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Abstract

On 21 July 2013, the Democratic Union Party (PYD, Partiya Yekîtiya Demokrat) announced a new Kurdish Constitution of ninety-six articles based on a “social contract” proclaiming Kurdish Autonomous Regions composed of three cantons in a “decentralized federal” Syrian State. Its fundamental basis is the equality of groups and communities. The Rojava is “not a Kurdish State nor a Kurdish administration”, but it is made up of all different ethnicities and religions that have a prominent role in the system of democracy. The people created institutions and organizations composing of obligatory equal quota of women and men of Kurds, Arabs, Christians, Yezidis, Armenians, and Chechens with the vision of a new different multi-ethnic, multi-religious democracy.
Letter to the Editors
The Kurdish Self-Rule
Constitution in Syria
Loqman Radpey*
1. On 21 July 2013, the Democratic Union Party (PYD, Partiya Yekîtiya Demokrat)
announced a new Kurdish Constitution of ninety-six articles based on a social con-
tractproclaiming Kurdish Autonomous Regions composed of three cantons in a
decentralized federalSyrian State. Its fundamental basis is the equality of groups
and communities. The Rojava is not a Kurdish State nor a Kurdish administration,
as observed by Evangelos Aretaios in The Rojava Revolution
1
(hereinafter, Aretaios), but
it is made up of all different ethnicities and religions that have a prominent role in the
system of democracy. The people created institutions and organizations composing of
obligatory equal quota of women and men of Kurds, Arabs, Christians, Yezidis, Arme-
nians, and Chechens with the vision of a new different multi-ethnic, multi-
religious democracy. The ght for survival is in the front lines but the ultimate
ght for democracy is behind the front lines(Aretaios, 118).
2. Since the beginning of the Syrian uprising, people in Syrian Kurdistan have been
ghting not only against Assads regime forces but also other extremists. At the same
time, they have been trying to establish a democratic government through the imple-
mentation of a model of hybrid political system; federalism and the rejection of the
nation-state structure(ibid., 124). The denial of nation-state is a sign that the
Kurds in Syria dont want an independent State but an autonomy within a democratic
Syria(ibid., 104). This is a new regime in keeping with the principles advanced in
PhD candidate, Department of Public Law, University of Tehran, Tehran, Iran
(L.Radpey@ut.ac.ir) (www.ut.ac.ir)
1 Evangelos Aretaios, The Rojava Revolution (2015): (www.opendemocracy.net/arab-
awakening/evangelos-aretaios/rojava-revolution), 138 (last visit: 12 May 2015).
© The Author 2015. Published by Oxford University Press. All rights reserved
doi: 10.1093/chinesejil/jmv057; Advance Access publication 18 November 2015
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14 Chinese Journal of International Law (2015), 835841
PhD candidate, School of Law, The University of Edinburgh, Edinburgh, Scotland
(L.Radpey@ed.ac.uk) (www.ed.ac.uk)
modern international law and also was formed by the relevant people as a whole. The
importance of the Rojava experiment is undeniable.
3. On 12 December 2011, the PYD founded the 320-member Peoples Council of
Western (Rojava) Kurdistan (PCWK) (Crisis Group interview, January 2012). It also
founded the local peoples committees (PLCs), linked under a twenty-four member
Central Coordination Committee established in 2007 and divided into functional
departments.
4. Following the considerable political upheaval of recent times, on 21 July 2013, the
PYD announced a new Kurdish constitution of ninety-six articles,
2
proclaiming a
Kurdish Autonomous Region in a federal, democratic Syrian State; The Rojava, or
Syrian Western Kurdistanwould have its capital in the town of Qamishli. The
Kurdish Center for Legal Studies and Consultancies published a draft of the Constitu-
tion on 21 December 2013 in Erbil (Hewlêr). A day before the second Geneva Con-
ference on Syria (16 January 2014; Kurdish representatives were not invited), the
Kurds declared the establishment of Kurdish cantons: Cezîrê (meaning island pro-
nounced Jazira) in the East, Kobanê in the centre, and Efrînê (Afrin) in the West.
