The Sustainable Development Goals and ‘legal identity for all’: ‘First, do no harm’

Abstract

• The adoption of SDG target 16.9 has brought belated recognition of the importance of a person’s ‘legal identity’. • New ‘legal identity’ systems are being implemented out without sufficient attention to potential negative impacts. • To achieve the desired positive impacts, detailed attention is needed to the regulation of enrolment processes. • To avoid doing harm, independent oversight and reduced state discretion are critical. The right to legal identity, previously neglected by the development community, has gained recognition by the adoption of a target in the SDGs to ‘provide legal identity for all, including birth registration’. In the initial absence of definition of ‘legal identity’ beyond birth registration, different actors have interpreted the target according to their own priorities, whether they be human rights protection, development, national security – or rent-seeking. Long-standing scholarship recognises both the positive and negative potential impacts of state identification systems; the adoption of new biometric technologies strengthens these potential impacts, for good or ill. The importance of data protection and the risks to privacy created by digital technologies are well-recognised. This article returns to arguments made by Simon Szreter in World Development in 2007, to argue the critical importance of independent oversight of executive decisions relating to legal identity; it adds an emphasis on the detailed regulation of enrolment processes, and the importance of nationality law reforms, as government-backed identity schemes are upgraded or introduced. The article argues that the introduction of new ‘foundational’ national identification systems for adults and more pervasive requirements for proof of identity, without simultaneously addressing gaps in the legal framework governing the determination of legal status, risks making the problems around proof of legal identity worse rather than better.