The right to a legal identity or the right to a legal ID?

Laura van Waas, Co-Director of the Institute on Statelessness and Inclusion
/ 10 mins read

Proposed target 16.9 of the soon-to-be-adopted Sustainable Development Goals (SDGs) reads: Provide legal identity to all, including birth registration, by 2030. Sounds good! But… what does this actually mean? How can states “provide” legal identity? What is it? If it “includes” birth registration, is that (alone) sufficient or is something else/more needed?

These are some of the questions that came to mind as I headed to The Hague Colloquium on the Future of Legal Identity last week. As someone who has not followed the SDG debate very closely to date and who was a participant rather than presenter at this Colloquium, I should confess at the outset of this blog post that I am neither best placed nor indeed able to provide the answers. Nevertheless, I would like to reflect on some of these questions and share some of the highlights of the rich debate that took place between the different stakeholders and disciplines represented at the Colloquium.

Legal identity and legal invisibility

At the outset of the Colloquium, a paper by Mariana Dahan (World Bank) and Alan Gelb (Center for Global Development) outlined the value of the SDG target of providing a legal identity to all, in simple but compelling terms. Firstly, legal identity has an intrinsic value, recognised by human rights law, and states should therefore be mobilised to realise it. Secondly, legal identity is instrumental to achieving many of the other SDGs because it helps to unlock (equal) access to systems of social protection and economic empowerment.

Who can argue with either of these assertions? In fact, one need look no further than some of the recent ENS blog entries to find examples of just how difficult it is to enjoy a dignified lifeand death – if a person’s very existence is not legally recognised. This is a problem which often overlaps with, contributes to or compounds the phenomenon of statelessness. The dire situation which confronts many stateless persons and others who are apparently not able to assert their “legal identity” has even led to the emergence of the evocative descriptor “legally invisible”. Against the background of problems of legal invisibility in Europe and in other parts of the world, an SDG target focused on legal identity is therefore very welcome. Even if difficult to precisely define, a legal identity is surely a – perhaps the – solution to legal invisibility!

Legal identity and legal personhood

So, legal identity is important, but what is it? This question of definition came up numerous times during the Colloquium. Radha Govil (UNHCR), for instance, pointed in her paper to a definition of legal identity put forward by UNHCR, UNICEF, UNDP and Plan International, working together on the issue in the Asia-Pacific region: “the recognition of a person’s existence before the law, facilitating the realisation of specific rights and corresponding duties”. This approach very much frames legal identity as a human rights issue, making a strong connection to the right of everyone to be recognised everywhere as a person before the law (protected in the Universal Declaration, the ICCPR, the CRC and elsewhere). Legal identity is thereby conceived as a status, the status of having legal personhood which brings with it rights and duties. If this is the scope of legal identity though, then the phrasing of the SDG target makes me feel somehow uneasy. States are to provide a legal identity to all by 2030? Isn’t the right to legal personhood something that is inherent in all of us? And is it really a matter for progressive realisation?

Mia Harbitz (Inter-American Development Bank) pointed to another definition of legal identity which has a slightly different nuance. According to the Civil Registration and Identification Glossary of the Inter-American Development Bank, legal identity is a “legal civil status obtained through birth registration and civil identification that recognizes the individual as a subject of law and protection of the state”. In this definition, an additional element is added. While legal identity is still understood as a status, it is one based not merely on recognition (as above), but is obtained through particular acts of registration and identification carried out by the state. Even the “legally invisible” enjoy basic legal personhood, for instance in the sense that if an injury were inflicted on them, this would constitute a crime – or if they were indeed accused of criminal behaviour, they would be subjected to criminal law and treated in accordance with the rights of the suspect. To have a legal identity, then, could be seen as extending somehow beyond this and encompassing the capacity to assert all the rights that a particular person holds. Arguably, this fuller form of legal personhood is what human rights law envisages and, again, should be immediately and inherently respected. Nevertheless, if the reality is that the enjoyment of full legal personhood relies on a person having his or her existence and civil status registered by the state, then it becomes easier to understand the need for a target of “providing” everyone with legal identity by engaging in this registration.  

Legal identity as legal ID

As Jacki Bhabha (Harvard School of Public Health) observed at the Colloquium, a tension between principle and pragmatism is complicating the task of working out this relationship between rights, status and evidence in the context of the legal identity debate. What we are all actually concerned about is the enjoyment of rights – access to socio-economic and other rights, that in turn contribute to the realisation of development goals and to a happier, healthier and more peaceful planet. Status is key to delivering rights, determining what a person is or is not entitled to. Yet evidence is key to delivering on status, for how else do you demonstrate that you are this or that person, entitled to this or that right?     

