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The Child's Right to Birth Registration——International and Chinese Perspectives

作者:Liu Huawen
[Abstract] With the ongoing development of human rights law, especially the adoption of the UN Convention on the Rights of the Child (CRC), new concepts of 'child' and 'childhood' are being shaped. Also, birth registration has come to be viewed as a basic human right for all children. In contrast, birth registration is often regarded as a concept of public administration in many places in history and even now in the People's Republic of China (PRC); indeed, some Chinese scholars do not regard the child as a subject in law, but as an object.

Establishment and implementation of the right to birth registration are very important for ensuring that the other rights of the child recognized by the CRC and other human rights instruments are upheld. It is the key right for enabling children to enjoy their human rights. The situation in the world in this regard is not very optimistic, and there are both issues common across the globe and specific regional and national problems hindering the birth registration of children. China, for example, faces serious challenges in its attempt to secure the right to birth registration for all children.

So, there still exists a big gap between the laws and the reality concerning the realization of child's right to birth registration. To find the reasons and factors for the gap, the author introduced and explained the international standards and analyzed the situation both at international level and Chinese domestic level.

Together with research into international human rights law and relevant practice, the author provides legal opinions and empirical background information from China. He points out that given the large numbers of children in China, even a small percentage of unregistered children is a notable and serious problem.

In recent years, birth Registration - the first right,1 and also the key which opens the door to all of the other human rights of the child - has been one of the issues on which the international human rights field has focused on with regards to the rights of the child.2

I. Birth Registration as a Fundamental Human Right

For a long time, birth registration, included within the domiciliary system, was generally regarded as an affair of the state's public administration in the People's Republic of China (PRC).3 Even today, most people regard birth registration as the legal obligation of a child's guardians. If a child's guardians do not file the birth registration in accordance with the law, the state can impose a penalty based on legal procedures. The child itself is considered as an object with which the legal relations are concerned, but not as the principal subject.4

The Declaration on the Rights of the Child adopted by the UN on November 20th, 1959, contains no direct provision relating to the birth registration of a child. As part of the "Universal Bill on Human Rights", Article 4 para. 2 of the 1966 International Covenant on Civil and Political Rights (ICCPR) specifies that: "Every child shall be registered immediately after birth […]". According to Article 7 para. 1 of the 1989 UN Convention on the Rights of the Child (CRC)5 : "The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents." According to most interpretations of international law, the Declaration on the Rights of the Child generally has no legal binding effect, but as treaties both the ICCPR and the CRC produce binding legal obligations for the State Parties.

What is more, as human rights expert Katarina Tomasevski said: "International human rights law tends to recognize and protect the rights and best interests of a child… This is a historic reformation with lasting meaning - in history, children have always been considered as the property of their parents." 6 In fact, the new concept of the child and the convention on human rights concerning the child correlate with each other closely.

In ancient times, a child was not even qualified to be registered. During the period of the Roman Empire, the system of civil registration did not allow women and children to be registered, since they did not have any civil rights.7

It is during the European Renaissance from the 14th to the 17th century, and during the 18th century European Age of Enlightenment that the value and dignity of people began to be emphasized, and that the concept of childhood was first introduced. The French enlightenment ideologist, philosopher and educator Jean Jacques Rousseau suggested that a child is an individual independent of the adults, that it has its own dignity and rights. 8

In Chinese traditional Confucian culture, the concept of filial piety emphasized the devotion of a child towards his or her parents. Adoration of the ancestors was central, and it was emphasized that a male child's main function was to propagate the family line. The concept of social hierarchy suppressed the role of the female child as well as the non-first-born male child; as a result, people considered that it would be acceptable to sacrifice one child if the family would benefit. The concept of hierarchy shored social order, which in turn reinforced the inequality in the relationship between the child and his or her parents. On one hand, it limited the will of the individual. On the other hand, it forced the child to learn the social hierarchical structure and to become better able to adapt to society as a whole. The concepts of Yin and Yang were the basis of the continuum from the universe into the concept of marriage and family, making social hierarchy (for example the hierarchy of parents and children) a structure determined by nature, and not by man. The leading ideology considered to be childhood a stage of adult development, without inherent value.9

Obviously it is quite different from the concept of childhood we recognized from the human rights perspective. Today there are some Chinese scholars who are to view the concept in accordance with the latest development of human rights. Bu Wei, a researcher in Chinese Academy of Social Sciences, is one of them. She offered a complete summing up of the childhood concept as follows:

1. A child must be looked upon as a "person", and we must admit that a child has its independent personality, as an adult does, and is not a subordinate to the adult;

2. A child must also be looked upon as a "child", and we must recognize and respect the independent value of childhood life, and rather than viewing childhood as the preparation for adulthood;

3. In the stage of growth of a child, an appropriate environment should be provided for its physical and spiritual development, and a child's individual rights and dignity should be given social protection.10

From a human rights perspective, it is specified that birth registration is a child's right, and hence, that the child is the principal subject of birth registration.11 The establishment of birth registration as a right of the child protected by the international conventions means that the state has the obligation to implement birth registration for the child according to international law, and ensure the realization of this right. Guardians of the child, have legal obligations related to administrative law, and also have rights and duties based on the rights of the child.

