Mr. David Weissbrodt, Preliminary Study on the Rights of Non- Citizens, U.N. Doc. E/CN.4/Sub.2/2001/20 (2001).




COMMISSION ON HUMAN RIGHTS
Sub-Commission on the Promotion
and Protection of Human Rights
Fifty-third session
Item 3 of the provisional agenda


COMPREHENSIVE EXAMINATION OF THEMATIC ISSUES RELATING TO THE ELIMINATION OF RACIAL DISCRIMINATION

The rights of non-citizens

Preliminary Study submitted by Mr. David Weissbrodt

in accordance with Sub-Commission decision 2000/103


 


CONTENTS

I.  Introduction

II.  International Convention on the Elimination of All Forms of Racial Discrimination

A.  Convention Provisions

B.  CERD Jurisprudence

C.  CERD Concluding Observations

III. Other Relevant International Human Rights Standards Relating to Non-Citizens

A.  United Nations Charter

B.  Universal Declaration of Human Rights

C.  International Covenant on Civil and Political Rights

1.  Covenant Provisions

2.  General Comment 15

3.  Human Rights Committee

4.  Human Rights Committee

D.  International Covenant on Economic, Social and Cultural Rights

            1.  Covenant Provisions

            2.  General Comments

            3.  CESCR Concluding Observations

E.  Convention on the Elimination of All Forms of Discrimination against Women

            1.  Convention Provisions

            2.  CEDAW Concluding Observations

F.  Convention on the Rights of the Child

            1.  Convention Provisions

            2.  CRC Concluding Observations

G.  1951 Convention on the status of Refugees and its 1967 Protocol

H.  Convention relating to the Status of Stateless Persons

I.  International Convention on the Protection of All Migrant Workers and Members of Their Families

J.  Declaration on the Human Rights of Individuals Who are not Nationals of the Country in which They Live

K.  International Law Commission

L.  The International Criminal Court

M.  International Labour Organization

IV.  Relevant Regional Human Rights Standards Relating to Non-Citizens

            A.  European Convention on Human Rights and Fundamental Freedoms

                        1.  Convention Provisions

                        2.  ECHR Jurisprudence

            B.  European Social Charter

            C.  Charter of Fundamental Rights of the European Union

            D.  European Charter for Regional or Minority Languages

            E.  European Convention on Nationality

F.  European Convention on the Participation of Foreigners in Public Life at Local Level

G.  American Convention on Human Rights

H.     African [Banjul] Charter on Human and Peoples’ Rights

I.        African Charter on the Rights and Welfare of the Child

V.  Further Issues Relating to the Rights of Non-Citizens

            A.  Distinctions among non-citizens

            B.  Gypsies/Roma

            C.  Trafficking in women and children

            D.   The right to leave and return

VI.  Developing Further Human Rights Standards and Implementation Procedures in Regard to Non-Citizens:  Tentative Conclusions and Recommendations


I.  INTRODUCTION

1.      In March 1997, during its fiftieth session, the Committee on the Elimination of Racial Discrimination (CERD), discussed and decided to propose to the Sub-Commission on Prevention of Discrimination and Protection of Minorities (the Sub-Commission) nine topics for the preparation of studies, including the “[r]ights of non-citizens” which had been suggested by Mr. Theo van Boven.[1]  Mr. Michael Banton, Chairman of the CERD, in a letter dated 19 March 1997,[2] communicated these proposals to the Chairman of the Sub-Commission and requested that he present these proposals to the Sub-Commission at its forty-ninth session.

2.         On 21 August 1997, at its forty-ninth session, the Sub-Commission, in Resolution 1997/5, expressed its gratitude to CERD for recommending future Sub-Commission studies that could usefully contribute to the work of the Committee.  Furthermore, the Sub-Commission, in its Decision 1997/112 of 27 August 1997, decided to devote special attention to such subjects proposed by United Nations treaty-monitoring bodies when choosing new subjects for study.

3.         Accordingly, on 20 August 1998, at its fiftieth session, the Sub-Commission, in Resolution 1998/103, decided “to entrust Mr. David Weissbrodt with the preparation, without financial implications, of a working paper on the rights of persons who are not citizens of the country in which they live, . . . in order to enable it to take a decision at its fifty-first session on the feasibility of a study on that subject.”

4.         On 31 May 1999, at the fifty-first session of the Sub-Commission, Mr. David Weissbrodt presented his working paper entitled “The rights of non-citizens.”[3]  The Sub-Commission then decided, in its Resolution 1999/7 of 25 August 1999, to recommend that the Economic and Social Council authorize the Sub-Commission to appoint a Special Rapporteur to focus on the rights of non-citizens.  It was also decided that the Special Rapporteur’s mandate was to consist primarily of reporting on the status of non-citizens, but also to take into account the different categories of citizens regarding different categories of rights in countries of different levels of development with different rationales to be offered for such distinctions.

5.         On 25 April 2000, the Commission on Human Rights, in its Decision 2000/104, requested the Economic and Social Council to authorize the Sub-Commission to appoint one of its members as Special Rapporteur with the task of preparing a comprehensive study of the rights of non-citizens, based on the working paper prepared by Mr. David Weissbrodt as well as the comments made and the discussions that took place at the fifty-first session of the Sub-Commission and may take place at the fifty-sixth session of the Commission, and of submitting a preliminary report to the Sub-Commission at its fifty-third session in 2001, a progress report at its fifty-fourth session in 2002, and a final report at its fifty-fifth session in 2003.[4]

6.         On 1 August 2000 the Sub-Commission, in its decision 2000/103, decided to appoint Mr. David Weissbrodt as Special Rapporteur with the task of preparing a comprehensive study of the rights of non-citizens and requested that he submit a preliminary report to the Sub-Commission at its fifty-third session, a progress report at its fifty-fourth session, and a final report at its fifty-fifth session.[5]

7.         This report first examines the rights of non-citizens under the International Convention on the Elimination of All Forms of Racial Discrimination and the jurisprudence of the Committee on the Elimination of All Forms of Racial Discrimination.

8.          Second, it considers other international standards relevant to non-citizens.  International instruments considered include the United Nations Charter; the Universal Declaration of Human Rights; the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social and Cultural Rights; the Convention on the Elimination of All Forms of Discrimination against Women; the Convention on the Rights of the Child; the International Convention on the Rights of All Migrant Workers and Members of Their Families; the International Law Commission’s Draft Articles on the Nationality of Natural Persons in Relation to the Succession of States; the Rome Statute of the International Criminal Court; and the 1985 Declaration on the Human Rights of Individuals who are not Nationals of the Country in which They Live.  The report also considers the relevant  jurisprudence, concluding observations and comments, and general comments/recommendations of the relevant treaty bodies, including, inter alia, the Human Rights Committee’s General Comment 15 on the position of aliens under the Covenant; General Comment 13 of the Committee on Economic, Social and Cultural Rights on non-discrimination in regards to education; and General Recommendation 21 of the Committee on the Elimination of Discrimination against Women.

9.         Third, it looks at regional developments, particularly in Europe.  The report considers the European Convention on Human Rights and its jurisprudence, The European Social Charter, the Charter of Fundamental Rights of the European Union, the European Charter for Regional or Minority Languages, the European Convention on Nationality, and the European Convention on the Participation of Foreigners in Public Life at Local Level, and the European Charter of Fundamental Rights.

10.     Fourth, the report examines further issues relating to the rights of non-citizens.  The report specifically focuses on distinctions among non-citizens, trafficking in women and children, and the right to leave and return. 

11.     Finally, the report presents its tentative conclusions and recommendations.

12.     The Special Rapporteur would like to thank all those who offered suggestions, comments, and critiques on this preliminary study.  In particular, I offer my gratitude to my colleagues on the Sub-Commission, to NGO and government representatives who addressed this body at its previous session, and to Mr. Patrick Tarn of Migrant Rights International, Mr. Rick Towle and Ms. Ngozi Ada Maduakoh from the Office of the High Commissioner for Refugees, and Ms. Jelena Pejić from the ICRC.  The Special Rapporteur would also like to express his sincere appreciation to Ms. Marta Dora Vila, Ms. Kelle Kieschnick, Mr. Robert Phelan, and Mr. Bret Thiele for their assistance in preparing this report.

II.  INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION

            A.        Convention Provisions

13.     The International Convention on the Elimination of All Forms of Racial Discrimination defines racial discrimination in Article 1, paragraph 1, which states:

. . . the term ‘racial discrimination’ shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.

14.     The general definition of discrimination found in Article 1, paragraph 1, is, however, qualified by Article 1, paragraph 2, which states:

This Convention shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens.

15.     Furthermore, the International Convention on the Elimination of All Forms of Racial Discrimination does not affect how States bestow citizenship.  Article 1, paragraph 2, is further defined in Article 1, paragraph 3, which states:

Nothing in this Convention may be interpreted as affecting in any way the legal provisions of States Parties concerning nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality.

16.     The International Convention on the Elimination of All Forms of Racial Discrimination does not, however, pre-empt the rights of non-citizens enumerated in other international instruments. In its General Recommendation 11 on non-citizens, CERD stated that Article 1, paragraph 2 of the International Convention on the Elimination of All Forms of Racial Discrimination “must not be interpreted to detract in any way from the rights and freedoms recognized and enunciated in other instruments, especially the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights.”  The rights of non-citizens within the context of these and other instruments will be examined in section III below.

B.        Committee on the Elimination of Racial Discrimination (CERD) Jurisprudence

17.     CERD has adopted certain views on the rights of non-citizens, reflecting its mandate under Article 14 of the Convention on the Elimination of All Forms of Racial Discrimination to consider communications.  CERD has held that lawful distinctions between citizens and non-citizens must not be applied in a racially discriminatory manner.  Following are synopses of CERD’s views, please refer to the addendum for greater detail.

C.        CERD Concluding Observations

18.     CERD has also reflected its continuing concern about various forms of discrimination against non-citizens in its consideration of several States parties’ reports.  In doing so, CERD has made concluding observations and comments on the rights of non-citizens with regard to numerous countries, reflecting its mandate under the Convention to address discrimination against non-citizens.

19.     For example, CERD has stated that under Art. 5 of the Convention, States have an obligation to guarantee the civil, political, economic, social and cultural rights of the whole population and not just citizens.  Indeed, CERD has often reaffirmed its view that economic, social, and cultural rights are to be enjoyed without discrimination, including discrimination against non-citizens.

