The Agreement on the Regulation of Navigation in Khor Abdullah, which the Republic of Iraq and the State of Kuwait signed on April 29, 2012, offered an adequate technical and administrative framework for dealing with the repercussions of Saddam Hussein’s 1990 invasion of Kuwait, resolving the subsequent border demarcation through UN Security Council Resolution 833 (1993). Article 6 of the agreement affirms that it “does not change the border between the two parties in Khor Abdullah.”
The Iraqi Council of Ministers approved the draft ratification law on November 12, 2012, and the House of Representatives passed it (Law No. 42 of 2013) by simple majority. It was subsequently published in the Iraqi Gazette, Issue No. 4299, on November 25, 2013. The ratification documents were sent to the United Nations, and a copy was sent to the International Maritime Organization. As a result, the agreement went into force and became legally binding, in accordance with the principle of pacta sunt servanda (“agreements must be kept” or “obligations must be fulfilled”) a cornerstone of international law. Simultaneously, it was also ratified by the Kuwaiti National Assembly.
When the law ratifying the agreement was challenged on constitutional grounds, the Federal Supreme Court issued Decision No. 21/Federal/2014 on December 18, 2014. The Court distinguished between two types of legislation: laws governing the treaty ratification process, which require a two-thirds majority under Article 61/Fourth of the Constitution, and laws approving specific agreements, which only require a simple majority under Article 59/Second, dismissing the challenge and ruling that it had no constitutional or legal basis.
This decision confirmed the agreement’s domestic legitimacy and shielded it from future legal objections. The ruling acquired the force of res judicata under Article 105 of the Evidence Law, which grants final judicial decisions binding authority over the rights they adjudicate, provided that the parties, subject matter, and legal basis remain unchanged.
This remained the status quo until the Federal Supreme Court reviewed the two consolidated cases (Nos. 105/Federal and 194/Federal/2023) on September 4, 2023. In its ruling, the Court declared Law No. 42 of 2013 unconstitutional, reversing its earlier decision (No. 21/Federal/2014). The Court ruled that a two-thirds majority was required, as Article 45 of its internal regulations allows it to overturn prior rulings.
If the two-thirds majority precedent set by the 2023 decision is applied retroactively, it would automatically invalidate over 400 international agreements that had previously been ratified by a simple majority. All such agreements would be rendered null and void, effectively nullifying all the international treaties concluded by Iraq over the past two decades. Moreover, the decision undermines the legality of international agreements overseen by the United Nations, exposing Iraq to push back.
In Iraqi law, reversing court decisions is considered an exceptional measure that must be used only when conditions are met. According to Article 13(1) of the Judicial Organization Law, the power of reversal is strictly limited to the General Authority of the Federal Court of Cassation and cannot be exercised by other courts. Several substantive conditions also must be met: the reversal must pertain to an abstract judicial principle rather than a final ruling; the case must be referred from one of a Cassation Court panel to the General Authority; and a reasoned decision must be issued clearly demonstrating an urgent need for the reversal.
Crucially, such reversals must not undermine established legal positions or acquired rights - a legal safeguard that ensures the stability of legal relations and upholds the principle of res judicata set in Article 105 of the Evidence Law. It also prevents any judicial authority from altering final judgments under the guise of reform.
Although no provision authorizes the Court to change the Constitution nor the Federal Supreme Court Law, the Court introduced a substantive clause (Article 45) into its internal regulations, allowing it to “revoke a previous principle whenever constitutional and public interest so require.” This assertion goes beyond procedure and internal regulations; it goes against the principle of the hierarchy of legal norms, because internal regulations rank below statutory law and cannot be used to expand a court’s jurisdiction.
More critically, in its decision dated September 4, 2023, the Court did not merely reverse a judicial principle, it also annulled its own final ruling of December 18, 2014, on the Agreement on the Regulation of Navigation in Khor Abdullah. It described this annulment as a “reversal,” even though Article 45 clearly states that reversals may apply to judicial principles, not to final judgments.
By doing so, the Court exceeded the authority conferred by res judicata, creating both a legislative vacuum and diplomatic uncertainty. The initial (now-annulled) ruling had established a binding treaty obligation officially registered with the United Nations.
Accordingly, any decision labeled a “reversal” that falls outside these strict parameters is legally void. Such actions undermine the rule of law and erode public confidence in the judiciary.
This sequence of events makes it clear that the 2014 ruling does not violate the constitution and conforms with international legal standards, reinforcing legal certainty both domestically and internationally. By contrast, the 2023 ruling lacks any sound constitutional and legal basis, triggering far-reaching legal and international consequences.