The administrative centers of each canton are Qamishli city, Kobane city, and Afrin
city, respectively. Unlike the Iraqi Kurdistan region, these three cantons are not geo-
graphically contiguous but recently a new canton, Girê Spî (Tel Abyad), has been
declared by a local leadership council including representatives of the Arab, Kurdish,
Turkmen, and Armenian communities. In June 2015, the town of Girê Spî was recap-
tured from ISIS by the YPG militia with help from U.S.-led air strikes, and on 21
October 2015 declared ofcially as an entirely new canton. Perhaps ominously, this
was a move likely to deepen Turkish concerns about the Kurdsexpanding role just
over the border.
3
The new canton Girê Spî will connect Kobanê and Cezîrê, and
thus strengthen and solidify the Kurdish position alongside the Turkish border. The
Kurdish cantons work almost like the Swiss cantons.
4
5. The Constitution is the architecture of equality because of its foundation in prin-
ciples that are enduring. It is exemplary of the dramatic changes in the type of democ-
racy in the Middle East. Most think that it is more like the Federal Constitution of the
Swiss Confederation as Executive/Legislative federalism but there are some differences
that should be noted.
2 With Inspiration from Iraq, Syrian Kurds Publish a Draft Constitution: (www.
gulfanalysis.wordpress.com/2013/12/26/with-inspiration-from-iraq-syrian-kurds-
publish-a-draft-constitution); English version of Constitution of the Rojava Cantons
(www.civiroglu.net/the-constitution-of-the-rojava-cantons).
3 Town joins Kurdish-led order in Syria, widening sway at Turkish border: www.reuters.
com/article/2015/10/21/us-mideast-crisis-syria-kurds-idUSKCN0SF1BD20151021.
4 Who Controls Which Areas in Syria, The New York Time, The Carter Center ; Syrian
Observatory for Human Rights: UPDATED Oct. 1, 2015 www.nytimes.com/
interactive/2015/09/30/world/middleeast/syria-control-map-isis-rebels-airstrikes.html.
836 Chinese JIL (2015)
6. The preamble sums up what the Constitution wants to accomplish. The preamble
uses the We, the people,rst employed in the Constitution of United States. In fact,
the peopleempowers the national government. It shows a revolutionary way to an-
nounce the Kurdsnew form of ruling, formed by all ethnicities and minorities.
These opening words specically acknowledge the rights of all people living in the
four cantons: not only Kurds, but Arabs, Syriacs, Arameans, Turkmens, and Che-
chens. The Charter does not name the Kurds as the leading group or their religion
as ofcial. The same preamble declares the Kurdish Autonomous Regions to be
grounded in the spirit of reconciliation, pluralism, and democratic participationso
that all may express themselves freely in public life. In building a society free from
authoritarianism, militarism, centralism, and the intervention of religious authority
in public affairs, the Charter recognizes Syrias territorial integrity and aspires to main-
tain domestic and international peace. Using these clauses, the Constitution asks
to form a perfect union of the people in the cantons composing many ethnicities
and religions and thus secures the liberties of them. Forachieving this end, the govern-
ing councils and public institutions emanate their authority from popular vote
(Article 2) by the people of the Autonomous Regions. According to Article 2b, the
peopleconstitute the sole source of legitimacy, and all governing and public institu-
tions are founded on democratic principles essential to a free society.
7. The Constitution is called the Charter of Social Contract. Article 1 terms it a con-
tract between the peoples of the Autonomous Regions. Intent on leaving behind the
old beliefs and ideas, and replacing them with a social contract, the preamble carries
all strands of societycloser to perfection.
8. The Constitution makes the cantons the replacements of the centralization
imposed by the Baath party. Decisions are transferred to the lowest level. Each
canton, indeed, has its own constitution, laws, government, and parliament. Each
has a great deal of administrative autonomy over education, social services, and
police functions.
9. The principle of Cantonal Autonomy is set forth in Articles 8 and 11. The broad
autonomy and the equality of the cantons, as well as their involvement in the deci-
sion-making of the Federal Authority constitute the most important components
of the Kurdish Federal system. Thus, all State tasks allocate to the cantonal sovereign-
ty. Pursuing the rights and approving laws necessitate a majority in a cantonal vote
insofar as it does not contravene the articles of the Charter(Article 8). The object-
ive of this article to further strengthen cantonal independence is however limited by
the Charter.