20.     For instance, CERD has often expressed concern about discrimination against foreign workers, their spouses, and their children.  Indeed, CERD has stated that States must enact measures equally to protect citizens and non-citizens from discrimination.

21.     Similarly, CERD has often expressed concern about the exploitation of foreign workers including practices of debt bondage, passport deprivation, illegal confinement, and physical assault including rape.

22.     CERD has also stated that, under Art. 5, the free choice of employment, including access to all professions and trades, must be guaranteed to foreigners.

23.     In addition, CERD has stated that children of foreign workers are entitled under the Convention to join their parents in the host State and to education in their own language.

24.     CERD has affirmed that Art. 5 forbids discrimination in employment, housing, and education and that Art. 6 protects equal access to courts and administrative bodies regardless of citizenship status.

25.     CERD has also expressed concern regarding differing immigration quotas depending upon the region or country from which an immigrant originates.

26.     Like other treaty bodies, CERD has expressed particular concern about differing citizenship treatment given non-national female spouses vis-à-vis non-national male spouses.

27.     CERD has stated that legislation concerning asylum must treat all asylum-seekers equally without regard to national origin.

28.     For summaries and citations of these and other relevant Concluding Observations please refer to the addendum at paragraphs 2 - 23.

III.  OTHER RELEVANT INTERNATIONAL HUMAN RIGHTS STANDARDS RELATING TO NON-CITIZENS

A.        United Nations Charter

29.     The rights of non-citizens are protected in a number of international instruments that embody the principles of equality and non-discrimination.  The Charter, for example, contains a non-discrimination clause in Article 1 (3), which states that one purpose of the United Nations is to promote and encourage “respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion” (emphasis added).

B.        Universal Declaration of Human Rights

30.     The Universal Declaration of Human Rights states in Article 2, paragraph 1, that:

[e]veryone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

31.     It should be noted that the Charter applies to “all” and the Universal Declaration on Human Rights applies to “everyone.  Hence, both instruments protect all persons, including non-citizens, from racial discrimination and other forms of discrimination.  The use of the words “such as” in Article 2, paragraph 1, of the Universal Declaration of Human Rights indicate that this is not an exhaustive list, and makes clear that the operative phrase is: “without distinction of any kind” (emphasis added).  As Professor Richard Lillich has noted, although this list omits nationality, “this omission is not fatal . . . because the list clearly is intended to be illustrative and not comprehensive.”[6]  Professor Lillich also noted that “nationality would appear to fall into the category of a ‘distinction of any kind.’”[7]

32.     The Universal Declaration of Human Rights also provides in Article 15 that “[e]veryone has the right to a nationality” and that “[n]o one shall be arbitrarily deprived of his nationality, nor denied the right to change his nationality.”

C.        International Covenant on Civil and Political Rights

1.         Covenant Provisions

33.     The provisions set forth in the International Covenant on Civil and Political Rights apply generally to non-citizens.  Article 2, paragraph 1, of the International Covenant on Civil and Political Rights states:

Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status (emphasis added).

34.     There are a few provisions of the International Covenant on Civil and Political Rights that distinguish between citizens and non-citizens.  For example, Article 25 of the Civil and Political Covenant states:

Every citizen shall have the right and opportunity, without any of the distinctions mentioned in Article 2 and without unreasonable restrictions:

(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;

(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;

(c) To have access, on general terms of equality, to public service in his country.

35.     Article 13 specifically relates to non-citizens in stating:

An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or person or persons especially designated by the competent authority.

36.     Article 4 allows derogation from certain rights under the Covenant in certain circumstances, stating in paragraph 1:

In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

37.              It must be noted that, unlike the general anti-discrimination clause found in Article 2, paragraph 1, the derogation clause found in Article 4, paragraph 1 does not contain “national origin” as a criteria upon which a State Party cannot discriminate.  This omission, according to the travaux preparatoires, was intentional because the drafters of the Covenant understood that States may have to, in time of national emergency, discriminate against non-citizens within their territory.

2.         General Comment 15

38.     The rights of aliens are also set forth in General Comment 15 adopted by the Human Rights Committee in 1986 as an authoritative interpretation of the relevant provisions of the International Covenant on Civil and Political Rights.[8]  The Committee reiterated that “the general rule is that each one of the rights of the Covenant must be guaranteed without discrimination between citizens and aliens.”  Non-citizens “receive the benefit of the general requirement of non-discrimination in respect of the rights guaranteed in the Covenant, as provided for in Article 2 thereof.”

39.     The Human Rights Committee observed that it would be helpful to state the position of aliens under the International Covenant on Civil and Political Rights because it found that States Parties had “often failed to take into account that each State Party must ensure the rights in the Covenant to ‘all individuals within its territory and subject to its jurisdiction.’”[9]

40.     As noted above, General Comment 15 states that “in general, the rights set forth in the Covenant apply to everyone, irrespective of reciprocity, and irrespective of his or her nationality or statelessness.”[10]  Paragraph 2 clarifies the general rule that “each one of the rights of the Covenant must be guaranteed without discrimination between citizens and aliens”, the only exceptions being those expressly articulated in Article 25 (right to participate in government), which applies only to citizens, and Article 13 (expulsion), which applies only to aliens.

41.     The Committee noted that “[a] few constitutions provide for equality of aliens with citizens”; however, General Comment 15 reflects the Committee's concern that “[i]n certain cases . . . there has clearly been a failure to implement Covenant rights without discrimination in respect of aliens.”[11]

42.     The Committee stressed that “[t]he Covenant gives aliens all the protection regarding rights guaranteed therein, and its requirements should be observed by States Parties in their legislation and in practice as appropriate.”  Furthermore, the Committee placed on States the responsibility to “ensure that the provisions of the Covenant and the rights under it are made known to aliens within their jurisdiction.”[12]

43.     In paragraph 7, the Committee expressly reiterated the fundamental rights of aliens protected by the Covenant and that “[t]here shall be no discrimination between aliens and citizens in the application of [those] rights.”  The full text of the paragraph states:

Aliens thus have an inherent right to life, protected by law, and may not be arbitrarily deprived of life.  They must not be subjected to torture or to cruel, inhuman or degrading treatment or punishment; nor may they be held in slavery or servitude.  Aliens have the full right to liberty and security of the person.  If lawfully deprived of their liberty, they shall be treated with humanity and with respect for the inherent dignity of their person.  Aliens may not be imprisoned for failure to fulfil a contractual obligation.  They have the right to liberty of movement and free choice of residence; they shall be free to leave the country.  Aliens shall be equal before the courts and tribunals, and shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law in the determination of any criminal charge or of rights and obligations in a suit at law.  Aliens shall not be subjected to retrospective penal legislation, and are entitled to recognition before the law.  They may not be subjected to arbitrary or unlawful interference with their privacy, family, home or correspondence.  They have the right to freedom of thought, conscience and religion, and the right to hold opinions and to express them.  Aliens receive the benefit of the right of peaceful assembly and of freedom of association.  They may marry when at marriageable age.  Their children are entitled to those measures of protection required by their status as minors.  In those cases where aliens constitute a minority within the meaning of Article 27, they shall not be denied the right, in community with other members of their group, to enjoy their own culture, to profess and practice their own religion and to use their own language.  Aliens are entitled to equal protection by the law.  There shall be no discrimination between aliens and citizens in the application of these rights.  These rights of aliens may be qualified only by such limitations as may be lawfully imposed under the Covenant.

44.     General Comment 15 clarifies an alien’s right to freedom of movement within a territory, and the right to leave that territory “may only be restricted in accordance with Article 12, paragraph 3” of the International Covenant on Civil and Political Rights.[13]

45.     General Comment 15 also addresses the expulsion of aliens. According to paragraph 9, “[a]n alien who is expelled must be allowed to leave for any country that agrees to take him.”  Paragraph 10, while noting that the International Covenant on Civil and Political Rights regulates only the procedure and not the substantive grounds for expulsion, stresses the right of appeal and review: “[a]n alien must be given full facilities for pursuing his remedy against expulsion so that this right will in all the circumstances of his case be an effective one.”  The right to appeal may only be abrogated when “‘compelling reasons of national security’ so require.”

3.         Human Rights Committee Jurisprudence

46.     The Human Rights Committee, established under Article 28 of the International Covenant on Civil and Political Rights, has adopted the following views on the rights of non-citizens, reflecting its mandate under Article 5, paragraph 4 of the Optional Protocol to the International Covenant on Civil and Political Rights to consider communications submitted to it.

47.     With respect to the expulsion of aliens pursuant to Art. 13, the Human Rights Committee has held that when an alien challenges that expulsion pursuant to Art. 13, s/he is protected by the principles of fair procedures embodied in Art. 14 as well as other articles that may be relevant.

48.     Furthermore, the Human Rights Committee has held that if extradition or expulsion results in a real risk that the alien’s rights under the Covenant will be violated in the receiving jurisdiction, the State Party itself may be in violation of the Covenant.

49.     For summaries and citations of this and other relevant jurisprudence please refer to the addendum at paragraphs 24 to 45.

                        4.         Human Rights Committee Concluding Observations

50.     The Human Rights Committee has also adopted a number of Concluding Observations and Comments regarding the rights of non-citizens under the Civil and Political Covenant. 

51.     For example, the Human Rights Committee has consistently reaffirmed that, with the exceptions of Articles 13 and 25, the rights under the Covenant must be respected and ensured with regard to all persons with out distinction of any kind.

52.     Regarding the freedom of movement as protected by Art. 12 of the Civil and Political Covenant, the Human Rights Committee has stated that State Parties shall guarantee that right to everyone lawfully within the territory of the State, and thus, States Parties must, if necessary, amend their domestic legislation accordingly.

53.     Likewise, with respect to Art. 27, the Human Rights Committee found that the rights of ethnic, religious or linguistic minorities to enjoy their own culture and to profess and practice their own religion or use their own language cannot be restricted to citizens.

54.     Furthermore, the Human Rights Committee noted that the right to be protected from arbitrary or unlawful interference with privacy, family, home or correspondence (Art. 17) and the right of men and women of marriageable age to marry (Art. 23) must be guaranteed equally to citizens and permanent residents alike.

55.     For summaries and citations of these and other relevant Concluding Observations please refer to the addendum at paragraphs 46 to 61.

