Iraq's top court annuls 2013 agreement with Kuwait on sharing Khor Abdullah waterway

Iraq's top court on Monday ruled out against a crucial maritime border deal under which Iraq and Kuwait share a key waterway into the Gulf.

 Iraq's Federal Supreme Court decided that law number 42, passed by the Iraqi parliament in 2013, about ratifying a 2012 agreement between the two neighbouring countries on regulating maritime navigation in the Khor Abdullah crucial waterway, was "unconstitutional".

The ruling marks a pivotal moment in the ongoing relations between the two nations and could have far-reaching implications for regional stability and resource management. Khor Abdullah is Iraq's only waterway to the Gulf, through which Iraq exports most of its oil and importers goods.

The case was filed by some Iraqi lawmakers last month. The court's pretext is that Iraq's parliament ratified the deal with a simple majority and should have passed it with a two-thirds majority.

The court said it made the decision because the deal with Kuwait "is contrary to Article 61, item four from the Iraqi constitution" that all international treaties and agreements should be regulated with a law passed with a two-thirds majority in parliament.

The de facto land and maritime borders between the neighbouring states were established by the United Nations in 1993, three years after Iraq under Saddam Hussein invaded Kuwait.

قرار المحكمة الاتحادية اليوم بعدم دستورية اتفاقية تنظيم الملاحة في خور عبدالله مع دولة الكويت عام ٢٠١٣ سيؤدي الى تداعيات دولية و عربية على العراق ومصداقيته واستقلالية قضائه والتزاماته الدولية.

— Hoshyar Zebari (@HoshyarZebari) September 4, 2023

"Iraq is still responsible in front of Kuwait; either the Iraqi parliament should vote on the annulled law with a two-thirds majority or should compensate Kuwait," Latif Sheikh Mustafa, a constitutional law expert and former Iraqi MP, told The New Arab during a brief phone interview. "If Iraq decides not to abide by the maritime deal, it should shoulder its responsibilities accordingly."

TNA contacted Ahmed al-Sahaf, spokesperson of Iraq's foreign ministry, and members of the parliament's foreign relations committee, but they were not immediately available to comment. 

Hoshyar Zebari, Iraq's foreign minister when the deal was signed with Kuwait, in a post on X, the social media platform previously known as Twitter, said that the court's decision would cause Iraq to face consequences on the international and Arab world levels.

Zebari also said that Iraq's credibility, the independence of its judiciary, and its international compliments would be under question.

After meeting his Kuwaiti counterpart Salem Al-Sabah in Baghdad late in July, Iraqi Foreign Minister Fuad Hussein said the two countries will work towards reaching a definitive agreement on demarcating their borders, including a contested maritime area of the Gulf.

The negotiations between the countries have turned into a public opinion issue in Iraq, with many Iraqis accusing top Iraqi officials of "concessions" on Iraq's historical rights in Umm Qasr port city in southern Iraq to Kuwait.

Hussein and al-Sabah had discussed "brotherly" relations between the two countries in a phone call on Tuesday, according to Kuwait's State News Agency (KUNA). 

Another contested issue between Iraq and Kuwait is the disputed gas field of Durra. Saudi Arabia and Kuwait stressed "exclusive rights" over the area, which has about 220 billion cubic metres (seven trillion cubic feet) of recoverable reserves.

On the other hand, the Iranian government has come under increasing pressure from domestic critics to "defend Iran's rights" in what Iranians call the Arash gas field, known as al Durra by Kuwait and Saudi Arabia, and Known as "Jamal" by Iraq.

Jamal al-Halbusi, an Iraqi expert on international borders and the former head of Iraq's delegation to negotiate the drawing of borders with Kuwait, in a post on X, hailed the court's decision and claimed that Iraq has historic rights in Kuwait's Bubiyan and Warba islands as well as al Durra gas field.

Aayad Al Twfan, an Iraqi strategic security expert, also hailed the court's decision and described those who made the agreement as "traitors".