Blog post written by Sandra Mantu, Assistant Professor (Radboud University, the Netherlands) and forms part of series of blog posts examining the implementation of the Global Compact for Safe, Orderly and Regular Migration.
Objective 4 expresses the commitment of states to provide all migrants with proof of their legal identity and adequate documentation as a way to ensure effective migration procedures, efficient service provisions and improved public safety. Based on the text accompanying Objective 4, its realization sits primarily with the state of nationality, although states in general have to issue migrants adequate documentation and civil registry documents as a way to empower them to effectively exercise their human rights. The realization of this objective is further broken down into 7 distinct actions that reach from improving civil registry systems to harmonizing travel documents, to providing access to consular services and documentation, to reducing statelessness and ensuring that the delivery of services is not impaired by a persons’ lack of legal identity or proof of nationality, to introducing alternatives to standard documents certifying nationality or legal identity. Building on these varied actions foreseen by the Global Compact, this article discusses across 5 themes indicators that help measure the implementation of Objective 4.
1. ‘Everyone has the right to recognition everywhere as a person before the law.’ – Article 6 Universal Declaration of Human Rights (UDHR) 1949
The notion of legal identity is not defined by the Compact and based on the text accompanying Objective 4 is can be said to refer to: documents that certify a person’s nationality, civil registry documents such as birth, marriage or death certificates, but also travel documents such as visas. The starting point in thinking about the implementation of Objective 4 is the UDHR as it contains two articles relevant for understanding state obligations in relation to legal identity and nationality. Article 6 UDHR states that ‘Everyone has the right to recognition everywhere as a person before the law.’ Article 6 is seen as applying to the whole spectrum of human rights guaranteed by the UDHR due to its importance in unlocking access to rights. States have obligations to set up a system of recognition of legal identity towards nationals but also migrants, refugees etc. This can be done by establishing a population registration system. As an indicator that states meet their obligations towards providing tools to establish one’s legal identity, such a system should without discrimination in line with Article 2 UDHR to prevent, for example the erasure of ethnic of religious minorities as documented in the case of Rohingya in Myanmar. Article 15 UDHR further states that everyone has the right to a nationality and prohibits arbitrary deprivation thereof and is equally relevant for state obligations to set up a system certifying nationality.
2. Registering children at birth to ensure legal identity – Article 24(1) International Covenant on Civil and Political Rights (ICCPR); Articles 7 & 8 Convention on the Rights of the Child (CRC)
(See also: Article 29 International Covenant on the Protection of the Rights of all Migrant Workers and Members of their Families; Article 18 Convention on the Rights of Persons with Disabilities)
Being registered at birth is probably the most important step towards having a legal existence later on in life. UNICEF stresses that a child who is not registered at birth is in danger of being denied the right to an official identity, a recognised name and a nationality and likely to be subjected to discrimination in the enjoyment of her/his human rights. There are several international human rights treaties that set out the right of every child to be registered immediately after birth – Article 24(2) ICCPR, as well as the right to be given a name, the right to acquire a nationality, and as far as possible to know and be cared by their parents – Article 7 CRC. Special mention is made of children who would otherwise be stateless and towards whom states have to pay special attention based on national law and obligations stemming from international conventions to which they have signed up. State obligations stemming from the CRC must be implemented in full conformity with the general principles of the CRC, including non-discrimination and the best interest of the child.
Indicators that would assess to what extent states fulfill their obligations towards children should be based on the recommendations of the Committee on the Rights of the Child General Comment no.7(para 25). The Committee recommended states to ensure a universal, well-managed registration system that is accessible to all and free of charge. Accessibility should be assessed in terms of geographical, physical and social accessibility. Such a system should be flexible and responsive to the circumstances of families as well as allow for late registration at birth. Other issues to be considered include whether the birth registration system allows the registration of children of non-citizens (migrants, refugees or stateless persons); parents’ lack of legal identity should not prevent the child’s registration; the quality of birth registration should also be considered to ensure that nationality is recorded. Another useful indicatoris the inclusion in national laws and procedures of provisions addressing subsequent birth registration to deal with the situation of adults who were not registered at birth and who lack legal identity. In some states, subsequent birth registration is open only for minors, leaving adults in legal limbo.
3. Reducing statelessness (1954 UN Convention relating to the Status of Stateless Person; 1961 UN Convention on the Reduction of Statelessness)
The 1954 Convention establishes the legal definition of a stateless person as someone not recognized as a national by any state under the operation of its law. It does so with a view to guarantee persons identified as stateless a right to identity, travel documents and administrative assistance as well as ensure minimum access to several other rights. Whether states comply with the 1954 Convention by having a statelessness determination procedure in their national law should function as an indicatorin relation to Objective 4 as the end result of such a procedure would be recognition of the person before the law; in the long term such recognition could also open the way for acquiring nationality. Where such a special procedure is missing, a relevant indicatorwould be whether identification as stateless is possible within other procedures (eg to establish residence). In any event, persons recognized as stateless should be given a lawful immigration status that would allow them to enjoy the treatment envisaged by the 1954 Convention.
The 1961 Convention aims at reducing statelessness by requiring states to establish safeguards in their nationality laws to prevent statelessness at birth and later in life; there are special provisions aimed at ensuring that children do not end up stateless. A good indicatorthat states fulfil this obligation is having special provisions in their nationality legislation allowing children born on state territory to acquire nationality if otherwise stateless (unable to acquire another nationality at birth). Furthermore, nationality legislations should include provisions making sure that changes in one’s personal status (marriage, divorce, adoption etc) or renunciation of nationality or naturalization do not cause statelessness. Nationality legislation should also contain sufficient safeguards to prevent arbitrary deprivation of nationality.
4. Equal treatment and prohibition of discrimination – Article 9 Convention on the Elimination of Discrimination Against Women (CEADW); Article 5 International Convention on the Elimination of Racial Discrimination (ICERD)
Article 9(1) CEDAW guarantees that women shall enjoy equality with men in their ability to acquire, change or retain their nationality. Compliance with Objective 4 is linked with having legal safeguards in nationality legislation to ensure that a woman’s nationality should not automatically be changed by marriage or a change in her husband’s nationality. Under Article 9(2) CEDAW states must grant women equal rights with men with respect to the nationality of their children. Article 5 ICERD creates obligations for state parties to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law in relation to several rights, including the right to nationality. In terms of indicators, nationality laws should include express prohibition of racial and gender discrimination and state parties should establish monitoring mechanisms to ensure that nationality decisions are mindful of such principles.
5. Access to consular documentation – Article 5 Vienna Convention on Consular Relations; Article 23International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICMW)
While Objective 14 deals with the larger issues of enhancing consular protection, assistance and cooperation throughout the migration cycle, Objective 4 mentions access to consular documentation for nationals residing abroad with a view to obtaining ‘consular documentation’ – identity and travel documents. Access to consular protection and assistance of their home country is a right of migrants under Article 23 ICMW whenever the rights recognized in the Convention are impaired. Article 5 of the Vienna Convention details the functions fulfilled by consuls including issuing passports and travel documents to nationals of the sending state. Relevant indicatorsinclude the existence and number of consular offices in relation to the number of nationals in the receiving state, accessibility of such offices and charges linked to issuing documents.
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