The decision of the Iraqi Federal Supreme Court regarding the unconstitutionality of the Khor Abdullah Agreement
Introduction: The Maritime Navigation Agreement between Iraq and Kuwait, also known as the Khor Abdullah Agreement, represents an important treaty signed between the two countries in 2013. This agreement focuses on regulating maritime navigation exclusively between Iraq and Kuwait and holds significant importance for regional stability. The agreement was signed during the tenure of Mr. Hadi Farhan Al-Amiri, the Minister of Transportation at the time, in the government of Mr. Nouri al-Maliki. The primary objective of this agreement is to regulate maritime traffic in the Khor Abdullah, a vital waterway shared by Iraq and Kuwait. Article 6 of this agreement states that it “shall not affect the borders between Iraq and Kuwait, as defined following Security Council Resolution 833 of 1993,” reaffirming the commitment to the boundaries of both states and respecting their sovereignty. However, ten years after signing this agreement and both countries’ endorsement and depositing it with the United Nations, the Iraqi Federal Supreme Court’s decision on September 4th of this year to declare the agreement unconstitutional has sparked significant debate. The court based its decision on a violation of Article 61/fourth of the Iraqi Republic’s Constitution, stipulating that “the process of ratifying treaties and international agreements has to be regulated by a law issued by a two-thirds majority of the members of the Council of Representatives.” This decision has raised questions and potential consequences for Iraq-Kuwait relations and could have future economic, security, and political impacts.
The impact of the decision on bilateral relations between Iraq and Kuwait:
In general, the cancellation of the Maritime Navigation Agreement in Khor Abdullah constitutes a significant development in the relations between Iraq and Kuwait, carrying multiple implications across various aspects, including:
1. Strained Bilateral Relations: The cancellation of the agreement could lead to escalating tensions between Iraq and Kuwait; the decision is viewed as an attack on an important international agreement. This action may result in diplomatic disputes and increased hostility between the two countries.
2. Economic Impact: The cessation of maritime traffic in Khor Abdullah could negatively impact Iraq and Kuwait. Both nations rely on active maritime trade, and the cancellation of the agreement exposes their national economies to potential losses.
3. Regional Relations: This crisis intersects with regional relations in the Arabian Gulf region, potentially leading to more significant tensions. Gulf states are already experiencing political and economic tensions.
4. International Consequences: If the crisis is not peacefully resolved, it could attract the attention of the international community and international organisations. This crisis could increase international intervention and potentially lead to international isolation for Iraq or Kuwait, further escalating tensions.
5. Sovereignty Concerns: The cancellation of the agreement may raise questions about sovereignty and maritime boundaries between the two countries, adding to legal and political tensions.
6. Security Challenges and Militias: Regional security may be affected by the escalation of regional tensions. Militias and armed groups in the region might exploit the situation to enhance their influence and pursue their agendas.
7. National Security Threats: If tensions escalate significantly between Iraq and Kuwait, it could have implications for the national security of both countries. Border regions may witness increased tension and security threats.
8. External Interference: Some countries or regional players may exploit the crisis to further their interests or increase regional influence, potentially exacerbating tensions.
9. Internal Pressures: Governments in Iraq and Kuwait may face internal pressures from their societies to effectively deal with these tensions, which could lead to domestic security effects.
Conclusion & Recommendations:
The decision of the Iraqi Federal Supreme Court to declare the Maritime Navigation Agreement in Khor Abdullah unconstitutional has undoubtedly created a significant domestic achievement for the ruling authorities. However, it has also complicated matters with neighbouring Kuwait, reminding us that we have had a long-standing crisis with them regarding border demarcation and other issues. This crisis indicates an escalation in our relations with the Gulf Arab states, which Iraq did not anticipate after 2003. Iraq had aimed to maintain good relations with its neighbours and enhance them after the fall of the previous regime, which brought many problems and crises to the Arab and international community. Additionally, the current Iraqi government seeks to implement numerous essential development projects that heavily depend on the presence and cooperation of Gulf states, considering these nations as neighbouring countries with historical, tribal, religious, and cultural ties to Iraq. Therefore, the existence of such a crisis will not achieve Iraq’s current goals. Efforts should be jointly made to resolve disputes and reach diplomatic agreements that promote stability and cooperation among the countries in the region. The Iraqi government should take the following steps:
1. Diplomatic Negotiations: The Iraqi government should effectively use diplomatic channels to negotiate with Kuwait and return to diplomatic dialogue sessions to reach a peaceful, acceptable, and satisfying solution for all parties, even concerning their objection to UN Security Council Resolution 833 of 1993. Issues should not remain unresolved.
2. Adherence to International Laws: The Iraqi government should commit to international laws and treaties related to maritime boundaries and navigation, including United Nations conventions. This action will enhance Iraq’s international standing in the region and among its neighbours.
3. Regional Relationship Enhancement: Iraq should strengthen regional cooperation and relations with neighbouring countries, including Gulf Arab states, through exchanges, dialogues, and cooperation in various fields. Utilise these countries’ readiness to contribute to economic investment and the reconstruction of Iraq.
4. Transparency: Iraq’s internal processes regarding international agreements should be transparent and based on solid governance principles. The goals and actions of Iraq should be clearly articulated to the international community.
5. International Collaboration: Iraq can collaborate with international organisations and groups to resolve and stabilise crises.
6. Domestic Stability Promotion: The Iraqi government should maintain domestic stability and avoid slipping into internal tensions due to this issue. Steps should also be taken to address statements made by some parliament members that could stir unwanted tensions.
7. Public Awareness: The government should conduct awareness campaigns among its citizens regarding the issue, its importance, and its impact on Iraq’s foreign relations.
*Sarah Al-Quraishi, an Iraqi a researcher in Iraqi political affairs, has a master’s degree in diplomacy from the American University in the Emirates. She is also a writer and author who has written several articles on politics and regional and international affairs. She writes a regular column for the Kuwaiti newspaper Boubyan News, sharing her views and analysing various issues related to Arab and global politics. In addition, she works as a non-resident researcher with several research centres in the UAE, where she provide analysis and research related to political, regional and economic affairs.