Introduction

1.         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, to be submitted under the agenda item entitled ‘Comprehensive examination of thematic issues relating to the elimination of racial discrimination’, in order to enable it to take a decision at its fifty-first session on the feasibility of a study on that subject.” [2] The present working paper was prepared to comply with that mandate, assist the Sub-Commission in considering a full study of the topic, and respond to a request from the Committee on the Elimination of Racial Discrimination.

2.         This working paper first reviews the background for the Sub-Commission decision to pursue the topic of the rights of persons who are not citizens of the country in which they live, that is, non-citizens.  Second, the working paper examines the rights of non-citizens under the Convention on the Elimination of Racial Discrimination.  Third, it considers other standards relevant to non-citizens:  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; and the 1985 Declaration on the Human Rights of Individuals Who are not Nationals of the Country in which They Live.

3.         Fourth, the working paper looks at the development of the rights of non-citizens since 1985, including global developments particularly in the context of the United Nations; regional developments particularly in Europe; and other issues not covered by the 1985 Declaration.  The global developments discussed are:  the Human Rights Committee’s General Comment 15 on the Position of Aliens under the Covenant (1986); the Concluding Observations and Comments of the Committee on the Elimination of Racial Discrimination; the Convention on the Rights of the Child (1989); the Migrant Workers Convention (1990);  General Recommendation 21 of the Committee on the Elimination of Discrimination Against Women (1992); the International Law Commission Draft Articles on the Nationality of Natural Persons in Relation to the Succession of States (1997); and the Rome Statute of the International Criminal Court (1998).  The regional developments occurred principally in Europe:  The European Convention on Human Rights and its Jurisprudence, the European Charter for Regional or Minority Languages (1992), the European Convention on Nationality (1997), and the European Convention on the Participation of Foreigners in Public Life at Local Level (1998).  The paper then focuses on four issues not adequately covered by the 1985 Declaration:  Distinctions among non-citizens, Gypsies/Roma, trafficking in women and children, and the right to leave and return.  Lastly, the working paper presents its tentative conclusions and recommendations.

4.         The Commission on Human Rights, in its resolutions 1996/25, [3] 1997/22, [4] and 1998/28, [5] called upon the Sub-Commission and its members to “further enhance cooperation with mechanisms of the Commission and, within their competence, with all relevant bodies, including human rights treaty bodies.”

5.         In paragraph 53 of the report of the 7th meeting of persons chairing the human rights treaty bodies, [6] the chairpersons of the treaty-monitoring bodies recommended that “the treaty bodies take a more active role in supporting, suggesting topics for and cooperating in the preparation of studies by the Sub-Commission on Prevention of Discrimination and Protection of Minorities” (Sub-Commission).

6.         The Committee on the Elimination of Racial Discrimination (CERD) discussed this issue during its fiftieth session [7] and decided to propose to the Sub-Commission nine topics for the preparation of studies, including the “[r]ights of non-citizens.” [8]

7.         CERD has observed that:

In an increasing manner distinctions are being made between different categories of non-citizens (for instance in the law of the European Union).  These distinctions may amount to total exclusion of persons, depriving them of the fundamental rights and having racist implications.  This raises questions from the perspective of the International Convention on the Elimination of All Forms of Racial Discrimination, in spite of article 1.2 of the Convention. [9]

8.         Mr. Michael Banton, Chairman of CERD, in a letter dated 19 March 1997, communicated these proposals to the Chairman of the forty-eighth session of the Sub-Commission and requested that he present these proposals to the Sub-Commission during its forty-ninth session. [10]

9.         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 CERD.  Furthermore, the Sub-Commission, in its decision 1997/112, decided to devote special attention to subjects proposed by UN treaty-monitoring bodies in proposing new studies. [11]   The Sub-Commission has also responded to the request of CERD by undertaking a study with regard to one of the other topics proposed by the CERD letter, that is, affirmative action, as well as a working paper on reservations to human rights treaties, which was also a topic suggested by CERD for Sub-Commission consideration.

