelved by the central government – and without much in the way of protests. Salahaddin, however, is opting for a different course. Provincial council leaders now say they are contacting Iraq’s president, Jalal Talabani, to make him act in his capacity as “defender of the constitution” and to impel the government to make the necessary legal steps.

In so doing, it is noteworthy that the Salahaddin leaders are hinting at the possibility of future claims before the federal supreme court, but that they are also emphasising that they want to exhaust all other options first. To some extent, this is probably a way of masking a reality in which the supreme court is seen as the tool of Prime Minister Nuri al-Maliki, whereas Talabani, as a Kurd – and despite his personal good ties to Maliki – is seen as a federalist first and foremost. For that reason, there is an expectation that he will be sympathetic to federalism initiatives in other parts of Iraq more generally.

Constitutionally speaking, the president of the republic has a theoretical responsibility for ensuring compliance with the constitution but almost no specific constitutional powers in this regard. Even though the president has managed to carve out a certain niche as a quasi-appellate court in cases involving the death sentence, it would be wrong to see the presidency as an alternate constitutional court. What Talabani can do, however, is to act as an informal arbiter, perhaps on the pattern of what was earlier this year when the implementation of the Arbil framework became a matter of dispute. Back then, the secular Iraqiyya party made a point out of turning to Talabani, rather than to Maliki, in an attempt at resolving the remaining issues.

Talabani will be tested on this issue at a point in time when relations between Maliki and the Kurds are already strained because of the Exxon Mobil deals for KRG-held areas including disputed territories. The Maliki camp has been firmly opposed to the Salahaddin federalism bid, but it is hard to see how they can plausibly delay the process in a legal way. The constitutional and legal aspects of the case are so crystal clear that any discovery of new problems by the supreme court will raise even more doubts about its neutrality than before.

There is however one possible reason Talabani might be less forthcoming towards the Salahaddin federalists than they have been hoping for. A new idea in Kurdish circles is that article 140 of the constitution on disputed territories should be implemented before the creation of any new federal region. Also this week, it is being reported that Talabani himself has sent parliament a bill that would regulate the settlement of administrative boundaries in the disputed territories. These ideas in themselves have no constitutional basis and like so much else in Iraqi politics are the concoctions of politicians. Nonetheless, such claims may serve as an indication of a possible new preference in Kurdish circles for bilateral deal-making with Maliki on article 140 instead of or before a general move towards the comprehensive federalisation of Iraq.

The Exxon Mobil Bombshell

So far, conspiracy theorists alleging that American appetite for oil was the real factor behind the Iraq War – perhaps even in a plot intended to partition the country for the benefit of US oil interests – haven’t quite been able to fit their theory to the empirical realities. Until now, American companies have not been particularly prominent in terms of their involvement on the ground in “the new Iraq”. Also, generally speaking, most of the contracts of the IOCs signed with Baghdad come across as modest in terms of profit rates for the Western companies compared to what goes to Iraq.

Enter Exxon Mobil and its recent Kurdistan dealings. The story began in the shape of rumours last week but has now been confirmed by a sufficient number of sources that it can be treated as facts: Exxon has cut separate exploration deals with the Kurds, circumventing Baghdad and thereby potentially jeopardising its existing service contract with Baghdad for the supergiant West Qurna field near Basra. The move could also signify the entrance of “big oil” into Kurdistan after a period of “small oil” dominance (including, most recently, former BP chief Tony Hayward in his new role in Genel). 

The bid comes at the most critical juncture imaginable. For the first time in the history of Iraq, the central government is threatened by federalism movements in both Sunni and Shiite areas, alongside the existing challenge from the established Kurdish region. Today saw further unprecedented moves in this direction in parliament where Usama al-Nujayfi, the speaker of the national assembly, organised an impromptu conference on federalism and decentralisation issues. The conference – attended by representatives of five Sunni-majority provinces and reportedly boycotted by the ten Shiite-majority ones – concluded with a statement that highlighted such broad issues as the constitutional right to form regions, the need to reform the provincial powers law of 2008 and even the question of the impartiality of the Iraqi judiciary.

Whether Prime Minister Nuri al-Maliki in this critical situation will bend to the pressure from Exxon Mobil and give up his policy of blacklisting companies that do separate deals with Kurdistan remains to be seen.

A consistent response would involve kicking Exxon out of its Qurna contract which is shared with Shell (which in turn has not concluded any deals with the Kurds). Maliki has so far been able to resist federalism initiatives from fellow Shiites in Basra and Wasit, and has recently indicated a possible judicial approach that could create delays for the latest Salahaddin autonomy bid. Maliki does not really enjoy the parliamentary backing required to act so boldly, but as long as his enemies are unable to sack him due to their own disunity there is plenty of room for manoeuvre for the prime minister regardless of the parliamentary situation.