II. Birth Registration in Human Rights Law

Children's right to birth registration forms part of their rights to a legal identity. It is also closely related to the child's right to a name and nationality. The two conventions presented above mention the three rights within the same article, and describe the right to birth registration and right to a name and a nationality in the same paragraph. Article 24 para. 2 of the ICCPR states: "Every child shall be registered immediately after birth and shall have a name." Para. 3 specifies that: "Every child shall have the right to acquire a nationality." Article 7 para. 1 of the CRC says that: "Every child shall be registered immediately after birth and shall be given the right to a name, and the right to acquire a nationality...." The name and nationality of a child are the most basic content of his or her identity, and birth registration constitutes the legal recognition of a child's identity.

The drafting of the CRC began as early as 1979, but it was not until the first proof reading of the draft in 1989 that birth registration was mentioned explicitly. In one of the later drafts, produced by the draft committee comprised of representatives from USA, Algeria, Australia, the former East and West Germany, Kuwait, Holland and the former Soviet Union, it was specified that: "Every child shall be given the right to a name from birth, to be registered, and to be given the right to acquire a nationality". In principle, all of the states participating in the drafting process supported the proposal of the draft committee, which focused on the child registration issue. It was considered that there was a significant difference between the draft's wording and what was stated in Article 24 para. 2 of the International Covenant on Civil and Political Rights.12 But looking at the final results, the provisions on birth registration are rather consistent between the two Conventions.

Exactly when the child comes into being, is a controversial issue,13 but birth registration involves the concept of "live birth ". The World Health Organization defines a live birth as a baby that breathes or shows any other sign of life after delivery, irrespective of the duration of pregnancy. The UN view is that all babies born alive should be registered and their existence recognized, whatever their gestational age and regardless of whether they are still alive at the time of registration.14

The phrase "immediately after birth" in Article 7 of the CRC implies urgency and the need to act within a reasonably short period of time. The latter should be a period of days rather than months, for the probability of registration is greater immediately after a child is born, and if a mother gives birth in hospital, one of the best opportunities for registration is lost once she is discharged with her baby. Ensuring that birth registration comes as close to the birth date as possible, is one of the best ways to both protect the rights of the child and produce up-to-date, accurate national statistics. Thus states parties are encouraged to set the deadline for the birth registration through legislation according to their specific conditions, bearing the urgency consideration in mind and encouraging and facilitating birth registration as early as possible.

Although The European Convention for the Protection of Human Rights and Fundamental Freedoms did not clearly specify the obligations of countries to ensure that child registration occurs immediately after birth, failing to facilitate registration of a child has since been held to be illegal intervention against the right to respect of family life, protected by Article 8 of the European Convention. In Karl Delose vs. United Germany and Holland, the European Human Rights Committee considered that it is an illegal intervention against the right to respect for family life if no birth certificate is issued. In the Mark Eiks vs. Belgium case, the European Human Rights Court also held that according to Article 8 Paragraph 1 of the Convention, protection of the right to respect for family life includes birth registration of the child, without any extra conditions, such as whether or not the child is born to a married couple.15

In the American Convention on Human Rights, and the African Charter on Human and Peoples' Rights, there are clear provisions regarding the obligation of states in the matter of registration of children immediately after birth. Also, these two regional treaties stipulate that children's right to birth registration should not be ignored under any circumstances. Also, according to Article 4 of the ICCPR, this right can only be derogated if the related policies within the Covenant are not in agreement with other international legal obligations, and in the strict sense, not just based on the discrimination against a nation, skin color, sex, language, religion or social background.

III. The Importance of Birth Registration

Birth registration is important for many reasons. First and foremost, it is an effective way to protect the child's right to an identity. It also establishes a legal connection between the child and the state, and it is by becoming a legal subject that the child is given status under the law. This opens the way for protection of other rights provided for in the legislation. Otherwise, the child will not have an 'official' status, and will remain invisible and unprotected in many respects. In other words, birth registration is the key to all of the other rights of the child.