10.       In discussing this working paper, members of the Sub-Commission suggested several related issues which might be considered as part of the topic.  Accordingly, the Sub-Commission asked that the working paper

take into account . . . developments since the adoption in 1985 of the Declaration on the Human Rights of Individuals Who Are Not Nationals of the Country in Which They Live, overcoming impediments to ratification of the International Convention on the Rights of All Migrant Workers and Members of Their Families, discrimination between different groups of non-citizens, [and] the implications of dual citizenship . . .. [12]

11.       After considering the issues initially proposed by CERD as relevant to the rights of non-citizens, the present working paper will also consider those additional issues.

II.                International Convention on the Elimination of Racial Discrimination

12.       The International Convention on the Elimination of All Forms of Racial Discrimination [13] (Race Discrimination Convention) 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]

13.       The Race Discrimination Convention indicates, however, that States may make distinctions between non-citizens and citizens as long as they treat all non-citizens similarly. [15]   The general definition of discrimination found in Article 1, paragraph 1, is qualified by Article 1, paragraph 2, which states that:

this Convention shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens. [16]

14.            Furthermore, the Race Discrimination Convention does not affect how States bestow citizenship.  Article 1, paragraph 2, is further defined in Article 1, paragraph 3, which states that:

[n]othing 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. [17]

15.       The Race Discrimination Convention, however, does not preempt the rights of non-citizens enumerated in other international instruments.  In its General Recommendation XI on non-citizens, CERD stated that Article 1, paragraph 2

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. [18]

In its Concluding Observations and Comments on several States reports CERD has reflected its continuing concern about various forms of discrimination against non-citizens.  Those country conclusions and recommendations are discussed below in part IV. A. 2 (paras. 38-46, infra).

III.       Other Relevant Human Rights Standards as to Non-Citizens

A.     United Nations Charter

16.       The rights of non-citizens are protected in a number of international instruments that embody the principles of equality and non-discrimination.  The United Nations 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.” [19]

B.     Universal Declaration of Human Rights

17.       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. [20]

18.       In addition, it should be noted that this provision applies to “everyone” and thus protects all persons, including non-citizens, from race discrimination and other forms of discrimination.  The use of the words “such as” indicate that this is not an exhaustive list, and make clear that the operative phrase is:  “without distinction of any kind.” [21]   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." [22]   Professor Lillich also noted that “nationality would appear to fall into the category of ‘distinction of any kind’.” [23]

19.       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

20.       The provisions enumerated in the International Covenant on Civil and Political Rights (Civil and Political Covenant) apply generally to non-citizens. [24]   Article 2, paragraph 1, of the Civil and Political Covenant states that:

[e]ach 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. [25]

21.       The rights of aliens are also set forth in General Comment 15 of the Human Rights Committee issued in 1986 as an authoritative interpretation of the relevant provisions of the Civil and Political Covenant. [26]   The Human Rights Committee reiterated that “the general rule is that each one of the rights of the [Civil and Political] Covenant must be guaranteed without discrimination between citizens and aliens.” [27]   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.” [28]   The Committee, however, noted a few exceptions: [29]   The political rights recognized in Article 25 are expressly applicable only to citizens, while Article 13 applies only to aliens who are subject to expulsion.

22.       Article 25 of the Civil and Political Covenant states that:

[e]very citizen shall have the right and opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:

23.       While Article 13 states that:

[a]n 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. [30]

D.    International Covenant on Economic, Social and Cultural Rights

24.       The International Covenant on Economic, Social and Cultural Rights [31] establishes rights that apply to everyone, regardless of citizenship. [32]    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 and housing, and to 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 the right of everyone to education, and Article 16 grants the right of everyone to take part in cultural life.  

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

[t]he 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.

26.       Article 2, section 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 discriminations between nationals of different countries, but only between nationals of the State party and non-nationals.

 

E. Declaration on the Human Rights of Individuals Who Are Not Nationals of the Country in Which They Live  (1985 Declaration)

27.       On 13 December 1985 the General Assembly adopted by consensus a declaration on the human rights of individuals who are not citizens of the country in which they live. [33]   This declaration was the result of a Sub-Commission study, completed in 1976, on the rights of non-citizens. [34]   The declaration covers all individuals who are not nationals of the State in which they are present. [35]   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. [36]   In addition, the declaration prohibits individual or collective expulsion on discriminatory grounds, [37] and provides for trade union rights as well as the right to safe and healthy working conditions and the right to medical care, social security, and education. [38]   The provisions of the 1985 Declaration are reflected in the Human Rights Committee’s General Comment 15 (1986), infra IV. A. 1.

