“Legal identity for all” and childhood statelessness
1. The Sustainable Development Goals and legal identity: Leave no one behind
In September 2015, the UN General Assembly adopted the Sustainable Development Goals (SDGs), an ambitious set of objectives for international development to replace and expand upon the fifteen-year-old Millennium Development Goals (MDGs) adopted in 2000. Goal 16 is one of the broadest: “Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels”. Each Goal has a set of more detailed targets: Target 16.9 requires that states should, by 2030, “provide legal identity for all, including birth registration”.
The achievement of Target 16.9 is relevant for the realisation of many of the other SDGs and their detailed targets, and for the overall ambition to “Leave no one behind”. Without a legal identity, in the form of an official entry in a state register, people are invisible to the state and other agencies that are working to fulfil the different goals and monitor their implementation. Effective systems to identify individuals in need will be required, amongst other purposes, to implement social protection systems (Target 1.3); for the poor to have control over land and other assets (Target 1.4); and to measure progress in women’s empowerment (many of the targets under Goal 5). Civil registration in general is also a priority for public health professionals, since recording cause of deaths provides an important source of information around disease and mortality (several targets under Goal 3). A document showing legal identity is essential to “facilitate orderly, safe, regular and responsible migration and mobility of people”, one of the objectives around reducing inequalities within and between countries (Target 10.7).
In principle, SDG Target 16.9 should provide a significant boost to the achievement of UNHCR’s ten-year #IBelong campaign to end statelessness by 2024. The commitment to universal birth registration should particularly assist in the realisation of the ambition to end childhood statelessness. While birth registration in itself does not confer nationality, and is usually not proof of nationality, the official record of the place of birth and parentage of the child provides critical evidence of the facts that enable the child to assert the right to nationality in one or more states.
Yet it is notable that the SDG target endorsed by states is for a less demanding and less specific target—legal identity rather than nationality for all—for which a longer time-frame is also set than the UNHCR campaign. On the one hand, as discussed below, the meaning of “legal identity” is not clear; on the other, a person may have a document that is official proof of identity and yet still be stateless. Moreover, there are concerns that the focus on legal identity may prove to be a distraction from the campaign to eradicate statelessness; in fact, in some contexts it is possible that the SDG may even prove to be damaging, if underlying laws are not reformed before programmes of identification are rolled out. The key problem here is the lack of clarity over the meaning of “legal identity” in the SDGs. How the implementation of the target turns out in practice is yet to be seen: there are opportunities, but also risks.
2. Birth registration in the SDGs and the #IBelong campaign
The SDGs and UNHCR’s campaign to end statelessness agree on the importance of universal birth registration: “the continuous, permanent and universal recording within the civil registry of the occurrence and characteristics of birth, in accordance with the national legal requirements”. Universal birth registration is already a long-standing objective of UNICEF and other agencies concerned with child welfare. Birth registration is important not only for statistical purposes of planning and monitoring government policy, but also to assist in child protection. The requirement for registration and the availability of a birth certificate can help to combat trafficking of children, and provides proof of age for criminal justice, immigration and other government systems.
Birth registration also features as Action 7 in the ten-point action plan for the #IBelong campaign. Birth registration provides evidence of the key pieces of information—where a person was born and who his/her parents are—needed to establish which nationality a child has been attributed at birth or may have the right to acquire later. The concept of birth registration is well understood, and there are extensive international guidelines on its implementation. The obstacles to universal birth registration are also well understood, as are the steps needed to overcome them. They include both simple failures of administration, and deliberate patterns of discrimination based on factors such as birth out of wedlock, sex or legal status of the parent registering the birth, ethnicity, location of birth, or livelihood of the community from which the child comes. In some countries, rules preventing parents without documents from registering the birth of their children make lack of birth registration a hereditary condition.
The proposed indicator to measure progress towards Target 16.9 is the percentage of children under five whose births have been registered, a statistic already collected in many countries through surveys conducted by UNICEF. Although there are important criticisms—from those who argue that the indicator should be the percentage of children under one year old, to capture the completeness of current registration levels, and/or the percentage of the entire population, or who emphasise the importance of the issuance of birth certificates as well as the registration of births—the under-five registration rate is now the established indicator for SDG 16.9. There is no indicator proposed for other forms of recognition of legal identity beyond birth registration, nor consensus on what success in achieving the broader target would look like.
