In examining the language of the Constitution, a clear distinction is made between 'present fields' (which are to be jointly managed between the federal government and the semi-autonomous regions) and 'future fields' (for which the authority to manage is omitted from the constitution). Based upon the federalist notions within the same Constitution, if the power is not specifically reserved for the federal government, then the authorised semi-autonomous regions may exercise jurisdiction. Petroleum activities are not among the list of powers reserved exclusively to the federal government of Iraq under the Constitution and may therefore be governed by the KRG. The following table outlines the division of powers between the 'regional powers' (elucidated in the 2005 Constitution as a 'regional power' or a 'shared power', which is today applied to the KRG).
|Exclusive powers of the federal government||Shared powers||Regional powers|
|No exclusive authority in relation to petroleum (under Article 110 of the federal Constitution)||Petroleum extracted from present fields and strategic policies for petroleum development (under Article 112 of the federal Constitution)||Anything not listed as an exclusive authority in Article 110 of the federal Constitution|
Article 110 of the Constitution contains the list of powers reserved exclusively for the federal government in Baghdad, and this list does not include petroleum activities. Article 112 establishes shared jurisdiction in certain petroleum matters by requiring that the federal government and the relevant region jointly manage extracted petroleum from 'present fields' and formulate strategic policies for petroleum development. Article 115 allocates any power which is not reserved exclusively for the federal government to the regional or governorate governments, and gives priority to regional or governorate laws where there are jurisdictional disputes over power-sharing.
Article 121 (Paragraphs 1 and 2) reinforces the division of powers, as follows:
"The regional powers shall have the right to exercise executive, legislative, and judicial powers in accordance with this Constitution, except for those authorities stipulated in the exclusive authorities of the federal government (Article 121 Paragraph 1); and,
In case of contradiction between regional and national legislation in respect to a matter outside the exclusive authority of the federal government, the regional power shall have the right to amend the application of the national legislation within that region (Article 121 Paragraph 2)."
Given the distinction in Article 112 between 'present fields' and 'other fields', the division of powers in Articles 110 and 115 and the primacy of regional power in Article 121, the legitimacy in asserting control over undiscovered fields located within the Kurdistan Region appears to lie with the KRG, rather than the federal government.
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