D.        International Covenant on Economic, Social and Cultural Rights

1.         Covenant Provisions

56.     The International Covenant on Economic, Social and Cultural Rights establishes rights that apply to everyone, regardless of citizenship.[14]  Article 6 grants everyone the right to work.  Article 7 grants everyone just and favourable working conditions.  Article 8 ensures everyone the right to establish trade unions.  Article 9 guarantees the right to social security for everyone.  Article 11 ensures the right of everyone to an adequate standard of living including adequate food, clothing, housing, and the continuous improvement of living conditions.  Article 12 grants the “right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”  Article 13 requires States Parties to recognize the right of everyone to education, and Article 15 grants everyone the right to take part in cultural life.

57.     The International Covenant on Economic, Social and Cultural Rights also can be construed to forbid discrimination on the basis of nationality.  Article 2, paragraph 2, states:

The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

58.     Article 2, paragraph 3, however, creates a specific exception to this rule only for developing countries: “Developing countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals.”  That provision does not apparently permit discrimination between nationals of different countries, only between nationals of the State party and non-nationals.

2.         General Comments

59.     The Committee on Economic, Social and Cultural Rights addressed non-discrimination and equal treatment in regards to the right to education in General Comment No. 13 at its twenty-first session in 1999.[15]  It noted that educational institutions must be accessible to everyone, without discrimination, within the jurisdiction of the State party.[16]  The Committee confirmed that “the principle of non-discrimination extends to all persons of school age residing in the territory of a State party, including non-nationals, and irrespective of their legal status.”[17]  It further noted, “the prohibition against discrimination enshrined in Article 2 (2) of the Convention is subject to neither progressive realization nor the availability of resources; it applies fully to all aspects of education and encompasses all internationally prohibited grounds of discrimination.”[18] 

60.     With respect to the right to health, the Committee has stated in its General Comment No. 14 that “the Covenant proscribes any discrimination in access to health care and underlying determinants of health, as well as to means and entitlements for their procurement, on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, physical or mental disability, health status (including HIV/AIDS), sexual orientation and civil, political, social or other status, which has the intention or effect of nullifying or impairing the equal enjoyment or exercise of the right to health.”[19]   Therefore, according to the broad non-discrimination clause articulated in General Comment No. 14, States Parties to the Economic and Social Covenant cannot discriminate against non-citizens with respect to the right to health if that discrimination intentionally or effectually nullifies or impairs their equal enjoyment or exercise of that right.

61.     With respect to the right to adequate housing, the Committee has issued General Comment No. 4 with states that “individuals, as well as families, are entitled to adequate housing regardless of age, economic status, group or other affiliation or status and other such factors. In particular, enjoyment of this right must, in accordance with article 2 (2) of the Covenant, not be subject to any form of discrimination.”[20]  The reference to Article 2(2) is important.  Article 2(2) obliges State Parties to guarantee that the rights enumerated in the Covenant are exercised without discrimination of any kind as to other status.  Furthermore, Art. 2(2) is the same article upon which the Committee based its broad non-discrimination view in General Comment No. 14.  It follows that the right to adequate housing, as articulated in General Comment No. 4, must be guaranteed by States Parties with respect to citizens and non-citizens alike.

3.         Committee on Economic, Social and Cultural Rights Concluding Observations

62.     The Committee on Economic, Social and Cultural Rights has considered numerous reports submitted by States Parties under Articles 16 and 17 of the Covenant regarding its implementation and the situation of non-nationals, including refugees and immigrants.

63.     For example, the Committee has held that social services and access to an adequate standard of living, including adequate housing, food, and clothing, may not be applied in a discriminatory manner vis-à-vis citizens and others lawfully present in the territory of the State, including asylum-seekers and refugees.  Indeed, the Committee has often urged States to address discrimination; particularly in the areas of housing, access to land, education, employment, and social benefits; against groups of non-citizens including asylum-seekers, refugees, and the Roma.

64.       The Committee has stated that if a State provides loans for post-secondary education they must, pursuant to Art. 13(1)(c), be made equally available to citizens, permanent residents, and accepted asylees and refugees.

65.     The Committee has also consistently urged States to take measures necessary to ensure that unemployment doesn’t disproportionately affect non-citizens, including asylum-seekers and refugees, vis-à-vis citizens.

66.     The Committee has held that States may not discriminate against non-citizens lawfully within their respective territories as to the right of everyone to form and join trade unions, as protected by Art. 8.

67.     The CESCR has criticized legislation that provides immigration status in a discriminatory manner depending on the origin of emigration.  The CESCR is also of the view that States may not discriminate with respect to immigration and citizen status between men and women.

68.     For summaries and citations of these and other relevant Concluding Observations please refer to the addendum at paragraphs 62 to 89.

E.         Convention on the Elimination of All Forms of DiscriminationAgainst Women

                        1.         Convention Provisions

69.     The Convention on the Elimination of All Forms of Discrimination against Women (Women’s Convention) establishes the rights of women with regard to nationality.  These rights become particularly important when a woman marries a national of a country other than her own.  In order to protect women’s nationality, Article 9 of the Women’s Convention provides:

1. States Parties shall grant women equal rights with men to acquire, change or retain their nationality.  They shall ensure in particular that neither marriage to an alien nor change of nationality by the husband during marriage shall automatically change the nationality of the wife, render her stateless or force upon her the nationality of the husband.

2. States Parties shall grant women equal rights with men with respect to the nationality of their children.

70.      The Committee on the Elimination of Discrimination against Women (CEDAW) noted in its General Recommendation 21 on equality in marriage and family relations, adopted at its thirteenth session in 1992, that the Women’s Convention focuses on preventing the loss of women’s nationality because:

Nationality is critical to full participation in society.  In general, States confer nationality on those who are born in that country.  Nationality can also be acquired by reason of settlement or granted for humanitarian reasons such as statelessness.  Without status as nationals or citizens, women are deprived of the right to vote or to stand for public office and may be denied access to public benefits and a choice of residence.  Nationality should be capable of change by an adult woman and should not be arbitrarily removed because of marriage or dissolution of marriage or because her husband or father changes his nationality.[21]

                        2.         CEDAW Concluding Observations

71.     The CEDAW has made relevant concluding observations and comments with regards to a number of countries.

72.     Importantly, CEDAW has consistently expressed concern for non-citizen women; including foreign women workers in domestic service, asylum seekers, and women living clandestinely in the territory of a State Party; and has stated that the Women’s Convention requires States Parties to ensure the protection of the full human rights of all women, including foreign and immigrant women.

73.     CEDAW has also consistently condemned laws whereby women cannot transmit their nationality to their children in the same way that fathers can.

74.     For summaries and citations of these and other relevant Concluding Observations please refer to the addendum at paragraphs 90 to 98.

F.         Convention on the Rights of the Child

                        1.         Convention Provisions

75.     The Convention on the Rights of the Child states that the “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.”  In addition, Article 2.1 of the Convention requires States Parties to:

respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

76.     The Convention on the Rights of the Child applies to all children regardless of their race or citizenship status.  Because States have an obligation to “each child within their jurisdiction,” States may not distinguish between children based on their citizenship or race; all children under the jurisdiction of the State must be treated equally.

2.                  Committee on the Rights of the Child Concluding Observations

77.     The Committee on the Rights of the Child has made concluding observations and comments on the rights of non-citizen children with regard to several countries, reflecting its mandate to foster implementation of the Convention on the Rights of the Child.

78.     The Committee has stated that domestic legislation must ensure that the rights guaranteed under the Convention protect all children, including non-citizens.

79.     The Committee has also stated that health, education, and social services must be made available to both citizens and children asylum-seekers without discrimination.

80.     The Committee has also expressed serious concern regarding the detention of alien children, including children seeking asylum, and that legislation allowing such detention must be removed in order to comply with the Convention.

81.     Likewise, the Committee has criticized legislation whereby the ability of non-citizen children to acquire citizenship differs depending on whether the child’s mother or father is a citizen of the State Party.

82.     The Committee has stated that all children born within a State Party, regardless of nationality, should have their births registered.

83.     Furthermore, the Committee has stated that when a State Party deports an alien, the professional opinions on the impact of such decisions upon the children of the deported persons must be systematically consulted and taken into consideration

84.     For summaries and citations of these and other relevant Concluding Observations please refer to the addendum at paragraphs 99 to 118.

G.        1951 Convention on the status of Refugees and its 1967 Protocol

85.       The 1951 Convention on the Status of Refugees (Refugee Convention) and its 1967 Protocol contain a number of provisions related to the rights of non-citizens.  Most of these provisions protect the rights of refugees by reference to nationals or other classes of non-citizens.

86.     The benefits provided under the Refugee Convention and its Protocol have different levels of applicability depending on the nature of the refugee’s sojourn or residence in the receiving country.[22] 

87.     Some rights, including the most fundamental, are extended to all refugees.  Relevant provisions include the non-discrimination clause (Art. 3); the exemption from legislative reciprocity (Art. 7(1)); the exemption from exceptional measures (Art. 8); the right to acquisition of moveable and immovable property (Art.  13); and the prohibition of expulsion or return (refoulement) (Art. 33). 

88.     Other basic rights are applicable to any refugee present within the country of refuge.  These rights include the freedom to practise their religion and freedom as regards the religious education of their children (Art. 4); the right to be included in rationing measures (Art. 20); the right to public education (Art. 22); and the right to identity papers (Art. 27).  These rights apply to refugees whether legally or illegally present within a country (see Art. 31). 

89.     Other provisions apply only to refugees considered legally within the receiving country.  These provisions include the right to self-employment (Art. 18); the right to freedom of movement (Art. 26); and the right not to be expelled except on grounds of national security or public order (Art. 32).

90.     Still other provisions apply only to refugees lawfully staying in the receiving country.  These provisions include the right to association (Art. 15); the right to wage-earning employment (Art. 17); the right to liberal professions (Art. 19); the right to housing (Art. 21); the right to public relief (Art. 23); the right to the protection of labour legislation and social security (Art. 24); and the right to travel documents (Art. 28). 

91.     Similarly, the protection of intellectual property (Art. 14); the right to access to courts (Art. 16(2)); and the right to administrative assistance (Art. 25) apply to refugees in States where they have their habitual residence.

92.     Many of these provisions, however, are qualified by stating that States Parties are only required to extend them to refugees to the same extent that they do so to other groups within their respective territory.  These provisions are divided into two categories as described below.

93.       Under the Refugee Convention and its Protocol, State Parties shall accord to refugees within their territories treatment at least as favourable as that accorded to their nationals with respect to religion (Art. 4); protection of intellectual property (Art. 14); access to courts and legal assistance (Art. 16); rationing measures (Art. 20); elementary education (Art. 22(1)); public relief and assistance (Art. 23); labour legislation and social security (Art. 24); as well as fiscal taxes and changes (Art. 29).