3. Legal identity beyond birth registration
‘Legal identity’ is not a term that has any definition in international law. It seems that different agencies and interest groups are interpreting the SDG target on legal identity according to their own priorities, whether they be child protection, national planning, social protection systems, public health, or, indeed, the ending of statelessness. Among the interest groups are the private sector companies involved in the provision of identity documents, especially those with capabilities in the new biometric technologies.
The problem of definition starts from the distinction that can be made between identity and identification: whereas an identity is what a person (or thing) is, in and of itself, identification is the process of establishing that identity and distinguishing the person (or thing) identified from others. A person’s legal identity, the identity they have in law, thus can (and arguably should in some contexts) be separated from the question of whether they have been formally identified and registered by state authorities and issued a token—such as an identity card—confirming that registration. A range of international human rights standards establish that every person has the right to recognition as a person before the law (enabling that person to assert rights, to enforce contracts, or to defend a case in court): legal identity in this sense is not dependent on existence in any register nor on holding official identification papers; it is already attributed by international law. In the context of statelessness, the rights of a child to a name and nationality are freestanding, and not dependent on the registration of that child’s birth, even if birth registration is a closely related right in international treaties, and may be required by national law in order to give effect to the other rights.
Nonetheless, it has for a long time also been clear that without official registration and proof of legal identity a person’s rights are often significantly curtailed in practice. Rights in international law may indeed be “nonsense upon stilts” if the national legal systems do not support them. Without official recognition that a person exists, and has rights set out in national law, human rights protections may be worth little. As requirements to produce identity documents grow ever more pervasive, a person without those documents is ever more excluded from the ability to participate in economic activity and in society generally.
International development agencies have thus been considering the question of legal identity since well before the adoption of the SDGs. A 2007 publication of the Asian Development Bank outlines the view that legal identity is a matter of legal, rather than physical, personality: a recognised legal identity allows a person to enjoy the protection of the legal system and to enforce rights or demand redress for violations by accessing state institutions. Thus, “Proof of legal identity consists of official, government-issued and recognized identity documents—documents that include basic information attesting to the holder’s identity and age, status, and/or legal relationships.” In 2009, the Inter-American Development Bank (IDB) published a working paper suggesting a somewhat different interpretation: “Legal identity can be understood as a composite condition obtained through birth or civil registration which gives the person an identity (name and nationality) and variables of unique personal identifiers, such as biometrics combined with a unique identity number.”
However, it could also be argued that a person may have multiple legal identities, with corresponding entries in official registers and different rights and obligations according to context (as an infant requiring immunisations, a schoolchild, a parent, a pensioner, a permanent resident, a voter, a person entitled to health care or other benefits, a citizen due to perform military service, a migrant worker…). Only in some countries are all such registers linked to a single national system. It is also possible for a person to exist in many different registers, or a single national database, yet still not be recognised as a national of that state—nor of any other.
Thus, as the IDB noted, depending on the context, there may be little distinction in practice between the situation of those people whose births have been registered but who do not possess a legally valid identification document (whether issued by the state of residence or another state) on reaching adulthood and those who have no official identity documents of any kind, including a birth certificate. However, there is no international consensus on the right or obligation to hold official documentation issued later in life. A consequence is that, beyond registration of births, there is still no definition on what enjoyment of legal identity may mean for the SDG target in each national context or for any particular individual.
4. Legal identity and statelessness
SDG Target 16.9 recognises by its wording that universal birth registration is not a complete solution to the question of legal identity, although it proposes no indicator to measure progress other than the coverage of birth registration among those under five years old. Universal birth registration is equally not a complete solution to the problem of statelessness. Only a few countries provide that a birth certificate is in itself proof of nationality; such a provision in the laws of one country can in any event not bind another state where a child might be entitled to nationality. In some countries, foreign civil registrations have no legal effect even in relation to proof of parentage or marriage. Conflicts of laws mean that some children cannot acquire the nationality of (one of) their parents, even if all details are recorded.
