A/HRC/30/42
no registration of their birth and lacked the means to trace their identity and identify
their families or communities. 20
41.
Officially recognized identity, substantiated through birth certificates or
identity documents, is a gateway for the realization of most fundamental rights.
Legal identity is important for the purpose of having rights respected, for claiming
them and for obtaining redress when they are violated. Addressing the challenges of
legal registration in the aftermath of conflict or repression provides an opportunity to
establish, restore or strengthen the foundations of a national registry that is
compulsory, universal, permanent and continuous, which secures the c onfidentiality
of personal data and is sensitive to cultural circumstances, including of minorities
and religious or indigenous groups. By facilitating statistical data, legal registration
can assist a Government to better plan, implement and monitor its service provision
and efforts towards the realization of the rights of the individuals and development
objectives. Addressing legal identity concerns in post-conflict or post-authoritarian
contexts provides a way for transitional justice mechanisms to have an impact
beyond their direct sphere of influence.
B.
Ratification of treaties
42.
While legal identity is a precondition for the exercise of rights, there are
measures that can proactively promote rights, both retrospectively, by redressing
their violation, and prospectively, by trying to prevent the violations. Some of these
tools have received legal expression in international treaties. A basic step in the
articulation of a non-recurrence policy, therefore, consists in the ratification of
relevant treaties concerning gross human rights violations and serious violations of
international humanitarian law. 21 States should avoid, or withdraw, any reservation
that could raise doubts as to their compatibility with the obj ect and purpose of the
treaty.
43.
Because no law is self-executing, ratification alone can at best be taken as a
signalling device, which has the potential for misuse as “window dressing”, in which
case ratification can be followed by a worse human rights performance. 22
Nevertheless, ratification, exemplifying what has been called “the paradox of empty
promises”, 23 can lead to greater compliance if accompanied by various forms of
advocacy. 24
44.
Except for pure “monist” legal systems, ratification can lead to greater
compliance only if accompanied by the incorporation of treaty obligations into
domestic legislation. In such systems, therefore, a basic element of a non -recurrence
policy will require, in addition to ratification, a strategy of incorporation (and
desirably of monitoring and enforcement).
20
21
22
23
24
Ibid.
See key international instruments, available from www.ohchr.org/EN/Issues/TruthJusticeReparation/
Pages/InternationalInstruments.aspx.
See Oona A. Hathaway, “Do Human Rights Treaties Make a Difference?”, Yale Law Journal,
Vol. 111, No. 8 (2002).
See Emilie M. Hafner-Burton and Kiyoteru Tsutsui, “Human Rights in a Globalizing World: The
Paradox of Empty Promises”, American Journal of Sociology, Vol. 110, No. 5 (2005).
See Tomas Risse et al, The Persistent Power of Human Rights (Cambridge University Press, 2013).
11
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