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  • Print publication year: 2009
  • Online publication date: December 2009

2 - The Provisions of the Iraqi Constitution Addressing Oil and Gas Activities: Of the Role of Subcentral Governing Entities, Handling of Revenues, and “Present” versus “Future” Fields



The Iraqi Constitution was adopted in an October 15, 2005, referendum of the Iraqi people, thereby displacing the former Law of Administration for the State of Iraq for the Transitional Period (TAL). The TAL, which came into effect on June 28, 2004, had been drafted in late 2003–early 2004 through the efforts of a body selected by the Coalition Provisional Authority (CPA) and advised by the United States and the United Nations. During calendar year 2005, an Iraqi Constitutional Committee established by the transitional government that assumed power after the June 2004 handover of authority from the CPA put together the terms of the Constitution itself. The nationwide referendum on the Constitution witnessed approximately a 63% turnout of all eligible voters, with nearly 80% voting in support of the new governing document. Indications are that of the eighteen Iraqi governorates that make up the country, only two recorded “no” votes exceeding the required two-thirds to reject the document. In large measure, the Constitution represents a compromise among Sunni Arabs, Shiite Arabs, and the Kurds, as well as between secularists and nonsecularists, centralists and federalists. It has been suggested by some that the Constitution's emphasis on the role of religion came at the expense of neglecting a variety of other interests not adequately dealt with.

Without wading into that and the many other controversies surrounding the Constitution, what is focused on here relates to the allocation of constitutional powers to subcentral governmental entities in the area of oil and gas, how the Constitution handles the matter of revenue collection and distribution, and what that document says about oil and gas fields considered “present” as opposed to “future” in character.

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