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The Constitutional Structures of the Federalism in the Middle East The Republic of Iraq and the United Arab Emirates as a case study
“Analytical comparative study” PP.370-394
L. A. Shaho Ghafur Ahmed
College of Law and Political Sciences/ Law Department. Salahaddin University-Erbil
In this study the federal system as a governance system in the Middle East has been discussed through the
comparative constitutional basis. The majority of the Middle East countries have adopted the central regime in
power management, but some other countries, such as the Republic of Iraq according to its constitution of 2005
and the United Arab Emirates under its amended constitution of 1971 followed the federal system because of
their privacies compared to other countries in the region, and the federal systems in the world. Furthermore, it
also has been compared to the constitutional peculiarities of the Kurdistan region as the only federal region in
Iraq with the Emirates members in the United Arab Emirates in terms of construction, distribution of powers,
organization of external relations and management of natural resources The transition from the system of
Centralization of power to the political decentralization power (federalism) in both countries was not easy, most
areas of the constitutional, legal, administrative and internal and external relationships between federated entities
and the federal government led to a lot of problems and constraints, especially in the areas of commitment to the
constitutional distribution of authorities, re-distributing of the interior, national and natural resources revenues.
These problems are still exists in Iraq due to the non-application of constitutional provisions.
In both Republic of Iraq and United Arab Emirates there is federated units, who have constitutional
authorities and powers outside the federal authorities to self-governing however the only way for the survival
and perpetuation of these countries as united States in the Middle East is the implementation of the Federal
Constitution and respect the specificities of the units, especially in Iraq. Federated governments also have impact
for the success of federalism by placing appropriate and internal mechanisms to address the political and legal
disputes. Therefore, only the existence of constitutional and legal provisions is not sufficient for the success of
federalism, the existence of federal culture and respect of the Constitution and accepting others with their
differences and distinguishing features is very significant to ensure the success of the federal systems, otherwise
it will lead to the dissociation of those countries. After studying and analyzing all comparative constitutional
aspects of federalism in both Republic of Iraq and United Arab Emirates, it seems that the federal system is a
contemporary and appropriate system of governance in the Middle East, and it is clear that this system is not
only suitable for countries who have, multi-nationalities, multi religions, multi-cultures and languages, but it also
appropriate for countries who do not have nationality and religious pluralism as the case is with the United Arab
he adoption of a suitable constitutional and political system in every State depends on
the internal specificities of its society, particularly its social, national and political
composition. A constitution affords every State in the world to have its own political
system through its national Constitution, which differs from that of other states, to regulate its
internal and external legal and political affairs and organisations. In the Middle East, in spite
of the fact that most countries are multi-nation, multi-religion, and multi-culture, the prevalent
political system is a unitary one. However, in such countries, the unitary system is not suitable
for all the different nations involved. In general, the ruling minorities or bigger nations
employed their public power to impose their hegemony on the other nationalities and
The term « Middle East »is commonly used in geopolitical affairs and diplomatic exchanges to some countries,
but to date there is no agreement to determine the boundaries of this geographical area, neither on territories nor
the populations who should be included in this area.
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persecute them which led to lack of political, economic and social stability in these countries.
However, the rest of nations, such as the Kurds, could not accept only one political power
overseen by the central government to govern them.
Federalism is a modern system in which the federal government holds significant powers,
but the smaller political subdivisions, such as federated entities, also hold significant power.
In addition, it means the pluralism of executive, legislative and judicial powers in only one
State. In the domain of constitutional Law and political systems, federalism is a complex and
delicate system, which is based on principles of sharing public powers, something that
appears difficult to reconcile between federal State and federated entities.
As a political system, federalism challenges many areas of constitutional law,
administrative regulations and legal relationships between the federal government and the
federated regions including external relationships, distribution of natural wealth, limits of
national and local sovereignty, and economic and financial affairs, among others. Indeed, the
constitutions alone do not seem enough to resolve these difficulties, in other words, the
mechanisms put in place by governments to address these constitutional issues are not
satisfactory for several political, social, legal and even ethnicities difficulties.
The federalism, as a typical system, would be one that resolves the problems in
multicultural and multinational countries in which the different components, particularly
minorities, have the ambition of independency and self-government, and have their own
political organization, because the federalism has some principles such as those of autonomy,
integration and balance, for the federated entities, and the principle of the participation of
these federated entities in the federal power through the federal constitution. A number of
States in the Middle East have been affected by the revolutions and uprisings of Arab Spring
in 2011 especially in Libya, Egypt, Yemen and Syria which have had internal problems in
terms of public rights and freedoms of their national or religious and different components, so
the federalism has been strongly suggested to be a radical solution for such complex
Accordingly, we can find two models of federalism in the Middle East, which are the
Republic of Iraq and the United Arab Emirates; each model has its own specific
characteristics. The first one, the Republic of Iraq, is defined as a federal State in Article (1)
of its Constitution of 2005, stipulated that “The Republic of Iraq is a single federal,
independent and fully sovereign State in which the system of government is republican,
representative, parliamentary, and democratic, and this Constitution is a guarantor of the unity
of Iraq”, it consists of only one federal region, which is the Kurdistan region, along with some
decentralised governorates. The second one is the United Arab Emirates (UAE), which is
defined as a federal State in Article (1) of its Constitution of 1971, and which contains seven
emirates, “The United Arab Emirates is an independent, sovereign, federal state and is
referred to hereafter in this Constitution as the Union. The Union shall consist of the
following Emirates: - Abu Dhabi - Dubai - Sharjah - Ajman - Umm AI Quwain - Fujairah -
Ras AI – Khaimah”.
So, this study outlines the modern evolution of the Republic of Iraq and the United Arab
Emirates political systems and describes the main features of their contemporary federalisms.
In particular, it focuses on how the division of competencies and the distribution of power
have been changed over time, and examines the factors which have driven these changes,
leading to a description of the current situation created by these developments.
In this study, a number of key questions will be discussed: What are the most important
points in the models of federalism in this area? How is the federalism in the Republic of Iraq
and in the United Arab Emirates organised under their Constitutions? Could federalism
resolve the political and social problems in the Middle East? Could federalism be a future
system for the Middle Eastern countries to distribute political powers, particularly in multi-
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nation and multicultural countries? Can federalism moderate or deepen the divisions in
multicultural societies? We employed an analytical comparative methodology to discuss these
main questions through focusing on these two States. For this purpose, this study is divided
into two chapters; the first chapter deals with the evolution of federalism in the Middle East,
and the second chapter focuses on the functioning of federalism in the Middle East.
Chapter I: The evolution of federalism in the Middle East
Federalism emerges in divided societies, which provide the devolution of power from the
centre of the system to the regions or entities. The twentieth century saw a significant
evolution in establishing federalism as a political system, particularly in the Middle East. The
concept and the organisation of this system are complicated and not the same in all federal
States. To explicate this, in this chapter, we focus on the concept of federalism and its
formation process (Section I), and the participation of the federated entities in the federal
power (section II).
Section I- The concept of federalism and its origin
Federalism, like other legal and political terms, has a range of different definitions
according to each political thinker and particular situation of different federal States because
the process of formation of each federal State is not the same as others. This section deals
with the concept of federalism (§1) and the formation processes of federal States (§2).
§1- The Concept of federalism
Federalism as a term used in political science, and legal scholarship refers to it as a means
of governing a polity that grants partial autonomy to geographically defined subdivisions of
the polity (M. FEELEY & RUBIN, 2008:12). All component communities have at least
legislative, executive autonomy. Competencies are thus shared as a balance is sought between
union and diversity. Citizens of the union have dual legal membership in the union and their
own community (Seymour & Gagnon, 2012:84). The legal theory of the federal State evolved
after the emergence of the modern Federal States, including the United States in 1787, the
Swiss Federation in 1848, and the German Empire in 1866. The transformations that occurred
in the United States, Switzerland and Germany led to the evolution of the legal notion of the
federal State (Hassan, 2013:50).
Federal states are most obviously characterised by their different levels of government.
They comprise both an overarching national or central government and a set of regional
governments: Provinces in Canada, states in the United States, Länder in Germany, and
cantons in Switzerland. France also has its departments, Italy has its regions, Britain its local
governments (Hueglin & Fenna, 2006:31), the Republic of Iraq has its regions, and the United
Arab Emirates has its Emirates.