28.            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 from each category are protected under the 1985 Declaration. [39]   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, section 1, grants “aliens” specific rights, without specifying any particular sub-group of aliens.  Articles 9 and 10 refer to “no alien” and “any alien” respectively. 

29.       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.

IV.            Developments Since the Adoption of the Declaration on the Human Rights of Individuals Who Are Not Nationals of the Country in Which They Live  (1985 Declaration)

30.              There have been significant developments since the path-breaking study prepared by Baroness Elles for the Sub-Commission in 1977 and the resulting Declaration of 1985, including the developing jurisprudence of the Human Rights Committee and the Committee on the Elimination of Racial Discrimination.  In addition, the previous Sub-Commission study of Baroness Elles did not focus on the precise problems faced by CERD, for example, in the context of the restrictive language in the Race Convention, such as the difficulties arising from distinctions among non-citizens. 

 
A.            Global Developments Since 1985      

1.            Human Rights Committee General Comment 15

31.       After the 1985 Declaration was adopted, one of the first developments regarding the rights of non-citizens was the Human Rights Committee’s General Comment 15 [40] on the position of aliens under the Civil and Political Covenant.  The Human Rights Committee adopted General Comment 15 during its twenty-seventh session (1986). The Human Rights Committee found it helpful to state the position of aliens under the Covenant because it found 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.’” [41]

32.       General Comment 15 states that the Civil and Political Covenant generally applies to all persons, “without discrimination between citizens and aliens.” [42]   Paragraph 1 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.” [43]   Paragraph 2 further clarifies the general rule that “each one of the rights of the Covenant must be guaranteed without discrimination between citizens and aliens.” [44]   The only exceptions to the general rule of non-discrimination are those expressly articulated in Article 25 (right to participate in government) of the Covenant, which applies only to citizens, and Article 13 (expulsion), which applies only to aliens. [45]

33.       The Human Rights Committee noted that “[a] few constitutions provide for equality of aliens with citizens”, [46] however, General Comment 15 records 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.” [47]  

34.       The Human Rights 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.” [48]   Furthermore, the Committee places 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.” [49]

35.       In General Comment 15, paragraph 7, the Human Rights Committee expressly reiterates 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:” [50]  

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 practise 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. [51]

36.       General Comment 15 clarifies that 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 Civil and Political Covenant. [52]

37.       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.” [53]   Paragraph 10, however, clarifies that the Covenant only regulates the procedure for expulsion, and does not address the substantive grounds. [54]   According to paragraph 10, “[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.” [55]   Aliens also have the right to appeal against expulsion.  The right to appeal may only be abrogated when “‘compelling reasons of national security’ so require.” [56]

2.            Concluding Observations and Comments of the Committee on the Elimination of Racial Discrimination (CERD)

38.       The Committee on the Elimination of Racial Discrimination (CERD) has with regard to seven countries made Concluding Observations and Comments in regard to the rights of non-citizens.   These Concluding Observations and Comments reflect CERD’s  mandate under the Racial Discrimination Convention to deal with discrimination against non-citizens. 

39.       For example, in reviewing the report of Croatia in 1993, CERD “noted with concern the general lack of clarity in a number of basic legal provisions guaranteeing non-discrimination in the enjoyment of human rights and fundamental freedoms for members of the minority communities,” [57] noting that “[I]n some cases, guarantees would appear to apply only to citizens of Croatia.” [58]   CERD expressly noted that Article 14 of the Croatian Constitution prohibiting racial discrimination and Article 35 guaranteeing fundamental freedoms appeared to apply only to Croatian citizens. [59]

40.       In examining the report of the Republic of Korea in 1993, CERD “sought clarification on matters relating to:   Naturalization and the rights to inheritance of naturalized citizens; foreigners’ eligibility to join or create trade unions and enjoy the benefit of their protection; the level of wages received by foreign workers; and foreign workers’ enjoyment of the rights to medical and other social services.” [60]   The government representative informed CERD that “naturalized citizens benefited from the same rights and had the same obligations as other citizens” and that “foreign workers had the same rights as workers who were national of the country, provided that they were legally registered for work.” [61]   In its Concluding Observations on the report of the Republic of Korea, however, CERD expressed its concern “at the reported discrimination suffered by spouses and children of foreign workers. [62]  

