The Khor Abdullah waterway: Navigation deal or border surrender?

A 2023 Supreme Court ruling that struck down the agreement with Kuwait has sparked continued constitutional and legal debate in Iraq

Iraqi Prime Minister Mohammad Shia Al Sudani at a 2022 meeting with the Emir of Kuwait Sheikh Meshal, when he was Kuwaiti crown prince. Photo: Kuwait News Agency

A 2012 agreement between Iraq and Kuwait regulating navigation in the shared Khor Abdullah waterway has triggered intense debate inside Iraq ever since, with critics warning it blurs maritime boundaries and threatens national sovereignty.

Some opponents are calling to annul the deal, while others support renegotiation to safeguard Iraq's rights.

Meanwhile, Kuwait maintains that its maritime boundary with Iraq, including navigation rights in Khor Abdullah, is firmly grounded in international law. Kuwaiti officials have repeatedly stressed that any attempt to revoke this agreement unilaterally is invalid and unacceptable.

The Kuwaiti Ministry of Foreign Affairs has lodged formal protests and called on Iraq to honour its commitments under binding international treaties, reaffirming Kuwait’s sovereignty over its territorial waters and its right to shared navigation in Khor Abdullah.

The issue of land and maritime borders between Iraq and Kuwait is highly sensitive among Iraqis with many viewing the border demarcation unfairly imposed by the US Security Council after driving Saddam Hussein’s army out of its neighbour in 1991 and say the country’s weakened state at the time was exploited. It is equally sensitive from the Kuwaiti point of view due to the 1990 invasion, with concerns about Iraqi over-reach.

The controversy has pitted Iraqi Prime Minister Mohammed Shia Al Sudani against the public, with critics accusing him of compromising the country’s rights to Kuwait to secure regional support as he eyes a second term in office in November's national election. Some have gone as far as accusing Iraqi officials involved in the border negotiations of receiving bribes from Kuwait, without providing substantial evidence.

Both Iraq and Kuwait claim exclusive ownership of the narrow canal, which curves around Kuwait's Bubiyan and Warba islands on one side and Iraq's Al Faw Peninsula on the other. Iraqis say it is named after a famous Basra fisherman, Abdullah Al Timimi, while Kuwaitis say its name derives from the second ruler of Kuwait, Abdullah bin Sabah, who ruled from 1762 to 1814.

In early 2022, Iraq closed off the chapter of Kuwait compensation, paying its final war reparations, settling the $52.4 billion of claims made for damage inflicted during the 1990 invasion.

A 2014 image taken from the International Space Station shows the Tigris and Euphrates valleys leading into the Arabian Gulf. Nasa / AFP

What is the agreement and its purpose?

Three years after Iraq's invasion of Kuwait in 1990, the UN Security Council passed Resolution 833, which determined the land border between the two. However, the delineation of the maritime border was left to the countries themselves.

In 2012, Baghdad and Kuwait signed the agreement and it was ratified in 2013 by the parliament in Baghdad. It aimed to regulate maritime traffic, environmental protection and safety within the estuary that forms Iraq’s only gateway to the Arabian Gulf.

The deal gives each country the right to control navigation and safety enforcement. It stipulates that the agreement “shall remain in effect indefinitely” but can be mutually terminated with six months' notice. This also applies to amending it.

Critics’ arguments

Critics – mainly legislators, independent politician and experts – argue that the terms of the accord implicitly draw a boundary, warning it could prejudice future maritime border negotiations and impose access controls on Iraqi ships, requiring Kuwaiti approval and fees.

Amir Abdul Jabar, who served as transport minister from 2008 to 2010 and is one of the strongest opponents of the agreement, argues it is meant to delineate a maritime border rather than regulate navigation.

Although the accord states that the agreement “shall have no effect upon the boundary” between Iraq and Kuwait as demarcated pursuant to the UN Security Council Resolution 833 in 1993 at the creek, it gives Kuwait more control beyond that deep in the Gulf, Mr Abdul Jabar said.

Article 2 of the agreement explains the term “waterway” as the area from the point where the maritime channel at Khor Abdullah meets the international boundary between the points 156 and 157 heading south to the point 162 set by the Resolution 833 “thence to the beginning of the maritime channel at the entrance to Khor Abdullah”.

“So, the definition of the waterway in the agreement didn’t stop at the 162 point – the one set by the UN Security General resolution,” Mr Abdul Jabar said.

Article 4 stipulates that “each party shall exercise its sovereignty over that part of the waterway which lies within its territorial water”.

The essence of the objection, Mr Abdul Jabar said, is that it must not be applied on the area beyond the point 162 as Article 2 stipulates. “How is it possible to divide the area beyond the point 162?” Mr Abdul Jabar said.

“We are not objecting to the [833] resolution even though it’s unfair, but the government and parliament of 2012-2013 brought a new disaster [in signing this deal],” he added, warning that Iraq could lose future maritime entitlement to deeper Gulf waters and its natural resources known as the Exclusive Economic Zone.

Mr Abdul Jabar had filed a lawsuit against Mr Al Sudani for “blocking the court’s ruling”, by refusing to have copies of it deposited to the UN and the International Maritime Organisation.

US warplanes fly over Kuwaiti oil fires, started by the retreating Iraqi army in 1991. Getty Images

Ruling and controversy

In September 2023, Iraq’s Federal Supreme Court invalidated the law ratifying the agreement, ruling that it violated the Iraqi Constitution by lacking the required two thirds parliamentary majority for international treaties. Parliament had passed it by simple majority only.

Shortly after the ruling, the GCC and US issued a joint statement in which they called on the Iraqi government to “ensure that the agreement remains in force”.

The Iraqi government has assured Kuwait that Iraq is committed to all its international agreements. Afterwards, Mr Al Sudani and President Abdul Latif Rashid have independently sought to reverse the ruling. These requests were withdrawn early this month and the agreement was sent back to parliament to approve in a two-thirds majority.

It was a sigh of relief for the opponents. Many of them are now asking to annul the agreement by rejecting it inside parliament, while others are seeking to renegotiate it with an Iraqi team including experts, not only politicians.

Protests across Iraq have continued, to reject the agreement in its current form. A public campaign is also set to be launched to collect signatures for a petition for the UN Security Council.

Fadi Al Shammari, a political adviser to Mr Al Sudani, confirmed the Khor Abdullah agreement aims to regulate navigation and has nothing to do with border demarcation.

“Iraqi land is sacred, and there will be no leniency or compromise over any inch of it under any pretext,” Mr Al Shammari said, claiming that campaigns opposing the agreement are “driven by political and electoral agendas”.

Iraqis are divided about the agreement, although many of the Iran-backed political parties and armed groups are echoing the government stance.

In an interview with a local satellite channel in May, the leader of the Asaib Ahl Al Haq group, Qais Al Khazali, blamed Saddam Hussein’s banned Baath party for seeking to discredit the agreement by portraying it as “giving up Iraq's borders with Kuwait”.

“Saddam was the one who sold it [the border] when he recognised resolution 833", a UN motion which set the land and maritime borders, he said.

It is still unclear if the parliament will ratify the agreement or whether it will be left to the next parliament after national elections in November national elections.

Kuwait is also in dispute with Iran over their maritime border and Al Durra offshore gasfield in the Arabian Gulf. Kuwait and Saudi Arabia say they have “exclusive rights” to Al Durra and called on Iran to validate its claim by demarcating its maritime borders.

Iran previously claimed a stake in the field and said a Kuwaiti-Saudi agreement signed last year to develop the field was illegal.