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/ UNITED STATES INSTITUTE OF PEACE www.usip.org


ABOUT THE REPORT
Starting in August 2004, the U.S. Institute of Peace Rule of
Law Program, one of the Institute’s Centers of Innovation,
has been providing in-country support on constitution making
to Iraqi political governmental and civil society actors. The
goal of this program is to maximize the transparency and
inclusiveness of Iraqs constitutional process, enabling Iraqi
citizens to engage directly with the drafters, and ensuring
domestic ownership of the constitution.
Jonathan Morrow, senior adviser in the Rule of Law Program,
has been traveling frequently to Imq over the past two
years to observe and report on Iraqs constitution-mal<ing
process and constitutional implementation. In this report, he
makes recommendations for Iraqs upcoming constitutional
amendment process that could make fora viable, if weak, Iraqi
state and that could help to arrest the current decline in the
country's security situation.
The views expressed in this report do not necessarily
reflect the views of the United States Institute of Peace,
which does not advocate specific policy positions
SPECIAL Rzronr 168 Jutv 2006

Corrrtrrrs
Introduction: Political Failure, Legal Wori-ability 2
Politics and the ThreeGovemorate Veto:
TheDifficulty of Amendment 5
A Constitutional Agenda for Sunni Arabs 7
The New Sunni Arab Position: What Next? 10
A Convergence of Interests: The Weak
Viability Agenda 13
Modalities: The Constitution Review Committee
and Secretariat 18
Recommendations 20


CIAL REPORT
1200 17th Street NW ' Washington, DC 20036 ' 202.457.1700 ' fax 202.429.6063
Weak Viability
AUG 2H gggg
us. DEP()STTUH»
The Iraqi Federal State and the
Constitutional Amendment Process
Summary
The cycle of violence in Iraq is, in part, constitutional: it derives from competing
visions of the Iraqi state that have not been reconciled. An amendment to Iraq's
constitution to delay the creation of new federal regions, together with a package of
legislation and intergovernmental agreements on oil, division of governmental power
between Baghdad and the regions, and the judiciary, may be enough to slow or even
arrest this decline in the security situation, and may be achievable. A ”government of
national unity," though desirable, will not by itself be able to generate the necessary
constitutional consensus.
Iraq's new legislature, the Council of Representatives, is now considering the process
of constitutional amendment described in Article 142 of the constitution. Prime
Minister Nouri al-Maliki has announced the constitutional review as part of his
government's platform. This amendment process, assuming it proceeds, will come in
the wake of widespread opposition to the constitution from Sunni Arab Iraqis in the
October 2005 referendum. It is expected that a Constitution Review Committee (CRC)
will soon be appointed, in line with Article 142.
To the extent that it was opposed by Sunni Arabs, the constitution lacks the essen-
tial criterion of any constitution: the consent of all major national communities. The
2005 Iraqi constitution may nonetheless, as a legal text, be a sufficient and necessary
framework for the radically regionalized Iraqi polity that the constitution drafters
envisaged.
The constitutional challenge in Iraq is first about peacemaking, not state building.
As the Iraqi parliament faces the challenge of appointing, mandating, and staffing
a CRC, the first, and essential, set of questions is therefore political: How can the
amendment process be used as a vehicle to remedy the political failure of last year’s
constitution drafting process? How can consensus be built, and in particular how can
Iraq's Sunni Arabs be encouraged to give their assent to the new federal Iraq? How


