What the Khor Abdullah maritime dispute means for Iraq-Kuwait relations

Bilateral relations between Iraq and Kuwait have been cast into a state of uncertainty following a recent decision by Iraq's top court to revoke a pivotal maritime border agreement governing navigation in the Khor Abdullah waterway.

On 4 September, Iraq's Supreme Federal Court handed down a ruling deeming Law Number 42, which had been passed by the Iraqi parliament in 2013, "unconstitutional".

The court's decision hinged on the assertion that Iraq's parliament had ratified the agreement with a simple majority, whereas the country's constitution necessitates a two-thirds majority for such ratifications.

The Khor Abdullah, a natural channel formed by the confluence of the Shatt al-Arab River and the Persian Gulf, stretches over approximately 120 kilometres and serves as a shared border, with Iraq to the north and Kuwait to the south.

"The recent legal reversal by Iraq of this key maritime agreement has injected an element of uncertainty into the broader relationship between Iraq and Kuwait"

This waterway boasts historical significance that spans centuries, having played a pivotal role in the trade routes of the Arab Gulf.

The modern history of the Khor Abdullah waterway has been tarnished by conflicts, notably the Iran-Iraq War (1980-1988), which not only disrupted the waterway's use but also ignited a series of disputes over navigational rights.

While the land border between Iraq and Kuwait was demarcated by the United Nations in 1993, following Iraq's invasion of Kuwait, the delineation did not extend to their maritime boundaries, leaving this issue for the two oil-producing nations to resolve.

Unresolved maritime borders

In 2012, Iraq and Kuwait engaged in negotiations resulting in the signing of an agreement designed to regulate maritime navigation in the Khor Abdullah waterway. This accord was heralded as a significant stride toward fostering peace and cooperation in the region.

The agreement provided clarity on the rights and responsibilities of both nations concerning the waterway's use, guaranteeing safe passage for vessels and facilitating trade. Subsequently, both countries' parliaments ratified the deal in 2013.

The recent legal reversal by Iraq of this key maritime agreement has injected an element of uncertainty into the broader relationship between Iraq and Kuwait, necessitating a delicate balance between diplomacy and legal rectifications.

Iraqi PM Mohammed Shia al-Sudani and his Kuwaiti counterpart Sheikh Ahmad Nawaf al-Sabah discussed the issue on the sidelines of the 78th session of the United Nations General Assembly in New York.

Kuwait's PM described Iraq’s top court ruling as containing "historical fallacies", and called on Iraq to take "concrete, decisive and urgent measures" to address the ruling.

Meanwhile, Sudani, during a meeting with White House coordinator for the Middle East and North Africa Brett McGurk, “reaffirmed Iraq’s longstanding and clear policy recognising Kuwait’s sovereignty and territorial integrity, and all prior bilateral agreements between the two friendly countries”.

Arian Taugozi, a lawmaker from the New Generation opposition bloc in the Iraqi parliament and member of the assembly’s foreign relations committee, explained to The New Arab that Iraq cannot dissolve the maritime deal unilaterally as it is an international one.

"Iraq's parliament, where Iran-backed Shia parties and blocs enjoy a majority, might be reluctant to ratify the deal again"

Iraq's options and regional dynamics

“Iraq has only two options, either to ink a new maritime deal on Khor Abdullah with Kuwait or ratify the revoked law again with a third majority vote in the parliament,” Taugozi noted.

But it seems that the issue has another regional dimension, and Iraq’s parliament, where Iran-backed Shia parties and blocs enjoy a majority, might be reluctant to ratify the deal again. Sudani is seen as a close ally to Iran and he is not expected to take any step towards signing a new deal with Kuwait unless Iran gives him the green light.

“No doubt the Federal Supreme Court rulings are politicised and subject to pressure from different factions,” Harry Istepanian, an independent consultant on water, energy and Iraq, told TNA.

“The pact was signed in 2012 and became a law in 2013; what triggered the Court ruling after ten years seems doubtful and most likely it is part of a power struggle among the factions within the Coordination Framework (CF) alliance,” he explained.

“It is highly unlikely Iraq will withdraw from the pact but there will be tough negotiations ahead on the demarcation of borders and maritime areas between Iraq and Kuwait. The contested maritime area between Iraq and Kuwait is not defined by Law 42.”

In addition to pressures exerted by Kuwait, there has been encouragement from other Gulf Cooperation Council (GCC) member countries as well as the US and UK to resolve the issue.

Conversely, some analysts have connected the timing of this dispute to Iran's simultaneous disagreements with Kuwait and Saudi Arabia regarding the Durra-Arash offshore gas field.

Saud Al-Saadi, an MP from the Hoquq Movement (Rights Movement), which is led by Iran-backed Kataib Hezbollah, filed the complaint at Iraq’s top court. He celebrated his victory and the “revocation” of the Khor Abdullah deal, describing it as the “beginning of victories”.

“Currently, Iraq is not part of the dispute between Iran and Kuwait/Saudi Arabia on the Durra-Arash Gas Field because the Iraqi Exclusive Economic Zone (EEZ) in the Gulf maritime is not defined and agreed with other neighbouring countries,” Istepanian clarified.

“The gas field is a very critical issue and both Saudi Arabia and Iran will try to avoid further political friction as both countries are seeking to overcome past hostility and boost cooperation,” he continued.

Can Iraq reintroduce the deal?

Wael Abdul Latif, 73, a veteran Iraqi politician, and former MP, judge and governor, told TNA that the Khor Abdullah bilateral deal is considered “null and void” after it was invalidated on the basis of a lack of initial backing.

“The Supreme Federal Court, which is the Constitutional Court and the highest judicial authority in Iraq, issues its rulings under Article 49 of the constitution, and these rulings are binding on all authorities,” Abdul Latif said.

“Since the Supreme Federal Court invalidated the agreement, it is considered null and void, with no legal effect in Iraq, and it cannot be reintroduced.”

He also said he did not believe that the Iraqi Parliament would reconsider voting on the agreement.

“It is very difficult for this agreement to be reintroduced to the parliament. Even if it is presented to the parliament, it is impossible for 222 deputies to vote in favour of it to give it legitimacy once again. This is not an easy matter, especially since the public has supported the top court’s decision and endorsed it, and the Iraqi people expect this from the parliament,” he asserted. 

He rejected claims that Iran was influencing the court's decision; instead, a grassroots movement called the 'Coalition of the Road and Silk' is advocating for the completion of the Grand Faw Port and its connection to China in a project spanning over 68 countries, including Germany.

He also said the navigation agreement with Kuwait in the Khor Abdullah, was “deceptive”, and the waterway historically belonged to Basra.

“In essence, the Security Council's initial and incomplete border delineation, coupled with the withdrawal of key figures and historical disputes, has fuelled Iraqi resistance to the demarcation agreement with Kuwait,” Abdul Latif said.

“It's unlikely that the people will compromise on their borders with Kuwait or Iran in the future.

Dana Taib Menmy is The New Arab's Iraq Correspondent, writing on issues of politics, society, human rights, security, and minorities.

Follow him on Twitter: @danataibmenmy