Neither the SDG target nor the #IBelong action plan mention the recording of other life events in a complete civil registration system; although this may also be critical to assert some rights, including the right to the nationality of a particular state. These events include marriage, where birth in or out of wedlock—often defined as a formally registered marriage—creates different rights for children to acquire nationality; adoption, where a child has been adopted from another country; and death, where registration of the death of a parent may be necessary for an orphan to claim rights. The SDG target also does not have any equivalent to Action 8 in the #IBelong campaign, calling on states to issue nationality documentation to those with entitlement to it.
Moreover, although discriminatory practices and administrative blockages hinder universal access to birth registration in many countries, states are often less likely to place obstacles in the way of birth registration than recognition as a national. For those children who do not have at least one parent officially recognised as a national of the country of birth, the risk of statelessness may be high even if the birth of that child is registered. This can be the case even if the parent and the child are both in principle entitled to recognition of nationality of that state under the law. The risk of statelessness is higher in states where the general rate of documentation has historically been low and where new identification systems are being introduced. But even in states where almost everybody exists on one official register or another, this near-universal confirmation of legal identity does not eliminate statelessness. It is very possible for a person to hold proof of legal identity and even of legal immigration status in a country of residence and at the same time to be stateless.
For example, many ethnic Russians in the Baltic states are stateless—they hold the nationality neither of their state of residence nor of the Russian Federation—but the vast majority do not lack a legal identity, since they are legal residents where they live, are issued identification documents indicating that status, and indeed are generally entitled to more rights than other foreigners. Similarly, in Lebanon, there is a longstanding population of stateless persons whose ancestors were not included, or were recorded as foreign, in the population register established in the 1920s following the creation of Lebanon at the break-up of the Ottoman Empire. They are not undocumented—they are, paradoxically, registered and given identification cards as ‘unregistered’ (maktoum al kayd) or ‘registration under study’ (kayd al dars)—and they are recognised as legal residents. However, people with this status have greatly reduced rights in Lebanon compared to full citizens. Although there were efforts to reduce the number of these stateless persons by providing an exceptional route to naturalisation in the 1990s, the number remains high, and increases because Lebanon provides no access to nationality based on birth and residence in the territory, while a Lebanese woman has no right to transmit her nationality to her child in any circumstances. Similar problems exist in Syria, with serious consequences for those who are now refugees.
By contrast, many millions of people in Asian and African countries lack both birth registration and other proof of legal identity, but only some of them are also stateless. Those who are at risk of statelessness are those who lack documents and in addition fall within a group facing discrimination and exclusion within that society generally: typically, members of certain racial, ethnic or religious groups, children born out of wedlock, orphans, trafficked children, refugees and IDPs, and the descendants of people who have migrated from another country—including those who were forcibly transplanted by the colonial powers before independence.
Hence, not everyone lacking proof of legal identity is stateless; while not everyone who is stateless lacks proof of legal identity. This conundrum is recognised by UNHCR’s guidance that statelessness is a mixed question of fact and law. Determining whether a person is stateless, whatever their existing documentation, may require the exhaustion of all avenues to apply for recognition of nationality by any state to which the person has a connection. The often inaccessible and politicised procedures to resolve these questions have encouraged development agencies wishing to mobilise the power of identification to try to work around official blockages.
5. Digital identity and biometric identification
The World Bank’s 2016 World Development Report (WDR), focused on the development benefits from digital technologies, recommends that the best way to achieve the SDG legal identity target is “through digital identity systems, central registries storing personal data in digital form and credentials that rely on digital, rather than physical, mechanisms to authenticate the identity of their holder.” The Bank argues that digital forms of official identity can increase access to both public and private services where civil registration is weak; digital identity systems can also help to reduce some forms of corruption, such as double-dipping for entitlements or ghost workers in public employment. The increased availability of affordable technology to capture biometric details provides new ways to authenticate identity and ensure uniqueness, creating much stronger levels of certainty that the person holding a document is the person to whom it was issued, or removing the need for a document altogether. In high-income countries, new digital identification systems are based on long-standing paper systems of civil registration and other forms of identification. Although the WDR also emphasises the importance of strengthening the “analog foundations of the digital revolution”, it suggests that low-income countries may leapfrog the paper-based stage, and move straight to digital identification.