ABOUT mt INSITTUTE
The United States Institute of Peace is an inde-
pendent, nonpartisan federal institution created
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J. Robinson West (Chair), Chairman, PFC Energy, Wash-
ington, D.C. ' Maria Otero (Vice Chair), President, ACCION
International, Boston, Mass. ' Betty F. Bumpers, Founder
and former President, Peace Links, Washington, D.C. '
Holly J. Burkhalter, Director of U.S. Policy, Physicians
for Human Rights, Washington, D.C. ' Chester A.
Crocker, James R. Schlesinger Professor of Strategic
Studies, School of Foreign Service, Georgetown University '
Laurie S. Fulton, Partner, Williams and Connolly,
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Institute, Washington, D.C. ' Seymour Martin Lipset,
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Mora L. McLean, President, Africa-America Institute,
New York, N.Y. ' Barbara W. Snelling, former State
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Michael M. Dunn, Lieutenant General, U.S. Air
Force; President, National Defense University ' Barry F.
Lowenkron, Assistant Secretary of State for Democracy,
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Secretary of Defense for International Security Affairs '
Richard H. Solomon, President, United States
Institute of Peace (nonvoting)
can Iraq's Kurdish and Shia leaders be encouraged to make worthwhile constitutional
concessions to Sunni Arab positions so as to elicit that consent?
0 The second set of questions is legal: What are the minimum constitutional amend-
ments needed, if any, to ensure that Iraq is a viable, if not a strong, state? To the
extent that the Sunni Arab position has been one that purports to defend the Iraqi
state, legal or technical improvements to the text that support Baghdad's ability to
govern may draw support from Sunni Arabs, thereby generating clear political benefits.
There are additional legal questions that, though not strictly related to the Sunni Arab
problem, are pressing: in particular, What are the minimum constitutional amend-
ments needed, if any, to ensure that the human rights of all Iraqis receive adequate
protection? It is not only the Sunni Arabs who feel disenfranchised by the constitu-
tion; nationalists, some women's groups, and groups representing Iraq's minorities
express similar views.
0 It will be very difficult to pass constitutional amendments of any sort, especially those
that seek to shift power from Iraq's regions to the central government. Regional inter-
ests have the upper hand, constitutionally and politically. There is no reason to expect
that the constitution’s Kurdish and Shia authors will see the need for constitutional
amendments to the text that they themselves deliberately, if hastily, constructed.
0 The referendum procedure for amendment is onerous, with a three-governorate veto
power. High expectations of the amendment procedure will lead to disappointment
and may amplify, rather than reduce, violence. For this reason, legal instruments other
than constitutional amendments must be considered as ways to remedy the political
and legal deficiencies of the constitution.
0 A CRC should be established, with strong Sunni Arab membership. Given the pressing
and complex nature of the necessary constitutional deal, the CRC should be mandated
to make recommendations, where appropriate, not only for constitutional amend-
ments, but also for (1) legislation, (2) intergovernmental agreements and, where
appropriate (3) interparty agreements and (4) international agreements, all of which
might encourage Sunni Arab political commitment to the Iraqi constitution and ensure
viability for the Iraqi state.
0 A three-part formula, concerning the creation of new regions, oil, and the delineation
of powers between the central government and the regions, offers a way forward for
the CRC to heal the wounds caused by the deficiencies in the 2005 drafting process.
That formula would not require the Kurdistan party or the hitherto most influential
Shia party, the Supreme Council for the Islamic Revolution in Iraq (SCIRI), to make
major modifications to their constitutional positions.
Introduction: Political Failure, Legal Workability
With the formation of an Iraqi government, Iraq's permanent constitution has entered into
force; and Iraq's new legislature, the Council of Representatives, has begun to discuss the
process of constitutional amendment, itself mandated by the constitution in Article 142.1
The text of Article 142 was agreed to right before the referendum, on October 12, 2005,
as a last-minute compromise to prevent another Sunni Arab boycott of a vote on the
country's new basic law. Many people—Iraqis and non-Iraqis—have pinned their hopes
on this amendment process as a way of restoring a unitary, nonsectarian Iraqi state. Oth-
ers, including some officials of the United States government, have disavowed Article 142
and dismiss the amendment process as a political impossibility, given the dim prospects
of persuading the powerful Kurdish and Shia drafters to make permanent concessions to
Sunni Arab positions.
Neither view is well founded: the Iraqi constitutional amendment process provides a
real, if fleeting, opportunity to achieve major political and legal agreements that would
2


