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Betsy Apple and Laura Bingham

Author information

Betsy Apple is advocacy director for the Open Society Justice Initiative based in New York. Prior to joining the Open Society Foundations, Apple was the legal director/general counsel for a small advocacy organization, AIDS-Free World, where she led the legal team filing a challenge to the Jamaican anti-sodomy law at the Inter-American Commission on Human Rights.She was a 2011–12 Wasserstein Fellow at Harvard Law School, and currently is an adjunct professor at Columbia University’s School of International and Public Affairs, where she teaches international human rights law. https://www.opensocietyfoundations.org/people/betsy-apple  

Laura Bingham serves as managing legal officer for the equality/citizenship issue area of the Open Society Justice Initiative. She received a JD from the University of California, Berkeley, School of Law, Order of the Coif. During law school, Bingham worked for the ICTR as a legal intern and spent a semester in Senegal researching the potential trial of former Chadian dictator Hissène Habré, for torture and crimes against humanity.

Email address

Betsy.apple@opensocietyfoundations.org; Laura.bingham@opensocietyfoundations.org

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Betsy Apple and Laura Bingham

Further reading

The SDGs: An opportunity to leave no stateless child behind

Betsy Apple and Laura Bingham

1. Introduction to the SDGs

In September 2015, the United Nations General Assembly committed to a set of goals that would put—at least theoretically—every country on a common path toward sustainable development for the next fifteen years. Each of the seventeen Sustainable Development Goals (SDGs) contains targets that countries have agreed to work towards by 2030, and each target has an indicator by which progress will be measured. The SDGs address those thematic issues one would expect—social, economic and environmental development—but in addition, and more remarkably, the SDGs include a goal dedicated to justice, good governance, and the promotion of peaceful and inclusive societies. This SDG—Goal 16—represents a sea change from the last set of global development goals (the Millennium Development Goals, or MDGs), and provides a crucial platform for advocacy, action, and outreach toward some of the world’s most marginalised peoples, including those who are stateless. The admonition to “leave no one behind” inevitably places the emphasis on those populations whose vulnerability is uncontested, namely, children (and in particular, stateless children). It also creates an imperative for states to recognise that sustainable development cannot be achieved without access to justice for all, and access to justice for all cannot be achieved by ignoring stateless persons. 

Notably, the SDGs mark the first time that countries have recognised the centrality of justice to sustainable development. The previous attempt to coordinate development across all nations through the MDGs failed to address structural injustice and inequality, thereby ignoring crucial root cases of persistent poverty, instability, and underdevelopment. It is axiomatic now that sustainable development can only be realised when people are able to be agents of their own development, but this is a fairly recent revelation. Fortunately, the recognition that a lack of access to justice erects barriers to sustainable development occurred early in the SDG negotiations, and remained a prominent feature throughout the discussions. Over the several years during which member states convened to debate the priorities for the SDGs (assisted by numerous UN working groups and technical support teams), a major groundswell of support for human—including legal—empowerment emerged. In an effort to build legitimacy and a global constituency for the SDGs, the UN undertook widespread public consultations, during which ordinary people opined that rights, access to justice, and participation are central to their nations’ development. This community-based call to action resulted in a set of goals that, for the first time, puts people rather than institutions at the heart of sustainable development and focuses on systemic and underlying causes of poverty and underdevelopment.

2. SDGs and statelessness

While principles of justice and empowerment are integrated throughout the 2030 Agenda, Goal 16 specifically recognises the need to “promote peaceful, inclusive societies for sustainable development, to provide access to justice for all and to build effective, accountable and inclusive institutions at all levels.”  One of Goal 16’s targets, 16.9, calls on states to provide legal identity for all by 2030. Although one of the shortest targets within Goal 16, the call for a legal identity for all met with near unanimous backing from member states. The reason: too many people are denied the benefits of development because they are unrecognised by any national authority. Many are unable to register for school, obtain a mobile phone service contract, find formal employment, or open a bank account, and in many cases, a lack of legal identity creates a downward spiral of insecurity as people are forced to exist outside society’s formal structures, in unsafe housing or unregulated workplaces. The SDGs offer an important tool to enable people to obtain legal identity precisely because of the high-level consensus among states that legal identity for all is intrinsically linked to inclusive development.

Notwithstanding the relatively widespread support Goal 16.9 enjoyed throughout and after the negotiations, it does not provide a panacea for the problem of statelessness. It only addresses the issue of legal identity, the absence of which may increase the risk of statelessness, but a focus on legal identity alone does not cure the lack of access to citizenship.  Much work remains to be done to make the argument that the eradication of statelessness is a necessary precondition to the achievement of sustainable development. 