10. Article 6 extends equality, liberty, democracy, and fundamental human rights to
alla principle seen in most constitutions in the Middle East, but one not nearly so
widespread in practice (one needs only look at neighbouring Turkey and Iraq).
Gender equality is a core value structuring the content of the Constitution.
Radpey, The Kurdish Self-Rule Constitution in Syria 837
11. Article 9, arguable the core of the Constitution, secures self-governance to all
people in the Kurdish regions, and makes Kurdish, Arabic, and Syriac the languages
of government and education. In contrast to the Syrian Constitution, the Arabic lan-
guage is no longer the only ofcial language of the Autonomous Regions and the
Kurds and other ethnicities that have long been discarded are recognized through the
new Constitution.
12. Article 12 species that the Kurdish Autonomous Regions will only be as one in a
future decentralized federal Syria. Such a move would likely precipitate the full feder-
alization of Syria. The question here is how does the Constitution predict the
outcome of the 2011 uprising? May it be acceptableto Sunni political forces and to mi-
norities such as Alawites and Druze? Do the other ethnicities tend to favor a federal
system? Some minorities would prefer to remain united within a secular republican
Syria and some may rather form Swiss-style. The future of Syria will answer these
ambiguities. Recently, other commentators talk about Syria as a second Yugoslavia
breaking down. It is hard to predict whether a robust Kurdish Autonomy and
power-sharing at the federal level will be represented at the central level. The recong-
uration of Syria is highly unpredictable and potentially volatile.
13. The 2013 Constitution sets outa list of rights that were not included in the Syrian
constitutional text. Unprecedented articles guarantee the rights of youth (Article 17) to
public participation. Within the Middle East, no development issue is perhaps more
pressing than that of nding opportunities for inclusion of the regions large youth
population. The Constitution has given aspirations for inclusion of youth in political,
social, economic and cultural lifein their communities. Continued political instability
and economic hardship facing youths in the Middle East cause them to join Kurdish
armed groups against ISIS and other terrorist rebels. Unlike neighboring States, the
Kurds want their youths to engage in effective policymaking and program development
through the effective realization of equality of women and men(Article 27, 28) and
youth-serving organizations.
14. Article 24 guarantees freedom of opinion and expression, but is restricted as long
as it does not have regard to the security of the Autonomous Regions, public safety and
order, the integrity of the individual. Though these limitations could be interpreted in
a fairly wide-reaching manner, it shows the PYDs concern on the penetration of daily-
based attacks on the Rojava from ISIS, Al-Qaeda, regime forces and Al-Nusra Front
while being isolated by neighbors.
15. Article 27 establishes the fundamental right of women in the new political
system, including a 40 per cent quota in all ofces, and, remarkably, in a womens
armed service, the Yekîneyên Parastina Jin (YPJ, Womens Protection Unit). The
Rojava has imposed a 40% quota of women, with the remaining 40% being for
males and the remaining 20% being for whichever receives the higher number of
votes(Aretaios, 60) in every institution and organization even parliament and govern-
ment and in many cases there is an obligation to have women as vice-presidents or
838 Chinese JIL (2015)
co-presidents(ibid.). The YPJ is the army of women in the autonomous administra-
tion of the Rojava, ghting side by side with men in the YPG (Yekîneyên Parastina Gel,
Peoples Protection Units). Both forces are under command of PYD ghting against
barbaric indoctrination of ISIS; the woman as an equal partner of the man, the
woman as a human being(ibid., 30). This attention to womens rights makes the
Kurdish Autonomous Regions stand out in the Middle East, where many countries
guarantee their few inviolable rights to them, where some Arab countries do not
allow women to vote, and where Saudi Arabia does not permit them even to drive.
An effort has been made to change the status of women in a systematic way for the
rst time in the Middle East. The self-rule administration efforts in the Rojava to
change the peoples old attitudes and traditions toward women and to give them a
new position in society and the political decision making process. The equality of
men and women in the eyes of the law is a move towards the elimination of gender
discrimination(Article 28) breaking the previous Islamic tradition according to
which the testimony of a man in front of a court was equal to the testimony of two
women.
