Legal Identity Under The Obligations of State Sovereignty

Updated: Sep 17

Recent global developments

Legal identity of a natural person is closely related to the capacity of the State to manage civil registration. The legislation that regulates it, is still a matter of "domain réservé" under the State Sovereignty; if such a capacity is weak, the consequences usually tackle the citizenry and other parts of population.

by Alenka Prvinšek Persoglio, member of the SECOIA Network of Experts on CVRS and LI

Legal identity of a natural person is a complex legal concept, which was nevertheless also recognised by the United Nations. Stipulation of the commitment under the Sustainable Development Goal 16.9 that by 2030, in ten years from now, that everyone will have legal identity, seems to be quite an ambitious goal in particular in the light of the fact, that roughly 1 billion of global population according to the estimations of the World Bank still lacks birth registration.

One of the challenges on the way to accomplish the goal 16.9 is also related to the fact that the definition of legal identity is not harmonized in any international treaty, and thus belongs to the States.



The response of the UN to this challenge is the appointment of the UN Legal Identity Expert Group i(LIEG)n September 2018 that operates under UNSTAT and is 1 composed of the representatives of 17 UN agencies. Its goal is to provide a working definition of legal identity.


According to the LIEG, “legal identity is defined as the basic characteristics of an individual's identity. e.g. name, sex, place and date of birth conferred through registration and the issuance of a certificate by an authorized civil registration authority following the occurrence of birth. In the absence of birth registration, legal identity may be conferred by a legally- recognized identification authority.


This system should be linked to the civil registration system to ensure a holistic approach to legal identity from birth to death. Legal identity is retired by the issuance of a death certificate by the civil registration authority upon registration of death. In the case of refugees, Member States are primarily responsible for issuing proof of legal identity. The issuance of proof of legal identity to refugees may also be administered by an internationally recognized and mandated authority.”

This working definition as developed by the UN agencies does not include citizenship, which otherwise remains in many States one of the constitutive element of the identity.


In December 2018 UN adopted in Marrakech a Global Compact for Safer, Orderly

and Regular Migration; in the Objective 4, a declaration that clearly stipulates the need to improve civil registry systems, including strengthening measures to reduce statelessness. The Objective 14 highlights the need to enhance consular protection, assistance and cooperation throughout the whole migration cycle. In fact, it addresses the coherent approach of the State towards the individual - primarily the citizens, by providing them legal

identity and protecting their legitimate interest in regard to access to their rights.


Prevention of statelessness

This declaration also clearly underlines the fact that the obligation of the State in providing legal identity for its citizens does not end at the State’s border, but it extends beyond. This means that an accountable State should revise the legislation on citizenship and introduce the measures that will reduce the risk of becoming stateless due to the gaps in the existing citizenship law, or even in the constitution.


While the Sustainable Development Goals aim to reduce poverty and contribute to the prosperity of developing countries, the States with their powers may not escape their legal obligations towards their citizens and other parts of population, irrespective of their economic state of development. It goes without saying that the States by the commitment to the UN Declaration on Human Rights in art 6: the right of everyone to be presented by law- must recognise the fact that this right materializes only if the State has the capacity to register every birth in real time. With the registration of a child immediately after the birth, the path towards recognition of legal identity of a newborn is deemed to be accomplished, but not yet finalized.


Who is the owner of Legal Identity?

Legal identity consists of some fundamental rights enshrined in universal legal treaties and belongs to the individuals whose rights are protected by the law of the respective State. In this regard, It is primarily the obligation of the States to provide a legislative and institutional framework that will comply with the needs of the population of its access to the services provided by the State or other actors in compliance with obligations under the international treaty framework. The accountable State should also provide implementation skills of the staff by introducing mandatory in-service training.


The elements of legal identity that comprise civil rights are in case of their violation a subject of judicial review at national level, while in some cases, also by international courts. The capacity building to provide legal identity for all must be therefore in the focus of any State who is a member of the UN system.


In practice, many States with an underdeveloped system of Civil Registration still cope with delays of registration of birth, although the figures have been improved during the last 5 years. The standard in Civil Registration Acts in many developing countries with tolerance to notify the birth to the civil registration office from 3 months to a year, is not a rare practice. To make notification of the death mandatory before the burial, is a standard that still needs to be met.


