'Does the Right to Birth Registration Include a Right to a Birth Certificate?' by Paula Gerber, Andy Gargett & Melissa Castan in 29(4)
Netherlands Quarterly of Human Rights (2011) 434-459
notes that -
International human rights law has long recognised the right of every child to have their birth registered. However, what is less clear is what this right encompasses. For example, does the normative content of the right to birth registration include a right to a birth certificate? This is a question that has become very relevant to Indigenous Australians many of whom are experiencing difficulties acquiring a birth certificate. This article argues that the right to birth registration, as set out in the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child, implicitly includes the right to a birth certificate. This conclusion is reached following an analysis of the work of the Human Rights Committee and the Committee on the Rights of the Child.
The authors conclude -
Both the HRC and the CRC Committee have indicated that the purpose of the right to birth registration is to ensure an individual can attain other human rights. in light of this, it is logical that the right to a birth certificate is a necessary component of the right to birth registration, because it is the certificate that is the essential evidence of birth registration, and therefore opens the gateway to the realisation of other rights. For this reason, the right to birth registration without a birth certificate is hollow, theoretical and illusory.
This article has canvassed a significant array of authority that indicates that the HRC and CRC Committee both support this interpretation of the scope of the right to birth registration. implying a right to a birth certificate as part of the content of the right to birth registration is not just logical, but also principled. applying a teleological approach to interpretation would suggest that the right to a birth certificate is incorporated into the right to birth registration, in order to realise object and purpose of this norm. Furthermore, the extensive work of the CRC Committee and HRC, canvassed in this article, should inform the context and subsequent practice of the right, as it arguably amounts to subsequent interpretation.
Nevertheless, there is a lack of explicit and unequivocal articulation of the legal justification for the inclusion of a right to a birth certificate as part of the right to birth registration. The sheer weight of authority suggests that the authors’ assertion that a right to a birth certificate forms part of the right to birth registration is a sound one. However, the CRC Committee should consider developing a thoroughly analysed General Comment that clearly articulates the precise content of the right to birth registration, as set out in article 7 of the CRC. Such an enunciation should expressly recognise that the right to a birth certificate is a necessary part of the right to birth registration. Some might argue that the ‘reading in’ of a right to a birth certificate is inconsistent with the text of article 24(2) of the ICCPR and article 7 of the CRC, however, such an interpretation would be theoretical and illusory, and inconsistent with a principled interpretation of the right.
There is precedent for a treaty committee to use a General Comment as a vehicle to elaborate on the normative content of a right. For example, in 2002, the Committee on Economic, Social and Cultural Rights published General Comment 15 determined that a right to water should be read into article 11 (right to an adequate standard of living) and article 12 (right to the highest attainable standard of health) of the International Covenant on Economic, Social and Cultural Rights. In General Comment 15 the Committee set out a detailed legal justification for the conclusion that a right to water was ‘inextricably related’ to the right to adequate food, the highest attainable standard of health and the right to life.This is analogous to the inextricable relationship between birth registration and a birth certificate. a similar initiative by the CRC Committee would ensure that the right to birth registration expressly includes the right to a birth certificate.
The express recognition of a right to a birth certificate in international law would assist in redressing the problems faced by many indigenous australians as highlighted above. Such recognition would affirm that in order to be consistent with international human rights law australia’s current birth registration systems should be altered to ensure there is ready access to a birth certificate. international human rights law provides governments with the normative standards to which they must adhere. The australian state and territory governments are more likely to re-structure their birth registration systems if it can clearly be demonstrated that their current practices do not comply with international human rights norms. Furthermore, it will help the Registrars of Births, deaths and marriages to see their work as impacting on fundamental human rights, rather than being a mere administrative process. Finally, for those indigenous australians who have been unable to obtain a birth certificate, the express recognition of a right to a birth certificate, as part of the right to birth registration, empowers them to pursue remedies for breaches of their human rights. Such action may ultimately culminate in them being able to obtain a birth certificate and all the benefits and entitlements that flow from having such a document.
