MOVING IRAQ'S HYDROCARBONS LEGISLATION FORWARD

C O N F I D E N T I A L SECTION 01 OF 04 BAGHDAD 001972 SIPDIS E.O. 12958: DECL: 07/20/2019 TAGS: EPET ENRG EINV PGOV IZ SUBJECT: MOVING IRAQ'S HYDROCARBONS LEGISLATION FORWARD REF: A. BAGHDAD 1610 ¶B. BAGHDAD 1447 ¶C. BAGHDAD 1250 ¶D. BAGHDAD 1231 ¶E. BAGHDAD 1230 Classified By: CDA Robert S. Ford, Reasons 1.4 (b,d) ¶1. (C) SUMMARY: While passage of hydrocarbons legislation (HCL) remains important for Iraq's development of its petroleum resources, GOI and KRG interlocutors have preferred to keep the legislation on the back burner pending resolution of other Arab-Kurd issues. The ramp-up of a national election campaign in the coming months would seem to work against significant progress on a hydrocarbons law. However, economic realities suggest both Baghdad and Erbil might be willing to accept the need for compromises soon. In May the KRG agreed to export crude oil on the basis of terms long-demanded by Baghdad. On June 30, the federal Ministry of Oil (MoO) held its first bid round and found limited interest from the international oil companies (IOCs), partially due to the poor legal and regulatory environment surrounding the contracts. The Council of Representatives (CoR) continues to state that any contracts for hydrocarbons production must be approved by the CoR as per Saddam-era legislation. This parliamentary angle will slow the entry of IOCs and therefore gives the Oil Minister Shahristani and Prime Minister Maliki added incentive to move on the HCL. We do not anticipate a sudden breakthrough on the whole hydrocarbons legislation package, but it may be possible to move the two sides forward on compromises such as the division of control of some of the specific oilfields. PM Maliki's visit to the U.S. provides an opportunity to underline the importance of moving forward. END SUMMARY Importance of the Legislation -------------- ¶2. (SBU) Although the MoO continues to limp along under various pieces of legislation dating from the 1950s to 2003, Iraq must develop and implement new legislation to ensure management of hydrocarbons resources is consistent with provisions in Iraq,s 2005 Constitution, which state, inter alia, "the federal government and the governments of the producing regions and provinces together will draw up the necessary strategic policies to develop oil and gas wealth." The current legislative package contains four specific pieces of legislation: (a) The Hydrocarbons Framework Law, also referred to as the "Oil and Gas Law," a legal framework for foreign investment, contract approval, definition of federal and regional authorities, and lays the groundwork for the next three laws. Of the four pieces of legislation, this is the only one that realistically can move in this session of the COR; (b) Revenue Management Law, which establishes a mechanism for allocating oil revenues between the central government, regions, and provinces; (c) Iraq National Oil Company (INOC) Reconstitution Law, which, in addition to reconstituting INOC, places the 16 Ministry of Oil (MoO) operational companies under INOC; and (d) Ministry of Oil Reorganization Law, which would establish the federal Ministry of Oil role as primarily regulatory and provide its statutory authority. This law should be done in accordance with the budget, and allow national collection and distribution of revenue to maintain national unity. ¶3. (SBU) At present, the MoO, through its 16 operating companies, conducts all activity within the petroleum sector from upstream to downstream, including marketing crude oil to Qfrom upstream to downstream, including marketing crude oil to overseas buyers. Passage of the package of four laws is intended to put management of Iraq's hydrocarbon resources on a sound basis by defining the relationship between the federal and regional governments and providing a clear mechanism to authorize foreign investment by defining the roles of politically chosen management bodies (such as the Ministry if Oil and the to-be-established Federal Oil and Gas Council). The legislation would also allow INOC to conduct its operations on a commercial basis with limited political interference in day-to-day operations. Potential for Movement -------------- ¶4. (C) Over the past twelve months, GOI interlocutors have repeatedly asserted that no progress was possible except in BAGHDAD 00001972 002 OF 004 concert with a settlement on other issues between the KRG and central government. Lately, we have seen hints that pragmatism might be gaining over entrenched principles. This was most clearly evident during the June 1 event to mark the addition of oil produced under KRG Production Sharing Contracts (PSCs) into the federal MoO's export pipelines (refs B, C, and E). Perhaps spurred by the unhappiness of the KRG,s foreign PSC contractors, the KRG accepted federal government terms that the MoO State Oil Marketing Organization would sell all the oil, with the KRG receiving its standard 17 percent share of the revenue, including for the additional oil from its own fields. We do not want to overstate the progress: the KRG and GOI have yet to work out a mechanism to compensate the private oil field developers, a state of affairs that KRG officials had said could only be sustained for a period of months. KRG officials had hoped that they could engage in "quiet diplomacy" to obtain GOI agreement to contribute to the costs of oil field development. We have not yet seen any evidence of such discussions