There is not a common definition for the term of federalism; every definition focuses on
different elements in this system. Federalism is essentially a system of voluntary self-rule and
shared rule. This is implied in the derivation of the word “federal,” which comes from the
Latin foedus, meaning covenant, which signifies a morally binding commitment in which the
partners behave toward each other in accordance with the spirit of the law rather than merely
according to the letter of the law (Griffiths & Nerenberg, 2005:8).
Another definition refers to the federal State as a State in which two levels of government
rule the same land and people, each level has at least one area of action in which it is
autonomous, and there is some constitutional guarantee of the autonomy of each government
in its own sphere (Filippov, Ordeshook & Shevetsova, 2004:5). Another definition for
Federalism emphasises the territorial structure of a polity, the vertical allocation of powers to
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different levels and the autonomous governments: this definition states that federalism is a
pragmatic principle for organising politics, which aims at dividing power between levels of
government, and enabling shared rule for common purposes (Benz & Broschek, 2013:72).
This definition, though, is focused only on protecting common purposes by sharing public
powers without regard for geographical or multi-nation features in federal States.
Some others define the federalism in the context of sovereignty and multi-level of
government as follows; It is an internal political and constitutional composite organisation
whereby several members of the federated States submit to the federal government of the
States that are higher them. This regulation involves two sides; the external in which the
Union appears as one State in the field of external sovereignty and the internal face which is
characterised by the multiplicity of constitutional entities that share the Union Government in
the exercise of internal sovereignty (Mawloud, 2009:31). According to these definitions,
federalism could abolish the discrimination between the different nationalities, distribute
equity and justice, and uphold respect for human rights. It can confirm the participation of
authorities between regions‟ governments (Al-Fadhal, 2005:64). So, federalism can be
defined as a political system in which the executive, legislative and judicial powers are shared
between the federal government and the federated unities through the federal constitution; it
combines the principles of unity and diversity between them. Individuals, according to
constitutional rules, must obey two different authorities - the regional authorities and the
§2- The formation processes of the Federal State
The formation of federal States is the result of a dynamic movement which comes from
either an association of sovereign States or from dissociation of a former unitary State which
the components wish to see and practice their extended powers (Pauvert, 2004:73). So, the
process of formation a federal State may result either from an association or integration
process of independent entities (A) or dissociation process of one single or unitary State to
composite States (B).
A- Association or integration of independent entities
The terms of association and integration are equivalent; they simply assume that the
federal form results from a free choice of different States which decide to share their strengths
and their resources. This type of federal structure is intellectually the most logical (Pauvert,
2004:73). This method resulted in the creation of new countries from the previous
independent entities that they have joined in order to create a federal State. Such a federation
is animated by a centripetal dynamic forged by the need to guard against an external threat, or
to promote common development of well-being, and other factors, such as the unity of
language and morals, or the desire to become a power (Alen, Beaufays, 1994:37). According
to this method, several previously sovereign States join together to adopt a common
Constitution as the basis for a new State.
Under this model of „Union‟, the main objectives consist of benefiting from the
advantages of the union, escaping from the problems of the disunion and avoiding the
possible abuse of the central power. The main value is thus the balance of powers (Benz &
Broschek, 2013:57). The primary purpose of the system here is to guarantee consensus and
cooperation among the federated entities. Besides the effects emanating from the external
environment, a number of internal factors can determine long-term federal change with regard
to direction, scope, or formal and informal character, among others (Benz & Broschek,
2013:64). In his book, Democracy in America, Alexis de Tocqueville says: Small nations are
often poor not because they are small but because they are weak; the great ones prosper not
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because are great but because they are strong. From this it results that apart from
exceptional circumstances, small peoples always end up by being united violently to great
ones or by uniting among themselves. It is in order to unite the different advantages that
result from the great and small sizes of nations that the federative system was created
If we compare the federal systems in the Middle East, we cannot find any federal State
created under this method. However, Yemen has witnessed Union Confederation experience
with Egypt and Syria in 1958 and the federal experience was creating an association among
some emirates and sultanates of Yemen in 1959, but these experiences have been founded
without the State or institutional experiences, this reason makes these experiences to be failed.
After the establishment of the Republic of Yemen in 1990, the federalism as a political term
began again desirable. The efforts continued to make Yemen a federal State until 2013 (AL-
AHMADI, 2013:126-231). Although the final agreement to shift Yemen from a unitary State
to a federal State, has been ratified by the delegates of the National Dialogue Conference
(NDC) in January 2014, but still at present they were unable to come to an agreement
regarding the number of states and their specific boundaries before the close of NDC (AL-
AKHALI, 2014). Until now Yemen is not a federal State. The federalism could be a suitable
solution to resolve the internal problems between different parts and components in Yemen in
In the United Arab Emirates, before the creation of the Union, the evolution from simply
powerful tribal sheikh to ruler of a political and territorial entity depended on British
recognition, and the final shaping of the Trucial States into its present seven sheikhdoms or
Emirates did not take place until the 1950s. With impending British withdrawal from the
Gulf, the seven Trucial States – and also, for a while, Bahrain and Qatar – began negotiations
in 1968 toward an independent union. As a consequence, the United Arab Emirates came into
existence on 2 December, 1971, with six members; the seventh, Ra‟s al-Khayma, joined in
February 1972 (Peterson, 2014:2). In addition to permitting the UAE to achieve one of the
world's highest per capita incomes, oil has been responsible for determining the relative
wealth and influence of the Emirate members, in spite of the fact that in the United Arab
Emirates there is not language, religious doctrine, cultural and national diversity. We found
out here that the federation of the United Arab Emirates is sui generis because before the
creation of this union the Emirate members were not confederation states or unitary
independent States, but there were some sheikdoms in this area, so the method of association
or integration is not completely applicable to the situation of the United Arab Emirates in
spite of the fact that there are certain similarities.
B- Dissociation of a single State to a federal State
Federalism can also arise through dissociation of a unitary State which agreed to
transform its structures radically by granting a State character to the communities which
compose this State during the conserving of superposition competences only, and leave the
other competences to these communities. This method of federalism is particularly suitable
for the States that have on their territory various nationalities in which the lifestyles and
languages are different and sometimes the antagonism is traditional (PACTET & MELIN-
SOUCRAMANIEN, 2009:45). It is also suitable for States that wish to grant their regions or
A special committee which is created by a decree of the President of Yemen in 2014 has prepared a report to
divide Yemen into six regions (Four regions in what used to be North Yemen and two regions in what used to
be South Yemen prior to the 1990 unification of North and South Yemen). The committee announced which
„states‟ are to be included in each region.
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provinces a much greater autonomy than that which may result from the territorial
This model of federalism, principally, originated in confederal experiences, although it is
more immediately stems from the decentralisation of unitary or otherwise centralised states.
The characteristic of federations is where two or more different cultural communities coexist,
one of which may represent a majority. Generally, the typical executive and legislative
configuration is parliamentary government. The features of this type can be found to some
extent in several phases of the evolution of Canada or Belgium, but also Switzerland (Benz &
Broschek, 2013:58). In federal States established according to this method, the federal
government maintains more authority compared to the federal systems established according
to the first method. Even if they had transferred the regions or administrative units to
constitutional entities, they did not grant them only limited powers (Mawloud, 2009:33). The
formation process of federalism in the Republic of Iraq is relatively closeto this method.
Although its population is divided by language, geography, culture, religious doctrines
and nation, the Republic of Iraq legally stayed as a unitary State until 2004, while the
existence of the Kurdistan region, as the only federal region in Iraq, is goes back to 1992,
when the Parliament of the Kurdistan region - Iraq unilaterally and unanimously decided to
organise its political and legal relations with the government of Iraq on the basis of federalism
on 4 October 1992. The Kurdistan region in Iraq has been founded as a de facto relatively
independent region since 1991; this continued to 2004 and was recognised by the “Law of
Administration for the State of Iraq for the Transitional Period.” After this it was confirmed
by the Iraqi Constitution of 2005, and became the first, and most durable, Kurdish state in
modern history. The Kurds of northern Iraq have no intention of giving up the freedom and
self-government they have enjoyed for over a decade. When the process of making a
permanent Constitution for Iraq begins in 2005, Kurdistan will be able to shape its term
(O'Leary, McGarry & Salih, 2006:268).