Birth registration can provide the state and society with important statistical information such as the size of the child population, age groups and other demographic details. Such information is essential for the planning of the government's economic and social development policies. Other aspects of the protection of the rights of the child that are facilitated by birth registration also include: obtaining social welfare assistance for the child, providing systematic priority and protection in education,16 and proof of birth dates. Birth registration provides necessary information in connection with prohibitions on child labor, child soldiers etc. Moreover, the rights, capacity and liability of a child in civil and criminal laws are based on the age shown by the birth registration.17 In situations like escaping from natural and man-made disasters, and massive migration, birth registration is particularly important, because in times of confusion and instability, children are more easily separated from their parents.18 Moreover, it can also prevent the kidnapping, abduction, illegal bartering and even killing of a child.

Nowadays, it is easier to see the functions and importance of birth registration. Some historical evidence will be presented below which clearly indicates the importance of the right to birth registration.

As previously mentioned, the ICCPR and the CRC both use the term "immediately" in their articles. This is to prevent abnormal situations such as one that happened in Argentina. From 1975 to 1983, approximately 150 to 170 children in Argentina disappeared. At the same time, 131 children were abducted from their mothers when they were born in secret detention centers or military hospitals. Evidence revealed later that many children were illegally given to infertile couples among soldiers or police officers and they became those people's children.19 During this process, many children were also killed or abandoned. As a result, during the drafting process of related Articles in the CRC Argentina played an active role in proposing the right of the child to retain its identity, and work to make that right prominent in a Human Rights Convention for the first time.20

In another example, not long after the beginning of the Second World War, thousands of British children were forced to move to remote districts of the British Empire. That action continued for almost 20 years and was stopped only in the 1960's. Such acts were secretly conducted by as many as 35 respectable children's charity organizations, including the National Poor Children's Relief Union Association in Barbados, the Salvation Army and the Roman Catholic Church. This continued to a climax during the post war recession era. Tens of thousands of children were sent to reception centers or farmlands of inland Australia, where they were often treated with cruelty and exploitation. They did not possess any documents, like birth certificates that could possibly identify their backgrounds.21

Historically, after colonial white people came to Australia, there were many native children who were taken away from their parents by the white people. In 1910, the local government initiated a policy for the assimilation of the natives. In accordance with this policy, there were Native Children's Care Centers set up in various areas, for the adoption of native children by force. This policy continued until 1970, when it was finally abolished. These children who were taken away forcefully from their mothers while still infants became known as "the stolen generation". According to a report by the Australian Human Rights Commission and the Committee for Equal Opportunities, during the 60 years of the native assimilation policy, a total of one tenth of native children were "stolen". Many of them did not even know when they were born, and lost all contact with their relatives.22

The experiences of children in Australia and North America subject to integration and assimilation through a legal form of kidnapping are similar; and the laws and policies were motivated not only by racism but also by beliefs about 'human nature' and how social engineering can be deployed, based on assumptions of cultural and racial hierarchies and superiority.23

Even nowadays it is of crucial importance for the child to have birth registration for the insurance of their right to life and safety.

A research report issued by the United Nations Children's Fund (UNICEF) in 1995 pointed out that in India, 300,000 girls died each year because of "discrimination". What is meant by "discrimination" here is that the girls did not receive the same treatment as their brothers. If the first-born child is a girl, she has some hope of surviving, but the second born girl is less likely to live. Out of the 13 million girls born each year in India, one quarter of them will not live past the 15th day.24

In China, starting in April 2000, the Chinese Public Security Ministry initiated a specific anti-crime campaign to fight against human traders and to rescue abducted women and children. The Chinese official newspaper China Daily said in September of the same year that officers found about 110,000 women and 13,000 children who had been abducted from their homes; many of the latter had been sold to childless couples.25 In this process, the domiciliary management organs under the public security authorities at various levels were also involved. With the help of census and investigations, the public security authority found some of the abducted women and children. This action had the most prominent results in the province of Shandong.26

In the CRC, the Article pertaining to birth registration follows directly after the Article pertaining to the child's right to life. This indicates the importance of timely registration and the legal significance of the right to birth registration.

Due to the importance of birth registration, from November 17 to 20, 1999, UNICEF and the International Planning Organization held a "Conference on Citizens' Registration in Asia" to commemorate the 10th anniversary of the CRC.

IV. Assessment of the Global Situation

What is the world situation regarding birth registration today? A report published by UNICEF in 1998 stated that each year, approximately 40 million newborn children did not receive birth registration. The result was that close to one third of the children in the world were unable to obtain immunization shots, receive education or basic health care due to lack of birth registration. According to UNICEF information, the problems are most serious in East/South Asia and the Pacific. In these regions, 23.5 million newborn children do not have birth registration, followed by sub-Saharan Africa (9.6 million), the Middle East and North Africa (1.9 million), Central Asia (1.2 million) and America (1.1 million). In Europe, there are 200,000 newborn children every year that do not get registered.27

