“Everyone has the right to a nationality”

GCM Commentary: Objective 4: Ensure that all migrants have proof of legal identity and adequate documentation

20 December 2018 | Amal de Chickera, Institute on Statelessness and Inclusion

Universal Declaration of Human Rights
Article 15.1: Everyone has the right to a nationality.

Convention on the Rights of the Child
Article 7:

  1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents.
  2. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.

Article 8:

  1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.
  2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity. 

Introduction

Objective 4 of the Global Compact on Migration aims to “Ensure that all migrants have proof of legal identity and adequate documentation”. The objective itself is framed slightly differently to how it was in the Zero Draft, which set out to ‘Provide all migrants with proof of legal identity, proper identification and documentation’. The difference between the two versions is subtle. However, the deeper we go into the text of the Objective, the clearer it becomes that this is a watered-down version of the Zero Draft, which has lost many of the positive features of that draft while introducing some negative ones. The overall conclusion to be drawn is that in this ‘final’ form, it is difficult to see how Objective 4 adds to existing obligations that states have towards migrants under international human rights law; whereas some of the language actually represents a softening of such obligations. Further, there is evidently a clear drive towards promoting better cooperation among states, towards what appears to be an unspoken objective of keeping ‘unwanted’ migrants out.

The Evolution

The main statement of intent under the Objective makes this clear, and therefore, it is useful to directly compare para 20 of the Final Draft with what was para 18 of the Zero Draft:

Zero Draft, Para 18 Final Draft, Para 20
We commit to equip migrants with proof of legal identity and other relevant documentation, including birth, marriage and death certificates, at all stages of migration in order to end statelessness and avoid other vulnerabilities. We further commit to ensure this documentation allows all migrants to have access to services and exercise their human rights, and States can identify a person’s nationality upon entry and for return. In this regard, the following actions are instrumental: We commit to fulfil the right of all individuals to a legal identity by providing all our nationals with proof of nationality and relevant documentation, allowing national and local authorities to ascertain a migrant’s legal identity upon entry, during stay, and for return, as well as to ensure effective migration procedures, efficient service provision, and improved public safety. We further commit to ensure, through appropriate measures, that migrants are issued adequate documentation and civil registry documents, such as birth, marriage and death certificates, at all stages of migration, as a means to empower migrants to effectively exercise their human rights.

The first change that stands out, is that while the Zero Draft focused on all migrants at “all stages of migration”, the Final Draft focuses on “nationals” instead. This is a peculiar decision for a Compact for Migration. The rationale appears to be that if every state provides documentation to all its nationals, states will face no problem in identifying where migrants are from (and importantly, where they can be sent back to). This rationale fails to account for or address the situation of stateless persons or other vulnerable groups (including displaced persons who are not recognised as refugees, victims of trafficking and irregular migrants). This is clearly not an oversight, as the Zero Draft text set out to “end statelessness and avoid other vulnerabilities”, an objective that has been taken out of the Final Draft. What this is then, is a rolling back of the protection reach and ambition of the Objective. It is no longer an Objective which primarily aims to document and protect undocumented migrants who may not have a nationality, but rather, one which primarily aims to document nationals, so that migration can be controlled more effectively and unwanted migrants can be returned to their own countries. The giveaway is the phrase “allowing national and local authorities to ascertain a migrant’s legal identity upon entry, during stay, and for return, as well as to ensure effective migration procedures, efficient service provision, and improved public safety” which frames the Objective primarily from the perspective of state authorities and not individual migrants (as was the case with the Zero Draft). It must be acknowledged that the final sentence is still framed from a migrant rights perspective, but the priority shift that has occurred between the Zero and Final draft is clear.

The seven specific actions (sub-paragraphs A – G) under Objective 4 also deserve further scrutiny.

Paragraph A aims to Improve civil registry systems, with a particular focus on reaching unregistered persons and our nationals residing in other countries…”. This continues the trend of prioritising the registration of “our nationals”. However, an important improvement in this text is the reference to the protection of the right to privacy and personal data, which were not included in the Zero Draft. Likewise, Paragraph B, which looks at the harmonisation of travel documents in line with International Civil Aviation Organisation specifications, also emphasises the importance of privacy and data protection.