In the Kurdistan region, the language, culture, nationality, and other demographic aspects
are different from other parts of Iraq; its ambition for independence is very strong, but
because of the inconveniences of the political and geopolitical situations in Iraq, Iran, Turkey
and Syria, and also the disagreement of superpowers‟ interests with the independence of
Kurdistan, it could not declare its independence. Because of these factors, the Kurds
considered federalism, in this phase, as a suitable option to stay in the Republic of Iraq and
address the issues. So the model of federalism in Iraq, like the case in the United Arab
Emirates, is sui generis because it is out of all usual and historical standards to create a model
of federalism anywhere the world.
Section II - The characteristics of federalism
To consider any system as a federal system, it must contain a range of characteristics in
order to differentiate it from other political or administrative systems such as the
confederalism and the administrative decentralisation of unitary States. So the most important
characteristics of federalism are the constitutional characteristics (§1) and the characteristics
of distributing competences (§2) particularly in the Republic of Iraq and in the United Arab
§1- Constitutional characteristics of federalism
The declaration of federal union by the National Assembly of Kurdistan - Iraq on 4th October 1992:
« …Unanimously decided to determine its self-determination and to determine its legal relationship with the
central authority, in this phase of its history on the basis of the Federal Union within the Iraq‟s parliamentary
democracy who believes in multi-party system and respects human rights which are recognized in international
covenants and conventions ».
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In the domain of constitutional affairs, federal systems have some key characteristics, the
most prominent characteristics are those related to the existence of more than one
Constitution in the federal State (A), and also the federal Court (B) which is supposed to
resolve constitutional conflicts during the implementation of the federal Constitution.
A- The coexistence of a written Constitution
The Federal Constitution is characterised as a written constitution. It is issued to express
the will of a group of peoples to join each other to establish a new single state. This
expression of the will and desire of the peoples in the formation of a single state must be
explicit and unambiguous; it is usually expressed in the document of the union, which is the
Constitution of the new Stateafter it is signed and ratified it by the federated States (Hussein,
2008:55).When a country adopts a federal system, it necessarily embraces the complexity in
government, and the tasks of the federal Constitution have correspondingly multiplied over
those of a unitary system. Generally, the federal Constitution allocates powers between the
federal government and the federated entities, determining which powers are the exclusive
prerogatives of each government and which powers are shared (Kincaid & Alan, 2005:8).
The federal union is an internal legal organisation that is created by the constitution,
which is guaranteeing the distribution of powers and authorities. In order to ensure that this
distribution is precise and stable, and not differentiable and confusing during the practice, it is
necessary that this Constitution is a written document (Mawloud, 2009:38), so as to guarantee
that some of its sections or articles cannot be changed unilaterally by the federal government.
The important changes that affect the constituent entities usually require the approval of the
majority of them, and of the central government (Anderson, 2010:4). Generally, federated
entities have the right to adopt their own local constitution to regulate the executive,
legislative and judicial powers and other local affairs in these units on the condition that these
local constitutions do not contradict the federal Constitution.
The Iraqi Constitution of 2005 was written and accepted through a popular referendum,
and the United Arab Emirates adopted its written constitution in 1971 by the rulers of seven
Emirates but it has been permanent only in 1996. In the Republic of Iraq, according to Article
(120) of the Iraqi Constitution of 2005, except the federal Constitution, only federal regions,
not decentralised provinces, have the right to adopt their own constitution to determine the
structure of powers in the region, its authorities, and the mechanism for exercising these
authorities in a condition that it does not contradict the federal Constitution. Under Article
(126), the federal Constitution could not be amended in every situation, especially articles that
are related to the powers and the rights of federal regions, without the approval of the
legislative authority of the concerned region and the approval of the majority of its citizens in
a general referendum, it is an important guarantee for the regions. So there will be more than
one written constitution inside the Iraqi federal Constitution.
In the United Arab Emirates, the same as the Republic of Iraq, under Article (151) of the
Constitution of the United Arab Emirates of 1971, the Emirates have the right to adopt their
own constitutions under the condition that the provisions of the federal Constitution of the
UAE shall prevail over the constitutions of the member Emirates of the Union. Under Article
(144), the UAE federal Constitution could not be amended without the approval of the Union
National Assembly on a draft submitted by the Supreme Council to them; this approval shall
require the agreement of two-thirds of the votes of members present. It is an important
Till now the Kurdistan region does not have a Constitution yet.
It cannot be found any local written Constitution for Emirates members.
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guarantee for the Emirates but it is not strong as such, that in the Republic of Iraq to guarantee
the powers and the right of federated regions.
B- The existence of a federal Court
When powers are shared, the federal Constitution usually defines how conflicts among the
governments with regard to these powers are to be solved. More broadly, the federal
Constitution regulates the relations among the component units and between the federal
government and these units (Kincaid & George, 2005:8). Constitutional judiciary, just like the
rest of the authorities, is an authority or a constitutional body created by popular will. Its
powers are exclusively defined in order to maintain the rules of respecting the distribution of
powers of the authorities and to ensure that they do not violate any of the other powers that
summed by the Constitution (SALIBA, 2002:114). For this reason, every federal system must
include the institution of federal jurisdictions charged to maintain the federation and the
federal states within the limits of their powers, to specify - whenever it is needed - the
hierarchy of norms applied in an occurrence; and to hear a dispute for reasons of the presence
of certain parties within the not-clear jurisdiction of the judicial units from a federal state
(PACTET & MELIN-SOUCRAMANIEN, 2009:50).
Only the Supreme Federal Court can unify the jurisprudence and indicate the solution
principles to disputes arising from the complexities of constitutional provisions. So the aim of
the existence of a Supreme Court in the federal states is to interpret the constitutional articles
and solve constitutional conflicts arising between the central government and the federated
entities, or between the federated unites themselves. This Court must be neutral and
independent from any other powers in the state (Majeed, 2012:33). Generally, the tasks of the
Supreme Constitutional Courts are the following:
- Adjudicating disputes related to the powers and competences that may arise between the
central and regional governments, or between other regional governments and others.
- Restricting all different governments within its border drawn by the Constitution so as not
to violate the powers and competences of each unit by others (Mawloud, 2009:49).
- Controlling the constitutionality of federal and regional laws and adjudicating their
compliance with the federal Constitution provisions.
- Interpreting of constitutional provisions when in the case of confusion with the application
- Settlement of the accusations directed against the President of the State (Al-Wartte,
This type of Court has a lot range of different names and labels. In the Republic of Iraq, it
is called the Federal Supreme Court, which is mentioned in Article (92-First) of its
Constitution “The Federal Supreme Court is an independent judicial body, financially and
administratively”. Its jurisdictions are determined in Article (93) of the present Constitution,
which are concerned with the overseeing of the constitutionality of laws, interpreting
provisions of the Constitution, settlement of constitutional disputes, and settling accusations
directed against the President, the Prime Minister and the Ministers. Decisions of this Court
are final and binding for all authorities. This is considered as an important guarantee for the
implementation and application of the provisions of the federal Constitution.
In the United Arab Emirates, as with the other models of federalism, there is a Federal
Supreme Court as mentioned in Article (95) of its Constitution “The UAE has a Federal
Supreme Court and federal first-instance courts”. Its jurisdictions, under Article (99) of the
present Constitution are, generally, concerned with the matters of disputes between member
Emirates and the Union or among themselves, examination of the constitutionality of Union
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laws or legislations of the Emirates, interpreting the provisions of the Constitution, trial of
Ministers and senior officials of the Union, and conflicts of judicial jurisdictions.
§2- Distributing the governance competences
One of the most important distinct points of a federal system is the existence of more than
one governance level in the State and a distribution of the main powers as (legislative,
executive and judicial) between the federal State and federated entities according to the
provisions of the federal Constitution. In the terms of the distribution of powers in federal
States, here we focus on the existence of multi-levels of governments (A) and the distribution
of authorities in such States (B).
