United Nations Assistance Mission for Iraq, UNAMI Baghdad Iraq Office of Constitutional Support

1
United Nations Assistance Mission for Iraq,
(UNAMI) Baghdad -
Iraq Office of Constitutional
Support

• Presentation at Forum on Federations Conference
• Erbil, KRG, November 4-5, 2008
• Strengthening Iraqs Constitutional Framework

2

• ABOUT OCS
• The United Nations Assistance Mission for Iraq
  (UNAMI) consists of two pillars
• Political
• Reconstruction and Development
• A Human Rights Office which is linked to the
  Office of the UN High Commissioner for Human
  Rights (OHCHR) is established in UNAMI.
• The work of the Political Pillar is carried out
  by three offices - the Political Affairs Office
  (PAO), Electoral Assistance Team (EAT) and the
  Office of Constitutional Support (OCS). A Deputy
  Special Representative of the Secretary-General
  oversees the work of the political pillar on
  behalf of the Chief of Mission, the Special
  Representative of the Secretary-General. The
  political pillar operates principally out of the
  mission headquarters in the Baghdad International
  Zone.
• BACKGROUND
• After the formation of the Transitional National
  Assembly and upon the request for assistance from
  the Transitional Iraqi Government, UNAMI provided
  support and advise to the constitution-making
  process in the following principal areas
• Promoting dialogue on core constitutional issues
  related to the substance and process of
  constitution-making
• knowledge sharing
• institutional support through capacity building
• media and public outreach
• and coordination of international governmental
  and non-governmental assistance to the
  constitutional process.

3

• THE CONSTITUTIONAL REVIEW PROCESS
• OCS provided legal and constitutional advice to
  the Constitutional Review Committee as a whole,
  various members of the CRC individually, and
  senior Iraqi political leaders. OCS presented
  the CRC with a detailed set of constitutional
  submissions on priority issues and subsequently
  engaged in direct dialogue with key players on
  the Committee, including its three Chairpersons.
  Upon invitation, OCS also addressed the Committee
  during one of its plenary sessions to further
  elaborate on the recommendations contained in the
  OCS submissions and to respond to the questions
  of Committee members.
• OCS delivered submissions to the CRC on six
  substantive constitutional issues and one
  procedural issue. These included submissions on
  fiscal federalism federalism the Federation
  Council independent institutions the Judiciary
  and human rights. The submission on human rights
  was a triumvirate submission involving input
  from the UNCT (in particular UNIFEM, UNESCO,
  UNICEF) and the UNAMI Human Rights Office. OCS
  also submitted written advice on the design of
  the Constitutional Review process itself.
• In OCS engagement with the CRC, and in the
  Committees statements to the media, the
  Committee indicated that they utilized the
  submissions made by OCS to help set their agenda
  and frame their discussions. The CRC requested
  additional detail on some issues and textual
  formulations on others, in response to which OCS
  drafted targeted supplemental submissions for the
  Committee.

4

• LEGISLATIVE INITIATIVES
• During the course of the constitutional review,
  OCS became involved in commenting on several
  pieces of legislation that were before the CoR.
  OCS worked behind the scenes both to monitor the
  progress of these legislation and to indirectly
  engage with advisors on the legislation. At
  times, OCS faced scepticism over whether or not
  it should be engaging on such issues, especially
  given their political sensitivity. OCS took the
  course of action it did because the outcome of
  specific pieces of legislation will affect issues
  under consideration in the constitutional
  process.
• OCS engaged on a number of pieces of draft
  legislation including the draft Hydrocarbon Law,
  draft Revenue Sharing Law, draft Law on the
  Formation of Regions, and the draft
  De-Baathification Law.

5

• KEY CHALLENGES
• The Constitutional Review Committee (CRC) of the
  Iraqi Council of Representatives submitted its
  Second Report to the Iraqi President,
  Vice-Presidents and the Prime Minister in July
  2008. This report outlines a set of questions
  within the Constitutional Review Process on which
  the CRC has been unable to reach a political
  consensus. The key issues include
• The powers of the President of the Republic, the
  Prime Minister and the ministers
• Provisions pertaining to hydrocarbon regulation
• The powers of the Federation Council (Upper House
  of Parliament)
• The respective powers of regions and
  governorates
• Article 140 (Normalization of Kirkuk) and
• Article 41 (Civil Status).
• As these issues relate to the very core of the
  design of the Iraqi state, the importance of the
  Constitutional Review Process and, consequently,
  UNAMIs role in facilitating a consensus under UN
  Security Council resolution 1830, remain
  undiminished.