One frequently cited example of such leapfrogging is the Indian Aadhaar (“foundation”) programme, established in 2009, which issues a 12-digit unique identity number to any resident of India, after collecting biometric data and other basic information. As of mid-2016, more than one billion people in India had been issued an Aadhaar number; and there were plans and first steps to issue Aadhaar numbers at the time of registration of birth. The number and linked biometric data are used for the purpose of verifying identity irrespective of nationality or migration status. Indeed, for many situations in which proof of identity is important, legal status is irrelevant: public health and social protection programmes usually aim for complete coverage regardless of the immigration status of the people targeted; while a retailer does not care if the person buying a product is a citizen or not, so long they can be traced to pay the bill. A World Bank paper concludes that the value of Aadhaar as a form of identity “implies that those who were previously marginalized can now be included in a number of welfare programs.” The World Bank also acknowledges risks with the digital identity agenda, including for privacy and data security, but argues that these can be mitigated. In relation to the rights of children, it identifies one key gap in these new digital systems: where they are without a solid foundation in civil registration, children are usually excluded (even if not in the Aadhaar case), and continue to be unregistered.
An Aadhaar-type programme, however, has another critical weakness in relation to securing legal identity: it says nothing about entitlement to citizenship nor about legal status in the country. It can be argued that this is rather a strength: the programme simply sidesteps the complex and controversial questions about legal status and nationality among the many formerly undocumented residents of India, on the basis that proof of identity is useful in itself both for those holding it and for the authorities. However, this sidestep raises the question of whether Aadhaar registration in fact provides a person with a ‘legal identity’ in the sense understood by the SDGs: although government-issued, it is purely a system of authentication of identity, with no guarantee of ability to enforce rights or access the state system for other purposes. If it is a legal identity, the identity is purely that of ‘resident’, not even ‘legal resident’. In addition, the statistics available on Aadhaar coverage indicate that areas where rates of existing forms of identification are low also have low registration with Aadhaar; there are more new entrants to the system through regular birth registration than there are through the ‘introduction system’ provided for under Aadhaar. Rather than leapfrogging, or creating a new foundation, the system is for the most part built on already existing ‘foundations’. On the other hand, its computerised record of identification and authentication could in due course facilitate resolution of the more complex issues.
No other government-backed initiatives for national biometric identification follow the Aadhaar model; they rather focus on upgrading existing systems for national identity cards and passports, the introduction of new national identity cards, or voter registration exercises. In addition, there are function-specific systems, such as for the issue of drivers’ licences, collection of pensions or cash transfers, or identification of civil servants. Some of these initiatives are hardly connected to birth registration, especially in countries where civil registration in general or birth registration in particular has historically been neglected. In other cases, however, paper-based civil registers are being digitised and linked to a new or existing central population register of citizens and residents.
There are some overblown claims about the ability of these biometric systems to eliminate doubts over the identification of citizens and foreigners, in contexts where such uncertainties had nothing to do with authentication of the person holding an identity card, and everything to do with law and politics. There is also a risk of creating unnecessary demand for new identification systems, or of rolling out or merging the new systems too quickly, driven by the availability of new technology. Where many databases are linked, but adequate safeguards are not put in place, a person who “existed” on some registers but not others may be excluded from all. The safest approach seems to be to start from the civil registration system, so that digital legal identity starts from facts established at birth in the analogue world. At the same time, where long struggles over election rigging have resulted in voter registration being entrusted to an independent electoral commission, there are concerns about relying on national identity systems under the control of the executive for that purpose. Privacy and data protection is a concern for such systems everywhere.