A- Multi-governance in federal States
Multi-level governance is not a new topic for federal states. Many policy fields in federal
countries were subject not only to one authority level of territorial powers but also to the
influence of both the federal government and member states and, occasionally, also of local
governments. This term has enlarged the discussion about the territorial distribution of powers
in federal States but at the same time it has narrowed down scientific attention to coordination
problems at territorial levels (Enderlein, Walti, & Zürn, 2010:168). In the federal states there
is at least two orders of government - one for the whole country and the other for the regions.
Each government has a direct electoral relationship with its citizen‟s (Kincaid & Alan,
2005:3).The various levels of government (federal State and locals) are tied together by a
variety of factors as money, programmes, and political parties, and they play to interest
groups among them. Interest groups have an important role as vehicles for the movement of
policies issued from one level to another (Berman, 2003:19).
Multi-governance is means the existence of local government in federated states which
refers to a uniform institution with a set of identifiable characteristics. On closer inspection,
this term is merely a collective noun for a wide variety of governance institutions that come in
all shapes and sizes and that perform widely divergent functions. More important than
constitutional recognition of local government is the practice of inter-governmental relations,
which more closely reflects their place and role of them in the federal system (Steytler &
Kincaid, 2009:4). Forms of local government, which reflect the needs and wishes of people
living in local communities, have existed as long as communities have existed, and pre-date
central government by centuries. Local government represents both a form of decentralisation
of power and a basis for local democracy (Barnett, 2009:289). So, in the federal states, there
are two types of authorities - federal authorities which are practiced by the federal
government, and other authorities which are practiced by the regions or federated entities. The
second one is a result of the lack of the federal government and the federated entities to
practice all powers and authorities independently in the State (Hussein, 2008:43).
The federal system in the Republic of Iraq is made up of a decentralized capital, regions,
and governorates, as well as local administrations (Iraqi Constitution of 2005, Article 116). It
means that the Republic of Iraq consists of two levels of governance which are federal
government in Baghdad, which works for the interests of all people in Iraq, and local
governments as federal regions and decentralised governorates that have local functions
toward the people of their regions or governorates. In Iraq, there is only one federal region,
that is Kurdistan region, which is mentioned in the federal Constitution, and (15)
decentralised provinces which are not listed in the Constitution. Each level of governance has
its limited competences under the Iraqi Federal Constitution. Iraqi Constitution, upon came
into force, have recognized the region of Kurdistan, along with its existing authorities, as a
federal region (Iraqi Constitution of 2005, Article (117). In the United Arab Emirates,
according to Article (1) of its Constitution, it is a federal State which has two levels of
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governance; the federal government of the United Arab Emirates (UAE) that represents the
federal State in the internal and external fields, and the seven Emirate members.
B- Distributing the authorities in federal States
Some federations are highly centralised and have designated the power in the hands of the
central government while others are decentralised and their constituent units have a
considerable autonomy and a considerable margin of flexibility. Some others have established
fairly clear distribution of competences between central government and the territorial
governments, while others multiply overlapping competences (Anderson, 2010:3). Generally,
in the federal systems, there are three methods of authority distribution:
1- The exclusive authorities for the federal State
According to this method, the federal Constitution determines exclusive and particular
competences and the authorities of the federal government and leaves other authorities to
local governments of federated entities (PACTET & MELIN-SOUCRAMANIEN, 2009:48).
In the case of the silence of the federal legislation, all other matters are devolved to the
government of States, which are benefiting from common law jurisdictions. Under this
method the powers of the regions have the jurisdiction in all matters not expressly stipulated
in the Constitution to the federal authorities; also, they have the jurisdiction in all emerging
issues (Hussein, 2008:47). This method weakened of the federal government and reinforced
the federated entities. Principally, some materials which involve the high interest overall the
federal State (like foreign affairs, defence, finance, and economics) are expressly enumerated
and reserved to the federal government (PACTET & MELIN-SOUCRAMANIEN, 2009:48).
2- The exclusive authorities for the federated entities
Depending on this method, the federal Constitution particularly determines the
competences and the authorities of the federated entities (regions, States, Emirates, etc.). It
makes the authorities of these units exceptional, specified and fixed, which the authorities of
federal government are more general (Majeed, 2012:34). In most federal systems the principle
of equality among federated entities is manifest principally in the fact that each member unit
is assigned the same set of governmental responsibilities as the others. However, these units
may differ in such dimensions as geographic size, population size, and robustness of their
economy, but their governments are assigned the same tasks under federal Constitution
3- The common and shared competences
Frequently, outside of the reserved domains - either for the federal State or for the
federated states - the Constitution also provides competitive jurisdictions or competences.
Some matters are open to the intervention of the federal State as is case with federated states;
however, the federal State has takes priority in setting the norms for such a State (such as like
Switzerland, Austria, and India) (Ardant & Mathieu, 2010:44). This formula is a source of
conflict which is difficult to resolve because every authority considers it has a priority to
The Iraqi Constitution of 2005 has adopted the both first and third methods of distributing
the competences and authorities. Firstly, the present Constitution determined exclusive
authorities of the federal government in the specific matters have as stipulated in Article
(110). These federal authorities shall preserve and guarantee the unity, integrity,
independence, and sovereignty of Iraq and its federal democratic system. The Article (115) in
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the present Constitution stated that “All powers not stipulated in the exclusive powers of the
federal government belong to the authorities of the regions and governorates that are not
organized in a region”.
With regard to other powers shared between the federal government and the regional
government, priority shall be given to the law of the regions and governorates not organised
in a region in case of dispute. Secondly, the present Constitution determined the mutual or
common authorities which are practiced by both the federal government in Baghdad and the
government of federal regions (such as the Kurdistan region); in Article (114) these
authorities have stipulated that the competence of managing customs, regulating the main
sources of electric energy and its distribution, formulating environmental policy and planning
policies, formulating public health policy, formulating the public educational and instructional
policy, and formulating and regulating the internal water resources policy in a way that
guarantees their just distribution, shall be shared between the federal authorities and regional
authorities (the regions and governorates that are not organised in a region).
The Constitution of the United Arab Emirates of 1971 adopted the first method of
distributing the competences and authorities. The present Constitution determined the UAE‟s
exclusive legislative and executive jurisdiction in the specific matters which are stipulated in
Article (120). It has also been mentioned that without prejudice to the provisions of the
preceding Article, the UAE has exclusive legislative jurisdiction in specific matters stipulated
in Article (121). According to the Articles (116) and (122), the Emirates shall have
jurisdiction in all matters not conferred exclusively upon the federal authorities as provided in
the two preceding articles. Nowadays, many of the federal states are moving towards
expanding the federal government powers and increasing their competence, particularly in the
economic and social fields, upon the authorities and the autonomy of states or the Emirates
members in these unions. This is applicable to federal authorities in the United Arab Emirates.
Some justify the expansion of the federal competencies because of the simplicity of the
economic and social life in the Emirates which does not exercise state powers in the modern
sense (Kanaan, 2008:102). We found here that the method which has been adopted by the
UAE is clearer, and more practical and logical than that adopted by the Republic of Iraq. It
also helps the State avoid a great deal of constitutional and political problems.
Chapter II: The functioning of the federalism in the Middle East
As mentioned in the first chapter, the federalism is a system meant to integrate various
group of people in a society. Sometimes the adoption of the federal system leads to the
emergence of a number of contentious issues that require put specific mechanisms and
solutions to address them. issues such as the participation of the federal powers, the
distribution of powers, the distribution of income, demarcation of the border, and foreign
relations should be included among the priorities of any constitutional legislator in federal
countries, because leaving these subjects open to the political or legal interpretations may lead
to the occurrence of many problems, particularly in a new federal State. For this purpose, we
focus on two main principles in the federal system which are the principle of participation
(§1) and the principle of autonomy (§2) of the federated entities.
Section I- Participating of federated entities in the federal State
The principle of participation is an immediate consequence of the creation of federations.
In fact, federal States decide freely and on a basis of equality to share their competences and
authorities at their internal level. This process assumes that every federated State shall have
the right to look at the implementation or achievement of federal legislations because the
federal legislation will apply within their own legal system (Pauvert, 2004:75).This principle
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is more effective in the federal legislative and executive powers than the federal judicial
power is; for this reason, this section deals with the participation of the federated entities in
the federal legislative power (§1) and executive powers (§2).