6

• NEXT STEPS
• The OCS work plan for 2008/09 assigns priority to
  the divisive issues relating to the
  Constitutional Review Process, particularly the
  question of Kirkuk, the management of hydrocarbon
  and water resources, and the respective powers of
  the federal government and the regions. In
  addition, OCS will support efforts towards public
  sector reform, as none of the constitutional and
  legislative reforms in which the unit is involved
  can be expected to bear fruit without an
  effective civil service that can implement and
  apply them.
• Over the remainder of 2008 and throughout 2009,
  the UNAMI Office of Constitutional Support (OCS)
  will therefore continue to provide technical and
  legal advice on constitutional and legislative
  matters to the Iraqi Council of Representatives
  and its Committees, including the CRC, as well as
  other relevant elements of the Government of
  Iraq. This advice may take the form of specific,
  one-off opinions on particular pieces of
  legislation, such as the Provincial Powers Law,
  or the delivery of multi-party technical
  roundtables with the participation of relevant
  experts. OCS will also develop opportunities for
  continued political dialogue among Iraqs
  principal factions, in order to facilitate a
  consensus on the contested constitutional
  provisions.

7

• UNAMI OCS delivered two Baghdad-based workshops
  on the Constitutional Dimensions of Hydrocarbon
  Revenue and Water Sharing in July 2008, together
  with UNOPS and UNDP and with funding support from
  the European Union. These roundtables were very
  well received by our Iraqi interlocutors and
  broke new ground in that they led to a
  constructive discussion between parliamentarians
  and ministerial staff in the area of water
  sharing. Leading Iraqi interlocutors have
  requested continued support through such
  discussions. OCS therefore plans to continue to
  employ the format of these tables for subsequent
  events, as outlined below. The timing and
  substance would take close account of and, to the
  greatest extent possible, attempt to achieve
  synergies with the Missions ongoing work in the
  area of Disputed Internal Boundaries (DIBS)
• OCS is planning for a series of roundtable
  discussions and conferences of one or two days
  duration inside Iraq through fall 2008 and
  throughout 2009, in support of the Constitutional
  Review Process and the lead-up to a national
  referendum on the constitutional amendments. In
  particular, we envision a high-level
  conference/forum with the heads of the
  newly-elected Provincial Councils, the Governors,
  the KRG/KNA, senior Iraqi Parliamentarians and
  officials in the executive branch. The first
  session of this conference would be a
  two-to-three day event, held in Baghdad in
  May/June 2009, with the objective of a structured
  discussion of principles of federalism, including
  shared powers, in the context of the provision of
  public goods and services, as well as the
  processes relating to the formation of regions. A
  second session would be held in Erbil in
  September/October 2009, to serve as a follow up
  to the first.

8

• Supported by UN staff and international experts,
  as appropriate, they will have the continued
  objective of improving parliamentary dialogue on
  the unresolved issues within the Constitutional
  Review, such as hydrocarbon revenue and water
  sharing, regional and federal competencies, and
  the powers of the Presidency. In those cases
  where discussion will focus on constitutionally-ma
  ndated legislation, participants will include
  ministerial officials. In all cases,
  participation from the KRG and KNA will be
  solicited. The roundtable discussions as well as
  interim bilateral meetings will be supported by
  the UNAMI OCS Standing Panel of Experts.
• If it becomes apparent that a constitutional
  referendum will be indeed held at or near the
  time of the next federal elections, UNAMI OCS
  will offer its advice and guidance in preparing
  the Council of Representatives and its respective
  factions, in late 2009, for a public outreach
  campaign in support of the constitutional
  amendments. OCS will also seek to involve Civil
  Society in the public outreach/referendum
  processes, drawing on the lessons learned from
  the 2007-08 UNOPS-led Civil Society Project.

9

• Roundtable on Womens and Childrens Rights
  November 23-24, 2008
• The objective of this two-day roundtable will be
  to achieve greater clarity on the rationale and
  status of several legislative proposals dealing
  with the entitlements of widows and orphans in
  Iraq and to stimulate a broader policy discussion
  on law and social policy concerning women and
  children in Iraq. These discussions should lead
  to recommendations and suggestions to be adopted
  by the Government of Iraq and the CRC to
  establish an effective and comprehensive
  legislative framework for the constitutional
  protection and advancement of womens and
  childrens rights.
• Roundtable on Hydrocarbon Regulation and
  Federalism (25/26 Nov. 2008).
• The issues of the calibration of federal and
  regional powers as well as hydrocarbon revenue
  sharing require both constitutional and
  legislative clarity. The objective will be to
  deliver a forum for a focused, intensive
  discussion over the course of two days on the
  principles of applied federalism as well as
  specific options for Iraq in such areas as
  security, the sharing of natural resources,
  including water, oil and gas, and financial
  competencies.

10

• Roundtable on Public Sector Reform/ROL
  (tentatively Dec 2008).
• The need for public sector (civil service) reform
  is widely acknowledged within Baghdad-based
  representations of international community and
  among key Iraqi interlocutors. Efforts with
  respect to the Constitutional Review and
  legislative development would be in vain unless
  an effective, functional civil service can apply
  and enforce the agreed-upon legal framework. For
  this reason, UNAMI OCS and PAO have taken up the
  role of co-champions of this issue, together with
  UNDP. An initial roundtable discussion on this
  issue in Baghdad, planned for mid-December 2008,
  would have the objective of bringing together a
  select group of key players, many of whom are
  already involved in or are planning related work,
  in order to agree on a draft work plan or way
  forward. In light of the complexity and
  magnitude of this issue, the initial roundtable
  will require a substantial amount of preparation.
  For the same reason, it is understood that this
  initial roundtable would need to be followed by a
  series of discussions, within a coordinated
  process that could be led by the UN.

