NEW NATIONALITY PROVISIONS AND THEIR IMPACT ON INTERNATIONAL PERSONAL STATUS RULES
Keywords:
Nationality rulings, personal status conflict, the principle of equality, Islamic lawAbstract
Articles 19-24 of the Iraqi Civil Code No. 40 of 1951 regulate the subject of conflict of laws rules in personal situations, which refer to the individual's personal law, namely the Nationality Act, if the nationality of women and men is of equal legal value under the Iraqi Constitution in force for the year 2005. (18/2), article (3/1) of the Iraqi Nationality Law in force No. 26 of 2006, and Act No. (33) In 2011, the Act lifting the reservation of the Federal Republic of Iraq to Article IX of the CEDAW Convention requires a review of these articles of the Civil Code in order to achieve the practical equality of the principle of the conceptual equality of women's nationality with men. Perhaps the question here is whether such an amendment can be achieved, assessed and effected, which has created a major problem through the extent to which such an amendment is opposed to the provisions of the Islamic Shari 'a in terms of the reliance of the Personal Status Law on the rules of the Islamic Shari'a
References
Medina, during the era of the Holy Messenger of Allah (peace be upon him) and after, where the Islamic state existed and worked with the Islamic nation, and it did not happen that the political authority of the state was narrower than the geographical spread of the nation, Fadel Al-Saffar, "Fiqh of the State", Part 1, 1st Edition, Qom, Iran, 2005, p. 43.
Muhammad Mahdi Shams al-Din, "The System of Governance and Administration in Islam", 4th Edition, International Foundation, Beirut, 1995, p. 535.
Abdul Zahra Al-Bandar, "Islam and National Identity", Al-Mu'tari Magazine, "Patriotism from an Islamic Perspective", Al-Mu'tari Magazine (The File of Homeland, Citizenship and Patriotism), Institute of Arab and Islamic Studies, London, Third Issue, October, 2001, pp. 139-140.
Muhammad Hamid Allah, Political Documents in the Prophet's Era and the Rightly Guided Caliphate, 5th Edition, Dar Al-Nafais, Beirut, 1985, p. 40.
Ibn Abi Al-Hadid Al-Mu'tazili, Sharh Nahj Al-Balaghah, Sheikh Muhammad Abdo, Tah: Muhammad Abu Al-Fadl Ibrahim, 1st Edition, Dar Revival of Arab Books, Beirut, 1959 AD, p. 365.
Muhammad Al-Qazzaz, The Medina Document, The Document of Truth and Justice, The Medina Document Conference (The Complete Works of the Research of the First Annual Scientific Conference), Section I (The Medina Document, The Radiance of the Prophet's Legacy of Civilization and Human Thought), Kufa Studies Center, University of Kufa, Najaf, Iraq, 2012, p. 529. Indeed, it is not possible to reach a definitive judgment on the nature of politics, as politics itself is constantly evolving, and new fields enter into it in each era that make it imprecise to define its definition. It is noted in detail: Hassan Izz al-Din Bahr al-Uloom, "The Dialectic of Theocracy and Democracy", Dar Al-Rafidain, London, 1st Edition, 2006, p. 366.
Muhammad Hussein Fadlallah, "Fiqh al-Sharia", Dar al-Malak, Beirut, 1995, p. 284.
Within the framework of the texts - equality - constitutional, every text came in the general form - without exception - i.e. the formula of the Iraqis, as it means equality. In general, these texts can be diagnosed.
The second paragraph of Article IX of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) stipulates the following: " States Parties shall grant women an equal right with men with regard to the nationality of their children," and Article II of the Law on the Ratification of the Convention on the Elimination of All Forms of Discrimination against Women No. 66 of 1986 states: "Ratification and accession to this Convention does not make the Republic of Iraq bound by virtue of Article II of the Convention in its paragraphs (f) and (g), as well as Article IX with its two vertebrae."
The distributed application means sufficiency with the conclusion of a valid marriage with the fulfillment of the conditions required by the law of each of them only without taking into account what is determined by the law of the other spouse, either the universal application, that is, the fulfillment of the objective conditions prescribed in the law of each of the spouses, that is, the meeting of the conditions of the two laws together. For more details: Hassan Al-Hadawi and Ghaleb Al-Daoudi, Private International Law, Section II (Conflict of Laws, Conflict of Jurisdiction and Enforcement of Foreign Judgments), 1st Edition, Ministry of Higher Education and Scientific Research, Baghdad, Iraq, 1982, p. 105.
Close to this idea in the field of international arbitration: - Ibrahim Fadlallah, Arbitration in the face of the conflict of cultures, Arbitration Magazine, (Department of Jurisprudence), Second Issue, April, Distribution of Al-Halabi Human Rights Publications, Beirut, 2009, p. 24. Also: Abdul Hamid Al-Ahdab, Good hosting of Paris for arbitrations that apply Islamic law, Chapter of Jurisprudence, Arbitration Magazine, Volume 4, April 2010, Second Year, p. 33.
Taking into account the case whether the conclusion that was concluded in its place should include the controls required by the Iraqi Personal Status Law of 1959, based on Islamic law, such as mutual consent, for example, and as stipulated for example in Articles 10 and 11 of the Iraqi Personal Status Law - as we mentioned earlier -.