§1- Participating in the federal legislative power
Generally, the federal parliament is bicameral; that is, it consists of two chambers. This
characteristic is considered as an advantage of the federal system. In addition to being one of
the guarantees that ensures the effectiveness of this system, the bicameral style is also suited
to the nature of the legal and political formation of the federal State (Mawloud, 2009:46). In
fact, in federal States, beside an assembly which is elected to represent the whole population,
there is a specific organ which is the federal assembly (Senate) with a mission to ensure the
representation of the Federated States. This federal second chamber presents both original
characteristics concerning its designation or appointment and its attributions. Participating in
the federal legislative power, comparing to federal executive and judicial powers, is the most
directly and most dramatically to federated entities (PACTET & MELIN-SOUCRAMANIEN,
The presence of the second chamber in the Federal Parliament is the embodiment of the
principle of participation, which is made through the equal representation of the member
states in the highest constitutional body in the State as a guarantee to achieve a balance and to
retain the entities and the personalities of these units to ensure that their collective voice is
louder than that achieved by the population size alone (Al-Wartte, 2013:75). Montesquieu
recognises two major roles for the Legislature: the representative body is elected to make laws
or to ensure that those, which are made by it have been executed. It means that, in a federal or
other system, generally, the legislative power is charged to elaborate laws which represent
abstract and general legal norms intended to organise the society. Despite the representing
citizens, it is also charged to oversee and control the implementation of laws by the executive
power (Behrendt & Bouhon, 2009:136).
In the Republic of Iraq, according to Article (48) of its Constitution of 2005, the federal
legislative power consists of two branches which are the Council of Representatives and the
Federation Council. Under Article (49-first), the Council of Representatives shall consist of a
number of members, at a ratio of one seat per 100,000 Iraqi persons, representing the entire
Iraqi people. However, Article (65) of the present Constitution stipulated the establishment of
the Federation Council to include representatives from the regions and the governorates that
are not organized in a region, but to date this Council has not been established yet. For this
reason, the federal regions and decentralised provinces participate in the Iraqi federal
legislative power only through the Council of Representative. So, it can be asserted that there
is only one legislative Council because the existence of the Federation Council is only in the
Constitution without any competences, nor a real presence. Article (115) in the Iraqi
Constitution of 2005 gives the priority to the law of the federated regions and governorates
not organised in a region in case of dispute with the federal Laws. According to Article (120),
each region shall adopt a constitution of its own that defines the structure of powers of the
region, its authorities, and the mechanisms for exercising such authorities, provided that it
does not contradict this Constitution.
In the United Arab Emirates there is no real separation of powers between the federal
executive and legislative branches; for this reason, the federal representative Council is the
Federal National Council (FNC). It consists of only one chamber which represents the
member Emirates. This Council consists of 40 seats which have been distributed among the
member Emirates; Abu Dhabi 8 seats, Dubai 8 seats, Sharjah 6 seats , Ras AI Khaimah 6
seats, Ajman 4 seats, Umm AI Quwain 4 seats, Fujairah 4 seats (The Constitution of the UAE
of 1971, Article 68). Under Article (69) every Emirate is free to determine the method of
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selection of its representatives in the FNC, but this Council only reviews legislation and
proposes amendments; it cannot enact or revise legislations, it has not the right of veto, and
only serves in an advisory and consultative role. According to Article (46) of the present
Constitution, the highest legislative, executive, and constitutional authority in the UAE is the
Federal Supreme Council (FSC). It is composed of hereditary rulers of each of the seven
Emirates. This Council maintains a relative balance among the Emirates.
Both federal systems in the Middle East (the Republic of Iraq and the United Arab
Emirates) have a particularity of participation of federated entities in the federal legislative
power, which led them to be sui generic federalisms compared to other models of federalism
elsewhere the world. They have only one elected legislative chamber or Council which is a
representative Council for the whole population; they do not have a Federal Council elected
by the people to represent the federated entities.
§2- Participating in the federal executive power
In federal States, federated entities participate in the decision making of the federal
authorities. This participation has been made necessary because without it we are facing the
domination and protection practiced by the federal government on the member States (Sarhal,
2002:65). The right of federal units to participate within the decision-making process of the
different levels of the federation is a key factor that distinguishes federal States from
decentralised States. The main argument for participation or shared rule by the federal units
lies in the legitimisation of the federation. The federation can only achieve legitimacy if it
accords proper recognition to the federal entities and includes them in its decision-making
process, as the federal entities must also gain legitimacy with respect to their people (Fleiner
& Fleiner, 2009:571).
Participating in the federal executive power is much more indirect and subtle because it is
not a participation in the exercise of this power; instead it is a participation in the appointment
of the holder of this power. The federal government is sometimes appointed by the two
assemblies together, which is benefit to the least populated states, in this election, by
affording them more influence than the proportional importance of their population (PACTET
& MELIN-SOUCRAMANIEN, 2009:49). The federal executive power normally consists of
the President of the State and the federal government. The federal executive power is
competent to implement the federal laws in all different states or regions, and it holds the
administrative function within the limits of the federal Constitution to confirm the Union
appearances in the Federal State (Al-Wartte, 2013:83).The prospects of success for any
federation rests upon a kind of balance or equilibrium between two broad sets of opposing
forces, one comprising „long established particularity‟ and the other oriented towards „nation-
statehood‟. The federation was a „political contrivance‟ designed to create a „legal habit in the
mind of the nation‟; it was a plan or device that was in some sense an improvisation,
something that had the quality of expediency about it (Burgess, 2006:104).
In the Republic of Iraq, under Article (66) of its Constitution of 2005, the federal
executive power shall consist of the President of the Republic and the Council of Ministers.
According to Article (70 - First) of the present Constitution, the Council of Representatives
shall elect a President of the Republic from among the candidates by a two-thirds majority of
the number of its members. According to Article (76-First), the President of the Republic
shall charge the nominee of the largest Council of Representatives bloc with the formation of
the Council of Ministers. The Prime Minister is the direct executive authority responsible for
the general policy of the State and the commander-in-chief of the armed forces. He directs the
Council of Ministers, presides over its meetings, and has the right to dismiss the Ministers,
with the consent of the Council of Representatives.
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We find here that the federal entities participate in the federal executive power only
through the election of the President of the republic, Prime Minister, ministers and other high-
ranking officials in the Council of Representatives, according to their rate of seats in this
Council, but in practice, the political parties of the main components (Kurds, Shiite and
Sunnite) of Iraq have adopted consensual democracy, which has been a constitutional custom,
to participate in the federal government. Hereby, the President of the Republic is for Kurds,
the Prime Minister is for Shiites and the speaker of the Council of Representatives is for
Sunnites, in order to protect and maintain the balance of power among them.
In the United Arab Emirates, according to Articles (45) and (46) of its Constitution of
1971, the executive branch consists of the Federal Supreme Council, the UAE President and
Vice President and the Federal Council of Ministers. The Federal Supreme Council is the
highest authority in the UAE, which consists of the rulers of all member Emirates. An
Emirate has a single vote in the deliberations of the Council. Under Articles (51-52) of the
present Constitution, the Supreme Council of the Union shall elect from among its members a
President and a Vice President of the Union with no fixed term. The President is a head of
State to serve a five-year term; he appoints the Prime Minister, deputy Prime Minister, and
the cabinet. The Vice President of the Union shall exercise all the powers of the President in
the event of his absence for any reason. The term of offices of the President and the Vice
President shall be five Gregorian years, and they are eligible for re-election to the same
offices. The decisions of the Supreme Council on substantive matters are taken by a majority
of five of its members, provided that Abu Dhabi and Dubai Emirates must be among the five
members. The minority shall abide by the opinion of the majority. The decisions of the
Council on procedural matters are taken by majority vote. The Council‟s by-law specifies
these matters (The Constitution of the United Arab Emirates of 1971, Articles 49-46).
Here we find that every Emirate has a single vote in the federal Supreme Council but there
is no balance between the voices of each Emirate. All Emirates shall participate in the Council
of Ministers, which is the executive organ of the UAE appointed by the Federal Supreme
Council. This shows that the participation of the federal units in the federal power in the UAE
is stronger and more effective than the current situation in the Republic of Iraq.