94.       States Parties shall accord to refugees treatment no less favourable than that accorded to aliens generally with respect to exemption from legislative reciprocity (Art. 7(1)); acquisition of property (Art. 13); non-political and non-profit-making associations and trade unions (Art. 15); wage-earning employment (Art. 17); self-employment (Art. 18); professions (Art. 19); housing (art. 21); post-elementary education (Art. 22(2)); and freedom of movement (Art. 26).

H.        Convention relating to the Status of Stateless Persons

95.     Similar to the Convention relating to the Status of Refugees, the Convention relating to the Status of Stateless Persons (Stateless Persons Convention) establishes rights to treatment for stateless persons that is no less favourable than that provided to other specific groups.[23]

96.     Pursuant to the Stateless Persons Convention, State Parties shall accord to refugees within their territories treatment at least as favourable as that accorded to their nationals with respect to freedom to practice their religion and freedom as regards the religious education of their children (Art. 4); intellectual property rights (Art. 14); access to courts of law (Art. 16); rationing measures (Art. 20); the right to elementary education (Art. 22 (1)); public relief (Art. 23); and the protection of labour legislation and social security (Art. 24).  Furthermore, States cannot impose upon stateless persons duties, charges, or taxes other than or higher than those imposed upon their nationals (Art. 29).[24]

97.     With respect to other provisions, the Stateless Persons Conventions obligates States to treat stateless persons no less favourably than the treatment provided aliens generally.  These provisions include the right to acquire movable and immovable property (Art. 13); the right of association (Art. 15); the right to engage in wage-earning employment (Art. 17); the right to engage in self-employment (Art. 18); the right to engage in the liberal professions (Art. 19); the right to housing (Art. 21); the right to higher education (Art. 22 (2); the right to administrative assistance (Art. 25); and the freedom of movement (Art. 26).[25]

98.     The Stateless Persons Convention also mandates that States provide any stateless person in their territory with identity papers (Art. 27) and to issue travel document to stateless persons lawfully staying in their territory (Art. 28).[26]

I.          International Convention on the Protection of All Migrant Workers and Members of Their Families

99.     A major development with respect to the rights of non-citizens occurred when the General Assembly adopted the International Convention on the Protection of All Migrant Workers and Members of Their Families (Migrant Workers Convention) by its Resolution 45/158 of 18 December 1990.  The Migrant Workers Convention was the result of a request by the Economic and Social Council to the Sub-Commission to study the condition of migrant workers.[27] The Sub-Commission, in its Resolution 6 (XXVI) of 19 September 1973, appointed Ms. Halima Warzazi as Special Rapporteur to prepare a study on the exploitation of labour through illegal migration.  Her study recommended, inter alia, that the United Nations should be involved in order to ensure that all humanitarian aspects of the problem of the exploitation of migrant workers are covered.[28]

100. The Migrant Workers Convention covers all migrant workers and their families and provides for non-discrimination with respect to rights of migrant workers (Article 7); the assurance of fundamental human rights (Articles 8-24); equality of treatment between nationals and migrant workers in regard to work conditions and pay (Article 25); the right to participate in trade unions (Article 26); equal access to social security (Article 27); right to emergency medical care (Article 28); and equality of access to public education (Article 30).  In addition, States Parties must ensure respect for workers’ cultural identity (Article 31) and inform migrant workers of their rights under the Migrant Workers Convention (Article. 33).

101. The pace of ratification of the Migrant Workers Convention has not been particularly rapid.  As of 7 May 2001, the Migrant Workers Convention had been ratified or acceded to by 16 States -- Azerbaijan, Bolivia, Bosnia and Herzegovina, Cape Verde, Colombia, Egypt, Ghana, Guinea, Mexico, Morocco, the Philippines, Senegal, Seychelles, Sri Lanka, and Uganda -- and signed by Bangladesh, Chile, Comoros, Guatemala, Guinea-Bissau, Paraguay, Sao Tome and Principe, Sierra Leone, Tajikistan, Turkey, and Uruguay (20 States parties are required for the Convention to come into force).  It has also been reported that Algeria, Ecuador, El Salvador, and Indonesia are taking steps towards prompt accession.  In order to encourage ratification of the Migrant Workers Convention, the Secretary-General, the Commission on Human Rights, and the Sub-Commission have called upon all States to consider signing and ratifying or acceding to the Migrant Workers Convention as a matter of priority.  Because migrant workers are non-citizens, and therefore are included in any instruments regarding the rights of non-citizens, they are included in the analysis of this preliminary study.

J.         Declaration on the Human Rights of Individuals Who are not Nationals of the Country in which They Live

102. In 1976 Baroness Elles completed the Sub-Commission’s ground-breaking study on the Human Rights of Individuals Who are not Nationals of the Country in which They Live.  The study included the very early developments in the jurisprudence of the Human Rights Committee, the Committee on the Elimination of Racial Discrimination, and the Committee on Economic, Social and Cultural Rights.  The study, however, did not focus on the precise problems faced by CERD, for example, in the context of the restrictive language in the International Convention on the Elimination of All Forms of Racial Discrimination, such as the difficulties arising from distinctions among non-citizens.

103. On 13 December 1985, the General Assembly adopted, by consensus, Resolution 40/144 containing the Declaration on the Human Rights of Individuals Who are not Nationals of the Country in which They Live (Declaration).  The Declaration was the result of the Sub-Commission’s study on the rights of non-citizens[29] and covers all individuals who are not nationals of the State in which they are present.  The Declaration provides for the respect of fundamental human rights of aliens, including the right to life; the right to privacy; equality before the courts and tribunals; freedom of opinion and religion; and retention of language, culture, and tradition (Article 5).  In addition, the Declaration prohibits individual or collective expulsion on discriminatory grounds (Article 7) and provides for trade union rights, the right to safe and healthy working conditions and the right to medical care, social security, and education (Article 8).  The provisions of the Declaration are reflected in the Human Rights Committee’s General Comment 15 (see sect. III.C.2. above).

104. Individuals who are not nationals of the country in which they live can generally be divided into several categories: migrant workers, refugees, documented and undocumented aliens, and individuals who have lost their nationality.  All individuals in all categories are protected under the Declaration.  Article 1 defines the term “alien” as “any individual who is not a national of the State in which he or she is present” (emphasis added).  Article 5, paragraph 1, grants “aliens” specific rights, without specifying any particular subgroup of aliens.  Articles 9 and 10 refer to “no alien” and “any alien,” respectively.

105. It should be noted that Article 5 (1) (e) may allow States to distinguish between classes of aliens by restricting aliens’ freedom of thought, opinion, conscience and religion, subject “only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others.”  Hence, if a State were to determine that distinguishing between documented and undocumented aliens is necessary to protect public safety, such a distinction would not be forbidden by the Declaration.

106.  It should also be noted that Article 4 requires that aliens observe the laws of the State in which they reside or are present as well as respect the customs and traditions of the people of that State.

K.        International Law Commission

107. The International Law Commission has developed an instrument regarding the impact of State succession on the nationality of natural and legal persons.  At its fifty-first session held in Geneva in July 1999, the Commission adopted the text of draft articles on Nationality of Natural Persons in Relation to the Succession of States[30] and recommended to the General Assembly the adoption, in the form of a Declaration, of the draft articles.  On 12 December 2000, the General Assembly took note of the draft articles and asked Governments to submit comments and observations on the question of a convention on nationality of natural persons in relation to the succession of States.[31]  The General Assembly also plans to revisit this question at its 59th session.[32]

108. Part I of the draft articles applies to all cases of State succession and conflicts of nationality arising therefrom; Part II contains specific provisions on attribution and withdrawal of nationality and on the right of option applicable in different categories of succession of States.

109. The draft articles on Nationality of Natural Persons in Relation to the Succession of States are primarily concerned with the prevention of statelessness.  Article 1 of the draft articles is the foundation for preventing statelessness.  Specifically, Article 1 provides that: “[e]very individual who, on the date of the succession of States, had the nationality of the predecessor State, irrespective of the mode of acquisition of that nationality, has the right to the nationality of at least one of the States concerned, in accordance with the present draft articles.”

110. According to Article 5, habitual residents of the successor State are presumed to acquire nationality of the successor State on the date of succession.  Article 12 places the unity of the family above the matter of habitual residence, indicating that States concerned shall take all appropriate measures to allow families to remain together or to be reunited. According to Article 13, all children born after succession, who have not acquired any nationality, have the right to the nationality of the territory in which they are born.  According to Article 15, the method of determining nationality shall be non-discriminatory.  Article 16 follows the non-discrimination clause by prohibiting arbitrary decisions concerning nationality issues, stating that persons concerned shall not be arbitrarily deprived of the nationality of the predecessor State, or arbitrarily denied the right to acquire the nationality of the successor State or any right of option, to which they are entitled in relation to the succession of States.  Further procedural requirements are set forth in Article 17, which states that:

[a]pplications relating to the acquisition, retention or renunciation of nationality or to the exercise of the right of option, in relation to the succession of States, shall be processed without undue delay.  Relevant decisions shall be issued in writing and shall be open to effective administrative or judicial review.

111. The draft articles clearly, comprehensively, and procedurally prevent statelessness upon succession of a State.  States are not required, however, to grant nationality to individuals having no effective link with the State unless this would result in treating those persons as if they were stateless.

L.         The International Criminal Court

112. On 17 July 1998, the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court adopted the Rome Statute of the International Criminal Court.[33]  Article 5 enumerates four categories of crimes that fall within the jurisdiction of the Court:  the crime of genocide, crimes against humanity, war crimes, and the crime of aggression.  Article 6 defines genocide as “acts committed with intent to destroy, in whole or in part, a national, ethnic, racial, or religious group, as such.”  The language used by the Statute to define “genocide” is taken directly from the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.  In addition, under Article 7 (h), “[p]ersecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender . . . or other grounds that are universally recognized as impermissible under international law” is also considered a crime against humanity.  Because non-citizens are ordinarily of a different national group, the International Criminal Court will apparently protect non-citizens from serious abuses committed with intent to cause annihilation of the group, as well as persecution.

113.   As of 7 May 2001, thirty States – Andorra, Argentina, Austria, Belgium, Belize, Botswana, Canada, Dominica, Fiji, Finland, France, Gabon, Germany, Ghana, Iceland, Italy, Lesotho, Luxembourg, Mali, Marshall Islands, New Zealand, Norway, San Marino, Senegal, Sierra Leone, South Africa, Spain, Tajikistan, Trinidad and Tobago, and Venezuela - had ratified the Rome Statute.  The ratification by 60 States is required for the Statute to come into force.  An additional 109 States had signed but not yet ratified the Statute.