11

• Roundtable on Water Sharing (Tentative Winter
  2009).
• This would be a follow up to the OCS/UNDP-led
  Roundtable on the Constitutional Dimensions on
  Water Sharing held on 14 July 2008 at the Rasheed
  Hotel. That event included participants from the
  CRC and Iraqi Parliament, officials from the
  Ministry of Water Resources, as well as Iraqi and
  UN experts. The discussion mapped out the
  complexity of the issues, including the
  transnational dimension to water sharing and also
  generated some specific proposals for possible
  amendments to the constitutional text. In
  particular, participants focused on a proposal by
  UNDP for the creation of an inter-ministerial
  coordinating body. In view of the number of
  ministries that are involved in the
  administration of water (including the Ministries
  of Water Resources, Electricity, Municipalities
  and Public Works, and Agriculture),
  inter-ministerial coordination remains a
  paramount challenge, and continued dialogue will
  be necessary.
• Roundtable on Minority Rights Protection
  (Tentative January 2009).
• This roundtable would have the broader objective
  of addressing minority rights issues, in the
  broader context of federalism, the Constitutional
  Review Process and related political
  negotiations, including the discussions on the
  Disputed Internal Boundaries, the status of
  Kirkuk and power-sharing. It is anticipated that
  any solution that is, ultimately, acceptable to
  all parties would have to be supported by strong
  minority rights guarantees. Depending on the
  status of the Iraqi political discussions at the
  time, the roundtable could therefore serve as a
  venue to float a UNAMI draft of a minority rights
  charter. The agenda should stress such issues as
  institutional independence and the importance of
  effective and impartial mechanisms that ensure
  public access to justice (courts, tribunals,
  ombudspersons).

12

• Conference on the Iraqi Constitution (Tentative
  February 2009).
• Following the submission of the CRC Report to the
  "31 in July 2008, CRC Chair Sheikh Hammoudi is
  preparing to conduct follow-up discussions over
  the coming weeks on the unresolved constitutional
  issues with the Advisory Council of the 31,
  and with Tareq Al Hashemi and Barham Saleh. On
  the assumption that, following these discussions,
  the Government of Iraq (including the CoR) would
  continue to welcome the assistance of the
  international community in working towards a
  resolution of these issues, UNAMI OCS has given
  some early thought to a substantial,
  well-publicized UN/EU-led conference on the Iraqi
  Constitution for early 2009. The event would
  serve as an opportunity to
• signal that the Constitution remains a key item
  on the Iraqi and UNAMI agenda for 2009
• demonstrate to the Sunni community that the UN
  continues to support the Review Process
• send a strong message of international support
  for the Constitutional Review Process
• outline an Iraqi work plan for 2009 to address
  the unresolved constitutional questions
• allow Iraqi officials to network with
  counterparts from other jurisdictions
• consolidate and expand relationships between the
  UN/EC and Iraqi government
• set the stage for a broader UN effort to
  encourage National Dialogue/Reconciliation
• elevate the substance of the other planned
  2008-09 OCS-led roundtables to a higher level.
• This event, conceptualized as a launch-pad for
  continued work on the Iraqi Constitution during
  2009, could trigger interest in an ongoing
  IraqUNEU dialogue on constitutional governance,
  democratic institutions and other aspects of
  public administration.

13

• ICFS CONTRIBUTION TO FEDERALISM IN IRAQ
• The establishment of the Iraq Centre for
  Federalism Studies can make a substantial
  contribution to the evolution of the theory and
  practice of federalism in Iraq. Consideration
  should be given to establishing a branch of this
  centre in Baghdad.
• There is no gold standard of federalism.
  Federalism cannot be imposed from above or
  outside. UNAMI, the Forum on Federations and the
  ICFS can help the people of Iraq to design and
  construct a federal system that avoids
  asymmetries and assures national cohesion.

14

• CONCLUSION
• In its overall engagement in Iraq, UNAMI has
  tried to ensure an Iraqi led and owned political
  process encouraging inclusiveness, transparency
  and participation at all stages.
• The Constitutional Review Committee (CRC)
  continues to face considerable challenges in
  relation to the remaining disputed issues being
  considered by the committee. Committee members
  have expressed their view that these issues are
  largely political in nature and require the
  intervention of national political leaders. The
  Chair of the CRC, Sheikh Humam Hammoudi,
  indicated to the UNAMI Office of Constitutional
  Support (OCS) that the Committee may request a
  further extension of its mandate until the end of
  the year to address outstanding constitutional
  issues.