Iraq Urgently Needs a Real Constitution

Samer Alnasir

University Carlos III of Madrid

Due to the ambiguous and problematic energy resource-sharing scheme in the Iraqi constitutional structure, Iraq's problems are no longer limited to the domestic constitutional level, but now have global repercussions. The problems arise not only from a textual constitutional deficiency, but also from the constitutional court's ineptness. The Iraqi Federal Court’s recent decision invalidating the legal basis for current international oil contracts granted by the Region of Kurdistan to Turkish Companies may result in immediate military intervention by Turkey in Iraq, as well as a global economic disaster in terms of energy.

Since 2005, the number of reasons for the state's failure and constitutional misery has been growing daily and is expected only to increase as 2023 approaches. It's ironic to hear voices among those who blame the state’s failure from those who have served as advisors to two former Iraqi presidents. This crisis goes beyond political corruption, statelessness, conflicts, and mass migrations. It is an international responsibility, because the international community was responsible for much of Iraq’s problems. So, today's major issues are not directly related to the over five million refugees forced to flee the country during the government's ethnic cleansing from 2006 to 2010; nor to the emergence of the Islamic State in 2013 following the government’s massacre of civilians who questioned the constitutional vigour; or the war that followed, which killed another million people and destabilized the Middle East. All of these issues aren't so important for the international community because, from my perspective, such groups of people don't seem to bother western ethics. However, the current constitutional issues will have a significant impact on the global energy market, as Iraq produces more than three million barrels of crude oil per day and is forecast to expand capacity by around four million barrels over the next five years.

Negotiated vs. Imposed Constitutions

A constitution is a dialogue among equals, however in Iraqi history, constitutions were always either hegemonic impositions or military state coup proclamations. The first ‘post’-colonial constitution of 1925 was written and provided by British colonial authority and approved by popular referendum (in which the so-called choice was either to approve that text or serve the protectorate). After the US-led coalition invaded Iraq in 2003, another constitutional text was written by the coalition command. The new Constitution of 2005 was coined by its translators in the absence of a third of Iraq’s population, under the segregation policy. The text neither represented Iraq’s social complexity, nor was genuinely assisted by lawyers, thus the English text is more comprehensible than the officially adopted Arabic text. 

The Constitution is troubling not only in terms of its dubious legitimacy and legality but also in terms of its lack of coherence and openness to misinterpretation. It plainly has orthographic errors, which make its ambiguity seriously problematic, and it has many open examples which may give rise to problematic interpretations.

Constitutional Calamities

Calamities in Iraq have been numerous. But the most significant one currently, which may have global repercussions, is the decision of the Iraqi Federal Supreme Court of mid-February 2022, which reveals a constitutional crisis, with even more and deeper problems of ambiguity. The verdict and this ambiguity are leading Iraq towards a serious confrontation of powers internally and an imminent Turkish invasion of the country, which may cause a global economic disaster in terms of oil resources and impacts on prices. The conflict arises from an idle type of constitutional redaction and contradictory schema of the text.

The Explanation

Article 111 of the Iraqi constitution states that “oil and gas are owned throughout [Iraq] by Iraqi people in all provinces and regions”. Even this designation is ambiguous, as it does not refer to other potential hydrocarbons or minerals throughout Iraq: it names only oil and gas, excluding other resources. Meanwhile, the successive Article 112.1 contains yet another ambiguity. It states: 

The federal government administers the oil and gas extracted from the current mines with the regional and provincial governments with the obligation of distributing [the oil and gas] equitably to all the people all over the country, within a specific designation in a specific period to the sinistered regions which have been excluded during the old regime to ensure an equitable development nationwide a law should regulate this.

The lack of clarity in this provision is not due to my English translation of this text, as I attempted to meticulously observe and reflect the original. The entire article does not include more than one single comma and is expressed as I have presented it. From this article nothing is clear, we don’t know: 1) exactly what would happen with future mines, as the provision refers only to the current mines; 2) what should happen with other minerals, as the country has many minerals other than oil and gas; 3) what the association with regional and provincial authorities means and if this refers only to the existing mines, and what or how this association would be with future mines; 4) if there’s any definition of the sinistered regions and if the article affects the so-called sinistered provinces also, or if this word is only related to regions in general (the original English text uses the term “damaged regions”, which has no clear meaning); or 5) how such classification should be attributed and during which period. However, the most significant problem lies in the last part of the provision, which leaves all these ambiguities to be regulated by law.