A new UNICEF study published on June 4, 2002 reveals that millions of babies are not registered after birth, thus denying them an official identity, a recognized name and a nationality. The report estimates that 50 million babies were not registered in 2000, or 41% of births worldwide. In 19 countries, at least 60% of all children under the age of five were not registered. The report also provides a regional overview for 2000. In sub-Saharan Africa, over 70% of births went unregistered, as did 63% in South Asia. South Asia tops the league in terms of sheer numbers of unregistered children, with approximately 22.5 million, or over 40% of the world's unregistered births in 2000, compared to a total of around 17 million in sub-Saharan Africa. In the Middle East and North Africa, nearly one-third of the children born in 2000 (or some 3 million) lacked legal recognition of their identity, while in the East Asia and Pacific region 22% of births in 2000 - some 7 million children - were unregistered.28 So there are strong indications that the situation is not improving, despite great efforts by international organizations, and by the UN in particular. There is still a long way to go towards resolving the problems.

The factors affecting the lack of effective birth registration are complex. Wars, disasters, poverty, cultural traditions, racial discrimination and so on have both direct and indirect effects. There are similarities, as well as unique explanatory factors in different regions and states. The following examples may serve as an initial introduction to some of these factors.29

In Australia in the mid 19th century, formal civil birth registration for natives and Chinese did not exist; when informal registration occurred, the 'registration' that was recorded was usually just a simple "A Chinese" or "Tom, a Native". In 1853, Victoria State began including birth registration in civil registration. Other states followed and engaged in this task. During the 1990s, the federal states diligently coordinated to enforce the modernization and unification of related legislation. The fundamental guiding principles included, among other things, the simplification of legal terms; the right of a child to registration and the right of the child to know his or her parents if possible; the rights and obligations of parents responsible for carrying out birth registration for their children; and also the rights and obligations of parents legally obliged to choose a name together for their children.

Presently, the work being done by the Australian government in terms of birth registration is very effective. According to a study done by the government of Victoria State, out of 60,000 children born each year, only 200 to 250 children do not get registered within 12 months after birth. 30 The reasons why the problem still exists in Australia are historic and cultural; especially in rural and remote districts and among natives and minority tribes, there is a very strong mistrust of the government. Also, in some areas, it is traditional that a child should only be given a name after a period of time after birth. Also, many native people deny or do not discuss the issue of death (including infant death after birth), and birth registration is adversely affected as a result.31

Under the coordination of some international organizations, especially international non-governmental organizations, some international enhancement and supporting programs related to childbirth registration have been implemented. For example, in recent years programs have been initiated in countries like the Philippines and Vietnam through the combined efforts of the UNICEF Non-governmental Organization Committee and the International Planning Organization.

In the Philippines, the related fundamental legislation is Standing Order 3753 (1931), the Legislation for the Establishment of Civil Registration and other appendix regulations. However, in municipal bylaws, some regulations such as charging supporting fees were added, and some areas even imposed fines for late registration, thereby making the poor people, who were already originally not too keen on this concept, unwilling to register. Some people living in poor, remote areas and on the edge of society had little knowledge of the meaning of birth registration due to their unfavorable situation in society, and were then not even able to enjoy the benefits ensuing from it. The socio-cultural traditions of minorities and Muslim groups also had a negative effect. A common practice was simply to use the father's family name to be the family name of the child, and temporarily not to give a first name. However according to the law in the Philippines, children born outside marriage cannot use the father's family name. In daily life, generally, people are not willing to have a child using the mother's family name, and so birth registration is often delayed.

In addition, students do not need to produce birth certification to be admitted to Muslim schools. In Muslim Courts, the procedures of marriage and conducting business do not require a birth certificate; thereby the necessity for birth registration is reduced.32 It is notable that in the Philippines, a baby with a gestational life of less than seven months is not regarded as live-born if the child dies within 24 hours of delivery.33

In 1990, Vietnam was the first Asian country to ratify the CRC.34 Article 55 of Vietnam's Civil Code specifies that every newborn infant has the right to be registered, no matter whether the child is born within or outside of marriage. Article 5 of the 1991 Law on the Protection, Health Care and Education of a Child, also recognizes that right of the child. In implementation, there are more problems concerning delay of registration than concerning failure to register at all. Situations where there has been no registration even when the child has reached adulthood are often due to individual circumstances, and are usually accompanied by illiteracy. Many parents consider that registration is not an urgent matter prior to the child's going to school. The Birth Control Policy and the City District Residency Policy also affect the situation. Also, difficulties exist in child registration in remote and mountainous areas.35

V. The situation in China

1. System and Institutions

China has always emphasized the importance of birth registration for the child, and as mentioned above, this procedure has been used mainly as a tool of governance. Birth registration is part of a household registration system that acts as the basis for discriminatory treatment between the population in rural and urban areas.