41.       During the examination of the report of Kuwait in 1993, CERD recalled that “States parties to the Race Convention were under an obligation to report fully on legislative measures relating to foreigners and their implementation.” [63]   CERD asked for more precise information on the current situation of certain categories of persons, and in particular Bedouins and Palestinians, who were reported to be in a very vulnerable position. [64]   CERD considered reports that Bedouins and Palestinians, Iraqis, and citizens of other countries that had not participated in the coalition were dismissed from public employment and excluded from the public school system.  Furthermore, reports indicated that these groups were “subjected to ill-treatment, detention, expulsion, and torture.” [65]   In addition, CERD expressed concern that domestic staff of Asian origin “were subjected to debt bondage, other illegal employment practices, passport deprivation, illegal confinement, rape, and physical assault.” [66]   CERD recommended that Kuwait “take steps to guarantee the enjoyment by individuals belonging to vulnerable groups of foreigners, including foreign domestic servants, of the rights enshrined in the [Race Discrimination] Convention without any discrimination.” [67]

42.       In examining the report of Nigeria in 1993, CERD inquired into the rights and guarantees of non-citizens under the Nigerian Constitution and why a distinction was made in national legislation between citizens of Nigeria by birth and other Nigerians. [68]   CERD emphasized that under Article 5 of the Race Discrimination Convention, States “had an obligation to guarantee the civil, political, economic, social, and cultural rights of the whole population and not just of citizens.” [69]   “Furthermore, CERD recommended that national legislation be brought into full compliance with the provisions of the [Race Discrimination] Convention, in particular regarding the effective enjoyment of the rights set forth in article 5.” [70]

43.       CERD examined a subsequent report from Nigeria in 1995. [71]   In connection with Article 1 of the Race Discrimination Convention, CERD “noted that section 39(1) of the 1979 Nigerian Constitution provided for the protection of citizens against discrimination, but did not cover non-citizens or provide protection against discriminatory actions or practices outside the governmental sector.” [72]

44.       In 1993, CERD examined the report of Qatar.  With respect to Article 2 of the Race Discrimination Convention, CERD inquired into whether Article 9 of the Qatar Constitution, guaranteeing equality of all individuals in regard to their rights and obligations, also applied to non-citizens. [73]   In addition, CERD wished to know whether “non-Arabs were able to acquire Qatar nationality, whether foreign workers were discriminated against, and whether the Government intended to adopt legislation prohibiting discrimination against foreign workers.” [74]   With respect to Article 5 of the Race Convention, CERD expressed concern about “whether free choice of employment was guaranteed to foreigners, whether foreign workers had access to all professions and trades, whether the Government envisaged measures to eliminate difference between citizens and foreign workers concerning access to all trades, whether non-citizens were eligible to receive social security benefits, and whether freedom to leave the country and return was guaranteed to non-citizens.” [75]   CERD explicitly noted that “legislation restricting non-Arab lawyers from pleading a case before the courts was discriminatory.” [76]

45.       CERD examined the report of Italy in 1995. [77]   Regarding Article 5 of the Race Discrimination Convention, CERD expressed concern that “legislation concerning political asylum for non-European Union citizens” [78] may be “more restrictive in matters relating to the status and employment of the people concerned than the ordinary Italian legislation in those areas.” [79]   CERD also expressed concerns “about some cases involving the ill-treatment of foreigners of non-[European] Community origin by police officers and prison staff. [80]

46.       CERD considered the report of the United Arab Emirates in 1995. [81]   With respect to Article 5 of the Race Discrimination Convention, CERD “asked to what extent foreign workers . . . were entitled to have their children join them and to have them educated in their own language, and whether those children were free to practise their religion.” [82]   CERD also inquired into the content of bilateral agreements between the United Arab Emirates and other countries regarding the status of foreign workers. [83]   Members of CERD “expressed their deep concern at information from various sources that foreign workers, particularly women from Asian countries, were subjected to inhuman treatment.” [84]   CERD also asked “whether aliens living in the United Arab Emirates had the right to assemble freely and practise their culture.” [85]   CERD recommended that the United Arab Emirates “show the utmost diligence in preventing acts of ill-treatment being committed against foreign workers, especially foreign women domestic servants, and take all appropriate measures to ensure that they are not subjected to any racial discrimination.” [86]