M.       International Labour Organization (ILO)

114.  A number of conventions adopted by and ratified under the auspices of the International Labour Organization affect the rights of non-citizens, particularly those addressing the rights of migrant workers.

115.  For example, ILO Convention No. 97 on Migration for Employment (Revised)[34] requires, inter alia, that States Parties provide adequate and free service to assist migrants for employment, and in particular to provide them with accurate information.[35]  Each State Party should also maintain appropriate medical services ensuring that migrants for employment and members of their families enjoy adequate medical attention and good hygienic conditions at the time of departure, during the journey, and on arrival in the territory of destination.[36]

116.  ILO Convention No. 97 further provides that migrant workers receive treatment no less favourable than that which is applied to nationals with respect to remuneration, membership in trade unions; the enjoyment of the benefits of collective bargaining; accommodation; and social security including legal provision regarding employment injury, maternity, sickness, invalidity, old age, death, unemployment and family responsibilities, and any other contingency which, according to national laws or regulations, is covered by a social security scheme.[37]

117.  ILO Convention No. 143 on Migrant Workers[38] provides additional provisions regarding the rights of migrant workers.  This Convention requires each State Party to respect the basic human rights of all migrant workers.[39]

118.  Other provisions apply only to migrant workers legally in the territory of a State Party and include, inter alia, enjoyment of equality of treatment with nationals in respect of security of employment, the provision of alternative employment, relief work, and retraining.[40]

119.  ILO Convention No. 143 also provides that States Parties pursue a national policy designed to promote and to guarantee equality of opportunity and treatment in respect of employment, occupation, social security, trade union and cultural rights, and of individual and collective freedoms for persons who as migrant workers or as members of their families are lawfully within its territory.[41]

IV.       RELEVANT REGIONAL HUMAN RIGHTS STANDARDS RELATING TO NON-CITIZENS

120.   In addition to the developments at the global level, there have been very significant regional developments concerning the rights of non-citizens, particularly in Europe.

A.                 European Convention on Human Rights and its jurisprudence

1.         Convention Provisions

121.   The European Convention in Article 14 forbids discrimination, stating that:

[t]he enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

122.   The Seminar on Exclusion, Equality Before the Law and Non-Discrimination organized by the Council of Europe in 1994 noted that

Article 14 [of the European Convention on Human Rights] does not forbid every difference in treatment.  Equality does not necessarily mean identical treatment in every instance.  A differentiation does not constitute discrimination if the aim is to achieve a purpose which is legitimate and if the criteria used are reasonable and objective. . . .  Only differentiation which is not factually justified is inadmissible.  According to the European Court’s established case-law a distinction is discriminatory . . . if it does not pursue a ‘legitimate aim’ or if there is not a ‘reasonable relationship of proportionality between the means employed and the aim sought to be realized’.[42]

123.  In addition, Article 16 of the European Convention states that nothing in Article 14, among others, “shall be regarded as preventing the High Contracting Parties from imposing restrictions on the political activities of aliens.”[43]

124.  “The provisions of the European Convention on Human Rights (European Convention) are in principle applicable without any distinction to citizens within any given State, citizens of other member States, aliens or stateless persons.”[44]  The European Convention does not, however, cover certain rights pertaining to non-citizens. For example, there is no right to be admitted to a country and no protection from deportation or other removal.[45]

125.   Furthermore, on 4 November 2000 the Council of Europe adopted Protocol No. 12 to the European Convention on Human Rights and Fundamental Freedoms which contains a broader non-discrimination clause guaranteeing non-discrimination with respect to “any right set forth by law” rather than just those rights enumerated in the Convention.

126.  The European Court of Human Rights has also considered the rights of non-citizens under Article 8 of the Convention.  Article 8 states that “(1) [e]veryone has the right to respect for his private and family life . . . [and] (2) [t]here shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security . . .”. 

2.         European Convention on Human Rights Jurisprudence

127.  A key judgment regarding Article 8 occurred on 21 June 1988 in the case of Berrehab v. the Netherlands.[46]   In Berrehab, the court defined for the first time the effect of Article 8 on the deportation of non-citizens.  The substance of the decision was that where the non-citizen has real family ties in the territory of the State from which he is ordered deported, and the deportation measure is such as to jeopardise the maintenance of those ties, the deportation is justified with regard to Article 8 only if it is proportionate to the legitimate aim pursued.  In other words, the deportation is justified only if the interference with family life is not excessive with respect to the public interest to be protected.  The public interest often balanced against the right to respect for family life is the State’s interest in maintaining public order and arises in the context of non-citizens convicted of criminal offences.

128.   Please refer to the addendum at paragraphs 119 to 133 for further jurisprudence of the European Court of Human Rights.

B.        European Social Charter

129.   The rights embodied in the European Social Charter, with the exception of four qualified articles, protect nationals and foreigners “insofar as they are nationals of other Contracting Parties lawfully resident or working regularly within the territory of the Contracting Party concerned.”[47] 

130.  The exceptions include Art. 12 (4), Art. 13 (4), Art. 18, and Art. 19, which include various qualifications to the general rule articulated above.

131.  Art. 12 (4) involves the right to social security and requires Contracting Parties to “take steps, by the conclusion of appropriate bilateral and multilateral agreements, or by other means, and subject to the conditions laid down in such agreements, in order to ensure equal treatment with their own nationals of the national of other Contracting Parties in respect of social security rights.”[48]

132.  Art. 13 (4) protects the right to social and medical assistance and requires Contracting Parties to apply the provisions of the article “on an equal footing with their nationals to national of other Contracting Parties lawfully within their territories, in accordance with their obligations under the European Convention on Social and Medical Assistance.[49]

133.  Art. 18 deals with the right to engage in a gainful occupation in the territory of other Contracting Parties and requires Contracting Parties to ensure that their respective regulatory schemes facilitate the ability of nationals from other Contracting Parties to engage in such employment.[50]

134.  Art. 19 guarantees the right of migrant workers and their families to protection and assistance and applies to migrant workers and their families lawfully within the territory of the Contracting Party concerned.[51]  The provisions embodied in Art. 19 include those addressing the maintenance of free services to assist such workers, particularly to obtain information; the facilitation of departure, journey, and reception of migrant workers and their families; and the right to treatment no less favourable than that accorded to national with respect to remuneration, employment and working conditions, membership in trade unions, enjoyment of the benefits of collective bargaining, accommodation, employment taxation, and access to legal proceedings relating to matters referred to in Art. 19.[52]

C.        Charter of Fundamental Rights of the European Union

135.  The Charter of Fundamental Rights of the European Union[53] includes a broad array of civil, economic, labour, political, and social rights.

136.  Most rights are guaranteed to everyone.  The exceptions are Art. 15, Art. 34, Art. 39, Art. 40, Art. 42, Art. 43, Art. 44, Art. 45, and Art. 46.

137.  Art. 15 guarantees the freedom to choose an occupation and right to engage in work.  While stating in paragraph 1 that “everyone has the right to engage in work and to pursue a freely chosen or accepted occupation,” paragraph 2 limits to citizens of the European Union the freedom to seek employment, to work, to exercise the right of establishment, and to provide services in any Member State.  Furthermore, paragraph 3 entitles nationals of third countries who are authorised to work in the territories of the Member States to working conditions equivalent to those of citizens of the European Union.[54]

138.  Art. 34, dealing with social security and social assistance, protects “everyone residing and moving legally within the European Union.”[55]

139.  Arts. 39 and 40 involve, respectively, the right to vote and stand as a candidate at elections to the European Parliament and in municipal elections and are reserved to citizens of the European Union.[56]

140.  Arts. 42, 43, and 44 involve, respectively, the right of access to European Parliament, Council, and Commission documents; the right to refer cases to the Ombudsman of the European Union; and the right to petition the European Parliament.  These rights are reserved to citizens of the European Union and any natural or legal person residing or having its registered office in a Member State.[57]

141.  Art. 46 guarantees to citizens of the European Union, in the territory of a third country in which the Member State of which s/he is a national is not represented, the protection by the diplomatic or consular authorities of any Member States on the same conditions as the nationals of that Member States.[58]

D.        European Charter for Regional or Minority Languages

142.  The European Charter for Regional or Minority Languages aims to protect and promote the historical regional or minority languages of Europe.  It was adopted, on the one hand, in order to maintain and to develop Europe’s cultural traditions and heritage, and on the other, to respect an inalienable and commonly recognised right to use a regional or minority language in private and public life.

143. The Charter clearly differentiates between “minorities” and “non-citizens” in its definition of “regional or minority languages.”  Article I of the Charter states that the term “‘regional or minority languages’  . . . does not include . . . the languages of migrants.”

144.  The European Charter for Regional or Minority Languages entered into force on 1 March 1998.  As of 7 May 2001, thirteen States -- Croatia, Denmark, Finland, Germany, Hungary, Liechtenstein, Netherlands, Norway, Slovenia, Spain, Sweden, Switzerland, and United Kingdom - had ratified the Charter.  An additional twelve -- Austria, Cyprus, Czech Republic, France, Iceland, Italy, Luxembourg, Malta, Romania, Slovakia,  Ukraine, and the former Yugoslav Republic of Macedonia - had signed but not yet ratified the Charter.

145.   In 1995, the Council of Europe Press published a booklet entitled “Tackling racism and xenophobia:  practical action at the local level,” one of a series of booklets accompanying the report Community and Ethnic Relations in Europe and containing an account of an expert meeting held in Berlin in 1993 on practical action at the local level to combat racism and xenophobia.  Whereas the European Charter for Regional or Minority Languages does not apply to migrants, according to the booklet, the Council of Europe considers that “community relations” includes all aspects of the relations between migrants or ethnic groups of “immigrant origin” and the host society.  Although it is unclear how far back the Council would trace “immigrant origin,” it is conceivable that “community relations” is intended to include both migrants and national minorities.

