Washington Kurdish Institute
February 26, 2022
On Tuesday, February 15, the Federal Supreme Court of Iraq ruled the oil and gas law of the Kurdistan Regional Government (KRG) unconstitutional, obligating Kurdistan to hand over all production from oil fields in the Kurdistan Region and other areas to the federal government.
The court decision is politically driven and aims to unabashedly undermine the KRG and the Kurdistan Region, a policy Baghdad has practiced against the Kurds since 2005.
Professor Brendan O’Leary explains the court’s legality and its wrong rulings. Professor O’Leary is the inaugural winner of the Juan Linz prize of the International Political Science Association for contributions to the study of multinational societies, federalism, and power-sharing.
What do you think of the constitutional and legal standing of the court’s decision?
The federal Supreme court of Iraq was meant to be established under article 92-2 of the constitution. No such federal court has been legislated. The constitution required such a court to come into existence with a two thirds resolution, in a law by the council of representatives. That has not happened. The court that exists is a court from the transitional period in the handover, from the coalition provisional authority to the government of Ayad Allawi. No law creating the federal supreme court has come into existence since the coming into force of the constitution. So Iraq is therefore in the weird position of not having a valid federal supreme court. Of course, this is not the only feature of the constitution that has not been implemented, but it is one of the most important. So point number one, this court has no standing to do what it says it’s entitled to do.
What other articles besides 92-2 has Iraq failed to implement?
The failure to implement a law following article 65, which would have created a federal second chamber and the failure to draft federal oil and gas laws pursuant to articles, 112 and arguably 111 which would have settled some of the oil and gas controversies.
Has there been a pattern of anti-Kurdish rulings by the court?
There have been two recent outrageous decisions by this court, which I emphasize is not the federal Supreme court envisaged by the constitution.
One of those decisions was to deny the right of a Kurdish presidential candidate to be a valid candidate. However, in this case, it’s very elementary if you inspect the constitution, there has to be a law governing these matters before the court could act properly. It didn’t do so.
Exactly the same problem arises in its so-called decision over Kurdistan’s oil and gas law. The court proceeds to believe that it can make Iraq’s constitution out of thin air. What it does is basically ignore article 115, which gives supremacy to regional laws, where they clash with federal laws. And in the case of Iraq, its constitution is very easy to interpret. In article 110, there is a list of exclusive federal powers, oil and gas are not among the federal government’s exclusive powers. Therefore those powers that are not exclusive are subject to regional supremacy. Therefore, if there’s a clash between Kurdistan oil and gas laws and federal oil and gas laws, Kurdistan laws prevail. The court simply ignores that.
Is it true that the court ruled on the basis of Saddam’s laws?
The court bizarrely seems to think that Saddam’s laws are still in effect. Whereas the court, if it had any standing, would be protecting the constitution of Iraq, which impliedly repeals all of Saddam’s laws, to the extent that they’re inconsistent with the constitution.
Now, clearly the constitution specified a set of art that were to address oil and gas. And in one of them, it’s absolutely unequivocal that federal authority is confined to management of exploitation of fields that were in production at the time of coming into force of the constitution. All subsequent new fields are clearly in the domain of regions where regions are established. Kurdistan’s oil and gas law was passed after the constitution came into force. No equivalent federal oil and gas law has been passed. To invoke Saddam’s laws, repealed by the constitution is an absurdity.
Tell us the history of this controversy, do the KRG laws contradict Iraq’s constitution?
After 2005, there was a protracted negotiation between the Kurdistan regional government and the federal government of Iraq. Those negotiations got nowhere. So the Kurds decided to draft their own law as they were fully entitled to do. And they took very careful steps to ensure that their drafting of the law was compliant with Iraq’s constitution to avoid exactly the kind of scenario we face today. Here’s some proof as well that they did. They received a legal opinion from a distinguished professor of international law about the compliance of their oil and gas law. And in a court case in London decided quite recently, a London commercial judge decided that Kurdistan’s interpretation of Iraq’s constitution was correct. And he took it upon himself to interpret the constitution because that was at stake between the relevant parties. This concerned a dispute between an oil and gas company and the Kurdistan Regional Government. So that’s an example of an external foreign foreign judge who has no partisan association with any party in Iraq, making a reasonable decision based on the text of the constitution.
How should the KRG respond to the ruling?
I think that the appropriate response for the Kurds, is to point out that the court has no standing and to point out in addition, that it has made two outrageous interpretations that any competent, constitutional lawyer who was moderately impartial would regard as absurd. Therefore I do not think that the Kurdistan regional government should regard this decision as binding.
It should indicate to both international oil companies and to other authorities in Iraq, that it regards its laws as valid, and that the court has no standing to repeal Kurdistan’s laws, which were carefully drafted to be compliant with Iraq constitution. That was the whole purpose.
Obviously it should be a matter of urgent priority for the Kurdistan regional government to argue with other parties in Iraq, for the proper establishment of a Supreme court that they could all accept.
I think that the Kurdistan Regional Government should absolutely resist this decision. It should make clear that everybody knows that the court has no proper standing. Then I think that the calm policy should be to try and renegotiate the federal oil and gas law while asking its other partners inside Iraq, as well as the neighbors to recognize the continuing validity of Kurdistan’s own oil and gas flows. The alternative is simply chaotic.