The Constitutional Review of the Federal Supreme Court of Iraq over the Constitutionality of the Law Ratifying International Treaties

Abstract

The study addresses the jurisdiction of the Higher Federal Court in reviewing the constitutionality of international treaties under the Iraqi Constitution of 2005, as provided in Article 93. This review takes place after the treaty has been ratified and after parliamentary approval, which makes it a judicial ex post review following the domestic enactment of the ratification law. The Iraqi Constitution does not stipulate this type of review, nor does it clarify the status of international treaties in relation to the Constitution and domestic laws, which raises the issue of the effectiveness of the Higher Federal Court’s review in reconciling international obligations with the supremacy of the Constitution domestically, while states cannot evade international agreements by invoking domestic laws. Judicial practice shows that the Federal Court exercises effective review over laws ratifying international treaties, as it did in its review of the law ratifying the Khor Abdullah agreement with Kuwait in 2023. However, the Court does not declare the treaty void; rather, it annuls the domestic ratification law, rendering it inoperative internally. The state thus faces a dilemma: on the one hand it must fulfill its international obligations, and on the other hand it cannot implement the treaty domestically if it conflicts with the Constitution. This clearly demonstrates the absence of an explicit constitutional provision that determines the supremacy of treaties in a manner consistent between the domestic and international legal orders, which requires intervention by the constitutional legislator by amending the Constitution or enacting a specific law that defines the status of international treaties, while taking into account the Court’s competence to review the constitutionality of these treaties and enhancing the role of the Higher Federal Court in balancing international obligations and the Constitution.