Nonetheless, those working on statelessness can point to, in addition to Goal 16, many of the other goals, which contain elements that can help promote and support sustainable development for all, including stateless people. For example, target 5.a under Goal 5, which commits to “achieving gender equality and empowering all women and girls,” calls for reforms to be undertaken “to give women equal rights to economic resources, as well as access to ownership and control over land and other forms of property, financial services, inheritance, and natural resources in accordance with national laws.” Gender discrimination in the nationality laws of many states prevents women from conferring nationality to their children and spouses, a major cause of statelessness and one which the SDGs provide new momentum to remedy. Goal 10 aims to reduce inequality within and among countries, with targets that press states to eliminate discriminatory laws and policies and measure reports of discrimination or harassment on the basis of any ground protected under international human rights law (target 10.3 and 10.3.1). Discrimination against ethnic, linguistic and religious minorities resulting in the denial, loss or deprivation of nationality is also a common cause of statelessness. Stateless people and their advocates, in seeking redress for grievances or protection of their fundamental rights, should utilise the language of Goal 16.3 relating to access to justice to demand resolution of their concerns.

Throughout the SDG negotiations, the call to “leave no one behind” became the slogan for the agenda’s ambition to reach everyone, including the most vulnerable. The 2030 Agenda’s preamble, declaration, and the “means of implementation” section all commit to “leave no one behind” and to “reach the furthest behind first.” These phrases recognise that the needs of the most vulnerable and marginalised are frequently ignored or inadequately addressed by development programmes. They represent a commitment to ensure the universality of the SDGs so that the actions taken directly affect those who need them most. By implication, this dictum means that states will not be able to focus their efforts merely on easily accessible groups, or those who the government believes are most worthy of assistance. This is good news for stateless people, who can and must claim their equal standing in the development agenda. In many parts of the world, this will mean advocating for research to gather basic data on stateless populations and for the establishment of appropriate procedures for identifying stateless people, as the invisibility of the issue is often the first impediment to resolving situations of statelessness and ensuring that those who are stateless have access to rights and opportunities.

Moreover, states have acknowledged that progress towards achieving the SDGs cannot be said to have been made unless results are seen in every population group. The data used to measure the SDGs will be disaggregated by a wide range of demographic characteristics to ensure that sections of the population are not at a comparative disadvantage. For stateless people, this disaggregation of data will provide a window into the viability of government development schemes to show whether or not the actions taken are having an impact on all sections of the population. The SDGs are therefore necessarily data-driven, and much will depend on the quality and range of data that can be brought to bear in measuring progress. Civil society groups have a big role to play in this regard, in ensuring that the data used is appropriate to the task.

3. National advocacy on statelessness using the SDGs

In advocating for the rights of stateless persons, all of the tenets of the ambition of the sustainable development agenda should be invoked. While many countries have principles of access to justice, non-discrimination, and equality in their constitutions, or have ratified the human rights instruments that serve as the foundation for a right to “legal identity for all” (the Convention on the Rights of the Child, Articles 7 and 8, for example), many governments have been slow to put actionable policies in place. This failure may be due to limited capacity or financial resources, or lack of political will. The SDGs, however, provide an important opportunity to challenge this status quo through concerted action by a range of stakeholders including national civil society.

The SDGs mean that national governments will be accountable for the progress they make, both at the national and international level. Real accountability and progress in advancing the agenda at the national level in the service of stateless people requires considerable mobilisation. As part of their SDG commitments, governments have agreed to work with a range of actors to establish new plans and frameworks to achieve the goals. This presents an opportunity for civil society to work in partnership with the government to develop laws, policies, and programs that meet the targets and goals of the SDGs. Multi-stakeholder partnerships – with government, private sector and civil society working together – have been touted as a key pillar of SDG implementation. Civil society should seek out this role in devising, implementing and measuring national action plans for the SDGs in their country.

For example: In 2015, the legal empowerment NGO Kituo cha Sheria, the International Commission of Jurists Kenya, and the Law Society of Kenya, began advocating for a National Justice Plan that incorporated the SDGs’ justice targets. The organisations held a two-day meeting that brought together the Kenyan Parliamentary Human Rights Association, the Attorney General, and the Human Rights Commission to discuss justice issues in Kenya. The government representatives supported justice reforms but stressed that a National Justice Plan could take several years to develop. They suggested instead that civil society and government work together to revise existing legislation. The organisations agreed. The National Human Rights Policy was selected as the legislation to tackle first as it would serve as a strong foundation on which to develop other laws and policies. The policy had been in draft form since 2008, but by capitalising on the momentum created by the SDGs, advocates were able to get the policy to the top of the legislative agenda in less than a year. The legislation was passed and led to the development of related policies, including the Legal Aid Bill; the Right to Information Bill, the Community Land Bill, all of which have since been signed into law. Within months of the first advocacy meeting, Kenya passed its first Legal Aid Law.