16. The recognition of the international conventions on human rights forms part of
Article 20s formal recognition of international treaties and laws; the fundamental
rights and freedoms set out in international human rights treaties, conventions, and
declarations, further specied in Article 21 to 44: the Universal Declaration of
Human Rights [1948], the International Covenant on Civil and Political Rights
[1966], the International Covenant on Economic, Social and Cultural Rights
[1966], and other internationally recognized human rights conventions. One of the
most important questions is how to guarantee the rights proclaimed above. Observing
these rights means the breaking of numerous old beliefs. Forexample, the right to health
care, social welfare, modern education, work, access to public service, and sustainable
development all seem to depend more on an individuals means and ability to achieve
them rather than on outcomes that will be at the expense of the public institutions and
local authorities.
5
17. Notably, the Constitution does not declare any ofcial religion in the cantons, a
striking principle in this highly religious region, though practicing everyones religion
alone or in community with others and freedom of worship have been guaranteed in
Article 31. The Constitution gives to minorities a participatory roleunprecedented
in the Middle East. The only religion mentioned is the Yazidi religion, which is recog-
nized and explicitly protected in Article 32(c). Also called Yezidi, Daasin, or Ezidi, the
Yazidi are a Kurdish-speaking ethno-religious community based in Northern Iraq
(South of Kurdistan) who practice a syncretic religion. Hunted by ISIS on 3
5 Rachid Touhtou, Gender Codication in the Family Code and the Constitution in
Morocco: Social Movement and Feminist Approaches (2014) (a Collective book: pro-
moting womens rights & gender equality in the Middle East & North Africa. FEPS
and SOLIDAR Publications).
Radpey, The Kurdish Self-Rule Constitution in Syria 839
August 2014, thousands of them have ed to the Iraqs Mount Sinjar where hundreds
of Yazidi died by dehydration. Almost every country in the Middle East has declared a
religion as ofcial. It is clear that the Kurds do not want to encounter the same experi-
ences in other neighboring States denying minoritiesrights and freedom of religion
and conscience. The history of the Kurds has shown that wherever they in the majority,
there is great support of minorities as in north of Iraq under the ruling of the Kurdistan
Regional Government (KRG).
18. Article 29 prohibits the abuse or exploitation of children, who will not be sub-
jected to child labor, torture or cruel, inhuman, or degrading treatment or punish-
ment, and shall not be married before attaining the age of majority. In the Middle
East, many children areengaged in child labor and are more vulnerable to sexual exploit-
ation through traditional marriages and also have been forced into domestic service.
Even children in Iraq and Yemen continue to be used by armed groups as child soldiers.
Despite the regions economic and political instability, the Kurdish self-rule adopted
the new Constitution to strengthen legal and policy frameworks to reduce the forms
of child labor and cruel exploitation and to enhance protections for children.
19. The other rights and freedoms are secured through Articles 32 to 42 including
the right of peaceful assembly, right to vote, right to establish and to join any political
party, etc.
20. The Kurdish system of government refers to a number of important political
events since 2011. Following the changes of the last few years, some of which were
drastic, the Kurdish democracy can be seen as an example of a federal democracy
as depicted by the Swiss Constitution though not to the same extent. The Charter
looks very much like the rst Swiss Constitution. Möckli argues that Switzerland still
is an extreme and the perfect consensus-based model.
6
Conclusion
21. News of the struggles of the Syrian Kurds has reached many houses in the world, as
TV channels have covered the resistance of the Kurds against Daesh (Islamic State of
Iraq and Sham) in Kobanê. In contemporary Syria, the attempt to establish a legal
system based on equality, secularism, and human rights is quite remarkable. Many
aws may be forgiven, considering the difculties facing people in wartime. The
Rojavas Constitution is a milestone in the history of the region. It is certain that it
has evolved from the past experience of all the States in the region that have failed in
satisfying their diverse population. The transformative social contractit offers
would establish the most democratic constitution any people in the Middle East
6 Silvano Möckli, Politische Stabilität als Standortvorteil (2007), Konkordanz umfasst
mehr als nur die Regierungszusammensetzung, Neue Zürcher Zeitung of December
6, 2007, at 17.
