2020
Statelessness & Citizenship Review
2(2)
such as a birth certificate or an identity card — confirming that official
registration.
The UN responded to the World Bank’s initiatives by the establishment of an
inter-agency Legal Identity Expert Group in 2018, which managed to come to an
agreed definition of ‘legal identity’ — in language that underlines both the
significance of the concept and the difficulty of tying down what it means in
simple terms acceptable to all those interested in the outcome:
Legal identity is defined as the basic characteristics of an individual's identity. e.g.
name, sex, place and date of birth conferred through registration and the issuance
of a certificate by an authorized civil registration authority following the occurrence
of birth. In the absence of birth registration, legal identity may be conferred by a
legally-recognized identification authority. This system should be linked to the civil
registration system to ensure a holistic approach to legal identity from birth to
death. Legal identity is retired by the issuance of a death certificate by the civil
registration authority upon registration of death. 110
The definition, adopted for what is now the UN ‘Legal Identity Agenda’,
highlights the importance of civil registration, in particular birth registration, to
the idea of legal identity. Although it omits nationality as part of identity (by
contrast to art 8 of the CRC), it pushes back against an approach based on
biometric enrolment of any resident without distinction. If an adult registration
process is undertaken, the UN considers it must be linked to the civil register rather
than free standing: the Aadhaar approach thus does not ‘provide legal identity’
under this definition. This is important for those interested in the eradication of
statelessness. Although birth registration does not (usually) record nationality or
legal status in a country, it does record the information on the basis of which
nationality, and many other rights, may be claimed. The ‘foundation’ it creates for
recognition of a person’s legal identity is thus stronger (or ‘thicker’) than an
approach based solely on biometric identifiers. Death registration is also important
for the recognition of elements of the legal identity, and associated rights, of
spouse and children (the legal identity of the deceased in fact lives on in this
record). Civil registration generally, including marriage registration, is critical to
legal status, especially for rights based on family connections, including
nationality: this applies both in countries where nationality is attributed based on
birth in the territory, and in those where legally recognised descent from a citizen
(or a person resident in the country at a certain date) is the rule.
Operational Guidelines were adopted under the auspices of the Legal Identity
Expert Group in May 2020 for UN country teams, ‘to support a cohesive approach
across the United Nations system’. 111 This document continues the process of
providing greater definitional clarity, and emphasises the importance of setting the
SDG Target within a human rights framework, including the protection of
migrants, refugees and the forcibly displaced. But although the difficulties created
for migrants by lost or destroyed civil status documents are highlighted, 112 the
guidelines do not consider or propose solutions for the difficulties of cross-border
110 United Nations Strategy for Legal Identity for All (Concept Note, United Nations Legal
Identity Expert Group 2019) 3 [12].
111 Implementation of the United Nations Legal Identity Agenda: United Nations Country Team
Operational Guidelines (Operational Guidelines, United Nations Legal Identity Expert
Group, United Nations Development Programme and UNICEF May 2020) 7
<https://unstats.un.org/legal-identity-agenda/documents/UNCT-Guidelines.pdf>.
112 ibid 70.
268
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