The Gulf Cooperation Council (GCC) — comprising Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and United Arab Emirates (UAE) — is becoming a globally significant regional bloc owing to its strategically important location along the Arabian Peninsula littoral where vital trade routes converge and link Asia, Africa and Europe. The GCC has succeeded in developing a flexible framework of cooperation among its members and international partners, especially in trade where the bloc has signed eight trade and investment agreements with various countries and regional trade blocs, including the US, Singapore, India and the European Free Trade Association (EFTA).[i] Additionally, the GCC recently launched free trade agreement negotiations with the United Kingdom. The increasing role of the GCC states in international trade and energy requires an understanding of these countries’ legal systems’ approaches to international obligations. This exploration aims to clarify the position of these countries’ legal systems and how they interact with international legal provisions to help relevant decision-makers in taking the suitable course of action in trade, investment, or even in building and fostering alliances regionally and globally.
 

GCC States’ Constitutions and International Legal Obligations

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Most GCC countries became independent in the early 1970s, except Kuwait (1961) and Saudi Arabia (1932), and their constitutions/basic laws include provisions that regulate how treaties become part of the domestic legal system. Gulf constitutions tend to show a high degree of similarity in adapting constitutional models of executive/legislative relations into their unique architectures, yet resort to concepts and terminology borrowed from other experiences, especially the Kuwaiti constitution which is heavily influenced by the Egyptian constitutional experience.[ii] Below are the relevant articles of the GCC States which regulate relations between international law and the validity of treaties in domestic legal systems. Signing and ratifying treaties is a delicate topic. Domestically, in the GCC, the executive branch of the government usually dominates most of the treaty-making process, from negotiation to ratification. The involvement of the legislature is the exception in the region and will be illustrated in the constitutions of Bahrain and Kuwait (below).

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Kingdom of Saudi Arabia

 

Saudi Arabia issued its Basic Law, which is the constitutional document of its legal system, in 1992.[iii] On the status of international law and domestic legal order, Article 70 reads as follows:

 

‘Laws, treaties, international agreements and concessions shall be issued and modified by Royal Decrees.’

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The article does not say much on the situation of international law provisions within Saudi Arabia’s legal system. It only specifies the legal instrument needed to conclude international agreement, which is the Royal Decree, which is issued by the King.

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Kingdom of Bahrain

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The amended constitution of Bahrain was promulgated in 2002. The relevant constitutional provision is Article 37, which takes a different approach from the Saudi Basic Law.[iv] The Article stipules that the King, who acts as the Head of the Executive Authority, concludes ‘treaties by Decree’ and communicates them to the Parliament (House of Deputies and Shura Council), where signed and published treaties have the force of law. However, if a treaty concerns one of the following subjects — commerce, shipping and residence, and treaties which involve the State Exchequer in non-budget expenditure or which entail amendment of the laws of Bahrain — they will need to be approved by both Houses of the Parliament. The executive approval alone will not make the treaty invocable in the domestic legal system of Bahrain.

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State of Kuwait

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The Kuwaiti constitution is often looked at as the model for the rest of the GCC States, likely because it was the first one drafted in the region. The relevant article which deals with the situation of treaties in the domestic legal system is Article 70.[v] The article is, to a large extent, similar to Bahrain’s constitution. The article gives the primary mandate to the Executive authority — the country’s Emir — with the formal procedure to inform the National Assembly. But, when the treaty subject matter falls within one of the categories mentioned in the article — peace treaties and treaties of alliance, treaties pertaining to State domains, to its natural wealth, to sovereignty rights, to citizens' public or private rights, treaties relating to shipping and residence, and treaties involving the State Treasury in certain expenditure unprovided for in the Budget or involving an amendment to the laws of Kuwait — the National Assembly must approve the law enacting the treaty.

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Sultanate of Oman

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The Basic Law of Oman, adopted in 1996, is similar to that of Saudi Arabia in outlining the basic structure of the State. Nevertheless, it has the status of a constitutional document within the Omani legal system. The relevant article regulating the issue of treaties of international law is Article 76:

‘Treaties and agreements shall not have the force of Law except after their ratification. In no case shall treaties and agreements have secret terms contradicting their declared ones.’[vi]        

 

The article is very concise and shy of details. It stipulates that a treaty needs to be ratified before becoming law. The legislature, which is represented by Majlis Oman, consisting of two Houses: Majlis Al-Dwala and Majlis Al-Shura, is not involved in the ratification process and the whole treaty-making process is in the realm of the Executive—the Cabinet of Ministers.