840 Chinese JIL (2015)
have ever had; protecting the liberty and rights of the people and safeguarding the in-
dependence and security of the cantons. It explains the revolutionary steps taken in
favor of the people, especially women. The administration has adopted a law that
forbids men from marrying more than one woman, a complete revolution for the trad-
itional societies in the region.
22. The peaceful coexistence of various ethnicities and religions and their different
ways of life under common organizations and the ability to peacefully manage and ne-
gotiate conicts are other signicant features under the Constitution.
23. Still, the Rojava is in the process of construction, and has been ignored by the
Western media and the West in general. Perhaps not surprisingly, the Constitution
and the local autonomy it promises have been recognized by neither Syria nor any
other State, and the cantons have been recognized only by the parliament of the Kurdi-
stan Regional Government (KRG).
7
To strengthen cooperation with Moscow in ght-
ing the ISIS", the PYD is about to open a diplomaticmission in Russia.
8
But democratic
autonomy is a exible, multi-cultural, and anti-monopolistic system, offering the best
form of self-administration for countries with multi-ethnic, multi-lingual, and multi-
religious populations. This system to a large extent substitutes local administration for
central rule. In a Middle East where all States have ruled multi-ethnic societies, the
Rojavas Constitution could offer a realistic and democratic alternative for Middle
Eastern populations.
24. The PYD, along with other parties, are now in effective control over Syrias
Kurdish areas. Though with variations in goals and tactics, they all seek autonomy
within a democratic and federal Syria guaranteeing minority rights.
25. The YPG and YPJ have lost, controlled, retaken, and defended Kobanê, territor-
ies and villages around it against ISIS for several months. Operating from bases inside
Turkey, their de facto regional government (KRG in Iraq) has dispatched the peshmerga
with heavy weaponry to help YPG. There are also many foreign veterans fromSwit zerland,
USA, UK and other western countries ghting alongside the Kurds. Yet this is only a
start, and only when the future of the Syrian regime becomes clearer, will the fate of the
Kurdsplans make itself apparent through a radical break with thepast and a version of
direct democracy; a third way between Islam and secular authoritarianism(Aretaios,
101); on its own ground-breaking effort towards democracy between tradition and
modernity, between war and peace. The Rojavas democratic credentials have not
been proved; up to now, no general elections have been held in the Rojava, although
the rst cantonal election was held on 13 March 2015 in Cizîrê Canton.
7 Iraqi Kurdish government recognizes Rojava cantons (www.hurriyetdailynews.com/
iraqi-kurdish-government-recognizes-rojava-cantons.aspx?pageID=238&nID=730
96&NewsCatID=352).
8 Syrian Kurdish group may open mission in Russia: www.reuters.com/article/2015/10/
20/us-mideast-crisis-syria-russia-kurds-idUSKCN0SE0KC20151020.
Radpey, The Kurdish Self-Rule Constitution in Syria 841
... YPG, etki alanındaki bölgelerde Kürt olmayan nüfusa karşı etnik temizlik, sürgün, özel mülke tecavüz, haksız tutuklama, işkence, zorla askere alma ve çocukları savaştırma gibi sayısız savaş suçu işlemiştir. Bütün bu gerçekler ortadayken siyasi sebeplerden ötürü Amerika 73 "Syria: We Had Nowhere Else To Go'Forced Displacement And Demolitions In NorthernSyria", Amnesty International, Index: Mde 24/2503/2015, 2015.74 Crawford, James, "The ILC's Articles on Responsibility of States for Internationally Wrongful Acts: ARetrospect", American Journal of International Law, 2002, Vol. ...
... YPG, etki alanındaki bölgelerde Kürt olmayan nüfusa karşı etnik temizlik, sürgün, özel mülke tecavüz, haksız tutuklama, işkence, zorla askere alma ve çocukları savaştırma gibi sayısız savaş suçu işlemiştir. Bütün bu gerçekler ortadayken siyasi sebeplerden ötürü Amerika 73 "Syria: We Had Nowhere Else To Go'Forced Displacement And Demolitions In NorthernSyria", Amnesty International, Index: Mde 24/2503/2015, 2015.74 Crawford, James, "The ILC's Articles on Responsibility of States for Internationally Wrongful Acts: ARetrospect", American Journal of International Law, 2002, Vol. ...
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