1. 1.

    States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.

  2. 2.

    Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity.

FormalPara What Did Children Say?

‘Children are allowed to take passports as a right to their names, family and nationality.’ (Africa)

‘Countries should make birth certificates free’, one individual saying it is ‘ridiculous that some individuals have to pay for birth certificates.’ (Western Europe/Other)

‘It’s important that the government does not make the process to get the documents too complicated.’ (Western Europe/Other)

‘Children should not be migrated from their home to anywhere without the presence of their parents.’ (Asia-Pacific)

Overview

Article 8 provides for preservation of the identity of the child in general, and in particular preservation of their nationality, name, and family relations. As Tobin explains using the words of Geraldine Van Bueren, Article 8 is the vehicle through which a biological entity transforms into a legal being, confirming the ‘existence of a specific legal personality capable of bearing rights and duties’ (Tobin & Todres, 2019, p. 279; van Bueren, 1998, p. 117). Therefore, it is a prerequisite for the exercise of all human rights for children.

The unique quality of Article 8 relies upon it being the first human rights law provision recognising the right to preservation of the child’s identity explicitly. Previous human rights treaties had only provided protection for specific elements of a person’s identity, such as nationality, freedom of thought, conscience and religion, freedom of expression, respect for private life, and the right to participate in cultural life (Tobin & Todres, 2019, p. 280).

Article 8 was introduced by Argentina, which was then dealing with cases of enforced disappearances during the junta regime (Hodgkin et al., 2007, pp. 97–109). Many countries raised questions about its relevance, as preservation of identity had already been protected in other articles of the Convention (UN Commission on Human Rights, 1985, paras. 1–3). However, it was argued that children of parents who were subject to enforced disappearance were at greater risk of being discriminated against. In addition, cases arise where the nationality of a child, as part of their identity, cannot be preserved due to gender-based discrimination (denial of passing parental identity from mothers), civil status-based discrimination (children born out of wedlock), or migration-based discrimination (children of migrant parents, born or lived in the country for most of their life) (UN Human Rights Council. Working Group on Enforced or Involuntary Disappearances, 2013, para. 8). Furthermore, enforced disappearances of children or related cases of irregular adoptions may directly violate the right to preservation of identity by concealing the identity of the children and preventing re-establishment of the bond between the disappeared children and their families, their heritage, culture, and their identity (Pais, 1997, pp. 433–34).

In 2010, with the adoption of the International Convention for the Protection of All Persons from Enforced Disappearance (CED), another international human rights treaty recognised the right to one’s identity. Articles 4 and 25 of the CED contribute to further define Article 8 of the Convention by:

  • Criminalising abductions and enforced disappearance of children and punishing the perpetrators as a measure of countering impunity in such cases or times where state officials are involved in abductions

  • Preventing and punishing enforced disappearances of children, their parents, and babies born during the captivity of pregnant mothers subjected to enforced disappearance

  • Criminalising the falsification, concealment or destruction of documents attesting to the true identity of children

  • Searching for or cooperating with others in the search for disappeared children and the return of children to their families of origin

  • Having legal procedures in place to review adoption and, where appropriate, to annul any adoption or placement of children that originated in an enforced disappearance

  • Preserving or reinstating the identity of the child with their nationality, name, and family relations.

Because CED is not a widely ratified human rights treaty, it is imperative for the best interests of the child that Article 8 of the Convention is interpreted along with CED to fill possible legal protection gaps for children.

More recently, references to Article 8 and the child’s right to identity are recurrent in contexts including the ‘children’s right to know their genetic identity in the cases of assisted reproductive technology; their cultural and biological identity in cases of adoption and surrogacy; their gender identity in cases of gender reassignment; and the preservation of their disability identity in debates about genetic manipulation’ (Tobin & Todres, 2019, p. 280). This illustrates the pivotal importance of the Article 8 in the attribution of the legal personality, and the breadth of issues impacting the preservation of a child’s right to identity, beyond those that originally led to the inclusion of Article 8 in the Convention.

General Principles

Article 2

Children of parents who were subject to enforced disappearance themselves are at a greater risk of being discriminated against (Hodgkin et al., 2007, p. 113). Therefore, States Parties should have anti-discrimination legislation as a preventive measure for children from parents of minority groups, or certain ethnic, political, or social backgrounds (UN Human Rights Council. Working Group on Enforced or Involuntary Disappearances, 2013, para. 7). States Parties should introduce preventive and protective legal and policy measures to address discrimination against children affected by enforced disappearances and related cases of irregular adoptions.