Section II- The autonomy of federated entities
The principle of autonomy allows federated entities to establish their own Constitution, to
enact their own laws and execute them, and to nominate their rulers, and also to have their
specific judicial system, but this autonomy must respect the main principles of the federal
State and the rule of the federal Constitution. To explain this principle, this section deals with
the basic powers of these entities as executive, legislative and judicial competences (§1), and
also their competences in the financial and diplomatic affairs (§2) in the United Arab
Emirates and the Republic of Iraq according to their Constitutions‟ provisions.
§1- Formulating basic powers of federated entities
Federated entities have the right to self-regulation by their special internal powers which
are not imposed by the central authorities. They are free to organise themselves in their own
system without the intervention of federal bodies because they have a real constitutional
personality (Hasan, 2013:122). We next focus on the organisation of the executive (A),
legislation (B) and judicial affairs (C) in the federated entities.
A- Local executive affairs
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Federal systems accommodate the self-government of participating communities. The
autonomy that these communities enjoy with the federation is more than a signal of the
commitment to the decentralisation of power. This autonomy encourages participation in
public life rather than discourages it. Furthermore, it is also an invitation to local communities
to govern themselves (Smith, 2004:27). In the federal systems, each federated entity has its
own executive organ and institutions, which they have been selected according to the rules
adopted by the Constitution of the federated entities. However, their competences should not
exceed the limits of the federal unit‟s jurisdictions. Federal powers cannot isolate the
members of the federated state governments or its courts, or solve the legislative power in
these units (Majeed, 2012:56). The devolution of power to directly elected authorities enables
those with local knowledge and expertise to regulate the provisions of services. They also
represent citizens‟ closest contact with a democratic institution and enable individuals to play
a role in the administration of their geographical governments (Barnett, 2009:306).
In the Republic of Iraq, under Article (121- First) of the Republic of Iraq in 2005, the
federated regions have the right to practice their executive power in accordance with the
provisions of the federal Constitution. With the exception of those authorities stipulated in the
exclusive authorities of the federal government, they are competent to exercise other
executive powers. The executive power in the Kurdistan region consists of the President of
the Kurdistan region and the Council of Ministers which are designated through a direct
electoral process and the parliament. The government of the Kurdistan Region was formed in
1992 by the parliament of Kurdistan. The Council of Ministers consists of the Prime Minister,
deputy Prime Minister, ministers and departments, and it is charged to organise internal and
external affairs of the region and also with the delivery of basic services for citizens, such as
providing electricity, developing the infrastructure, and improvement of public health and
education, Moreover, under the Article (121–fifth) of the Constitution of the Republic of Iraq
of 2005, the regional government shall be responsible for all the administrative requirements
of the region, particularly the establishment and organisation of the internal security forces for
the region such as police, security forces, and guards of the region which is Peshmarga in
In the United Arab Emirates, according to Article (116) of its Constitution, the Emirates
shall exercise all powers not assigned to the Union by this Constitution. They shall all
participate in the establishment of the Union and shall benefit from its existence, services and
protection. Under Article (3) of the Constitution of the United Arab Emirates, every member
Emirate shall exercise sovereignty over its own territories and territorial waters in all matters
which are not within the jurisdiction of the UAE under the Constitution. The exercise of
authority in each Emirate shall aim in particular at the maintenance of law and order within its
territories, the expansion of public utilities of value to its inhabitants, and the raising of social
and economic standards (The Constitution of the UAE of 1971, Article 117).
Local governments vary in size, structure and degree of autonomy from central
institutions, according to a number of factors including population, and the level of economic
and social development of each Emirate. Similar to the federal level of government, Abu
Dhabi, Dubai and Sharjah have executive councils and consultative councils. In addition,
some Emirates have one or more municipal institutions. The ruler of each Emirate has a
significant role in determining the nature and extent of local government activities (Griffiths
& Nerenberg, 2005:362). The federations of the UAE and Emirates are ruled by monarchies,
in which there is a tribal leadership within a centralised power in the hand of one person or a
few persons. Leaders in the UAE have the power to be key decision-makers in all domestic
and foreign policy issues. At the Emirates level, the ruler‟s court or diwan acts as an
independent governing body. The diwan is the ruler‟s office, where issues regarding local
(Emirate-level) policies are initiated and discussed. It does not involve all members of the
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ruling family (Almezaini, 2012:29-30), while in the Kurdistan region the leaders should be
designated through a democratic process.
Here we found that the Emirates have sovereignty upon their territory in such a way that
other Emirates should respect this independence and sovereignty, but the federated regions in
the Republic of Iraq do not have absolute sovereignty, and also the modalities of composition
of the government of the Kurdistan region and decentralised governorates, that must be
designated through a democratic process, are very different from the composition of Emirates
in the UAE.
B- Local legislative power in federated entities
Federated regions have their own constitutional and political systems; each federated
entity is based on its own Constitution, and constitutionally they self-organise. So the
federated regions have their own jurisdiction in certain areas by which they manage and enact
their laws (Delaunay, 2004:26). Whatever the case, the federal law is important, but local
laws of the federated entities remain more important in the scope of daily life in the view of
citizens. Local laws return to the right of these entities of enacting laws in some domains
within the jurisdiction of the federal authorities, but the latter did not enact legislation in these
domains. This right is preconditioned to respect the federal Constitution. When the federal
law addresses some matters, member states cannot enact in these matters if these federal laws
do not contradict with local provisions (Hasan, 2013:335). It means that federal system gives
federated entities autonomy, legal personality and a Constitution, which resembles the
characteristics of a real State but they do not have full sovereignty.
In the Republic of Iraq, legislative power is divided among regions, governorates that are
not organised in a region, and the federal authority. Each authority is autonomous and can act
independently in some areas. Under Articles (121-First and13-First) of the Iraqi federal
Constitution of 2005 allows federated regions to have their own Constitution and to have their
own legislative power. Further they have the right to exercise power to enact their own laws
in accordance with the provisions of the federal Constitution, because this is the supreme law
in Iraq and any text in any regional Constitution or any local laws that contradict the federal
Constitution shall be rendered void. In the present Constitution, there is an important
guarantee for the federated regions which is stipulated in Article (115), that outside of the
exclusive and shared powers of the federal government, priority shall be given to the law of
the regions and governorates not organised in a region in case of dispute.
As referred to above, there is only one federal region in Iraq which has a legislative power
(Parliament of Kurdistan Region – Iraq) that has this autonomy; this is the parliament of the
Kurdistan region which consists of (111) members. It has been elected by the people of
Kurdistan, the mandate of parliament is set for four years; it is charged with enacting laws for
the region, designating the Prime Minister and ministers and controlling their performance,
and approving the annual budget. Only on one occasion it designated the President of the
Kurdistan region - from 2005 to 2009. In this parliament, there is quota system to guarantee
the participation of women and other minorities (components) as Turkmen (five seats),
Assyrians (five seats) and Armenians (one seat).
In the United Arab Emirates, every Emirate can have its own Constitution and legislation,
but they should be in accordance with the federal Constitution because it has the priority over
the Constitution and Laws of all Emirates, Article (151) of its Constitution (The provisions of
this Constitution shall prevail over the Constitutions of the member Emirates of the Union and
the Union laws which are issued in accordance with the provisions of this Constitution shall
have priority over the legislations, regulations and decisions issued by the authorities of the
Emirates). According to Article (7) of its Constitution, the Islamic Shari‟ah is a main source
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of legislation in UAE. All Emirate members do not have real legislative power to enact their
own laws. Under Article (122) of the UAE Constitution, Emirate members have legislative
jurisdiction outside the spheres which are determined according to Articles (120-121) that
mention the exclusive authority of the Union in the legislative affairs, but this Article did not
mention the existence of legislative power for the Emirates. The process of issuing local laws
in Abu Dhabi Emirate begins with the Executive Council referring a draft law to the National
Consultative Council. The executive Council should present all local draft laws to the
Consultative Council during its gathering for discussion and to make recommendations. The
draft law is then submitted to the Ruler of the Emirate to sign it and issue as a law
(International Business Publications, 2005:38). We found out that the Emirate members do
not have a particular legislative power as exists in the Kurdistan region in terms of legislative
constructions and competences.
