‘Legal Identity for All’ and Statelessness
relations and a nationality are rights in international law; states have corresponding
obligations.
For private international law, a renewed effort is needed within The Hague
Conference to develop stronger guidance on the acceptance and/or reestablishment of civil status documents across borders. Painful as the process
would be, it is necessary. The draft UN Guidelines on the Legislative Framework
for Civil Registration, Vital Statistics and Identity Management are also an
opportunity to provide a more robust legal and procedural framework for the
resolution of the status of those whose nationality is not clear. 118 A final or revised
version could include a framework for procedures to resolve cases of
undetermined nationality, including the late registration of the various different
aspects of a person’s legal identity, and transcription or independent confirmation
and registration of civil status events that originally took place in another country.
The World Bank’s Principles on Identification for Sustainable Development are
also under review. 119
From the perspective of international human rights law, art 8 of the CRC
provides the most useful entry point. In line with the classic tripartite set of
obligations, states parties to the CRC should respect, protect, and fulfil the right to
identity. There is no existing UN document setting out the content of these
obligations in this particular field. However, the outlines are reasonably clear; I
propose the following summary. ‘Respect’ implies that the state will recognise
that the identity belongs to the individual and will not interfere with its enjoyment:
for example, destroy identity documents or records, or annul or amend them
against the person’s wishes without a court order, or arbitrarily remove children
from their families, broadly defined. ‘Protection’ requires the state to ensure that
records and documents of the key elements of identity (within that state’s legal
system) are preserved from destruction by others, secured by privacy and data
protection laws, and re-established if destroyed, and that private sector registration
efforts are properly regulated. The elements of ‘fulfilment’ would include an
obligation to enable comprehensive civil registration (including a right to consular
assistance for nationals outside the country and their children born abroad), and to
ensure that these registers are easily accessible, including from other countries,
and remain so as archives; to adopt a national legal framework that prevents and
reduces statelessness; and to establish protection systems to implement these
rights. In all cases, basic principles of international human rights law require
effective and accessible independent oversight, by courts and other mechanisms,
of decisions about the registration of legal identity, including nationality. All of
these could be elaborated in greater detail, and prioritised for action according to
context.
SDG Target 16.9 is both an opportunity and a threat for stateless persons and
those at risk of statelessness. The opportunity is the belated emphasis on the
importance of official recognition and registration as a means for an individual to
assert rights as a member of society. The threat is the danger that short cuts and
interim solutions, a utilitarian commitment to the majority or to the priorities of
the state rather than the individual, mean those of ‘doubtful’ status are — despite
the SDG commitment — left behind.
118 See Draft Guidelines on the Legislative Framework for Civil Registration, Vital Statistics and
Identity Management (n 113).
119 See Principles on Identification for Sustainable Development (n 105).
271
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