 

146.  The Parliamentary Assembly of the Council of Europe has issued several recommendations that may affect the rights of non-citizens including Recommendations 1134 (1990) and 1177 (1992) on the rights of minorities as well as Recommendation 1300 (1996) on the protection of the rights of minorities.[59]

147.  Other relevant developments in the Council of Europe include Recommendation No. R (92) 12 on community relations, adopted in 1992 by the Committee of Ministers;[60] the recommendations of the Committee of Inquiry into Racism and Xenophobia of the European Parliament (1991);[61] Resolution of 5 October 1995 of the European Council and the representatives of the Governments of the member States on the fight against racism and racial discrimination in the fields of employment and social affairs;[62] and the 1990 Copenhagen Document of the Copenhagen Meeting of the Conference on the Human Dimension of the Conference for Security and Cooperation in Europe.[63]

E.         European Convention on Nationality[64]

148.  One of the most significant norm-setting developments with regard to the rights of non-citizens in Europe is the European Convention on Nationality.  Article 4 of that Convention lists the principles upon which the rules of nationality of each State party shall be based, stating that:

(a) everyone has the right to a nationality; (b) statelessness shall be avoided; (c) no one shall be arbitrarily deprived of his or her nationality; [and] (d) neither marriage nor the dissolution of a marriage between a national of a State Party and an alien, nor the change of nationality by one of the spouses during marriage, shall automatically affect the nationality of the other spouse.

149. The European Convention on Nationality was opened for signature on 6 November 1997.  As of 7 May 2001, four States -- Austria, Moldova, Netherlands, and Slovakia -- had ratified the Convention.  Seventeen additional States -- Albania, Bulgaria, the Czech Republic, Denmark, Finland, France, Greece, Hungary, Iceland, Italy, Norway, Poland, Portugal, Romania, the Russian Federation, Sweden, and the former Yugoslav Republic of Macedonia -- were signatories to the Convention.

150. The European Convention on Nationality also establishes the right to nationality of stateless persons.  Article 6 states:

1. Each State Party shall provide in its internal law for its nationality to be acquired ex lege by . . . (b) foundlings found in its territory who would otherwise be stateless.

2. Each State Party shall provide in its internal law for its nationality to be          

acquired by children born on its territory who do not acquire at birth another nationality . . ..  Each State Party shall facilitate in its internal law the acquisition of its nationality for . . . stateless persons and recognized refugees lawfully and habitually resident on its territory.

F.         European Convention on the Participation of Foreigners in Public Life at Local Level

151.  The Convention on the Participation of Foreigners in Public Life at Local Level, considers that “the residence of foreigners on the national territory is now a permanent feature of European societies,” provides for freedoms of expression, assembly and association “on the same terms as to its own nationals” (chap. A, Art. 3); allows for “consultative bodies to represent foreign residents at local level” (chap. B); and grants the “right to vote in local authority elections” (chap. C).

152.  As of 7 May 2001, the Convention on the Participation of Foreigners in Public Life at Local Level had been ratified by six States -- Denmark, Finland, Italy, the Netherlands, Norway, and Sweden.  Three additional States -- Cyprus, the Czech Republic, and the United Kingdom -- were signatories.  The Convention entered into force on 5 January 1997.

G.        American Convention on Human Rights

153.   The American Convention on Human Rights (American Convention), with the exception of Art. 22 and Art. 23, guarantees the rights enumerated in the Convention to “all persons subject to [States Parties’] jurisdiction.”[65]

154.   Art. 22 of the American Convention, guaranteeing freedom of movement and residence, is restricted to “every person lawfully in the territory of a State Party.”[66]

155.   Art. 23 of the American Convention, guaranteeing the right to participate in government, is restricted to “every citizen.”[67]

156.   Little Inter-American Court of Human Rights jurisprudence addressing the issue of the right of non-citizens has been located.  One Advisory Opinion,[68] however, does touch upon this issue with respect to discriminatory naturalisation and is summarised in the addendum at paragraphs 134 to 136.

H.        African [Banjul] Charter on Human and People’s Rights

157.   The African [Banjul] Charter on Human and People’s Rights (African Charter), with the exception of Art. 13(1) and (2), guarantees the rights enumerated in the Charter to “every individual” or to “all peoples.”[69]

158.   Art. 13(1) of the African Charter, guaranteeing the right to participate freely in . . . government,” and Art. 13(2), guaranteeing the right of equal access to the public service of his country,” are restricted to “every citizen.”[70]

I.          African Charter on the Rights and Welfare of the Child

159.   The African Charter on the Rights and Welfare of the Child guarantees the rights therein to “every child” and states further that “Every child shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in this Charter irrespective of the child’s or his/her parents’ or legal guardians’ race, ethnic group, colour, sex, language, religion, political or other opinion, national and social origin, fortune, birth or other status.”[71]

160.  Of particular note, this Charter states that every child is entitled to acquire nationality at birth.[72]

V.  FURTHER ISSUES RELATING TO THE RIGHTS OF NON-CITIZENS

A.        Distinctions among non-citizens

161.   Increasing distinctions are being made between different categories of non-citizens. This phenomenon is a particularly prevalent practice of supranational political or economic unions, such as the European Union[73] and the North American Free Trade Agreement (NAFTA).[74]  As Mr. Banton, Chairman of CERD, stated in his letter to the Sub-Commission, “such developments raise questions from the perspective of the International Convention on the Elimination of All Forms of Racial Discrimination.”[75]

162.  In some respects these problems are not new.  Baroness Elles noted in 1977 that violations had continued in many parts of the world, both extensively and frequently, against the human rights of non-citizens.[76]  In December 1997, the United Nations Seminar on Immigration, Racism, and Racial Discrimination concluded that “many countries had experienced an upsurge in racism, racial discrimination and xenophobia towards, and violence against, migrants and immigrants” (E/CN.4/1998/77/Add.1, annex, para. 8).  Baroness Elles, in her study on the rights of non-citizens, concurred, stating that “[t]he individual who most frequently, both in point of time and of place, gets singled out for distinction from his fellow man is the alien.”[77]  Likewise, Mr. Asbjörn Eide, in his study for the Sub-Commission, noted in 1989 that:

[p]roblems related to aliens . . . are sometimes cast in terms of race.  Here, as in many other contexts, the notion of ‘race’ is used in a vague and imprecise way.  Aliens often . . . belong to different cultures and are sometimes of a different colour.  The greater the apparent differences to the population in the country of residence, the more likely they are to be exposed to xenophobic sentiments and behaviour from segments of that population.[78]

163.  The Human Rights Committee has noted that “States parties have often failed to take into account that each State party must ensure the rights in the Covenant to ‘all individuals within its territory and subject to its jurisdiction.’”[79]  Furthermore, Baroness Elles concluded that:

[t]he problem of the protection and treatment of aliens is not transient, temporary, or local, but continuing and universal.  It is not an isolated problem, in point of time or of place, and therefore a universal approach is needed and an effort to reach universal consensus on this problem must be made.[80]

164.  The rights of non-citizens enumerated in international instruments have been neither adequately nor universally protected and promoted.  Baroness Elles concluded further that “[t]he application of the provisions of international human rights instruments to aliens is unclear and uncertain, and existing means of implementation inadequate.”[81]

B.        Roma/Gypsies

165.  The Roma (Gypsies) pose a special problem in areas of race and non-discrimination. Gypsies are not aliens per se, but their citizenship rights are often not recognized.  Further complicating the issue surrounding the rights of Gypsies is the concept of Gypsies as a “national minority” -- a term which does imply citizenship. 

166.  Special concerns regarding the Roma have recently begun to be considered seriously by the international community.  For example, since 1991, the Congress of Local and Regional Authorities of Europe (CLRAE) of the Council of Europe has organized hearings to address the situation of Gypsies in Europe.

167.  Furthermore, on 16 August 2000 the Committee on the Elimination of Racial Discrimination adopted General Recommendation No. 27 on Discrimination against Roma.[82]  This General Recommendation, inter alia, recommended that States Parties “ensure that legislation regarding citizenship and naturalization does not discriminate against members of Roma communities.”[83]

168.   On 17 August 2000, the Sub­Commission on the Promotion and Protection of Human Rights decided to recommend that Mr. Sik Yuen be appointed as Special Rapporteur with the task of preparing a comprehensive study on the human rights problems and protections of the Roma.[84]

C.        Trafficking in Women and Children

169.  Trafficking in women is a global problem which takes place both between and within regions.[85]  Women and children become vulnerable to trafficking because of social and economic relations of power, including the “economic disparity between the richest States or regions and the poorest.”  In many countries, large proportions of prostitutes are illegal immigrants -- often trafficked women and girls.[86]

170. The 1985 Declaration on the Rights of Non-Citizens did not focus on trafficking in women and children.  There had been some relevant developments, however, prior to 1985:  in 1951, the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (Trafficking Convention) entered into force. The Trafficking Convention cited four international instruments which were already in force at that time:  (i) the International Agreement of 18 May 1904 for the Suppression of the White Slave Traffic; (ii) the International Convention of 4 May 1910 for the Suppression of the White Slave Traffic; (iii) the International Convention of 30 September 1921 for the Suppression of the Traffic in Women and Children; and (iv) the International Convention of 11 October 1933 for the Suppression of the Traffic in Women of Full Age.  The purpose of the Trafficking Convention was to consolidate those four instruments.

171.  Article 17 of the Trafficking Convention states:

The Parties to the present Convention undertake, in connection with immigration and emigration, to adopt or maintain such measures as are required, in terms of their obligations under the present Convention, to check the traffic in persons of either sex for the purpose of prostitution.

172.  Specifically, Article 17 requires States to enact legislation to protect women and children while travelling, to warn the public of the dangers of trafficking, to take measures to prevent trafficking at ports of entry, and to make sure that the proper authorities are aware of the arrival of women who appear to be trafficking victims.  Under Article 19, countries agree to care for and repatriate trafficking victims.

173.  A trafficking provision was included in the 1979 Convention on the Elimination of All Forms of Discrimination against Women.  Article 6 reads: “States Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.”  As of 7 May 2001, 167 States have become parties to the Convention on the Elimination of All Forms of Discrimination against Women and an additional three have become signatories thereby binding themselves not to contravene the object and purpose of the Convention.

174.  The 1989 Convention on the Rights of the Child calls for the elimination of trafficking in children for any purpose.  Article 11 requires States parties to “take measures to combat the illicit transfer and non-return of children abroad.”  Article 35 requires States Parties to “take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form.”  Article 36 continues: “States Parties shall protect the child against all other forms of exploitation prejudicial to any aspects of the child’s welfare.”

175.  In addition to those treaties, there have been a number of efforts to improve international mechanisms to stop trafficking.  For example, in October 1994, the International Organization for Migration organized an international seminar on international responses to trafficking in migrants.