C- Organising local judicial affairs
The regional judicial authority is competent to adjudicate in local disputes that occur
within the regions, and each entity in the Union has its judiciary and its own courts in
accordance with its Constitution as a federal region. The decisive criterion to the
independence of the judicial power of the federated states lies in the fact that its decisions
cannot be challenged at any other federal Courts (Al-Wartte, 2013:87). In the Republic of
Iraq, under Article (121- First) of its Constitution of 2005, the federal regions may have their
own judicial power and practice it in accordance with the provisions of the federal
Constitution except for those authorities stipulated in the exclusive authorities of the federal
government. The Kurdistan region has its own judicial power with different levels of Courts
as is the case with federal powers. The judicial power of the Kurdistan region has been
regulated according to the law No. (23) in 2007, which classified the Courts and determined
their competences from the Court of first instance to the Court of Cassation in the region. The
judicial system in the region is a bilateral judicial authority which contains Civil Courts
(under judicial power) and administrative Courts (Consultative Council, under executive
power to resolve administrative conflicts). Under Article (93-Eight) of Iraqi Constitution of
2005, in the case of the existence of judicial competency disputes between federal judiciary,
the judicial institutions of regions and the Courts in governorates are not organised in a
region, the Federal Supreme Court shall have a jurisdiction to settle these disputes.
In the United Arab Emirates, under Article (104) of its Constitution, the local judicial
authorities in each Emirate have jurisdiction in all judicial matters not assigned to the UAE
courts under the Constitution. They can transfer their judicial authorities and competences to
the federal Courts by a federal law upon their request. At the same time, the federal law
determines the limit of the Courts of Emirates and the civil, criminal, commercial or any other
cases which may be appealed before federal Courts, but local Courts cannot challenge the
judgment of federal Courts because their judgments are final (The Constitution of the UAE of
1971, Article 105).
Although there are local judicial authorities, in most Emirates these authorities have now
been transferred to the federal system, and most criminal cases are now heard in Shari‟a
courts (Islamic law courts) (Griffiths & Nerenberg, 2005:363). The Emirates of Abu Dhadi,
Sharijah, Ajman, Hujairah and Umm Al Quwain have transferred their judicial system to the
UAE Federal Authority. The judicial system of these Emirates is therefore administered and
supervised by the Ministry of Justice of the Federal Government. The Emirates of Dubai and
Ras Al Khaima have retained their own judicial systems which are not part of the UAE
Federal Judicial Authority; thus there are no Federal Courts within these two Emirates and all
matters within these Emirates are determined by the local Courts (Price & Al Tamimi,
2005:VIII). Here, we found out that the organising of judicial affairs in the Kurdistan region
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is more independent and more effective, which differs completely from the Iraqi Federal
Court, than the case in Emirate members in the UAE which is depending on the Federal
Court. What we found out here is that the judicial power in the federated regions in the
Republic of Iraq, particularly in the Kurdistan region, in comparison with the Emirate
members, is more independent from the federal judicial power and its competences are
§2- Financial and diplomatic affairs for the federated entities
Federated entities are structures of the Federal State as, similar to the latter, they perform
their tasks toward their citizens under their authority and they organise their internal affairs
autonomously. They require some special competences to regulate their financial affairs
particularly natural resources (A) and contact with foreign countries (B) particularly with
neighbour countries in the domains of diplomatic and trade affairs.
A- Natural resources in the federated entities
A federation is simply a multi-level system of government in which different levels of
government exist, each of which has some independent authority to make economic decisions
within its jurisdiction. Through economic decisions, governments can perform a variety of
things such as acquiring resources to provide public goods and services (Boadway & Shah,
2009:4). The concept of fiscal federalism is based on the allocation of revenues to levels of
governance where there may be some kind of autonomy held by the constituent units of the
federation, without prejudice to coordination and harmony between the parts thatcompose the
Federal Union (Hasan, 2013:315). So, the fiscal federalism contains the economic
relationships between the various levels of governments comprising the State. It exists in
countries where there is more than one level of government. It can be applied in federal and
unitary States because both are composed of different levels of governments.
The financial resources are the essential requirements for the operations and success of
any government because no governments can implement its assigned competences without
the existence of adequate financial sources (Mawloud, 2009:68); one of the most important
financial resources in our case is natural resources. Natural resource endowments in a
federation are typically allocated very unevenly across the federation. To the extent that sub-
national jurisdictions have access to revenues generated directly or indirectly from resource
exploitation, both inefficiencies and inequities can occur (Boadway & Shah, 2009:207). In
some federations resources ownership resides with the local governments, while in others it is
In the Republic of Iraq, under Article (111) of its Constitution, the natural resources of oil
and gas are owned by all the people of Iraq in all the regions and governorates. Article (112)
allocates that the federal government, with the producing regional and governorate
governments shall together formulate the necessary strategic policies to develop the oil and
gas wealth in a way that achieves the highest benefit to the Iraqi people using the most
advanced techniques of the market principles and encouraging investment. The revenues from
these national wealth resources have to be distributed in a fair manner in proportion to the
population in all parts of the country, specifying an allotment for a specified period for the
damaged regions which were unjustly deprived of them by the former regime, and the regions
that were damaged afterwards in a way that ensures balanced development in different areas
of the country. An ordinary law should regulate this mechanism. However, until present time
there is no ordinary law to organise this key and essential issue.
The mixed financial mechanisms can be settled in order to reach equilibrium and to avoid
frustration. In this perspective, according to the Article (121- third) of the present
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Constitution, an equitable share of the national revenues sufficient to discharge their
responsibilities and duties, but having regard to their resources, needs, and the percentage of
their population. The present Constitution is silent on future oil and gas fields, potentially
implying regional control of these revenues. Under the Article (115), the Iraqi Constitution
does not specify a power of taxation, but states that non-enumerated authorities revert to
regions and provinces. Local governments could therefore theoretically tax oil and gas
operations. The most complex problem in the Republic of Iraq between the federal
government and the government of Kurdistan region is about the power of management of oil
and gas because of the dispute between them about interpreting Article (112) of the present
Constitution. Based on the auspices of the 2005 Iraqi Constitution, the Kurdistan Parliament
passed an oil and gas law No. (22) in 2007 to support the development of the region‟s
hydrocarbons (Ministry of Natural Resources - KRG, 2013), from 2006 till 2013 the
government of Kurdistan region has signed about 58 oil-contracts model of Oil production
sharing contracts PSC with international oil companies.
In term of issue of oil-contracting authority, Kurdistan region and the federal government
should consider a compromise where Kurdistan region gradually standardizes its oil-contract
terms with Baghdad. In return, federal government would need to acknowledge fact that
Kurdistan region‟s autonomous licensing authority and stop blocking international investment
in Kurdistan‟s oil fields (Hiltermann, Kane & Alkadiri, 2012). Hence, it means that the
federal government in the Republic of Iraq should pursue a model of federalism that
recognize the oil-contracting abilities of the Kurdistan region at the same time safeguarding
the federal government‟s fiscal and monetary powers as well as authority over oil contracting
elsewhere in Iraq. What we notice here is that the Iraqi constitution seems to have lack
lucidity in the management of national resources and wealth of the country through revenue-
sharing ideas and schemes, and the precision with which spheres of authority of the federal
and regional governments are defined. There is no spelling out of the formula for revenue
sharing, or how to affect this.
In the United Arab Emirates, under Article (23) of the federal Constitution, the natural
resources of each Emirate are considered the public property of that Emirate. Consequently,
each Emirate is responsible for regulating the oil and gas industry within its borders. As a
result, each Emirate pursues its own policies regarding the development of oil and gas, with
the ruler in each Emirate retaining ultimate control over the development of its reserves
(Phakey & Renouf, 2014). According the present Article, each Emirate has ownership of its
wealth and natural resources which means each Emirate pursues its own policies regarding
the development of oil and gas, with the ruler in each Emirate retaining ultimate control over
the development of its oil and gas reserves. The Constitution does not clearly specify what the
financial arrangements are to be in the federation, or what proportion of funds each Emirate is
required to make available to support the federal budget. Clearly, with their retention of
natural resources and wealth, the Emirates must contribute to the federal budget (Griffiths &
Nerenberg, 2005:363). Under Article (127) of the UAE Constitution, the member Emirates of
the Union shall contribute a specified proportion of their annual revenues to cover the annual
general budget expenditure of the Union, in the manner and on the scale to be prescribed in
the Budget Law. In the federal budget, there is a significant difference between the Republic
of Iraq and the United Arab Emirates: in the Republic of Iraq, the federal government collects
all revenues to prepare its annual budget after which it allocates fair proportions to federated
regions and governorates, while in the UAE, the Emirate members shall contribute a specified
Currently, the Kurdistan region exports and sells its oil independently by its own pipeline through the Turkish
port of Ceyhan since 1st June, 2015.
