Judge Zidan statement on Khor Abdullah Dispute: IBN Explainer

Iraq Business

7 days ago

By John Lee.
The President of Iraq's Supreme Judicial Council (SJC), Dr Faiq Zidan, has issued a statement regarding the legal dispute about the Khor Adbullah waterway, between Iraq and Kuwait.
Here are the main points:
Background and Legal Framework: The Iraq-Kuwait navigation agreement for Khor Abdullah was signed in 2012 as a technical response to post-1990 invasion issues. Iraq ratified it through Law No. 42 of 2013 using a simple majority vote, and it became internationally binding under the UN framework.
Initial Court Decision (2014): The Federal Supreme Court initially upheld the treaty's constitutionality in 2014, distinguishing between laws governing treaty ratification processes (requiring two-thirds majority) and laws ratifying specific treaties (requiring simple majority). This decision achieved res judicata status, providing legal finality and protection from future appeals.
Controversial Reversal (2023): In September 2023, the same court reversed its 2014 decision, declaring the ratification law unconstitutional and requiring a two-thirds majority. The court justified this reversal using Article 45 of its internal rules, claiming "constitutional and public interest" grounds.
Systemic Legal Consequences: Dr. Zidan argues this reversal creates catastrophic implications: it would retroactively invalidate over 400 international agreements Iraq ratified by simple majority over two decades, potentially dismantling Iraq's entire international treaty framework and creating international liability.
Constitutional and Procedural Violations: The statement contends the court exceeded its authority by: Using internal regulations to expand judicial powers beyond statutory law Violating the principle of res judicata by annulling a final judgment Acting without proper constitutional authorization for such reversals Creating legislative vacuum and diplomatic instability
Legal Assessment: Dr. Zidan concludes that the 2014 decision was constitutionally sound and internationally compliant, while the 2023 reversal lacked proper legal grounding and generated harmful legal and diplomatic consequences for Iraq.
Click here to read the full statement in Arabic. The full text of the statement in English, according to the SJC website, is shown below:
The Waves of Khor Abdullah Between Two Contradictory Decisions
The agreement regulating navigation in Khor Abdullah, signed on April 29, 2012, between the Republic of Iraq and the State of Kuwait, represents a technical and administrative response to the aftermath of Saddam Hussein's 1990 invasion of Kuwait, and the subsequent border demarcation under UN Security Council Resolution No. 833 of 1993. Article Six of the agreement clearly states that it "does not affect the borders between the two parties in Khor Abdullah as determined by Security Council Resolution No. 833 of 1993."
The Iraqi Council of Ministers approved the draft ratification law on November 12, 2012. It was then passed by the Iraqi Parliament by a simple majority under Law No. 42 of 2013 and published in the Iraqi Official Gazette, issue No. 4299, dated November 25, 2013. The ratification documents were deposited with the United Nations, and a copy was sent to the International Maritime Organization. Consequently, the agreement entered into force and became binding under the principle of pacta sunt servanda, a fundamental norm in international law meaning "agreements must be respected." At the same time, ratification procedures were completed in the Kuwaiti National Assembly.
When the constitutionality of the ratification law was appealed, the Federal Supreme Court issued Decision No. 21/Federal/2014 on December 18, 2014. It distinguished between the law governing the treaty ratification process - which requires a two-thirds majority per Article 61/Fourth of the Constitution - and the law ratifying a specific treaty, which only requires a simple majority under Article 59/Second. The court rejected the case due to a lack of constitutional or legal basis, affirming the treaty's domestic legitimacy and protecting it from future appeals. The ruling thus acquired the force of res judicata (final judgment) under Article 105 of the Evidence Law, which gives binding force to final rulings so long as the parties, subject matter, and cause remain unchanged.
This legal position remained stable until the Federal Supreme Court heard the consolidated cases No. 105 and 194/Federal/2023 on September 4, 2023. The court ruled Law No. 42 of 2013 unconstitutional, reversing its previous decision (No. 21/Federal/2014), on the basis that a two-thirds majority vote is required and citing Article 45 of its internal rules, which permits reversal "whenever constitutional and public interest require."
If the two-thirds majority condition adopted in the 2023 decision is applied retroactively, it would automatically invalidate more than 400 international agreements previously ratified by simple majority, rendering all of them void due to failure to meet the new quorum. This would, in effect, dismantle the entire framework of international agreements Iraq has concluded over the past two decades. Furthermore, the decision undermines the legal stability of treaty-based arrangements deposited with the United Nations, potentially triggering international liability for Iraq.
In Iraqi legislative practice, judicial annulment is an exceptionally regulated measure. Article 13(First/1) of the Judicial Organization Law limits this power to the General Authority of the Federal Court of Cassation - not to any other court - and imposes strict conditions: the annulment must concern an abstract legal principle, not a final ruling; it must be referred by one of the cassation panels; and it must be justified with an explanatory decision showing urgent need, without affecting legal positions or acquired rights. These restrictions safeguard legal certainty and uphold the principle of finality enshrined in Article 105 of the Evidence Law, preventing any judicial authority from annuling conclusive rulings under the pretext of reform or development.
Although neither the Constitution nor the Law of the Federal Supreme Court grants it the power of reversal, the court added Article 45 to its internal regulations, stating that it may annul a previous principle... whenever required by constitutional or public interest." This inclusion goes beyond the procedural nature of internal regulations and violates the principle of legal hierarchy, since internal rules rank below statutory law and cannot expand judicial powers. Even more troubling is that the court, in its September 4, 2023, decision, did not simply reverse a principle, but annulled its own final 2014 ruling regarding the Khor Abdullah agreement - labeling this annulment as a reversal, although Article 45 states overruling pertains to "principles," not "judgments." In doing so, the court violated the principle of res judicata and created a legislative vacuum and diplomatic instability, as the annulled ruling had underpinned a treaty deposited with the United Nations.
Accordingly, any so-called " annulment" that does not meet these strict conditions - mainly if it targets a final judgment or is issued by an unauthorized body - constitutes a legal nullity and inflicts direct harm on the rule of law and public trust in the judiciary.
From this trajectory, it becomes evident that the 2014 decision aligned with constitutional provisions and international legal norms, achieving legal certainty domestically and internationally. In contrast, the 2023 decision lacked constitutional and legal grounding, and generated significant legal and international repercussions. Faiq Zidan
July 23, 2025