Paragraph C relates to access to consular protection. A significant change from the Zero Draft is that this previous draft called on access to consular documentation for all “migrants”, whereas the Final Draft again limits the scope of this to “nationals”. This may appear to be a legitimate restriction, as states have a right (and obligation) to protect their nationals. However, it is important to note that many migrants become stateless when their own country fails to recognise and protect them as “nationals”. Migrants in such situations find themselves trapped between a failure/refusal to take responsibility of the country of origin, and a failure/refusal to identify and protect, of the country of migration. The Final Draft does not help in any way to address this difficult reality, which presents significant real life consequences on the liberty, movement and other rights of individuals, and also presents difficulties for states. By restricting this provision to “nationals”, individuals whose nationality is disputed will likely remain without cover or protection.

Paragraph E still retains a focus on statelessness. It aims to “Strengthen measures to reduce statelessness, including by registering migrants’ births, ensuring that women and men can equally confer their nationality to their children, and providing nationality to children born in another State’s territory, especially in situations where a child would otherwise be stateless, fully respecting the human right to a nationality and in accordance with national legislation.” 

The first two actions of registering migrant births and ensuring gender equal nationality laws are welcome and restate existing obligations under Article 7 of the Convention on the Rights of the Child (CRC) and Article 9 of the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW). The text in relation to gender discrimination in particular is an improvement on the Zero Draft, which only focussed on women’s ability to confer nationality on their children and not men’s. It is a missed opportunity however, that the text does not go further and cover other forms of discrimination (race, disability etc.) which also cause statelessness as well as vulnerability in migration contexts.

There is another significant limitation which should be pointed out. Paragraph E as a whole appears to build on the dual assumptions that:

  1. Providing migrants with documentation alone will resolve their statelessness.
  2. The responsibility to address statelessness lies with the country of origin.

As such, it is largely silent on the more fundamental problem of discriminatory laws, policies and practices which create and perpetuate statelessness (regardless of documentation); and does not re-state the human rights obligation of host states to also play a role in ending statelessness.

And so, while this paragraph sets out obligations of the country of origin of the parents of a child born in a third country, it is silent on the obligations of the country of birth / migration to grant nationality to children born on their territory who would otherwise be stateless. This obligation is clearly set out in both the CRC and the 1961 Convention on the Reduction of Statelessness, and therefore, the language in Paragraph E is unfortunately regressive.

Paragraph F sets out to “Review and revise requirements to prove nationality at service delivery centres to ensure that migrants without proof of nationality or legal identity are not precluded from accessing basic services nor denied their human rights”. This appears to be a positive development. However, it is a levelling down on the language of the Zero Draft, which called on states to “abolish” such requirements (and not ‘review and revise’ them). The language of the Zero Draft was more appropriate, as under international human rights law, states have an obligation to provide basic rights and services to all persons, regardless of their legal status. Hence, the call to abolish any practices which undermine such human rights obligations, was appropriate. Importantly, the Zero draft also made specific reference to “stateless migrants”, and it is not clear why this most vulnerable group has been erased from the final draft.

The final paragraph under Objective 4, calls for the facilitation of participation in community life through the issuance of registration cards etc. This is an important and useful action. However, it is important to note that it is limited in nature, and in the absence of obligations to provide nationality to stateless migrants and regularise their status, it only provides a stop-gap measure, which will grant some freedom and flexibility, but still limit the true potential and security of vulnerable migrants.

The Future

In conclusion, it must be reiterated that the Final Draft, when compared with the Zero Draft, is weaker on rights and protection, is more limited in scope and does not specifically address the situation of the most vulnerable of migrants (including the stateless). It is disappointing that the Zero Draft (which despite presenting some challenges was largely a more ambitious and progressive text), has been watered down in this manner. Writing from a statelessness perspective, it is also important to reflect on the wider lack of attention to statelessness in the Compact. Many of the other Objectives, including those on data (Obj 1), adverse drivers (Obj 2), pathways for regular migration (Obj 5), combatting trafficking (Obj 10), status determination (Obj 12), detention (Obj 13), consular protection (Obj 14) and return (Obj 21) would have been strengthened through specific reference to statelessness and protecting stateless persons. The failure to address this issue head on, presents a missed opportunity, and is perhaps the biggest clue that the true motivation behind the Global Compact is not protecting the most vulnerable, but border control.

This blog post was originally written and posted on Refugee Law Initiative and forms part of a series of blog posts analysing the final draft of the UN’s Global Compact for Safe, Orderly and Regular Migration.

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