Excuses that the traditions oppose to such a practice are at the wake of digitization unacceptable. The general rate of registered deaths in Sub Saharan Africa is still very low and does not demonstrate a notable progress of an advanced system of registration of population. The same applies to the registration of marriages, irrespective of the progressive process of acceptance of standards to eradicate child marriages, and to its related protective measure of having an effective system over the evidence of age. Accurate voters lists in such cases seem to be an illusion for a claim to have elections proclaimed fair.


An efficient system of birth registration that anticipates reliable data on timely, continuous, mandatory registration of these data is simply condition sine qua non for verification of the fact of age. If the States ignore these obligations that are of binding nature, the violation may bring the State /s at the international court (forced child marriages, forced recruitment of children in armed conflicts, cases of trafficking of children, illegal labour employment practice of children for the work in mines etc).


However, the capacities on legal aspects of civil registration, and to this end - obligations of the State towards their citizens and other residents remain many times void. The requests to amend obsolete legislation and e.g. delete the institute of legitimation of a child in case that a State by its Constitution and accession to the international treaties acknowledges equality of a child born in wedlock and a child born out of wedlock, remain as a dead letter on a paper.


Legislative and institutional capacity of the State: A precondition of accountable digitization of the civil registration

There exists a general perception that introduction of digital technology in management of the legal identity brings development to the overall population. But there exists a lesser degree of knowledge that a precondition to achieve such a goal is first to have a robust legislative and institutional capacity framework of the State.


The States which are considering the possibility to introduce biometric identity documents, and have bound themselves to respect data protection standards seldom do not align material legislation on civil registration with the obligations under international treaty law (this means that they must provide in material law a clear mandate in regard of the purpose, exchange, processing and storage of the data). The violation of these fundamental prerogatives which fall under the concept of rule of law is an imperative that calls for adoption of a robust legal regime with the objective of protection of the right to privacy.


Civil liability of the State in case of violation of the right to privacy and data protection

In case of violation those who pay the price of ill practice are the citizens who are deprived of the legitimate interest to have access to their rights.

The State remains liable for violation of the rights in such cases - concretely: the cases of access to the heritage after the late father by a child of a mother who was not married to the father in comparison to the siblings who were born to a spouse who was legally married to a father, is not unknown in many of African States.


The children are discriminated in spite of the fact that the State fully recognises the principle of non-discrimination by their status at birth.


Who to blame, if a successful student from a developing country is granted a scholarship for a study at a prominent University in one of the developed States in case of refusal of visa application by Immigration service of the State where the University is.


The supporting documents that need to be submitted for visa application - the birth certificate, the certificate of the degree of education completed in the country of origin and the data in the passport differ in date of birth and spelling of the name. These cases are not unknown and are related to non-existing or a poor system of civil registration, the perception of its objective and performance of its service. At the very end, the States should be aware of their mandate, and nevertheless be liable for the compensation in case of negligence that caused damage in a concrete case.


The impact of a poor system of Civil Registration on international travel and emigration

The decision of the State to set a visa ban for entry of the citizens that belong to the State with a porous system of civil registration should not be a surprise.


The lack of adequate knowledge of the States about the rules and existing practice on

recognition of the documents issued by the public authorities in domain of civil registration

by other States (by the legalisation procedures which aim to certify the authenticity of the signature and the stamp impressed on the public document) will cause unnecessary costs for their citizens who need such documents either for the purpose of study, employment, or family unification in another State.


Conclusions

Legal identity and its implications is thus a matter that requests a lot of skills and knowledge of the legislative and institutional capacity of every State.

It is a prerogative of Sovereignty of the State in the management of identity of the population, irrespective of its form-either being supported by digital technology or being conducted manually.

It is a false perception that in case of digitization the capacity of the State to know the overarching system of the rights interrelated to the rights enshrined in legal identity is no longer needed. The obligation of the State towards the citizens in this field remains the same.

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This article was originally published for Interact4C and reposted with the permission of the author.

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