Article 3

Article 8 is based on the best interests of the child, linking human rights law with international and national criminal law in situations of enforced disappearances and related cases of irregular adoptions (Doek, 2006, pp. 7–14). It provides legal guarantees for the right to preservation of recognition as a person before the law after irregular adoptions, along with protection of the right to liberty and security of the person from enforced disappearance (Office of the United Nations High Commissioner for Human Rights and Rädda Barnen (Society: Sweden), 2007, pp. 133–34).

Article 6

The right to preservation of identity of the child, including their nationality, name, and family relationships, is intertwined with their individuality and private life. Therefore, it is necessary for the development of the child (Pais, 1997, p. 433; UN Human Rights Council. Working Group on Enforced or Involuntary Disappearances, 2013, paras. 19–23). Enforced disappearances of children or related cases of irregular adoptions directly violate the right to preservation of identity by concealing the identity of the children and preventing re-establishment of the bond between the disappeared children and their families, their heritage, culture, and their identity (Pais, 1997, pp. 433–4).

Article 12

The right to participation is directly linked to the preservation of identity, as it relates to the child’s right to be heard in decisions of administrative proceedings in situations of enforced disappearance, related cases of irregular adoptions, and other administrative procedures (UN Human Rights Council. Working Group on Enforced or Involuntary Disappearances, 2013, paras. 1–8).

Articles Related or Linked to Article 8

Article 7, preservation of identity relies on the right to a name and nationality, the prevention of statelessness, and to know and be cared for by parents.

Article 9, separation from parents may be detrimental to identity preservation and family relations.

Article 10, entering or leaving countries for family reunification requires a particular attention in term of procedural regulation to ensure identity preservation.

Article 11, illicit transfer and non-return of children abroad expose the child to the risk of losing identity, including nationality, name and family relations.

Article 16, protection from arbitrary interference in privacy, family, and home also contribute to ensure the respect of the right of the identity of the child at the related family relations from unlawful interference.

Article 20, children deprived of their family environment have the right to know their origins and background.

Article 30, right to enjoy culture, religion, and language; protecting the child against interference in children’s identity and have continuity of upbringing, particularly with regard to their ethnic, cultural, and linguistic background

Relevant Instruments

For the reasons explained above, with the exception of the Articles 4 and 25 of the UN International Convention for the Protection of All Persons from Enforced Disappearance (2007), there is no other international or regional human rights treaty that contains a provision similar to Article 8 of the Convention.

Attributes

Attribute One: Establishment of Criminal and Procedural Preventive Measures

States Parties are required to introduce preventive measures for children affected by enforced disappearance and/or related cases of irregular adoptions. They must clearly criminalise enforced disappearances and irregular adoptions and introduce punitive clauses for perpetrators in their criminal code. The law must be implemented to eliminate impunity, through effective investigations and punishments (UN Human Rights Council. Working Group on Enforced or Involuntary Disappearances, 2013, paras. 41–45).

The States Parties that have a history of grave human rights violations, including enforced disappearances and irregular adoptions, should set up independent criminal and administrative oversight mechanisms, DNA databases, and compensation mechanisms. This would allow children affected to obtain redress and remedy for their infringed identity rights, including

  • Re-establishing their identity

  • Speedy family reunification re-establishing their relationship with their family, and

  • Rehabilitation to affected children (as per CED Articles 4 and 25).

Attribute Two: Establishment of Protective Legal and Administrative Procedures

Attribute two deals with the protective component for children affected by enforced disappearance or related cases of irregular adoptions as well as other cases of preservation of nationality component of identity.

States Parties should have laws to protect children who are affected with enforced disappearance or related cases of irregular adoptions; specifically, their identities, including nationality, name, and family relationship, must be preserved through facilitating procedures for them to re-establish their identities and relationships without time limitation in bringing such cases to before a court of law (as per CED Article 24).

Laws should also provide compensation for any damages or loss of rights during time affected with enforced disappearance or related cases of irregular adoptions (Pais, 1997, pp. 433–4).

In addition, legislation should be introduced to protect children from discrimination by preserving their nationality-based identity through provision of options for acquiring nationality from both parents, regardless of the parents’ civil status, and from having lived in the state for a significant period of time (UN Human Rights Council. Working Group on Enforced or Involuntary Disappearances, 2013, paras. 30–36).