176.  For the past few years, the International Labour Organization (ILO) has been actively involved in finding solutions to the problem of trafficking.  In May 1996 the ILO collaborated with the Office of the United Nations High Commissioner for Refugees (UNHCR) and the Organization for Security and Cooperation in Europe (OSCE) to organize a conference in Geneva to examine issues of population movements in the Commonwealth of Independent States, and devoted particular attention to irregular migration.[87] In June 1996, in collaboration with the European Union, the ILO held a conference in Vienna to help design common instruments to combat trafficking in women in Europe.  The ILO also prepared the Declaration and Agenda for Action adopted by the World Congress Against Commercial Exploitation held in Stockholm in August 1996. The Congress included representatives of 122 countries, as well as numerous NGOs.

177.  In 1998 the International Programme on the Elimination of Child Labour (IPEC) of the ILO compiled an analysis on child trafficking in eight Asian countries.  Following that initial study, IPEC has been actively involved in action against child trafficking both at the national level and sub-regional levels.  In 1998, at the national level IPEC established the National Plan of Action against Trafficking in Children and their Commercial Sexual Exploitation in Nepal.[88]  At the sub-regional level, IPEC proposed the Framework for Action, “Trafficking in Children for Labour Exploitation in the Mekong Sub-Region,” at a consultation held in Bangkok.  The Framework for Action includes prostitution as a form of labour exploitation.[89]

 

178.  Kathleen Barry has addressed the global proliferation of prostitution, and the increase in trafficking in women, and believes that trafficking and prostitution are perpetuated by international sex industries.  In 1991, Ms. Barry (in collaboration with Wassyla Tamzali of UNESCO) developed the proposed Convention against Sexual Exploitation:

The proposed Convention would require States Parties to take all appropriate measures to provide victims of sexual exploitation, including prostitution and traffic in women, with refuge and protection and to repatriate those who desire to be repatriated.  Employers who sexually exploit women in the migrating process will be held criminally liable.[90]

179.  Because sexually exploited women often lack proof of their citizenship or are stateless when they finally escape their exploiters, and because stateless persons are often not recognized by the new country in which they find themselves, the proposed convention provides that: “refugee status shall be granted to all victims of sexual exploitation, whether they have entered the country legally or illegally.”[91]  The proposed Article 2 specifically states that trafficking is a form of sexual exploitation.[92]

180.  The Working Group on Contemporary Forms of Slavery of the Sub-Commission has recognized the variety of circumstances in which trafficking occurs, adopting at its twenty-second session in 1998 a recommendation dealing with “Prevention of the transborder traffic in women and girls for sexual exploitation.”  In that recommendation, which became section II of Resolution 1998/19, the Sub-Commission explicitly declared that “transborder trafficking of women and girls for sexual exploitation is a contemporary form of slavery and constitutes a serious violation of human rights,” citing the various conventions against slavery and forced labour as well as many other instruments.  The Working Group held an NGO Consultation on Trafficking, Prostitution and the Global Sex Industry from 21 to 23 June 1999, followed by the twenty-third session of the Working Group which made recommendations on these issues to the fifty-first session of the Sub-Commission.[93]

 

181.  At its fifty-first session in 1999 the Sub-Commission approved the Working Group’s recommendations with regard to trafficking in persons and, in resolution 1999/17, encouraged Governments, to develop national plans of action in accordance with the 1996 Programme of Action for the Prevention of the Traffic in Persons and the Exploitation of the Prostitution of Others[94] and thereby to ensure the coordination of laws to the prevent trafficking and exploitation of prostitution as well as to empower victims and survivors of such practices.[95]

 

182.  A further development in this regard was the approval by the Commission on Human Rights and subsequent adoption by the General Assembly in 2000 of the optional protocol to the Convention on the Rights of the Child on the sale of children, child prostitution, and child pornography. 

183.            On 15 November 2000 the UN General Assembly adopted the Convention on Transnational Crime and its Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children (Trafficking Protocol).[96]  On 15 December 2000 close to eighty States signed that Protocol.  The Convention, which has 189 signatories as of 15 December 2000, will enter into force upon the ratification of 40 States.

184.          The Trafficking Protocol includes provisions designed to protect and assist victims of trafficking in persons.  These provisions appear in Arts. 6 and 7.

185.          Art. 6 requires State Parties to ensure that victims of trafficking are provided with information on relevant court and administrative proceedings and assistance to enable their views and concerns to be presented and considered at appropriate stages of criminal proceedings against offenders.[97] 

186.          Art. 6 also requires State Parties to consider implementing measures to provide for the physical, psychological, and social recovery of victims of trafficking.  Such measures include appropriate housing; counselling and information, in particular as regards their legal rights; medical, psychological, and material assistance; and employment, educational, and training opportunities.[98]

187.          In addition, Art. 6 requires State Parties to endeavour to provide for the physical safety of victims of trafficking while they are within their respective territories[99] and to ensure that their respective domestic legal systems contain measures that offer victims of trafficking the possibility of obtaining compensation for damage suffered.[100]

188.          Art. 7 requires State Parties to consider adopting legislative or other appropriate measures that permit victims of trafficking to remain in their respective territories, temporarily or permanently,[101] and in doing so to give appropriate consideration to humanitarian and compassionate factors.[102]

D.        The right to leave and return

189.  Article 13 of the Universal Declaration of Human Rights sets forth the basic right to freedom of movement, and does not distinguish between citizens and non-citizens.  Article 13 states that: “[e]veryone has the right to freedom of movement and residence within the borders of each State” and that “[e]veryone has the right to leave any country, including his own, and to return to his country.”

190.  Similar provisions are set forth in the International Covenant on Civil and Political Rights, although the Covenant appears to draw a distinction between documented and undocumented aliens.  Article 12 states:

1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

2. Everyone shall be free to leave any country, including his own . . .

4. No one shall be arbitrarily deprived of the right to enter his own country.

191.  Regional instruments contain similar provisions regarding the freedom of movement.  The African Charter on Human and Peoples’ Rights provides for the freedom of movement within the borders of a State where an individual lawfully resides (Article 12 (1)), and the general right to leave and return (Article 12 (2)).  Non-nationals may only be deported in accordance with law (Article 12 (4)) and mass expulsions of non-citizens are prohibited (Article 12 (5)).

192.  While most human rights instruments address freedom of movement in a single article or even more tangentially, two declarations address the issue in a more comprehensive fashion:  the Declaration on the Right to Leave and the Right to Return, adopted by a colloquium held in Uppsala, Sweden in 1972, and the Strasbourg Declaration on the Right to Leave and Return, adopted by a meeting of experts held in 1986.

193.  More recently, Mr. Volodymyr Boutkevitch prepared a working paper on the right to freedom of movement and related issues in implementation of Decision 1996/109 of the Sub-Commission.[103]  Mr. Boutkevitch’s working paper discussed the right to freedom of movement and related issues in international legal instruments, the right to freedom of movement at the national level, and the state of freedom of movement in the last 10 years.

VI.  DEVELOPING FURTHER HUMAN RIGHTS STANDARDS AND IMPLEMENTATION PROCEDURES IN REGARD TO NON-CITIZENS: TENTATIVE CONCLUSIONS AND RECOMMENDATIONS

194. Continued discriminatory practices against non-citizens demonstrate the lack of standards adopted and particularly implemented by States regarding the rights of individuals who are not citizens of the country in which they live.

195. States should be encouraged to abide by the Declaration on the Human Rights of Individuals Who are not Nationals of the Country in which They Live.

196.  States that have not already done so should be encouraged to sign and ratify the Convention on the Rights of All Migrant Workers and Members of Their Families.

197. CERD should consider how to interpret Article 1, paragraph 2, of the International Convention on the Elimination of All Forms of Discrimination, so as to avoid diminishing the protections for non-citizens under other human rights treaties and within the Race Convention itself.  CERD should be encouraged to prepare a general recommendation on the rights of non-citizens.  At a later stage in this study the Sub-Commission might, in cooperation with CERD, help formulate such a general recommendation.

198. CERD is correct in noting that “distinctions are being made between different categories of non-citizens”[104] and that “these distinctions may amount to total exclusion of persons, depriving them of the most fundamental rights and having racist implications.”[105]  Such distinctions raise questions from the perspective of the Race Convention, in spite of Article 2 (1), and this subject deserves further study in light of recent developments.

199. CERD should consider expressly articulating the rights of individuals who are not citizens of the country in which they live and to make more explicit the incorporation of protections for non-citizens.

200. The Human Rights Committee has recognized the full rights of non-citizens under the Covenant in its General Comment 15 on the position of aliens under the Covenant. Because aliens tend to be of a minority race, discrimination against aliens has some of the same underlying tendencies as racism, and there is a substantial relationship between discrimination on the basis of race and discrimination against aliens.  Therefore, it is desirable for CERD to coordinate its work with the substance of General Comment 15 and other efforts of the Human Rights Committee to protect the rights of non-citizens. For example, a new general recommendation on the rights of non-citizens should take into account the terms of the Convention, the experience of CERD in reviewing States Parties’ reports and the experience of the Human Rights Committee, as well as other sources of relevant jurisprudence such as that of other treaty bodies and the European Court of Human Rights.  Further research needs to be devoted to gathering and analysing those experiences and relevant jurisprudence.

201.   Other treaty bodies should be encouraged to prepare general comments/recommendations so as to establish a consistent, structured approach to the protection of the rights of non-citizens.

202.  States should be encouraged to incorporate international standards in the elaboration of national legislation, policies, and practices.

203.   The rights of non-citizens should be explicitly addressed at the World Conference against Racism and Racial Discrimination, Xenophobia and Related Intolerance.

204.  Any approach to combating discrimination against non-citizens should take into account several critical factors including different categories of non-citizens (e.g., permanent resident, temporary residents, undocumented aliens, etc.) regarding different categories of rights (e.g., political rights, civil rights, right to an education, social security, other economic rights, etc.) in countries of different levels of development and offering differing rationales for such distinctions (e.g., issues of national reciprocity).

205.  For example, it is clear that all persons, regardless of citizenship status, enjoy the most fundamental human rights such as the right to life, the rights to be free from torture, and the right to be free from arbitrary detention.

206.  What is less clear is how various categories of non-citizen status affect other rights such as the right to social security, the right to employment, and the right to higher education.

207.  One component of the next stages of this study will be to examine this question in greater detail and to delineate from existing standards and jurisprudence the extent to which various rights apply to various categories of non-citizens. 

208.  Another aspect of this study will be to cooperate with the International Organization for Migration, the U.N. High Commissioner for Refugees, and other interested organizations in seeking information about and discussing how non-citizens are actually treated in a number of countries and in developing a comprehensive approach to the protection of the rights of non-citizens. 