Birth registration and citizenship identity are formulated in many Chinese laws and regulations (see Table I), such as the General Principles of the Civil Law of the PRC, the Marriage Law, the Nationality Law, Regulations concerning the Household Registration (the most important legal source, drawn up and promulgated in 1958, and enforced for more than 30 years), Regulations Concerning Resident Identity Cards, Regulations Concerning Security Control and Punishment, etc. In addition, the Ministry of Public Security and some local authorities also make some regulations concerning different aspects of children's birth registration.

Table I The Main Chinese Legislation on Birth Registration

Legislative OrgansLaws and Regulations
Chinese National People's CongressGeneral Principles of the Civil Law of the PRC, Marriage Law of the PRC, and Nationality Law of PRC
Standing Committee of the Chinese National People's CongressRegulations concerning the Household Registration of the PRC, and Regulations Concerning Resident Identity Cards of the PRC
Chinese State CouncilRules for the Implementation of the Regulations Concerning Resident Identity Cards of the PRC

China has a comprehensive system for birth registration. According to PRC laws and regulations, the household head, relative, foster person or neighbor of the newborn infant should report to the relevant household registration organ within 1 month after the birth. The parents/guardians or relevant foster organ should apply for birth registration. Any child who dies after birth and before birth registration should be reported for complete birth registration and death registration simultaneously. Children born out of wedlock and children born in wedlock have equal rights to birth registration. Generally Chinese citizens are free to choose the place of birth registration, but it must be at either of the parents' permanent resident household registered places. Also, all citizens have the right to decide a name for their child, and to use and change his or her name in accordance with relevant regulations. This right is not subject to any interference, unauthorized utilization or misuse by others. Children's family names can follow both or either of the father and mother's family names.

The Nationality law of PRC stipulates that any person born in China whose parents are both Chinese nationals or one of whose parents is a Chinese national shall have Chinese nationality; moreover, any person born abroad whose parents are both Chinese nationals or one of whose parents is a Chinese national shall have Chinese nationality. Meanwhile, a person whose parents are both Chinese nationals and have both settled abroad, or one of whose parents is a Chinese national and has settled abroad, and who acquired foreign nationality at birth shall not have Chinese nationality. Any person born in China whose parents are stateless or of uncertain nationality and have settled in China shall have Chinese nationality. China does not recognize dual nationality for any Chinese citizen.

According to Chinese laws and regulations, the household registration organ should produce and issue a resident household book for each household, as well as a registration form for each person. These formulae have legal effect and must include information about the citizen such as name, sex, nationality, birth date, birth place, guardian, guardian relations, address, registration alteration, etc. To facilitate citizens' social activities and guarantee citizens' lawful rights and interests, public security organs make and issue resident identity cards to all citizens above the age of 16 who reside in the PRC. Comprehensive regulations on birth registration are in place to guarantee prompt birth registration after an infants' birth and efficient identification of a citizen's identity.

There is also an institutional network supporting birth registration in China. The public security organs at different levels are the competent authorities in charge of birth registration. Generally there are three levels, but between the provincial and city/county level there may be a prefecture/major city's municipal level (see Table II). The central level the relevant authority is the Security and Public Order Bureau under the Ministry of Public Security of China; at the provincial level the authorities are the Household Registration Administration Divisions or Public Order Administration Divisions set in Bureaus of Public Security in provinces, autonomous regions and municipalities directly under the central authority; at the prefecture/major city level the authorities are the Household Registration Administration Sections/Divisions or Public Order Administration Divisions and Bureaus of Public Security; at the city or county level the authorities are the Household Registration Administration Sections or Public Order Administration Sections set in Bureaus or Sub-bureaus of Public Security.

At the grass-roots or lowest level, the authorities are the local police stations or township governments (in cases where there is no police station), and they do the routine work of the birth registration. Every resident committee or villagers' committee appoints one person to be the assistant of household administration who will help carry out the work of the household registration organs.

Table I I The Chinese Administrative System for Birth Registration

Administrative LevelCompetent Authorities
National LevelSecurity and Public Order Bureau, Ministry of Public Security of China*
Provincial LevelHousehold Registration Administration Division or Security and Public Order Administration Division, Bureau of Public Security
Prefecture/Big City's Municipal LevelHousehold Registration Administration Section/Division or Public Order Administration Division, Bureau of Public Security
City/County LevelHousehold Registration Administration Section or Public Order Administration Section, Bureaus or Sub-bureaus of Public Security
Grass-roots LevelPolice station (or township government where there is no police station)

* Under the Bureau, there is a division in charge of household affairs called the Household Registration Administration Division.