so far, however. It is also important to keep in mind that so far only two contracts have actually been granted permission to export. ¶5. (C) Meanwhile, the GOI MoO could be reaching an impasse in its offers to have IOCs develop Iraq's petroleum resources. Oil Minister Shahristani continues to claim that only Cabinet approval is required for new oil contracts and that this is consistent with the Hydrocarbons Framework Law draft approved by the Council of Ministers (COM) in February 2007. Parliamentarians, however, argue that the contracts must be submitted to Parliament for approval, a requirement that would likely mire the contracts in months of delay. Since Article 130 of the Constitution states "existing laws shall remain in force, unless annulled or amended in accordance with provisions of this Constitution," the issue is not what the draft Hydrocarbons Framework Law contains, but what existing law requires. Specifically, Law number 97 from 1967 requires that all hydrocarbons development contracts be approved by the parliament. COR members quote this law most often in their claims that all current and future contracts signed by the MoO and approved by the COM will be illegal. These complaints have led IOCs to take a cautious approach. In the absence of new legislation, the companies prefer that any contracts be ratified by the CoR to avoid uncertainty following a change in government. How the COR reacts to such contracts in this election period is problematic at best. ¶6. (C) Conventional wisdom suggests that movement on hydrocarbons legislation is difficult before national elections early next year, but there are hints that progress might be possible earlier, perhaps due to the dilemma of contract ratification,. On July 8, the Oil Ministry spokesman told an Arabic language wire service that Parliament should "speed up its enactment of the oil and gas law, given its importance to the development of the oil industry." In a June 15 meeting with EMIN (ref A),Prime Ministerial advisor Thamir Ghadban opined that his conversations on the margins of a UNAMI-arranged conference indicated that KRG representatives were taking a more pragmatic approach. In his view, however, renewed discussion could not happen before the KRG's July 25 election, when current Deputy Prime Minister Barham Salih is expected to Qcurrent Deputy Prime Minister Barham Salih is expected to become KRG Prime Minister. (Salih is considered more of an Iraqi nationalist than current KRG Prime Minister Nechirvan Barzani.) These changing attitudes combined with a need for COR members to show some progress made to their constituents before the parliamentary elections, could create some room for progress. State of Play -------------- ¶7. (C) Our soundings of COR Oil and Gas Committee members indicate that they view the February 2007 draft, the only draft that the COM explicitly approved, to be the starting point for discussion (ref D). The main sticking point appears to be four annexes which designate what are "producing fields," "non-producing fields nearing contracted production," "non-producing fields not nearing contracted production," and "exploration blocks." The categories attempt to implement the provisions of the Constitution's Article 112, which begins: "The federal government, with the producing governorates and regional governments, shall undertake the management of oil and gas extracted from present fields,..." The provision regarding "present fields" implicitly derogates management of fields other than "present fields" to regions and governorates since Article 115 states: "All powers not stipulated in the exclusive powers of the federal government belong to the authorities of the regions BAGHDAD 00001972 003 OF 004 and governorates that are not organized in a region." Thus, of the four annexes, INOC would manage the first two categories of fields ("present fields") and regions and governorates would manage the last two. ¶8. (C) Kurdish members of the COR claim that while draft February 2007 law had been properly reviewed by the COM, the MoO added the annexes after COM approval and so the law cannot come before the COR with the annexes attached. As a result, Kurdish and Arab members of the Oil and Gas Committee are divided over the annexes. Deputy Chair Dr. Abdul-Hadi Al-Hassani, from the Da'wa Tanzim party, says that the law must move forward with the annexes intact and the COR should debate them. Dr. Ali Balo, of the KDP, states that the law cannot move forward with the annexes intact, but can move forward with a modified version of the annexes. The third ranking member of the committee and outspoken critic of all the current contracts the MoO is embarking upon, Jaber Khalifah Jaber of the Fadhila party, suggested that the law should be moved forward as is and the annexes should be submitted by the COM at a later date. Others on the committee have stated that the only thing that can resolve the impasse is a high ranking meeting between the heads of the central government and the KRG. While the committee members have said they wish to put politics aside and review the law on its technical merits, this has not happened. ¶9. (C) Most recently, on July 15, Dr. Hadi told us that the COR would have the first reading of the draft 2007 law with annexes during the COR session starting July 21. Dr. Hadi said that the committee had agreed as a whole, including Dr. Balo, that the law could proceed and the COR would debate the annexes. ¶10. (C) The watershed