[1] See UN Doc. CERD/C/SR.1189 (1997).

[2] UN Doc. E/CN.4/Sub.2/1997/31 (1997).

[3] UN Docs. E/CN.4/Sub.2/1999/7 (1999) and E/CN.4/Sub.2/1999/7/Add.1 (1999).

[4] UN Doc. E/CN.4/DEC/2000/104 (2000).

[5] UN Doc. E/CN.4/Sub.2/DEC/2000/103 (2000).

[6] Richard B. Lillich, The Human Rights of Aliens in Contemporary International Law, 1984, p. 43.

[7] Ibid., p. 46.

[8] See Human Rights Committee, General Comment 15, The position of aliens under the Covenant (Twenty-seventh session, 1986), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI\GEN\1\Rev.1 at 18 (1994) [hereinafter General Comment 15].

[9] General Comment 15, para. 1.

[10] Ibid.

[11] General Comment 15, para. 3.

[12] General Comment 15, para. 4.

[13] General Comment 15, para. 8.  Article 12, paragraph 3, of the Covenant states that the right to freedom of movement “shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.”

[14] Most of the provisions in Part III of the Covenant refer specifically to “the right of everyone” (emphasis added).  For a more thorough treatment of non-nationals under the International Covenant on Economic, Social and Cultural Rights, see John A. Dent, Research paper on the Social and Economic Rights of Non-Nationals in Europe, 1998 (commissioned by the European Council on Refugees and Exiles).

[15] UN Doc. E/C.12/1999/10 (1999).

[16] Ibid. at para. 6(b).

[17] Ibid. at para. 34.

[18] Ibid. at para. 31.

[19] CESCR General Comment 14, UN Doc. E/C.12/2000/4 (2000).

[20] CESCR General Comment 4, contained in UN Doc. E/1992/23 (1992).

[21] See also the Convention on the Nationality of Married Women, adopted by General Assembly Resolution 1040 (XI) of 29 January 1957.

[22] For an in-depth examination of reception standards for asylum seekers in the European Union, see Office of the High Commissioner for Refugees, Reception Standards for Asylum Seekers in the European Union, UNHCR, Geneva, July 2000.

[23] See Convention relating to the Status of Stateless Persons, 360 U.N.T.S. 117, entered into force 6 June 1960.

[24] Convention relating to the Status of Stateless Persons, 360 U.N.T.S. 117, entered into force 6 June 1960.

[25] Id.

[26] Id.

[27] Resolution 1789 (LIV) of 18 May 1973.  See also Ryszard Cholewinski, Migrant Workers in International Human Rights Law, 1997.

[28] Exploitation of Labour through Illicit and Clandestine Trafficking, United Nations publication, Sales No. E.86.XIV.1. See also Cholewinski, ibid.

[29] Elles, International Provisions Protecting the Human Rights of Non-Citizens, United Nations publication, Sales No. E.80.XIV.2.

[30] UN Doc. A/54/10 and Corr. 1 & 2, chap. IV.E (1999).

[31] UN Doc. A/RES/55/153 (2000).

[32] Ibid.

[33] UN Doc. A/CONF.183/9.

[34] International Labour Organization, ILO Convention No. 97: Migration for Employment Convention (Revised) (1949), entered into force 22 January 1952.

[35] Id. at Art. 2.

[36] Id. at Art. 5 (b).

[37] Id. at Art. 6.

[38] International Labour Organization, ILO Convention No. 143: Migrant Workers (Supplementary Provisions) (1975), entered into force 9 December 1978.

[39] Id. at Art. 1.

[40] Id. at Art. 8 (2).

[41] Id. at Art. 10.

[42] Exclusion, Equality Before the Law and Non-Discrimination.  Infra note 45.

[43] In addition, “customary international law provides evidence that States are free to restrict the political activity of aliens.”  See infra note 45.

[44] Exclusion, Equality Before the Law and Non-Discrimination.  Proceedings of a seminar organized by the Secretariat General of the Council of Europe in cooperation with the International Center for sociological, criminal and penitential research and studies (INTERCENTER) of Messina, Italy (Taormina Mare, Italy, 29 September-1 October 1994), p. 135.  Also published in French under the title Exclusion, égalité devant la loi et non-discrimination.

[45] See European Convention on Nationality, ETS No. 166, Strasbourg, 6 November 1997, but see also Protocol No. 4 to the European Convention on Human Rights, Article 4 (“Collective expulsion of aliens is prohibited.”).

[46] Berrehab v. the Netherlands, Series A, No. 138 (Eur. Ct. Hum. Rts. 26 June 1988).

[47] Ibid. at Appendix, para. 1.

[48] Ibid. at Art. 12, para. 4.

[49] Ibid. at Art. 13 , para. 4.

[50] Ibid. at Art. 18.

[51] Ibid. at Art. 19.

[52] Ibid.

[53] Charter of Fundamental Rights of the European Union, CHARTE 4487/00, adopted December 2000.

[54] Ibid. at Art. 15.

[55] Ibid. at Art. 34.

[56] Ibid. at Arts. 39 and 40.

[57] Ibid. at Arts. 42, 43, and 44.

[58] Ibid. at Art. 46.

[59] All dealing with the protection of minorities and their integration into society.

[60] In which the Committee of Ministers recommended that governments of member states adopt explicit policies on community relations questions and ensure that they are put into practice across the whole range of government action, it being understood that such policies should be based on the following principles:

1.    security of residence for lawful migrants, especially those who have lived in the host country for many years;
2.    determined action to bring about real equality of opportunity, especially in the fields of training, employment and housing, and to combat all forms of discrimination;
3.    the taking of effective measures to combat racism and xenophobia, including both well-designed measures in the field of information and education and the enactment of appropriate legislation;
4.    the encouragement of the fullest possible participation of migrants and persons of immigrant origin in the life of the society of the country in which they live;
5.    an attitude of openness towards the cultures and customs brought by migrants in so far as they are compatible with national law.

[61] Dealing with the prevention and amelioration of racism and xenophobia in Europe.

[62] Dealing with the prevention and amelioration of racism and xenophobia in Europe.

[63] Dealing with the rights and integration of national minorities.

[64] Asbjörn Eide has thoroughly examined this treaty and the right to a nationality in his article “Citizenship and international law with specific reference to human rights law: status, evolution and challenges.”  Eide includes a history of the concept of citizenship and its development over time, and also attempts to answer the question: “What are the rights of a given individual in regard to the country in which he or she lives?”

[65] American Convention on Human Rights, O.A.S. Treaty Series No. 36, at 1, OEA/Ser.L/II.23 doc. Rev. 2, Art. 1, entered into force 18 July 1978.

[66] Ibid. at Art. 22.

[67] Ibid. at Art. 23.

[68] Inter-American Court of Human Rights, Advisory Opinion OC 4/84 of 19 January 1984.

[69] African [Banjul] Charter on Human and Peoples’ rights, adopted 27 June 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force 21 October 1986.

[70] Ibid. at Art. 13(1) and (2).

[71] African Charter on the Rights and Welfare of the Child, OAU Doc. CAB/LEG/24.9/49 (1990), entered into force Nov. 29, 1999.

[72] Ibid. at Art. 6(3).

[73] See  V. Demleitner, “The Fallacy of Social ‘Citizenship’, or the Threat of Exclusion”, Georgia Immigration Law Journal vol. 12 (1997), pp. 35, 59.

[74] See North American Free Trade Agreement, 8 December 1993, United States-Canada-Mexico, chap. 16, art. 1603, para. 1.

[75] E/CN.4/Sub.2/1997/31, annex, p. 4 (1997).

[76] See Elles, supra note 29.

[77] Ibid. at para. 293.

[78] Asbjörn Eide, “Study on the achievements made and obstacles encountered during the decades to combat racism and racial discrimination,” UN Doc. E/CN.4/Sub.2/1989/8, para. 370 (1989).

[79] Human Rights Committee, General Comment 15 (citing the International Covenant on Civil and Political Rights, Article 2 (1)).

[80] Elles, supra note 29, para. 366 (1).

[81] Ibid. at para. 366 (20).

[82] Committee on the Elimination of Racial Discrimination, General Recommendation No. 27, contained in UN Doc. A/55/18, annex V (2000).

[83] Ibid.

[84]UN Doc. E/CN.4/Sub.2/DEC/2000/109 (2000).

[85] Kathleen Barry, The Prostitution of Sexuality, 1995, p. 165.

[86] Ibid., p. 195. “Local prostitution in Paris and in major cities throughout the world is interconnected with the traffic in women.”  “In 1992 it was estimated that 85 per cent of the prostitutes in the [Bois de Boulogne] were illegal immigrants . . ..   In recent years immigrant prostitution in France has been increasingly trafficked from South America, particularly Brazil, Ecuador, Peru, and Colombia.”

[87] See Bimal Ghosh, Huddled Masses and Uncertain Shores: Insights into Irregular Migration, 1998, p. 134.

[88] IPEC-ILO, Fighting child trafficking at national level, action in Nepal.  See <www.ilo.org/public/english/90ipec/publ/expls-98/examp113.htm>.

[89] “Trafficking in Children for Labour Exploitation in the Mekong Sub-region: A Framework for Action. Section 4 - The ILO-IPEC Programme Strategy to Combat Trafficking in Children for Labour Exploitation, including Child Prostitution. See www.ilo.org/public/english/90ipec/publ/traffic.htm.

[90] Supra note 85, p. 307.

[91] Ibid., pp. 307, 308.

[92] Ibid., appendix: Proposed Convention Against Sexual Exploitation, January 1994.

[93] The recommendations of the NGO Consultation can be found in Annex II of the Report of the Working Group on Contemporary Forms of Slavery on its twenty-fourth session.  UN Doc. E/CN.4/Sub.2/17 (1999).

[94] UN Doc. E/CN.4/Sub.2/1995/28/Add.1 (1995).

[95] UN Doc. E/CN.4/Sub.2/RES/1999/17 (1999).

[96] Convention on Transnational Crime, Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children, adopted 15 November 2000.

[97] Ibid. at Art. 6 (2).

[98] Ibid. at Art. 6 (3).

[99] Ibid. at Art. 6 (5).

[100] Ibid. at Art. 6 (6).

[101] Ibid. at Art. 7 (1).

[102] Ibid. at Art. 7 (2).

[103] UN Doc. E/CN.4/Sub.2/1997/22 (1997).

[104] UN Doc. E/CN.4/Sub.2/1997/31, annex, p. 4 (1997).

[105] Ibid.

 



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