be in the interests of Kurds, Shiite Arabs, and Sunni Arabs alike, as well as secular Iraqis,
women, and minorities. The "amendment process" will not lead to many real constitu-
tional amendments, but it can be used creatively, to work in concert with interparty peace
negotiations and the development of a legislative program directed at the viability—if
not the strength—of the Iraqi national government. It is too early to declare an end to
the Iraqi state, for too many people in Iraq rely on its continued existence. This special
report details the way in which this progress can be made.
Iraq's permanent constitution, negotiated in the summer and fall of 2005, has failed
to satisfy the most fundamental criterion of constitution making: sufficient consensus.
That is, it failed to command the support of all of the country's major political, sectar-
ian, and ethnic groups. In particular, Iraq's Sunni Arab community voted overwhelmingly
against the constitutional text in the October 2005 national referendum: in the predomi-
nantly Sunni governorates of Anbar and Salahaddin, more than 96 and 81 percent of
voters, respectively, rejected the constitution. Iraq's interim constitution, or Transitional
Administrative Law (TAL), drafted under U.S. occupation and heavy U.S. influence, clearly
envisaged that each of Iraq's three major blocs—Kurd, Shia Arab, and Sunni Arab—would
agree on the final constitutional text; this was the purpose of the three-governorate
(province) veto provision for a permanent constitution that was the central feature of
the TAL.
True, nobody could expect a constitution for Iraq to be approved by each and every
Iraqi citizen. Nor could any basic law for Iraq afford to alienate any one of the country's
three major political blocs—-but the Iraqi constitution did just that. It is a high-water
mark of the degree to which Iraq's Sunni Arabs have been excluded, and have excluded
themselves, from Iraqi public life. The result of this failure has been violence. Sunni
Islamist extremism, operating outside the universe of constitutional argument, has clearly
played a role in fomenting such violence; but it remains quite possible that the way the
Iraqi constitution was drafted in 2005 contributed to the post-August shift of the Sunni
Arab insurgency to attack Shia and Kurdish civilian targets, and the corresponding arrest,
summary detention, and, in some cases, torture and execution of Sunni Arab suspects by
Shiite members of the Iraqi public security forces. At a minimum, the 2005 constitutional
process was a lost opportunity to reduce the drift toward sectarian violence.
The irony at the heart of this political tragedy, though, is that as a legal text, the con-
stitution may be a reasonable basis for a workable Iraqi polity, and it may be the only such
basis. The feature of the constitution that is apparently most objectionable to Iraq's Sunni
Arabs is regionalization; but it is hard to imagine a different state structure for a country
in which power, culture, ethnicity, sect, and tribe have created de facto regional identities
and enabling institutions. The regionalizing identities are not necessarily permanent, but
they are certainly durable. Regional institutions appear to be willing to govern, and, at
least in the case of the Kurdistan Region and some southern centers (including Najaf and
Karbala), they are able to do so.
Apart from the political problems that form the context of Iraq's constitution, there are
some inherent deficiencies that are specifically legal. Contributing to the political failure
of the constitution was the appearance of a constitutional text that did not meet high
drafting standards and did not deliver, at a technical level, a wholly coherent vision of
the Iraqi state. The constitutional text has now been the subject of several legal analyses,
some of which catalogue the deficiencies in the text. Some of those analyses address
aspects of the constitution that are believed to fall short of best-practice federal models,
particularly those aspects of the constitution that do not provide for a strong Iraqi state.
For example, under the Iraqi constitution, the central government has no power to tax in
regions if the regions object, no explicit power to disband existing militias, and no exclu-
sive power to regulate Iraq's oil sector. Regional security forces are explicitly recognized
(apparently enabling the Kurdistan Regional Government to retain the peshmerga) at the
expense of national military authority in the north. Iraqi central government law is sub-
ordinated to regional law if there are any inconsistencies between the two. Also (unusual
P
3


plated in Article 118 could itself, when drafted, provide for a slow timetable by which
constituents of future regions would activate the referendum process leading to new
regions. In this variation, the prospect of a SCIRI-backed three-governorate veto could
be avoided, but the support of some Shia parties and the Kurds would be necessary to
attain a majority in parliament to pass legislation. A second variation would add to the
constitutional amendment (or legislation) a limit on the size of any new federal region.
A model for this limit is contained in the TAL.'S Article 53, which permitted the creation
of new regions but limited their size to three governorates. This approach is attractive to
international lawyers and constitutional experts who point to the experiences of Nigeria,
Czechoslovakia, and Ethiopia-Eritrea, and argue that federal states with a small number
of federal regions are less likely to function. Notwithstanding the comparative constitu-
tional law arguments, however, the approach of limiting region size has so far not been
formally advanced by Iraq's Sunni Arab leadership. Nor is there any evidence that such a
permanent limitation would be accepted by the Shia leadership, because SCIRI adheres
to its proposal to create a southern federal region and, indeed, other senior Shia figures
have proposed the creation of still larger federal regions.
Establish a coherent national oil management regime (legislation and
intergovernmental agreement)
The chances of amending the constitutional provision dealing with oil management and
revenue distribution in Article 112 of the Iraqi constitution are practically nil. Sunni Arab
goals to bring all oil management, including future oil fields, under Baghdad's control will
be immediately vetoed by the Kurdish parties.
Yet there is no reason that the Sunni Arab preference for a coherent national petro-
leum scheme cannot be advanced. Indeed, the very ambiguities of Iraq's constitutional
language on oil could be used as the blank slate for a more moderate Sunni Arab and
nationalist legislative agenda—directed not at strength but at viability and equity—that
will be acceptable to the Kurds and others to the extent that it maximizes overall revenue
and does not require regions to sacrifice either net regional revenue or their constitutional
management rights. Indeed, on most of the following points, Kurds have already indicated
their agreement in principle.
Oil legislation can and should meet the following objectives:
0 Prescribe a clear distinction between (1) oil management, which puts current fields
under joint control of the central and regional governments, and future fields under
control of the regional governments; and (2) oil ownership, which, according to at
least one interpretation of Article 111, is in the hands of all Iraqis regardless of their
region. This distinction, once spelled out, will establish clearly that current fields
generate the vast majority of Iraq's oil wealth for the foreseeable future, and clearly
identify Baghdad as the managerial center of most of Iraq's oil production, thereby
relieving Sunni Arab anxiety.
0 Prescribe a clear distinction between current and future fields, so that all oil fields
in Iraq are agreed to fall into one or the other category, with the explicit agreement
(because it is only implied in the constitution) that the Kirkuk fields are current fields
and therefore open to Baghdad's co-management, regardless of the outcome of the
2007 Kirkuk referendum.
v Establish a protocol on the sharing of national oil infrastructure, including tie-in
agreements at Fishkabour, outside Kurdish territory, for Kurdish petroleum from the
new field at Zakho to join the Iraqi pipeline network. This is a concession that the
Kurdistan Regional Government will need from Baghdad in the very near future to
transport its oil to Turkey or to Basra. Similarly, Baghdad cannot realistically run a
national pipeline network without regional support.
14