2. Situation and Problems

On the whole, the birth registration situation in China is relatively good. According to UNICEF data the estimated figure for the rate of birth registration for children in China is over 90%.36 However, given that China has the world's largest population, we cannot be overly optimistic. According to Chinese official data, just in the year 1998 there were more than 20 million children born in China.37 A recent UNICEF report said that it is estimated that the number of unregistered children in China may be as high as 6 million.38

China's Family Planning Policy39 is considered to be one of the factors negatively affecting birth registration. The parents of an additional child, who are seen as committing an offence against the Family Planning Policy, may be worried about being fined and therefore do not report for birth registration.40

With the commencement of the Chinese State Council's 5th national census on November 1st, 2000, this issue was again brought forward. On the eve of the census, officials of the National Family Planning Committee stated that according to the national policy all newborn children were to be registered, and that it was only incorrect local policy that denied additional children registration. Director Wu Dongli of the Security and Public Order Administration Bureau (which manages the domiciliary tasks of the Public Security Ministry) said: "All newborn children should be registered according to the provisions of the law. Our attitude is very clear. This is also an issue of fundamental human rights."41 In actual implementation, for example in Beijing, it has always been the practice that one should first pay a social care-taking fee before an additional child is to be registered.42

The Family Planning Policy does of course have a negative effect on the rate of birth registration, but one cannot say that it solely due to the Chinese Family Planning Policy. Other policies and laws also have similar results. For example, the law against people trafficking would make illegal immigrants of some countries try to avoid carrying out the obligation of birth registration for a child. But this does not mean that we should change the law on trafficking. Instead, we must strive to make the system functional so that we can continue to have an effective Family Planning Policy while at the same time aiming to register all Chinese-born infants.

One prominent problem is the lack of relevant provisions on the freedom of movement in the Chinese Constitution or other relevant laws.43 This is a problem since the household registry system mainly concerns people with a permanent residence. There are restrictions to different degrees on the temporary residence. Limits to the freedom to move freely are implemented through the household registration system. For example, temporary residents are obliged to apply to the household registration authorities for temporary residence permission, and they have to pay for it. Some people can simply not afford this fee while others avoid registering in order to avoid restrictions. Moreover, temporary residents are not permitted to enjoy many of the public services being offered to permanent residents such as obligatory education and welfare. Thus, the benefits of birth registration for temporary residents are reduced. Nowadays, more and more countryside people go to the cities to work, often together with other members of their family. If these families have additional children, birth registration is quite easily missed.

In the Concluding Observations of the Committee on the Rights of the Child on China, the Committee stated that:

"Serious concerns remain as to the effectiveness of measures taken to ensure the registration of all children through the household registry. As acknowledged by the Chinese government, absence of registration may be due to parents' lack of knowledge of the relevant law and policy and of the negative effects of non-registration on children's legal status. The migration of people from their traditional place of residence may cause similar difficulties. Deficiencies in the registration system lead to children being deprived of basic safeguards for the promotion and protection of their rights, including in the areas of child trafficking, abduction, sale and maltreatment, abuse or neglect. In this connection, the situation of 'unregistered girls' as regards their entitlement to health care and education is a matter of concern to the Committee. "44

As mentioned above, Chinese cultural tradition involved gender discrimination concerning children, in particular girls. In the Concluding Observations of the Committee on the Elimination of Discrimination Against Women, the Committee said it is concerned about illegal practices of sex-selective abortion, female infanticide and the non-registration and abandonment of female children in China. The Committee expresses particular concern about the status of "out-of-plan" and unregistered children, many of them girls, who may not have an official existence and thus may not be entitled to education, health care or other social benefits.45

In China, particular problems also exist in connection with illegal marriages between Chinese men and women illegally entering from neighboring countries like Vietnam. Before the commencement of the 5th national census, information from the Chinese Guangxi Zhuang Autonomous Region Census Office indicated that in the eight border counties (cities) of Guangxi province, over 8,000 Vietnamese women have illegally married Guangxi men. From these illegal marriages about 10,000 children had been born. In the 2000 population census process, these "black-listed children" without nationality or household would be allowed to register and would be legally registered with their normal residency, according to their individual desire.46

Conclusions

The CRC is regarded as the "Constitution of Children's Rights". One important impact of the Convention is that it promotes a new concept of childhood and provides a new rights-based approach for dealing with affairs concerning children. Birth registration now has become a fundamental right of the child, instead of only the administrative tool for government or the country.

Birth registration constitutes an essential step toward the implementation of the Convention. It not only provides the child with recognition of legal existence and identity, but it is also the proof that he or she belongs to a family, a community and a nation. It is a key which enables the child to have access to other human rights.