Before going into a further explanation, I will show the successive two articles’ same ambiguity and contradictions. Article 112.2 states the following:

The federal government with regional and provincial governments’ oil producers must collectively design strategic policies to develop the Iraqi wealth of oil and gas for a higher benefit of the Iraqi people according to the most modern techniques of the market economy and to attract investments.

As it stands, there is no way to understand the meaning of this schema, nor how this association should be implemented; to understand the meaning, one must read the original English text, not the officially adopted Arabic text, on which the people voted in a referendum, and which was terribly written by American translators. All this is further complicated by article 115, which states:

All that had not been precisely designated as federal competencies shall be understood in favour of regions and those provinces that do not belong to a region and those subjects that share the federal and regional governments the superiority shall be understood in favour of the regional law and the provinces not belonging to a region when contradiction is appreciated.

Worldwide Unequalled Constitutional Scenario

I would challenge constitutionalists worldwide to find an equivalent scenario to the lack of clarity produced by these articles. It’s not necessarily a problem that the constitution was written by foreigners, translators or even invaders. The problems arise not only because of linguistic discrepancy between the original English and the officially adopted text, but the situation in which seemingly deliberate ambiguity has created confusion between federal and  regional powers in relation to the globally critical question of the management of natural resources.

Dilemma of the Constitutional Suspension by the Constitutional Court: The 2012 Court Decision

In 2012, the Iraqi Federal Supreme Court heard a suit by the central government's Ministry of Oil against a decision of the Kut city council, which voted to restrict the exportation of oil produced in their city in order to conform to the local necessities of oil derivates, applying articles 111 and 112.1 of the Constitution. The Court ruled, in case-law 8/fed/2012, that the matters in these articles required regulation by ordinary law. Since that ordinary law has not yet been implemented, the constitutional provision is deferred or suspended until a legislative regulation is provided. As a result, a constitutional statement that designs a specific schema is suspended by the Court and rendered ineffective until ordinary legislative regulation is enacted. The entire Constitution is then suspended by the constitutional court itself because of vacatio legis, the ordinary legislator failed to provide ordinary regulation.

The Forecast of a  Constitutional Crisis: The 2022 Court Decision

The worst of the crisis has now emerged. The regional government of Kurdistan in 2007 adopted a regional law to promote investigations to find new mines in its regional territory. That law has not ever been contested by the central government. As a result, even without an international personality, the Kurdish government had research contracts with some foreign companies to find new oil mines, and these contracts were not contested by the central government. When they discovered oil and began extracting and transporting it through the national pipeline toward Turkey—a country that patrols Iraqi territory—the federal government began to contest the use of the pipeline, blaming Turkey and bringing the case to the Supreme Court in 2012. The Court took ten years to give a verdict (by contrast, the court solved the earlier conflict with the southern city of Kut within weeks). But the court's solution is even more perplexing than the long, agonizing process that led to it. In February 2022, the Court finally declared unconstitutional the Act of Oil and Gas of the Region of Kurdistan (2007); even though no one in the litigation process had contested this specifically. The Court then ordered the regional government to “empower” the central government to renegotiate the current contracts on the understanding that as a federal concern, according to article 112.1 of the Constitution, the resource sharing scheme is deferred and dependent on ordinary legislative regulation. So, those contracts that had been formed under a regional law that was not contested at the time, have been declared unconstitutional now, and are therefore null. Nobody knows how the consecutive contracts should be renegotiated and what the “empowerment” of  the federal government actually involves.

How can this text qualify as an acceptable Constitution and those senior agents as statesmen? A country that presents itself to the world without a proper constitution is akin to showing up to a dance party in a swimming suit. As a result, here's what's most likely to happen now: Turkish troops are crossing the Iraqi border to protect the oil mines discovered by their companies under these contracts, on the basis that the constitutional statement only referred to existing mines at the time the constitution was written, not future mines.

A New Constitution 

It is clear that the current constitution needs an overhaul. It has resulted in more problems, disasters, ambiguities, and social segregation than it has solved, of which the issue of energy resources traced in this article is only one example. Now that there is a real risk of international conflict with global repercussions, the matter is even more urgent. Iraq requires urgently a new constitution that deals clearly with the ownership and management of resources, that embraces clear language over ambiguity and which reflects the basic principles of constitutionalism.

Samer Alnasir is an Ass. Prof. in Legal History at University Carlos III of Madrid, and a Bi-PhD Candidate in Ethics and Political Philosophy at UNED, Spain

Suggested Citation: Samer Alnasir, ‘Iraq Urgently Needs a Real Constitution’ IACL-AIDC Blog (7 July 2022) https://blog-iacl-aidc.org/new-blog-3/2022/7/7/iraq-urgently-needs-a-real-constitution.