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State of Qatar

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Qatar adopted a so-called permanent constitution in 2004 which has, to a large extent, followed the wording of both Kuwait’s and Bahrain’s constitutions. The relevant Article 68 states that treaties have the force of law once they are signed and issued by the Emir (Executive authority). But if the treaty subject matter falls within one of the listed subjects — reconciliation treaties and those that pertain to the territory of the State, relate to the right of sovereignty or to the public or private rights of the citizen, or involve an amendment to the laws of the State— it shall be issued by law approved by the Shura Council (the legislature).[vii]

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United Arab Emirates (UAE)

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In the UAE, the constitution is different from other GCC States’ because of its federal system and constitution which allocates the function of making and signing treaties as one which falls under the Federal Supreme Council, the highest federal authority consisting of the Rulers of all the Emirates.[viii] Article 47(5) stipulates that the Federal Council needs to ratify by Decree the treaties and international agreements. UAE Federal Constitution follows Saudi Arabia’s and Oman’s Basic Laws in that treaties become part of the internal legal system once they are ratified by the Executive, and no binding involvement from legislature is needed.

 

With the increasing trade and investment in energy between the GCC Member States and regional states, many international agreements have been concluded. These agreements will consolidate the block’s economic position. Thus understanding the GCC countries’ legal make up is crucial to comprehend the expanding international economic relations of the GCC States.

 

16 November 2022

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* Faisal Ateeq earned his Bachelor of Laws (LLB) degree from the University of Bahrain and Masters of Laws (LLM) degree from the University of Leeds. His research focuses on public international law, international investment law, and the interaction between law and politics.

 

References

 

[i] For example article 1.3 of the GCC-European Free Trade Association (EFTA) Free Trade Agreement states that ‘The provisions of this Agreement apply to the trade and economic relations between, on the one side, the individual EFTA States and, on the other side, the individual GCC Member States or, where specifically provided for, the GCC Member States acting jointly as GCC. This Agreement applies neither to the trade relations amongst the EFTA States nor to the trade relations amongst the GCC Member States.’ UNCTAD, ‘GCC (Gulf Cooperation Council)’, https://investmentpolicy.unctad.org/international-investment-agreements/groupings/37/gcc-gulf-cooperation-council-.

[ii] Gianluca P Parolin, ‘The Constitutional Framework of International Law in the Gulf: Ratification and Implementation of International Treaties in the GCC Constitutions,’ Arab Law Quarterly 34, 1 (2020): 24, doi: https://doi.org/10.1163/15730255-12334054.

[iii] Legal Experts Bureau at the Council of Ministers of the Kingdom of Saudi Arabia, ‘Saudi Basic Law,’ https://laws.boe.gov.sa/BoeLaws/Laws/LawDetails/16b97fcb-4833-4f66-8531-a9a700f161b6/1.

[iv] Legislative and Legal Opinion Commission of the Kingdom of Bahrain, ‘Constitution of the Kingdom of Bahrain,’https://www.lloc.gov.bh/page/%D8%AF%D8%B3%D8%AA%D9%88%D8%B1%20%D9%85%D9%85%D9%84%D9%83%D8%A9%20%D8%A7%D9%84%D8%A8%D8%AD%D8%B1%D9%8A%D9%86. Unofficial translation may be accessed: https://www.constituteproject.org/constitution/Bahrain_2017?lang=en#s222.

[v] National Assembly of the State of Kuwait, ‘Kuwait constitution,’ http://www.kna.kw/clt-html5/run.asp?id=2024.

[vi] Ministry of Justice and Legal Affairs of the Sultanate of Oman, ‘Omani Basic Law,’ https://www.mjla.gov.om/eng/basicstatute.aspx.

[vii] Al-Meezan, Ministry of Justice of the State of Qatar, ‘Qatari Constitution,’ https://www.almeezan.qa/LawArticles.aspx?LawTreeSectionID=6681&lawId=2284&language=ar.

[viii] Ministry of Justice of the United Arab Emirates, ‘Federal Constitution,’ https://elaws.moj.gov.ae/English.aspx?val=EL1.