If on the other hand Maliki does feel threatened by the growing number of unhappy oppositionists he will likely turn to deal-making with the Kurds in order to ensure his own survival. In that respect, bargains over oil may perhaps be an easier route than a sell-out on Kirkuk (which is certain to meet with opposition even in Shiite Islamist circles that are normally friendly to the Kurds). Taking a pragmatic approach to the latest Exxon deals in Kurdistan might be one aspect of such an approach.

The international dimensions of these developments are particularly hard to grasp. It seems remarkable that a company of Exxon’s stature should run such an incredible risk with West Qurna had there not been some kind of deal-making and assurances under the table.  Could the move have been clarified with the Obama administration? Right now, it seems Washington cannot quite make up its mind as to whether to slap Maliki in the face or try to put a gloss on the whole situation. It is noteworthy that according to Kurdish sources, the deals with Exxon were signed on 18 October 2011 whereas 21 October was the date of Obama’s “total withdrawal” speech on Iraq. Would Washington really want to put all its eggs in basket of central-northern Iraqi energy when even the most optimistic scenarios for the Kurdish areas (including the projected Nabucco pipeline) dwindle by comparison with the south? The geopolitical risk of those fields falling under ever firmer Iranian control is certainly considerable.

The net effect of the Exxon Mobil dealings are easier to evaluate: They make Iraq look more fragmented, vulnerable and susceptible to foreign influences than for a long time.

The New Federalism Jurisprudence of the State of Law Alliance

Just when you thought things could not get more farcical in Iraq, the so-called State of Law Alliance of Prime Minister Nuri al-Maliki has provided yet more fodder for potential pun-makers.

Back on 5 November, in a comment on the recent Salahaddin federalism initiative, Walid al-Hilli of State of Law declared that there were problems with the bid relating to article 6 of the law on region formation. According to Hilli, the article in question was “unclear” with respect to the creation of new regions through the transformation of a single governorate to a new federal region.

One could have dismissed the comment by Hilli as a slip of the tongue were it not for the fact that something almost identical was repeated by Mariam al-Rayyis, also close to Maliki, in press comments yesterday.  According to Rayyis, article 6 only relates to governorates wanting to join an existing region! In her view the law must be amended by parliament before the current Salahaddin project can go ahead (she specifically suggests Salahaddin can only join Kurdistan).

Let’s look at article 6.

يكون الاستفتاء ناجحاً إذا حصل على أغلبية المصوتين من الناخبين في كل محافظة من المحافظات التي تروم الانضمام إلى إقليم

Okay, so the referendum is successful if it gains a majority in “each governorate of the governorates wishing to join/combine into a region”. In other words, it was written with reference to a case of multiple governorates forming a region. Arguably, the case of single-governorate formation should have been mentioned separately.  But to deduct from this that single-governorate formation should be governed by different rules is absurd. Article 6 is the sole article that defines the modalities for a successful referendum and it was clearly intended to cover all instances of region formation including single-governorate ones, not least since such single-governorate regions were among the most likely scenarios in 2006 when the law was drafted, for example in Basra. The idea – implicit in the comments from State of Law politicians  – that there should somehow be a stricter threshold for a single governorate to become a federal region than for a combination of governorates (which after all would constitute an even more radical change) just defies common sense.  

The comment by Rayyis which tries to differentiate between annexing governorates to existing regions and everything else is even more flawed: She seems to suggest that article 6 only applies to cases of multiple governorates wishing to join an existing region all in a single referendum! This scenario is not even discussed in article 2 of the law which merely envisages the addition of single governorates to existing regions. It should be fairly clear that the “region” mentioned in article 6 can also be the result of non-federated governorates joining together in an act of federalisation.

The bottom line is as long as the Salahaddin federalists remembered to make a simple request for a referendum (in addition to their dubious “declaration of a region”) the bid will be legal and the government is under an obligation to carry out the requested referendum. Maliki allies have tried to claim that there is somehow a difference between a similar request from Basra and the Salahaddin bid, with the suggestion that the Salahaddin federalism scheme is intended to provide refuge to Baathists, is not conducted in coordination with the central government and even marginalises the Shiite minority! The fact is that in legal terms, the two bids, Salahaddin and Basra, are one hundred per cent identical. Many supporters of the Salahaddin bid are in fact anti-Baathists and there are Baathists in exile that have denounced the whole federalism project. If Maliki continues to treat Basra and Salahaddin differently, then it means he is effectively holding the Sunnism of the majority of the Salahaddin people against them.

Perhaps the new focus on article 6 at least is an indication that Maliki eventually understood that he could not forever obstruct the Salahaddin bid with vague allegations of Baathism. But the sloppy language of that article is such a silly and contrived basis for an attempt to derail a project that clearly satisfies the constitutional criteria for a federalism initiative. This is however not untypical: During the past few days Maliki has also declared that ex-Baathists should publicly denounce the Baath party as a condition for staying in their jobs in the government sector. Once more, he is making up the rules himself.

Reportedly, Maliki is now seeking the counsel of the federal supreme court on these matters. Let’s hope that unlike other previous episodes, the court (or the consultative assembly of state) will know exactly what answer to give him.