Does the Right to Birth Registration Include a Right to a Birth Certificate?

Published date01 December 2011
Date01 December 2011
DOIhttp://doi.org/10.1177/016934411102900403
Subject MatterPart A: Article
Netherlands Q uarterly of Human R ights, Vol. 29/4, 434–459, 2011.
434 © Netherlands In stitute of Human Rig hts (SIM), Printed in the Net herlands.
PART A: ARTICLES
DOES THE RIGHT TO BIRTH REGISTRATION
INCLUDE A RIGHT TO A BIRTH CERTIFICATE?
P G*, A G**
and M C***
Abstract
International human rig hts law has l ong recognised the right of every child to have
their bir th registered. However, what is less cle ar is what this right encompasses. For
example, does the normative content of the r ight to bir th registration include a r ight
to a birth ce rticate? is is a question that has beco me very relevant to Indigenous
Australians many of whom are experiencing diculties acquiring a bir th certicate.
is ar ticle argues that the right to birth registration , as set out in the Internation al
Covenant on Civ il and Political Rights and the Convention on the R ights of the Child,
implicitly includes the right to a birth certicate. is conclusion is reached following an
analysis of the work of the Human Rig hts Committee and the Committee on the Right s
of the Child.
Keywords: birth certicate; bir th registration; Convention on the Rights of the Child;
ICCPR; Indigenous; international human r ights law; United Nations Human Rights
Committee; United Nations Comm ittee on the Rights of the Child
1. INTRODUCTION
Birth registration is widely regarded as gateway to the attainment of other fundamental
rights because it faci litates access to essential serv ices such as education and health.1
* Paula Gerber LLB, M Sc, LLM, PhD is a Senior Lecturer in the Monash University Law Scho ol, a
Deputy D irector of the Cas tan Centre for Human Rights Law and a member of the board of the
Victorian Equ al Opportunit y and Human Right s Commission. Emai l: paula.gerber@mona sh.edu.
** Andy Gargett BA(Hons), LLM(JD) was a researcher at Monash University Law School. Ema il:
andrew.gargett@hu manrights .gov.au.
*** Melissa Casta n BA, LLB(Hons), LLM is a Senior Lecturer in the Monash Universit y Law School and
a Deput y Director of the Castan Centre for Human R ights Law. Email: melissa.casta n@monash.
edu.
1 Todres, J., ‘Birt h Registration: A n Essential First St ep Toward Ensuring the Rig hts of All Children’,
Human R ights Bri ef, Vol. 10, No. 3, 2003, pp. 32–35; Sharp, N. , Universal Birth Registration – A
Does the Rig ht to Birth Regist ration Include a Right to a Bi rth Certic ate?
Netherlands Q uarterly of Human R ights, Vol. 29/4 (2011) 435
Indeed, international human ri ghts law unquestionably recognises a right to birth
registration. is r ight is enshrined in a range of human rights treat ies, including the
International Covenant of Civil and Political Rig hts (ICCPR)2 and the Convention on
the Rights of the Child (CRC).3 In this article, the authors focus on the ICCPR because
it is part of the Internationa l Bill of Human Rights and, thus, aorded preeminent
status in internat ional human rights law.4 Likewise, the CRC is also an important
human rights inst rument that has more ratications than a ny other human rights
treaty. Moreover, it specically focuses on the rights of children, which is pa rticularly
relevant to the issue of birth regist ration. Finally, t he authors have decided to focus
on these two treaties in relation to the issue of bir th registration and birth cert icates
because the UN bodies monitori ng these treaties have produced a substantial body of
work for analysis.
While a right to bir th reg istration has be en clearly recognised , it is less clear
whether such a rig ht includes a right to a birt h certicate. Without a bir th certicate
the i ndividual benets owing from birth regis tration are i llusory. e impor tance
of this issue has recently been hig hlighted in Australia, where it has become apparent
that a number of Indigenous people are experiencing diculties obtaining a birt h
certicate, even if their birth was regist ered, and this is signicantly i mpeding their
ability to rea lise basic citizenship and human rights.5 e se hardships lead to the
question: does international human r ights law require t hat Australia have in place a
system that provides not only u niversal birth registration, but al so ready access to a
birth cert icate?
is article argues that a right to a birth certicate is an implicit part of the right to
birth registrat ion. Whilst registering every birth provides the State with valuable data
about its population, it does little to protect the individual unless a birth certicate
is also provided . It is the birth certicate that is the gateway t he enjoyment of all
human rights and priv ileges associated with citiz enship. It is the birth certicate th at
provides the substance to the r ight to birth registration.
Universal Responsibilit y, Plan International, Surry Hills, 2005; Doek, J., ‘e CRC and legal protection
against statele ssness and deprivation of/denial of nationa lity’ (Paper presented at the meetin g of the
Open Societ y Justice Initiat ive, Approaches to Combati ng Statelessness and Arbitrary Depr ivation
of Nationalit y, New York, 8–9 May 20 06); Heap S. a nd Cody C., ‘ e Universal Bi rth Regist ration
campaign’, Forced Migration Review, Vol. 32, 2009, pp. 20–22; Ziemele, I., Commentary on the
United Nations Convention on the Right s of the Child: Article 7 e Right to Birth Registration , Name
and National ity, and the Ri ght to Know and Be Cared for by Parents , Martinus Nijho Publishers ,
Leiden, 2007.
2 International Covenant on Civ il and Political R ights, 1966, 999 U NTS 171, Article 24(2).
3 Convention on the Rights of the Ch ild 1989, 28 ILM 1448, Art icle 7.
4 See Nowak, M., U.N. Coven ant on Civil and Polit ical Rights: CCPR comm entary, 2nd Ed, N.P. Engel
Publisher, Khel, 20 05.
5 Orenstein, J., ‘e Diculties Faced by Aboriginal Victorians in Obtaining Identication’, Indigenous
Law Bulletin, Vol 7, No 8, 2008, at pp. 14–17; Orenstein, J., ‘Being Nobody – e Dicult ies Faced by
Aborigina l Victorians in Obtaining Identi cation’ (Paper presented at the National As sociation of
Community L egal Centres Conferenc e, Perth, 14–17 September 2009).

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