KISR exposes ‘flawed’ Iraqi court ruling

KUWAIT: A Kuwait-based research center on Sunday said that an Iraqi court ruling that invalidated an agreement with Kuwait over regulating navigation in the Khor Abdullah waterway is riddled with flaws, citing the “historical fallacies” contained in it. Upon closer inspection, the Iraqi federal supreme court ruling, which rendered the agreement as “unconstitutional” earlier this month, comes across as highly paradoxical, since it had previously ratified the deal in 2014 after Iraqi lawmakers unanimously voted in favor of the agreement a year earlier.

In its thorough analysis of the Iraqi court ruling, Kuwait Institute for Scientific Research (KISR), citing Kuwait University’s Faculty of Law professor Dr Ali Al-Rashidi, slammed the mere notion that the deal proved detrimental to Baghdad, saying the ruling does not contravene constitutional procedures in any way since it was made with legal validity. Shining light on the paradoxical nature of the ruling, it said that Iraq’s parliament, being the country’s legislative power, not only supported the agreement, but an Iraqi court even rejected an appeal by a lawmaker to invalidate the agreement in a testament to how “contradictory” the latest court ruling appears to be.

Citing the Vienna Convention on the Law of Treaties, an international agreement that regulates treaties among sovereign states, the KISR analysis underlined that since Iraqi lawmakers had ratified the agreement, it was a clear “gesture of consent”, since the same Iraqi court had also given its approval of the “constitutionality” of the ruling. Emphasizing the principles of the aforementioned convention, all parties involved in a treaty are obligated to “implement the agreement in earnest”, while any attempt by a party involved in a treaty to question its validity after it had been ratified is inappropriate, according to the analysis.

Afterwards, the center confirmed that the court’s decision dated Sept 4, 2023, ruling that the agreement was unconstitutional, contradicts the idea of the final ruling issued by the Federal Supreme Court on Dec 18, 2014, which was confirmed by article 94 of the Iraqi constitution, as well as article 5 of the federal supreme court law number 30/2005. The center stated that this comes in addition to the fact that the court’s recent decision contradicts the previously mentioned texts regarding the Vienna Convention on the Law of Treaties.

Especially since the highest Iraqi court, the federal supreme court, had previously explicitly confirmed in its final ruling in 2014 the constitutionality of the law issued by the Iraqi Council of Representatives regarding ratifying the agreement regulating maritime navigation between the Iraq and Kuwait. KISR indicated in its reading that after both Iraq and Kuwait approved the bilateral agreement regarding the regulation of maritime navigation in Khor Abdullah, a copy of the agreement was deposited at the United Nations in Dec 2013 through the permanent representatives of Iraq and Kuwait, Muhammad Ali Al-Hakim and Mansour Al-Otaibi respectively.

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 KISR’s reading, the permanent representative of the Republic of Iraq to the United Nations, Muhammad Al-Hakim, stressed on that 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. KISR pointed out that the official gazette of Iraq published on 11/25/2013, issue no. 4299, the law ratifying an agreement between the government 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 gazette”. Moreover, the center said the Iraqi government accordingly deposited a copy of the agreement with the United Nations in Dec 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 necessary for its implementation. This was achieved after the Iraqi copy deposit in Dec 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. KISR 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 KISR 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,” KISR added. It also pointed out that these claims of historical rights completely contradicts what the basic principles of international law have concluded. The Security Council took these principles into account when it adopted the borders agreement, which was signed by both Kuwait and Iraq in the years 1932 and 1963, which is what studies of international law call for, which it refuses to dissolve.

However, the objective scientific study of the issue of Kuwait’s borders with Iraq always reaches the same results, which was backed by the world. The statement noted that the reason for this is clear, as Kuwait’s borders are officially registered in international documented documents, maps and agreements. No one denies them and no one claims their falsity except those who want to contradict the people and misrepresent scientific facts. The history of these documents goes back to periods that precede the emergence of modern Iraq and its independence. They are not artificial documents to falsify evidence.

The statement mentioned that Iraq itself recognized the independent entity of Kuwait in two clear recognitions of the State of Kuwait and its borders, the first in 1932 and the second in 1963, and the official yearbooks of the Iraqi Republic prove this fact, whether through the information they contain about Kuwait, the sisterly neighboring country, or through the maps accompanying those. The information shows the Kuwaiti-Iraqi border in a way that is very similar to what was reached by the United Nations Border Demarcation Commission. – KUNA

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