Q Establish respective Organization of Petroleum Exporting Countries production quotas
for Iraq's central government and regional governments.
0 Establish the commission described in Article 106 of the constitution to audit and
appropriate federal revenues, and do so consistent with principles of transparency and
accountability in accordance with international best practices.
Further, a set of intergovernmental oil agreements, supported by legislation if possible,
could achieve even more:
v Establish a voluntary system in which regional and central governments agree that
management decisions on all fields (current and future), including the awarding of
Production Sharing Agreements, are to be made with the knowledge and approval of
both governments, without prejudice to regional petroleum regimes and, in general,
to the constitutional right of regions to exclusive control over future fields.
0 Establish the appropriate intergovernmental institutions—an Oil Commission, per-
haps—required for the joint regional-federal management and regulation of current
oil fields, the marketing of Iraqi oil, and negotiation with international oil companies.
(One of the major pitfalls of the rushed 2005 constitution drafting timetable was that
promising Shia-Kurd plans for an intergovernmental Oil Commission were sidelined).
0 Establish a five-year renewable oil revenue-sharing protocol, which would ensure
that Iraq's Sunni Arab areas receive their portion of all oil revenues (from current
and future fields) commensurate with their proportion of the population, perhaps
to be overseen by the Article 106 Revenue Commission. This would probably involve
a "top-up" mechanism that would distribute oil-producing regions’ excess revenues.
This agreement would ensure that regions share, on equitable terms, the revenues
they handle by virtue of being the managers of Iraq's future fields. (It will probably
first be necessary, though, to address the Kurdish complaint that they are receiving
less than the 17 percent of federal budget revenues to which they are entitled.)
These initiatives stand some chance—perhaps a good chance—of finding favor with
Kurdish and Shia parties. Although the Kurds, who were the principal sponsors of Article
112, are unlikely to brook any constitutional amendment, they are aware that the absence
of a coherent and benign national oil regime will jeopardize their own ability to access
the national oil infrastructure (such as pipelines, shipping terminals, and refineries) and
to attract international investment from the major international oil companies, which
they value as guarantors not only of wealth but also of security. Even if the independence
of Kurdistan is a long-term Kurdish goal, the pursuit of that objective will rely, for the
time being, on access to pipelines that cross into non-Kurdish territory. Commentators
frequently overlook the fact that the Kurds have indicated their preparedness to help
develop a national oil regime to attract the major international oil companies, as well
as their preparedness to share oil revenues nationwide, even if they reserve management
rights to future fields within the region. Although Kurdish authority over oil should be
respected, their attempts to open up a dialogue with Baghdad over the oil issue should
also be taken seriously.
Agree on division of powers between governments. Establish a meritocratic judiciary
and human rights institutions (Intergovernmental agreement and legislation)
If the Iraqi federation, like most other federations, is characterized by tension between
central and regional governments, it will need a means to resolve this tension other
than by force. There is no doubt that this tension exists in Iraq and that it was not fully
resolved in the constitution draft. The constitution foreshadows the creation of an upper
house of the legislature, to be known as the Federation Council, which might provide the
forum for center-regional discussion, but that body will not come into existence for some
15