Statelessness Working Paper Series 2016/08 interventions: non-discriminatory laws, accountable and inclusive institutions, and access to justice for the most vulnerable. Across these interventions are a set of procedural and normative requirements. The framework implicitly embraces both a top-down approach to reform, focused as it is on laws and institutions, but also a bottom-up approach, supporting the potential of individual rights-holders to demand that the government meet its legal obligations. 2. De jure and de facto discrimination in nationality provision Any review of rule of law conditions must start with its Constitution or its equivalent. Constitutions, in the words of UN Deputy Secretary-General Jan Eliason, “…form the central repository and ultimate safeguard of the rule of law at a national level, providing a blueprint for a functioning system of rule of law and protecting and empowering the institutions that implement and enforce this system.” As the body of fundamental principles or rules by which a state is governed, constitutions also often define the terms of nationality and citizenship. Article 18 of the Iraqi Constitution of 2005 provides that, “Iraqi nationality is a right of every Iraqi and is the basis of his citizenship.”4 Article 18 also provides that, “An Iraqi is any person born to an Iraqi father or mother.”5 These and other Constitutional provisions would bring gladness to the hearts of hundreds of thousands of marginalized men and women in Iraq, as a promise to reverse arbitrary withdrawals of nationality under Sadaam Hussein’s regime.6 Unfortunately, however, Iraq’s 2006 Nationality Law contains a significant number of provisions that discriminate against women. For example, Article 4 of the 2006 Nationality Law stipulates that an Iraqi woman who gives birth outside of Iraq confers nationality only if she applies for Iraqi nationality for her child within one year of his or her reaching majority, and providing that the child's father is unknown or stateless and the child is residing in Iraq at the time of the application.7 In other words, an Iraqi mother cannot pass nationality to a child born outside of the country on an equal basis with an Iraqi father. Under the terms of Article 5, a non-Iraqi mother who was nevertheless born in Iraq cannot pass nationality on to a child born in the country on an equal basis with a non-Iraqi father who was also born in Iraq.8 Further, a woman who was born in Iraq who has lost her Iraqi nationality through marriage to a foreigner cannot regain it on the termination of marriage, on the same basis as a man, similarly situated.9 Gender discrimination in nationality laws is by now a well-documented phenomenon. According to UNHCR, laws or policies prohibiting or limiting the rights of women to pass citizenship to a child are 4 Iraq Constitution 2005, Art 18, available at http://www.washingtonpost.com/wp-dyn/content/article/2005/10/12/AR2005101201450.html. 5 In 2011, the Iraqi Parliament also lifted its longstanding reservation to Article 9 of the Convention on the Elimination of Discrimination Against Women (CEDAW), providing for equal rights in regards to nationality. See UN Convention on the Elimination of Discrimination Against Women (CEDAW), Concluding observations on the combined fourth to sixth periodic reports of Iraq, CEDAW/C/IRQ/CO/4-6, para. 6. 6 See Institute on Statelessness and Inclusion, The World’s Stateless, December 2014, p. 107. 7 Iraqi Nationality Law, Law 26 of 2006, Art. 4, 7 March 2006, available at http://www.refworld.org/docid/4b1e364c2.html; UN High Commissioner for Refugees (UNHCR), Background Note on Gender Equality, Nationality Laws and Statelessness 2015, 6 March 2015, available at http://www.refworld.org/docid/54f8369b4.html. 8 Iraqi Nationality Law, Law 26 of 2006, Art. 5, 7 March 2006, available at http://www.refworld.org/docid/4b1e364c2.html; Equality Now, The State We’re In: Ending Sexism in Nationality Laws, January 2016, available at http://www.equalitynow.org/sites/default/files/NationalityReport_EN.pdf. 9Iraqi Nationality Law, Law 26 of 2006, Art. 13, 7 March 2006, available at http://www.refworld.org/docid/4b1e364c2.html; Equality Now, The State We’re In: Ending Sexism in Nationality Laws, January 2016, available at http://www.equalitynow.org/sites/default/files/NationalityReport_EN.pdf. 2