In 2009, the Government of Indonesia incorporated a National Access to Justice Strategy (NAJS) into its 2010-2014 mid-term development plan. The NAJS was created to embody the Indonesian Constitution and relevant legislation, which recognise that Indonesian people have a right to access to justice. Similar to the SDGs, the mid-term development plan incorporated high-level development goals and targets that were used to measure progress towards achieving these goals. As the government looked to update this plan for its 2015-2019 mid-term development plan, civil society organisations collaborated with the government to ensure that the planning process was organised around the ideal of providing access to justice to all citizens and residents of Indonesia. They pushed for the inclusion of themes related to legal identity, curbing corruption, and access to legal services. This collaboration contributed to the process of building national coalitions and partnerships needed to advance access to justice in Indonesia.

If we are to achieve effective implementation, countries should be encouraged to incorporate commitments under the SDGs into their national development plans, and to tailor such commitments to local priorities. The participation of local stakeholders is critical to this process. The global SDG roadmap is only made real by translating lofty goals into specific and targeted interventions at the national level. Civil society should therefore seize the opportunity of the SDGs to push for government commitment to specific national priorities in the national development plan, as part of its commitment to the SDGs.

The creation and execution of a national development plan is often led by a working group made up of relevant government actors and civil society representatives. Depending on the situation in each country, this group may become a formal body or remain a more informal coalition of justice reformers. In many countries, the Ministry of Planning (or Planning Commission) will lead this process. Civil society groups are often well placed to offer baseline data which can help governments identify gaps in their current development schemes and progress needed to meet the challenge of the SDGs. Baseline assessments in relation to the numbers of stateless persons on a territory, whether the state has a statelessness status determination process, the availability of a pathway to naturalisation, access to birth registration systems, and other relevant data points will all help to assess whether a government’s current efforts satisfy the “legal identity for all” commitments in SDG 16.9. States and other stakeholders should also study the existing legal and policy framework before the introduction of new systems for administering birth registration or issuance of documents that may serve as proof of nationality, to ensure that those who are presently left out due to discriminatory laws or practices are brought within the protection of the law.

Having adopted the SDGs, governments must now focus their efforts on effective implementation in their countries and regional systems. The SDGs allow for a degree of customisation such that governments may implement the goals in ways that are appropriate to their own country’s development needs. (However, the SDGs are meant to be a floor, not a ceiling, and must never lead to action in contravention of existing obligations.) Civil society groups should play an active and vital part in helping to identify where those needs lie, and in ensuring that development action plans to meet the SDGs focus on the areas of greatest need, and not merely the areas that will be easiest to achieve. While the SDGs have identified metrics through which progress will be measured at the international level, there should be a great emphasis on developing nationally appropriate measurement indicators as well. This will allow for greater granularity in the data yielded from implementation, so that countries may point to nationally relevant progress and successes rather than simply the broad international yardsticks of progress. Here too civil society should play a role in developing appropriate measures that will meet national development needs while avoiding any perverse incentives that could risk leaving some groups out of progress. Several platforms have emerged with a mission to gather and showcase the importance of civil society data on progress across the Goals and to provide resources to national groups interested in engaging in implementation. These include the SDG 16 data initiative and the Transparency Accountability and Participation Network (TAP).

Finally, progress made under the SDGs must be open, transparent, and subject to review by a range of stakeholders. The international community has agreed to review progress annually on a voluntary basis through the UN’s High Level Political Forum. This voluntary process provides a forum for governments to present both progress and challenges toward full implementation of the SDGs at a dedicated forum each July in New York. A list of states engaging in this process can be found on the UN’s sustainable development knowledge platform. Governments have wide discretion to showcase the results that they choose and to ignore others. Civil society should work with governments to encourage their voluntary reporting through this forum, and also to encourage reporting on all of the targets including those that have been hardest to achieve.

Moreover, when governments do report progress, it is incumbent upon civil society groups to hold those reports to account and to speak out if they are less than accurate. A number of organisations have proposed publishing shadow reports alongside official statements of progress, to highlight not only discrepancies between official government accounts and on-the-ground data, but also to show where the SDGs are being achieved but are having unintended consequences or not fully meeting the spirit and ambition of the agenda. Because statelessness remains an underserved human rights and development issue, it will be essential for those working in the field to track and call attention to the impact that the SDGs and their implementation may have on stateless populations. Regional and national reporting will also be important, as the SDGs will likely shape and influence much of the discourse on development for the next fifteen years. One year after adoption of the SDGs, the forums at which reporting will occur—and where feedback and critiques of governments will be most influential—are still emerging. By advocating for particular kinds of reporting, appropriate forums, and useful data, civil society groups can play an active role in holding governments accountable and in promoting ongoing improvements to the implementation and measurement of the SDGs so that they remain relevant, on track and true to the creed of leaving no one behind.