3.  Convention on the Rights of the Child

47.       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.” [87]   In addition, the Convention requires that:

States Parties shall 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. [88]

48.       The convention 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.

49.       The Convention on the Rights of the Child was adopted by resolution 44/252 of 20 November 1989 at the forty-forth session of the General Assembly of the United Nations.  It entered into force on 2 September 1990, in accordance with Article 49 (1).  As of 5 May 1999, the convention had 191 States Parties. [89]

4.            International Convention on the Protection of All Migrant Workers and Members of Their Families (Migrant Workers Convention)

50.       One major development in respect to the rights of non-citizens occurred on 18 December 1990, when the General Assembly adopted the International Convention on the Protection of All Migrant Workers and Members of Their Families (Migrant Workers Convention). [90]    This Convention was the result of a request by the Economic and Social Council (ECOSOC) to the Sub-Commission to study the condition of migrant workers. [91]   The Sub-Commission appointed Ms. Halima Warzazi to prepare a preliminary study on the exploitation of labour through illegal migration. [92]   Her study recommended that the UN should be involved to “ensure that all humanitarian aspects of the problem [of the exploitation of migrant workers] are covered.” [93]

51.         The Migrant Workers Convention covers all migrant workers and their families. [94] The Convention provides for:  non-discrimination with respect to rights of migrant workers, [95] the assurance of fundamental human rights, [96] equality of treatment between nationals and migrant workers in regard to work conditions and pay, [97] the right to participate in trade unions, [98] equal access to social security, [99]   right to emergency medical care, [100]   and equality of access to public education. [101]   In addition, States parties must ensure respect for workers cultural identity [102] and inform migrant workers of their rights under the Convention. [103]

52.       The pace of ratification of the Migrant Workers Convention has not been particularly prompt.  As of 5 May 1999, the Migrant Workers Convention had been ratified or acceded to by eleven nations:  Azerbaijan, Bosnia and Herzegovina, Cape Verde, Colombia, Egypt, Mexico, Morocco, the Philippines, Seychelles, Sri Lanka, and Uganda and was signed by Bangladesh, Chile, and Turkey. [104]   In order to encourage ratification of the 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 Convention as a matter of priority. [105]   Because migrant workers are non-citizens, and therefore are included in any instruments regarding the rights of non-citizens, they are incorporated in the analysis of this working paper.  For a more thorough discussion of the specific problems facing migrant workers and the ways of overcoming impediments to ratification of the Migrant Workers Convention, see Appendix 1 to this working paper.

5.            Convention on the Elimination of Discrimination against Women

53.       The Convention on the Elimination of Discrimination against Women (Women’s Convention) establishes the rights of women in regard to nationality. [106]   These rights become particularly important when a woman marries a foreign national.  In order to protect women’s nationality, Article 9 of the Women’s Convention provides that:

(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; and  (2)  States parties shall grant women equal rights with men with respect to the nationality of their children. [107]

54.       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. [108]

6.            International Law Commission

55.       The International Law Commission has sought to develop an instrument regarding the impact of state succession on the nationality of natural and legal persons since 1993. [109]   At its forty-ninth session in Geneva from 12 May to 18 July 1997, the International Law Commission established the Draft Articles on Nationality of Natural Persons in Relation to the Succession of States. [110]   Part I of the Draft Articles applies to all cases of state succession and conflicts of nationality arising therefrom. [111]   Part II of the Draft Articles pertains to the implementation of these provisions in specific instances of State succession.

56.       The Draft Articles on Nationality of Natural Persons in Relation to the Succession of States are primarily concerned with the prevention of statelessness. [112]   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. [113]

57.            According to Article 4, habitual residents of the successor State are presumed to acquire nationality of the successor State on the date of succession. [114]   Article 11 places the unity of the family above the matter of habitual residence, articulating that:  “States concerned shall take all appropriate measures to allow that family to remain together or to be reunited.” [115]   According to Article 12 of the Draft Articles, all children born after succession have the right to the nationality of the territory in which they are born. [116]

58.            According to Article 14, the method of determining nationality shall be non-discriminatory. [117]   Article 15 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.” [118]   Further procedural requirements are set forth in Article 16, 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 and relevant decisions shall be issued in writing and shall be open to effective administrative or judicial review. [119]

59.       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.” [120]

7.            International Criminal Court

60.       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. [121]   Article 5 enumerates four crimes that fall within the jurisdiction of the Court:  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, ethnical, racial or religious group, as such.”  Therefore, acts intended to destroy a national, ethnical, racial or religious minority are crimes within the jurisdiction of the court.  In addition, under Article 7, “[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” are also considered Crimes 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.