The overall situation regarding birth registration is not too promising. There are still many political and economic, as well as social and cultural barriers to implementing universal birth registration, to different extents in different countries. Historically, "the stolen generation" in Australia has been denied the right to birth registration. Today, the politically, economically and geographically unprivileged population still do not easily have access to right to it. Reviews of the legislation and policies concerned may be necessary, as the case in the Philippines and Vietnam referred to in this paper, but what is more important thing is to identify the existing barriers in the given area and make the legal rules and international human rights standards a reality in life through systematic efforts. As a background, the new concept of childhood should be introduced and promoted. Together with it, the new understanding of birth registration will be conducive to the realization of child's birth registration.

In China, the government has emphasized the importance of birth registration for a long time, but there is a lack of involvement of it with right of the child. Now that China has ratified the CRC, the efforts to promote effective birth registration should be conducted and viewed through a new approach, namely the human rights approach. How to improve the effect and efficiency of the existing Chinese system, and how to resolve the difficulties ensuing from the existing Family Planning Policy, new migrant groups, and lack of awareness, especially in some poor and remote areas, are challenges facing the Chinese government.

(Published in Family Life and Human Rights,edited by Peter Lodrup and Eva Modvar, Gyldendal Norsk Forlag, 2004, pp.441-455.

1 Unity Dow, Birth registration: The 'first' right, see Web page of the United Nations Children's Foundation (UNICEF), http://www.unicef.org/pon98/civil1.htm, visited on June 6, 2002.

2See, UNICEF, Birth Registration: right from the start, Innocenti Digest No. 9.

3See Song Changbin: Draft on History of Chinese Ancient Domiciliary System, Xi'an: Sanqin Publisher, China, 1991, p. 469.

4"The principal subjects of birth registration are the Domiciliary Registration Departments and the legal guardian of a new born infant", "The associate object of birth registration…is the objective fact that the birth of an infant involves important meaning in law". From Discussion on Domiciliary Management, Wang Jingshan (chief editor), Beijing: The People's Public Security University of China Press, 1999, pp. 380, 384.

5The UN Convention on the Rights of the Child (CRC), adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989, entered into force 2 September 1990 in accordance with article 49, and is monitored by the UN Committee on the Rights of the Child. As of May 13, 2002, 191 States have ratified the Convention. China ratified the Convention on December 29, 1991. Of the UN member states, only the United States of America (which signed the Convention on February 16, 1995) and Somalia have not ratified the Convention yet.

6 Katarina Tomosevski, The Issue of Human Rights in the Population Policy (Chinese edition), Bi Xiaoqing (translator), Beijing: Chinese Social Sciences Press, 1998, p.25

7Liu Guangren (chief ed.): The Study of Domiciliary Management, Beijing: The Investigator's Publisher of China, 1992, P.74.

8Bu Wei: "Protect Childhood", from Reading, Beijing, China, 2000, No. 3 Issue, pp.47, 48.

9 See Chinese Views of Childhood, edited by Anne Behnke Kinney, University of Hawaii Press, 1995, "Introduction", Anne Behnke Kinney, pp.11 - 12.

10 Bu Wei, p. 48.

11Chinese criminal law scholar Chen Xingliang discussed the issue of human rights, claiming that human rights, including the rights of children and women, are the rights of humans; see Chen Xingliang: The Structure of the Criminal Law Value, Beijing: People's University of China Press, 1998, pp.129 -135. Western scholars generally use "Right to Birth Registration" as a topic of discussion. See Geraldine Van Bueren, The International Law on the Rights of the Child, Martinus Nijhoff Publishers, 1998, p.117. But Chinese international law researchers for the most part do not recognize the individual as an entity of international law; see Wang Tieya, International Law, Beijing: Law Press, 1995.

12The United Nations Convention on the Rights of the Child: a guide to the "Travaux Preparatoires", compiled and edited by Sharon Detrick, Martinus Nijhoff Publishers, pp. 123 - 131.

13See Geraldine Van Bueren, pp.32-38.

14 UN Department of Economic and Social Affairs, Statistics Division, Handbook on Civil Registration and Vital Statistics Systems, Management, Operation and Maintenance, UN, New York, 1998.

15Geraldine Van Bueren, p. 118.

16According to the statistics of the UNICEF, there are 20 countries in which children without birth certification, are unable to legally obtain immunization shots for disease prevention. In at least another 30 countries, children must have birth certification to enjoy health care insurance. Most countries require pre-school children to have birth certification. This causes millions of children to lose their right to education. Adults without birth registration are unlikely to enjoy some of the most basic rights, such as obtaining a passport, setting up a bank account, participating in elections, etc. Barbara Crossette, "Third of Births Aren't Registered, UNICEF Says", New York Times, New York, July 8, 1998.