July 13 signing of the Nabucco gas pipeline Intergovernmental Agreement provides a basis for mobilizing Turkey, the EU, and European governments to urge passage of hydrocarbons legislation. The best near-term source of Iraqi natural gas is from two gas fields developed under a service contract with the KRG. The gas cannot be exported until the Hydrocarbons Framework Law has been enacted to provide a clear legal understanding of what rights the KRG has in upstream development and what rights the federal government retains. Until this understanding is reached, natural gas exports from the KRG and the construction of a pipeline to carry the gas likely will not take place. Without the legislation, any attempt to construct a pipeline across national boundaries would inflame tensions between Baghdad and Erbil. Degrees of Separation -------------- ¶11. (C) The base issues dividing the two sides on the Hydrocarbons Framework law are the power of the center versus the rights of the regions, and the degree of state control of Iraq's hydrocarbons resources. The MoO added the annexes to the draft 2007 law with over 92 percent of Iraq's known reserves going to INOC. The KRG's response called for no fields to go to INOC, but for INOC to bid on and compete for fields like any other company. Additionally, it shifted the reserve allocation from over 92 percent to the federal government to approximately 52 percent to the federal government. The annexes are subjectively distributed without objective criteria to determine which fields should fall into which annexes. A solution could be found by agreeing on objective criteria or a negotiated settlement could be Qobjective criteria or a negotiated settlement could be reached by the two sides sitting down and haggling over the field allocation. The fields in annexes 1 and 2 could be given to the federal government, rather than directly to INOC, to determine their disposition just as annexes 3 and 4 go to the regions. ¶12. (C) Contract approval for the fields and creation of the overall hydrocarbons strategy for Iraq would fall to the Federal Oil and Gas Council. This body would have representatives of the region(s),producing provinces, federal government and three experts in the fields of oil, economics, and finance. Assigning these experts will probably create the next issue for the law. Under the legislation they would be named by the COM, a federal entity. Giving the region(s) a greater hand in influencing or naming one of these experts could be a negotiated trade-off and help influence the Iraqi hydrocarbons sector more toward a free-market system, currently favored by the KRG, from a mostly state-controlled system, currently favored by the central government. COMMENT BAGHDAD 00001972 004 OF 004 -------------- ¶13. (C) The Embassy (as well as other international entities in Baghdad) is urging the Iraqi authorities to look for compromises on specific elements of the hydrocarbons law package. All sides have agreed to fundamental principles that oil and gas resources belong to all Iraqis and that management of the resources should be carried out jointly by the federal, regional, and provincial governments. This consensus resulted in agreement on the language and specific terms of the February 2007 draft law. We are defining more precisely what the remaining issues are and pushing the Iraqis on those specific issues. The annexes seem to be a, if not the, major sticking point, and we are focusing more carefully on them. We are also coordinating with other embassies in Baghdad to use a single message on HCL. Additionally, we will work with the other embassies to influence the IOCs from their respective nations to engage the GOI and KRG on passage of the HCL as an easier holistic solution rather than pursuing one-off type deals for each of them, which could prove fragile and left to the whims of the GOI/KRG relations. ¶14. (C) To parallel our line here, we recommend that we convey the following points during the Prime Minister's visit: -- Iraq needs new hydrocarbons legislation to bring management of its petroleum resources in conformance with the Constitution and to bring clarity on procedures to approve contracts with international oil companies on upstream development. Without the legislation, the validity of the contracts will be in doubt. -- Consideration of the draft law does not need to wait on resolution of other Arab-Kurd issues, since passage of the law is so critical for the increases in crude oil production that are necessary for government revenues and economic growth. -- The change of leadership after KRG elections provides an opportunity to make a fresh start. We urge the GOI leadership to reach out to the new KRG Prime Minister with an offer to renew a serious discussion on the way forward specifically on hydrocarbons legislation. -- The KRG and GOI both state that the draft 2007 Hydrocarbons Framework Law will pass. Each time the COR has turned back the law due to the four annexes attached to it. -- These annexes divide the fields of Iraq between federal government authority and that of the region(s). -- Is there no way the authorities in Baghdad and Erbil can reach a compromise deal on these four annexes and compromise on the specific fields they encompass? -- Can we or another party be of assistance to bring this issue to a close and bring the international oil companies with their capital investment and expertise to Iraq and get Iraq the revenue it needs to rebuild? FORD