It would seem that pragmatism is winning over principle in the SDG target. Conceptually, as a matter of principle and of human rights theory, legal identity is the status of being a bearer of rights and duties. In reality, as a matter of pragmatism, legal identity is given true content through the documentation of legal personhood – the provision of evidence of status as a means of unlocking rights. The essence of the legal identity target in the SDGs can thereby be understood as the accomplishment of an important pragmatic, but essentially bureaucratic task: that of recording and certifying certain facts about a person’s life and civil status so that the rights and duties that flow from these facts are recognised and can be asserted.

This understanding of legal identity as requiring or being equivalent to some form of legal ID, also helps to explain why the SDG target references birth registration. As the UN Human Rights Council recalled in a recent resolution, “unregistered individuals may have limited or no access to services and enjoyment of all the rights to which they are entitled”, but birth registration is of fundamental importance “as a means of providing an official record of the existence of a person and the recognition of that individual as a person before the law”. The act of birth registration or civil documentation is what will, in reality, make people legally visible.

Legal identity and the (false) promise of inclusion?

To provide legal identity to all – to make the legally invisible visible – brings with it a strong promise of inclusion. As has been commented on by Tendayi Bloom in a previous ENS blog, equality, non-discrimination, equity and inclusion are principles infused into the post-2015 development agenda. Goal 16, under which the legal identity target falls, is to “Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels”.

But there is a problem. However sensible it is to be pragmatic about the best way to realise rights in practice, an increased emphasis on legal ID as an element of or equivalent to legal identity generates a real risk of creating or strengthening exclusion. Although everyone enjoys the right to be recognised everywhere as a person before the law, as birth registration and civil documentation grows in importance, those who are left without are likely to find it increasingly difficult to assert their rights merely on the basis of the claim “I exist”.

The Human Rights Council resolution referred to earlier concedes that a danger inherent in the push for universal birth registration is that those who remain unregistered will face even greater challenges in the enjoyment of their rights. It calls on states “to ensure that lack of birth registration or documents of proof of birth does not constitute an obstacle to access to and the enjoyment of relevant national services and programmes, in accordance with international human rights law” and on UN bodies, agencies, funds and programmes “to ensure that persons with no birth registration are not discriminated against in any of their programmes”. So, on the one hand, there is a push for universal access to birth registration or another form of legal ID because it is so critical in unlocking access to rights and services. On the other, there is a need to continue to reaffirm that access to rights and services should not be contingent on birth registration or legal ID. This fascinating and inevitable tension also underlies the issue of statelessness: there is a need for nationality as a key to rights, yet the stateless should enjoy rights regardless of their lack of nationality.

Of course, if the SGD target is realised, this is arguably a moot point because everyone will be provided with legal identity. But there is a long way to go before that is achieved and it is not an altogether straightforward exercise. The paper delivered at the Colloquium by Mary Legaay (Plan International) offers a good demonstration of some of the challenges. In order to incentivise birth registration and ensure that people know, understand and recognise the importance of it, the presentation of a birth certificate has been made mandatory in some countries in the context of, for instance, sitting school exams. While undoubtedly contributing to raising birth registration rates, this measure has also implanted a new barrier in access to education that did not previously exist. Exclusion is created in the pursuit of greater inclusion.

Legal identity, nationality and statelessness

In reflecting on the legal identity debate, this blog has so far made only a few brief references to statelessness. Nationality and legal identity are distinct issues and should not be conflated. Yet, in fact, questions relating to nationality and statelessness were raised regularly throughout the Colloquium in the Hague. And there is, undeniably, a link between the enjoyment of legal identity and the enjoyment of nationality – but this is again far from straightforward. For example, as Bronwen Manby (LSE) explained through a trio of case studies in her paper on biometric identification and the right to a nationality in Africa, the push to create and document legal identity is generating problems of nationality – especially where discriminatory or exclusive nationality laws have not first been addressed. According to Manby, this process brings with it a risk of “creating stateless persons where previously there were only undocumented ones”. At the same time, if nationality is by definition a legal bond between a person and a state, can statelessness be eradicated without also dealing with underlying problems of legal invisibility or lack of legal identity? But also, will we be satisfied if the SDG target is achieved through the provision of a legal identity to all if we are nonetheless still confronted with statelessness (although this should, under the UNHCR-led #ibelong campaign, already have been brought to an end by 2024)?

When deliberations on the post-2015 development agenda culminate with the adoption of the new SDGs in just a few months time, I look forward to continuing to explore the meaning of legal identity, the relationship with human rights, the nexus with nationality and the potential for the SDG agenda to help in the fight against statelessness. It is evident in all of this that we ultimately want one simple thing: the realisation of rights and of development. While legal identity is indeed a right in and of itself, its purpose is an instrumental one. The same is true for nationality. Neither legal identity nor nationality is really the end game, it’s about what flows from them, i.e. a greater equality, greater inclusion and greater ability to claim rights. 

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