17 The "International Labor Law" of the International Labor Organization and other International Conventions and instruments have specified the minimum age for work in a variety of circumstances. The Chinese People's General Principles of Civil Law, Law on the Protection of Under-aged People, Law on the Safety of Mining Sites, Regulations on the Prohibition of Child Labor, etc. have similar specifications and age standards. CRC Article 38 prohibits young people under the age of 15 to be recruited into armed forces. According to the Criminal Law of China, children under 14 are not liable for crimes, children aged between 14 and 16 have relative liability, meaning that an offender is only legally responsible for serious crimes; young adults of age 16 and above who have committed a crime are considered to be liable, but people under 18 age should be given minor or reduced penalties; for a person under 18, capital punishment is not applicable in any case. In addition, the Chinese General Principles of Civil Law has provisions on complete, restricted or no civil capacity age limits, which also include age limits concerning children.

18Several years ago, UNICEF officials discovered that in Rwanda, some refugee children had to spend their daily lives in the same tents where adults who had carried out racial massacres were also living. It was difficult to house them separately because their ages could not be proven without any of their registration information. Barbara Crossette, "Third of Births Aren't Registered, UNICEF Says", New York Times, New York, July 8, 1998.

19 Amnesty International Report, 13/07/87.

20 Geraldine Van Bueren, pp. 118, 119, 128.

21James Darlinpus, "How England sent its Children in Exile to Various Districts of the British Empire", Sunday Times Journal, June 27, 1993, quoted from News Reference, Beijing, China, p. 3, July 18, 1993.

22 See "The Stolen Generation" of Australia, published in Participation News, p. 3, July 31, 2000, and also the related report in the same journal, p.5, July 19, 2000.

23See Katherine O'Donovan, "Interpretations of Children's Identity Rights", in Revisiting Children's Rights: Ten Years of the UN Convention on the Right of the Child, Deirdre Fottrell (ed.), Kluwer Law International, 2000, pp.74-76.

24Report from Times Weekly (Germany), India Proclaims Legislature to Prohibit Gender Examination for a Fetus, quoted from News Reference, p. 6, February 24, 1996.

25Guo Nei, Campaign cracks down on human trafficking, quoted from China Daily, September 16, 2000.

26"The Strong Power of the Shandong Domiciliary Management in 'Abduction'", People's Public Security Daily, Beijing, China, p. 2, September 28, 2000.

27 UNICEF, Regional Disparities: Unregistered births, in The Progress of Nations 1998, p.11.

28See The UNICEF Innocenti Research Center, Innocenti Digest No.9, Birth Registration: Right from the Start, March 2002, pp. 7-10.

29The intention here is to provide some background material concerning certain states to illustrate some factors that might influence birth registration.

30 Cited from Presentation by the Official Representative from Australia, Andrew Levens (General Manager/Registrar, Registry of Birth, Death and Marriages, Victoria) at the Bangkok "Conference on Civil Registration of Asians" organized by UNICEF and the International Planning Organization, November 17 to 20, 1999.

31ibid.

32Ana Dionela, Birth Registration in the Philippines, report published by the International Planning Organization, 1999.

33The UNICEF Innocenti Research Center, Innocenti Digest No.9, p.2.

34 Notably, without any reservation.

35Natasha Pairaudeau, Birth Registration in Vietnam, report published by the International Planning Organization, 1999.

36 According to the data provided on some countries in the Development of Nations 1998 published by UNICEF. The estimated figures on the rate of birth registration of the child for some other countries and regions in Asia are: Australia - over 90%; Malaysia - over 90%; Pakistan - 70-89%; India - 30-49%; Philippines - 70-89%; Bengal - under 30%.

67Chinese Government, Statistics Publication on the One Child Policy, No.1, 2001.

38The UNICEF Innocenti Research Center, Innocenti Digest No. 9, p.14. The information source of the report is John Pomfret, "In China's Countryside, 'It's a Boy!' Too Often", Washington Post Foreign Service, May 29, 2001.

39 Other English translations for the Chinese Family Planning Policy ("JI HUA SHENG YU") include "One Child Policy" and "Birth Control Policy".

40 See "The Lost Girl", The Economist, p. 64, September 18, 1993.

41Xiu Peipei, "6 Million Census Workers Register Every Household: Temporary Residence for Black-Listed Children not being Discriminated", Southern Weekend, p.1, August 17, 2000.

42 "The 5th Population Census: How to Provide Households for Extra-Born Children", Beijing Youth Daily, August 3, 2000, also quoted on the same date by Website of the People's Daily.

43 Within the 1st Constitution of PRC (1954), freedom of movement was included. But it was removed in the new Constitution (1982).

44CRC/C/15/Add.56, June 7, 1996, para. 16.

45 Concluding Observations of the Committee on the Elimination of Discrimination Against Women: China, February 3, 1999, A/54/38, Para. 299 (d).

46 Liu Zhiwu: "The Comedy and Tragedy of the Population Census", Tianjin Daily, p. 13, November 3, 2000.