Khor Abdullah: Kuwait Exposes Historical Fallacies In Iraqi Ruling

According to a Kuwait-based research center, an Iraqi court ruling invalidating Kuwait's agreement over regulating navigation in the Khor Abdullah waterway contained a number of "historical fallacies." In light of the fact that the Iraqi Federal Supreme Court ruled earlier this month that the agreement was "unconstitutional," the decision seems highly paradoxical since it had previously approved the deal in 2014 after Iraqi lawmakers unanimously approved it in 2014.

Kuwait Institute for Scientific Research (KISR) cited Dr. Ali Al-Rashidi from Kuwait University's Faculty of Law in its comprehensive analysis of the Iraqi court ruling. The ruling, according to Al-Rashidi, does not contravene constitutional procedures in any way since it was made with legal validity, and does not conflict with constitutional procedures. It highlighted the paradoxical nature of the ruling by noting that the Iraqi parliament, which is the country's legislative power, not only supported the agreement, but that an Iraqi court even rejected an appeal by a lawmaker to invalidate it. This shows how “contradictory” the latest court ruling appears. According to the KISR analysis, the Iraqi lawmakers ratified the agreement as a “gesture of consent” since the same Iraqi court also approved the “constitutionality” of the ruling after citing the Vienna Convention on the Law of Treaties, an international agreement that regulates treaties among sovereign states. According to the analysis, all parties in a treaty must "implement the agreement in earnest," and any attempt by a party to question a treaty's validity after it has been ratified is inappropriate, based on the principles of the convention.

Afterward, the Center confirmed that the court's decision of September 4, 2023, ruling that the agreement was unconstitutional, contradicts the idea of the final judgment issued by the Federal Supreme Court on December 18, 2014, which was confirmed by Article (94) of the Iraqi Constitution, as well as Article (5) of Federal Supreme Court Law Number 30/2005. Additionally, the center stated that the court's recent decision contradicts the Vienna Convention on the Law of Treaties texts previously mentioned. Due to the fact that the highest Iraqi court, the Federal Supreme Court, had previously explicitly confirmed the constitutionality of the law issued by the Iraqi Council of Representatives regarding ratification of the maritime navigation agreement between Iraq and Kuwait in its final ruling in 2014.

A copy of the bilateral agreement governing maritime navigation in Khor Abdullah was deposited at the United Nations in December 2013 by the Permanent Representatives of Iraq and Kuwait, Muhammad Ali Al-Hakim and Mansour Al-Otaibi, after it was approved by Iraq and Kuwait. It continued that this bilateral deposit comes in line with the first paragraph of Article 102 of the United Nations Charter, which stipulates that “every treaty and every international agreement concluded by any member of the United Nations after the implementation of this agreement must be registered in the secretariat of the UN and published as soon as possible.” In line with what was stipulated in the second paragraph of Article 102 of the Charter of the United Nations, “No party to an international treaty or agreement that has not been registered in accordance with the first paragraph of this article may invoke that treaty or that agreement before any branch of the United Nations.”

According to the Centre’s reading, the Permanent Representative of the Republic of Iraq to the United Nations, Muhammad Al-Hakim, stressed that the agreement, which regulates maritime relations between the two countries on the basis of United Nations resolutions, especially Resolution 833, which says that “both parties are committed to it, and that it also means that the two countries agree to facilitate the process of the passage of ships and traffic in Khor Abdullah. It pointed out that the Official Newspaper of Iraq published on 11/25/2013, Issue No. 4299, the law ratifying an agreement between the government of Iraq and the government of Kuwait regarding the regulation of maritime navigation in Khor Abdullah. The second article of the law stipulates “this law shall be implemented by date of publication in the Official newspaper.”

Moreover, the Center said that the Iraqi government accordingly deposited a copy of the agreement with the United Nations in December 2013. The first paragraph of Article 16 of the agreement stipulated that this agreement come into effect after the exchange of notices, by which the last party notifies the other party of its completion of the procedures. The internal legal requirements are necessary for its implementation. This was achieved after the Iraqi copy deposit in December 2013, in accordance with Article 15 of the agreement. The Iraqi Federal Supreme Court in 2014 also issued its ruling confirming the constitutionality of the law issued by the Iraqi Council of Representatives regarding the ratification of the agreement, which means it is effective for both parties.

The center pointed out that the second paragraph of Article 16 of the agreement stated that the agreement remains in effect for an unlimited period, provided that the agreement may not be terminated except with the consent of both parties. Therefore, Article 16 requires bilateral approval to terminate this agreement, meaning that it may not be terminated by one party only. Article 14 of the Convention stipulates that any dispute that arises between the two parties regarding the interpretation or application of the agreement shall be settled amicably between them through consultations.

In the event that they are unable to reach an agreement regarding this dispute, it shall be referred to the International Tribunal for the Law of the Sea. Regarding the objective facts and historical allegations in the ruling, the Research Center stated in its reading that “the ruling of the Iraqi Federal Supreme Court was supposed to be limited to a specific issue, which is the agreement on regulating navigation in Khor Abdullah, but it descended into a maze of allegations about the historical existence of Kuwait.” “These allegations that had no reliable scientific response to it, no evidence, no maps, and no studies have been published regarding it, which makes it a waste of time. Kuwait, as a land, a people, and a state, is a historical fact, and there is no room or claim to deny it,” the Center added.

Furthermore, it pointed out that these claims of historical rights completely contradict what international law has established as fundamental principles. These principles were taken into account when the Security Council adopted the borders agreement signed by Kuwait and Iraq in 1932 and 1963, as studies of international law demand, and which it refuses to dissolve. The objective scientific study of Kuwait's borders with Iraq always results in the same results, which are backed by the world. Kuwait's borders are officially documented in internationally recognized documents, maps, and agreements, so the reasoning is clear. No one denies them and no one claims their falsity except those who want to contradict the people and misrepresent scientific facts. There is a history behind these documents that predates the independence of Iraq and the development of modern Iraq. Evidence cannot be falsified using artificial documents.

 

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