- The husband's law applies to the effects of marriage - according to the text of the second paragraph of article 19 Iraqi civil - a principle that opposes the principle of equality between women and men, but it can be said that the majority is the belonging of the spouses to the same State, and even if they differ in nationality at the moment of marriage, it is through marriage that the wife - or even the husband sometimes - seeks to acquire the nationality of her husband's State.
The provision of the fifth paragraph is useless in other cases, such as the fact that the husband is Iraqi in regard to lawsuits related to the personal and financial effects of marriage, or that the husband is Iraqi at the time of divorce or at the time of filing a divorce lawsuit, however, this exception remains more important - reflected in the above -.
Thus, Iraqi law applies to the effects of marriage, including the impact on property (Article 19/2), and this law also applies to divorce, separation, separation, issues related to legal filiation, guardianship and other duties between parents and children.
The principle of equality between women and men can also be applied based on the amendment of the provisions of the paragraphs of Article 19 of the Civil Code, in the event that it is assumed that the text of the fifth paragraph does not exist or even in its presence and to confirm the activation of this principle, as the word wife or mother is added whenever the law of the husband or father is mentioned - with some other technical amendments to complete the statement and accuracy -, provided that we do not need this imposition - for Article 19 - in the presence of the fifth paragraph of this article.
Note in presenting this perception of habitat: - Abbas Al-Aboudi, previous source, p. 115.
What will be mentioned of the perception related to the effects of marriage is also applied to divorce and its joints, so it was necessary to mention in order to avoid repetition and prolongation.
In detailing this opinion, kindly note: Essam Al-Din Al-Qasabi, Private International Law, Dar Al-Nahda Al-Arabiya, Egypt, 2002-2003 AD, p. 852.
It may be important to pay attention to some of the details and determinants of the rule of will in the field of international contracts and to withdraw their contents - taking into account the specificity of the marriage contract, of course - such as the law of the common domicile, the law of the judge or any other issue that may be applied to the issue of attribution of marriage contract issues in the international field.
In detail, please note: Ibrahim Badawi Al-Sheikh, The Enforcement of Egypt's International Obligations in the Field of Human Rights in the Egyptian Legal System, 1st Edition, Dar Al-Nahda Al-Arabiya, 2003, p. 243.
This is the same provision - non-discrimination between women and men - adopted in the text of the second paragraph of article 23 of the Iraqi Civil Code in force.
We separated the statement in dealing with the issue of alimony because of its importance and because the texts mentioned by the Iraqi legislator were very brief, and we also did not stand on the details of alimony issues - neither jurisprudence nor the Iraqi judiciary - so we may be able to claim a precedent in such a field.
It is not clear from the text of the above article - Article 21 of the Iraqi Civil Code - whether it is related to alimony for the wife, alimony for relatives or other types of alimony, so it is possible to indicate the most prominent types of alimony and identify the debtor - as in the above -.
This is with regard to the husband's alimony on the wife.
Article II, in its first paragraph of the Iraqi Constitution in force for the year 2005, stipulates the following: "First: Islam is the official religion of the state, and it is a basic source of legislation: a- It is not permissible to enact a law that contradicts the constants of the provisions of Islam..."
In this article, there is an explicit and clear text on the specificity of the sponsorship of children and women by the State, and it is perhaps the clearest and most basic picture of the obligation of the father or husband to maintain maintenance.
It is an expense in which equality between women and men is not imagined, because this is abstained and contradicts the constants of the provisions of Islam and the foundations of the legal public order and its explicit texts.
Article 59 of the Iraqi Personal Status Law of 1959 stipulates the following: "(a) If the child has no money, then he shall give it to his father, unless he is poor and unable to provide for alimony and earnings."
Muhammad Hassan Kashkool and Abbas Al-Saadi, Explanation of the Personal Status Law No. 188 of 1959 AD and its amendments, (a jurisprudential legal study, comparison, judicial applications), 1st Edition, Legal Library, Baghdad, None, p. 219.
Taking into account that this change of nationality should not be conflicting and one of the impediments to the application of foreign law in Iraq.
In application of this, we note the judiciary of other countries in the Christian world, where we find that ideas have developed very quickly, the German Federal Supreme Court issued a historic ruling on October 11, 2006, in which it decided that the provisions of Catholic law that do not allow divorce, violate public order in Germany, and the dispute before it was between a Syrian-Chaldean Catholic couple, and the law applicable according to the rules of conflict of laws in Germany, is the Syrian law, which provides in this case for the application of Catholic law, The court said: - Marriage is a human relationship that may not force any husband to continue it, if the marriage loses its meaning, and that any foreign law that does not allow divorce is a law contrary to public order in Germany, and may not be applied even if it is the law originally applicable according to the rule of conflict of laws, note in this kindly: - Samir El-Sayed Tanago, Legal Issues Pending between the State and the Church, Journal of Law for Legal and Economic Research, Alexandria University, Second Issue, New University Publishing House, 2007, p. 378.
Alimony in Christian law is a financial assignment that the husband owes to his wife in return for her retention of him in fact or judgment, and alimony is one of the effects of marriage, and it is a financial right of the wife on her husband who is obligated to perform it after meeting its conditions.
For more details: Ibrahim Al-Fard Traboulsi, Personal Status Systems in Lebanon between Authenticity and Modernization, 1st Edition, issued by Human Rights Publications, Beirut, 2011, p. 217.
As for the rest of the articles contained in the Iraqi Civil Code in force, they are also not looking at a formula related to being a man or a woman, but the whole thing is only a regulatory context to address issues of conflict in legislative jurisdiction between Iraqi law and other laws.
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