Where new systems are adopted without considering the underlying legal and policy frameworks, there can be a risk of generating new forms of exclusion. Indeed, the creation of new population registers has historically been a danger point for the creation of stateless populations. In Lebanon, Syria, and the Gulf States, the descendants of those who were not included in the population registries created at independence remain stateless today, even though their ancestors should have been entitled to nationality under the law. Similar problems have arisen when new registers were established in the successor states of the former Yugoslavia and Soviet Union. The lobby group Touche Pas à Ma Nationalité in Mauritania accuses the government of ‘biometric genocide’ in its implementation of a new identity card system coupled with amendments to the nationality code. The new national number and biometric identity card being introduced by Sudan since the secession of South Sudan are also being used to denationalise people who have never considered themselves South Sudanese. What is needed is an approach to the legal identity target, and principles for the implementation of new biometric and other digital identification systems, that considers and avoids these risks.
6. Legal identity and ending childhood statelessness
The power of birth registration is that it establishes an officially recognised legal identity very shortly after birth. The longer it takes to establish a nationality the more difficult it becomes. Those who are adults before they attempt to prove their origins and nationality may find it impossible to do so; or they may only succeed at great effort and cost. Those vulnerable children who are in situations of difficulty and remain completely undocumented are thus greatly at risk of statelessness. For these children, lack of a nationality may not be their most obvious or urgent problem; but a total lack of documentation means that statelessness is a real risk, and likely to be a more important issue the older they become. Moreover, if “legal identity” beyond birth registration is understood to apply to adults, which is the case for many national identity card systems, children are by definition left excluded.
The focus on birth registration brought by the SDG Target 16.9 is therefore a welcome one. But neither birth registration nor the broader ambition of providing “legal identity for all” fully address the question of statelessness among children—and the adults they become. Even with universal birth registration, many children will be left stateless. Among those who will remain at risk of statelessness even if universal birth registration is fully achieved will be:
- Children of unknown parents
- Children who cannot acquire the nationality of (one of) their parents; for example, because of restrictions on transmission of nationality to those born outside their state(s) of nationality
- Children separated from their parents, including trafficked children, who hold no copy of a birth certificate or any other documentation
- Children of stateless parents
- Children whose parents’ nationality is unknown or undocumented
- Children whose births were registered outside the country of nationality of the parents, where that country does not recognise foreign civil registration documents unless the child was also registered with consular authorities
- Children who cannot acquire a nationality from their parents, and who only have the right to obtain the nationality of the state of birth on reaching majority
In all cases, ensuring that these children have the right to acquire a nationality, as provided by the universally-ratified (with the exception of the USA) Convention on the Rights of the Child, will require legal reform to establish rights to nationality in the country of birth and residence, at minimum if the child would otherwise be stateless, and administrative procedures to implement that right in practice. Efforts to provide them with another form of legal identity, and a document to match, may be helpful as an interim measure. But history shows that sometimes such interim measures become permanent, serving to identify as outsiders a group of non-citizens who have no meaningful connection to any other country than the one in which they are resident.
The focus brought by SDG Target 16.9 on strengthening identification systems is welcome; increased access to proof of legal identity has great potential to increase social and economic inclusion. However, there are also risks of exacerbating exclusion for those who are already among the most marginalised. As identification requirements reach all residents of a state, people who previously believed themselves to be citizens may find that they do not fulfil the criteria or have the requisite forms of evidence to access the new identity documents. It becomes ever more important that the legal frameworks and systems to determine a person’s eligibility for a particular status and issue the appropriate documents are fair, inclusive, and efficient.
The rolling out of digital identity systems and the major push on birth registration can help to address one half of the agenda around the inclusion of the currently undocumented; but there is a risk that the other half will be neglected. If a person cannot obtain recognition of nationality in any country—if he or she is stateless—the reason why this is the case is not only a technical problem of documentation of identity. If you cannot obtain the documents needed to function in a particular country, such as a national ID card, this refusal may be because your birth and those of your parents were not registered, but it may also because of flaws in the underlying nationality law. Ending statelessness will require attention both to processes of identification and to the rules establishing who has the right to which document. The drive to create legal identity for all must be accompanied by reform of laws on access to nationality if the ambition of the SDGs to “leave no one behind” is to be achieved.