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proportion of their annual revenue to cover the annual federal budget and expenditures of the
Union, in the manner and on the scale prescribed in the Budget Law.
B- Diplomatic involvement of the federated entities
Traditionally in international law, the federal State is considered as a unitary State.
Foreign powers deal with the central government and it accredits foreign representatives. The
fundamental law (the Constitution) confirms or limits the external powers of the federal
government and gives certain international personalities to the federated entities. Some
federations conferred on their member states some powers that have direct or indirect effects
on the international order (Patry, 1983:58). Recently, the involvement of the governments of
the federated entities in the area of foreign relations has increased significantly. The growing
international interdependence in the economic, environmental and cultural areas has meant
that foreign relations have impinged more on matters within the responsibilities of the
federated entities. This has occurred where federations have become members of supra-
federal organisations (Courchene & Savoie, 2003:140).
In federal States, regions with special competences in economic, cultural, and education
fields are investing heavily in public diplomacy. In the trappings of statehood, regions striving
for international recognition attach exceptional importance to public diplomacy. Regional
diplomacy is often about identity and nation building, and the domestic dimensions of such
regions‟ public diplomacy are well developed (Cooper, Heine & Thakur, 2013:448). The
scope and nature of the intervention of federal entities in the external affairs with other
political entities or international organisations or private institutions, have grown with the
massive increase in the size of international relations because of the evolution of the networks
of electronic communications which led to more involvement of the constituent units of the
federation in international activities, and the impact of globalisation on the practice of their
constitutional powers (Hasan, 2013:338). For this reason, some federated entities have been
active in cultural and public diplomacy.
It should be noted that globalisation does not have the same impact in all federal States,
just as their reactions to globalisation are not the same. The form of external relations varies
from one federal State to another, where the Constitution of some countries have taken the
style of restricting foreign relations at the centre, such as the Malaysian Constitution, Indian,
South African Constitution, while others adopt other styles which confer a legitimate and
marked role to the constituent units of the State, such as the German, Swiss, and Canadian
Federal Constitutions (Barzinjy, Sarhang H., 2009:14). This is dependent on the federal
Constitution of each federal State. In order to confer international status to the federal regions
or states in the federations, so they can accomplish the task of diplomatic activities, the
federal Constitution must afford them this capability. On the other hand, they need to adopt a
positive and cooperative attitude in the international arena, and towards their possibility to
perform international diplomatic relations with them. This means that neither the federal
Constitution nor the positive international attitude alone is enough to provide these rights and
competences to federal regions; instead, one must accompany the other, and vice versa
(Barzinjy, Soran H., 2008:183).
In the republic of Iraq, under Article (110-First) of its Constitution of 2005, the
competence of formulating foreign policy and diplomatic affairs, such as negotiating, signing,
and ratifying international treaties and agreements, fall under the exclusive authority of
federal government, at the same time Article (121-Fourth) of the present Constitution has
given permission for the regions and governorates to establish their office in Embassies and
Vol.20, No.3, 2016
diplomatic missions of Iraq in order to follow cultural, social, and developmental affairs
without negotiating or signing or ratifying treaties or agreements with foreign countries or
international organisations. The Kurdistan region has established this kind of office in the
Iraqi Embassies in many countries in Europe and it has established the Department of Foreign
Relations (DFR) in the government of the Kurdistan region to organise the region‟s
relationships with foreign countries and organisations, and regulate the diplomatic affairs with
foreign Consulates and representations that exist in the region.
In the United Arab Emirates, under Article (123) of its Constitution, with the exception of
the exclusive authorities of the federal government in matters of foreign policy and
international relations, the Emirates may conclude limited agreements of a local and
administrative nature with the neighbour States or regions, in accordance with the interests of
the Union or with federal laws, and provided that the Federal Supreme Council is informed in
advance and gives its approval. The other important autonomy of the Emirates is they may
retain their membership in the OPEC (Organization of the Petroleum Exporting Countries)
organisation and the Organisation of Arab Petroleum Exporting Countries or may join them if
they have not already done so. We found that the Emirate members in the UAE have the
ability to join international organisations and undertake some limited international diplomatic
activities with neighbour States in the economic, cultural and political affairs, while federal
regions in the Republic of Iraq, according to the provisions of its Constitution, do not have
such rights, although they can follow some cultural and economic - but not political -
activities with foreign countries through the federal government. However, in practice, the
Kurdistan region, as the only federal region in Iraq currently, plays a significant role in the
international community in fighting the political and military crises in the Middle East
particularly in the international community efforts against terrorist groups in Iraq. Currently,
some of the world‟s superpowers deal directly with the Kurdistan region without recourse to
the federal government of Iraq.
In this article, we have analysed the experience of creating and shaping the Federalism in
the Middle East through the Republic of Iraq and the United Arab Emirates based on the
provisions of their Constitutions and the role of historical, political, cultural and national
factors in these federalism models. It has been concluded that these two models of federalism
are sui generic in the domain of separation of powers, distribution of powers, and the forms of
federated entities. The other States in this area could learn from these models of federalism
but may not do so.
In multicultural States, federalism creates a favourable condition for resolving conflicts
between different groups of people and can contribute to the peace and stability of a country,
but it is not a magic bullet for resolving conflicts between different corposants in a State. To
succeed in this challenge, a federalist constitution is not enough; what is decisive is the ability
to develop a federalist culture in a country. It is clear that the main reason for the chaos and
instabilities in the Middle East is the holding of powers in the hand of one person, or one
party, or one family, so this system (federalism) can be an effective tool for governance and
play a great role in achieving peace and stability in these kinds of countries.
At this time, because it is impossible for a number of small nations to gain independence,
there is a growing interest in federalism in the Middle East, particularly for the Kurdish nation
who lives in Iraq, Syria, Turkey and Iran. Beyond this intention, there are some factors such
as the expansion of the principles of democratic governance in the world, and changing the
current political situation where all peoples of the Middle East are seen to have one identity.
Also increasing the intention of self-governance and the dictatorship of leading minority or
bigger nations in their governance upon the rest of nations or religions are further factors.
Vol.20, No.3, 2016
This does not only apply to the multi-culture or multi-nations States such as the Republic of
Iraq, but also applies to simple States such as the United Arab Emirates which only has one
nation, one religion, one history, and one language.
In the United Arab Emirates, there is no real separation of powers or distribution of
powers. The federalism here has a greater financial dimension than a political dimension,
while in the Republic of Iraq, there is a real separation of powers and there is a strong
distribution of powers where the Kurdistan region has the same federal powers with less
competence. In the financial, political and diplomatic affairs, federated entities in the United
Arab Emirates have more autonomy than these in the Republic of Iraq, but in the legislative
and judicial issues are less independent from the centre.
In the Republic of Iraq, the delegation of power should be through democratic processes,
and the same in the regions and decentralised governorates, while in the United Arab
Emirates, there is no democratic process to delegate the power; it could be through the rulers
and the hereditary structure of the Emirates.
The federalism will succeed when the constituent entities of this system respect the rule of
law, and adopt a culture of social and political tolerance inside the State, while trying to create
a common identity for the whole population in the country through the legal, federal and local
institutions. Otherwise, the federal country cannot continue its existence.
However, the separation of legislative, executive and judicial powers is an important issue
in a federal system; but more important is distributing these powers with federated entities to
maintain a balance and equilibrium between the federal competences and federated entities‟
competences so as to create the sense of citizenship among all individuals.
We can therefore assert that the model of a Unitarian State in the Middle East can no
longer continue; thus federalism could offer an ideal solution to resolve the instabilities here,
to achieve a peaceful coexistence and to ensure that totalitarianism does not return to control
the power here. However, if federalism is unable to satisfy the political, social and economic
ambitions for nations and religious with various components of differences, many new States
will be born, whether in the form of independent States or maybe in the form of
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