61.       As of 5 May 1999, two nations – Senegal and Trinidad  & Tobago – have thus far ratified the Rome Statute of the International Criminal Court.  The language used by the Statute of the International Criminal Court to define “genocide” is taken directly from the Genocide Convention. [122]   The Genocide Convention was adopted by the UN General Assembly on 9 December 1948, and entered into force on 19 January 1951, in accordance with Article 13.  As of 5 May 1999, the convention had 129 States parties. [123]  

B. Regional Developments since 1985

62.       In addition to the developments at the global level since the 1985 Declaration there have been very significant regional developments as to the rights of non-citizens particularly in Europe.

1.            European Convention on Human Rights and its Jurisprudence

63.       “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.” [124] 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. [125]

64.       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. [126]

65.       The Council of Europe Seminar on Exclusion, Equality Before the Law and Non-Discrimination noted that  

Article 14 ECHR 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 realised’ [127]

66.       In addition, Article 16 of the European Convention states that nothing in Article 14 European Convention “shall be regarded as preventing the High Contracting Parties from imposing restrictions on the political activities of aliens.” [128]  

67.       In 1997 the European Court of Human Rights in Bouchelkia v. France dealt with the rights of non-citizens particularly in the context of deportation. [129]   Mr. Bouchelkia was born in Algeria in 1970, and immigrated to France with his mother at age two.  In 1990, Mr. Bouchelkia was ordered deported because of a violent rape conviction in 1987.  Mr. Bouchelkia requested that the European Court of Human Rights find a violation of Article 8 of the European Convention.

68.            Article 8 of the European Convention 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. [130]

69.       The Court found no such violation.  The court concluded that the interference in Mr. Bouchelkia’s family life “had aims which were entirely compatible with the Convention, namely ‘the prevention of disorder or crime’.” [131]   The Court further stated:

[I]t is for the Contracting States to maintain public order in particular by exercising the right as a matter of well-established international law and subject to their treaty obligation, to control the entry and residence of aliens.  For that purpose they are entitled to order the expulsion of such persons convicted of criminal offences. [132]

2.            European Charter for Regional or Minority Languages

70.       The European Charter for Regional or Minority Languages 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.” [133]

71.       In 1995, the Council of Europe Press published a booklet entitled:  Tackling Racism and Xenophobia:  Practical Action at the Local Level. [134]   According to this booklet, “The Council of Europe convened in Berlin from 15-18 June 1993 an expert meeting on practical action at the local level to combat racism and xenophobia.  This report contains a summary account of that meeting in relation to the Council’s programme of work in the migration field.” [135]

72.             Whereas the European Charter for Regional or Minority Languages does not apply to migrants, the Council of Europe considers  “Community Relations” to include “all aspects of the relations between migrants or ethnic groups of immigrant origin and the host society.” [136]   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.  Other relevant developments include: “the Council of Europe’s Parliamentary Assembly’s recommendation 1134 (1990) on the Rights of Minorities, and its Committee of Ministers’ Recommendation No. R (92) 12 on Community Relations, . . . the recommendations of the Committee of Inquiry into Racism and Xenophobia of the European Parliament (1991), and Resolution 90/C 157/101 on the fight against racism and xenophobia of the EC and Representatives of the Governments of the member States, [and] the Document of the Conference on the Human Dimension of the Conference for Security and Co-Operation in Europe, Copenhagen 1990.” [137]

3.            European Convention on Nationality [138]

73.       One of the most significant norm-setting developments since 1985 was the European Convention on Nationality, adopted by the Council of Europe on 6 November 1997. [139]   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. [140]

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

Each State Party shall provide in its internal law for its nationality to be acquired ex lege by . . . foundlings found in its territory who would otherwise be stateless.  Each 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 recognised refugees lawfully and habitually resident on its territory.” [141]

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

75.       The Convention on the Participation of Foreigners in Public Life at Local Level concedes that “the residence of foreigners on the national territory is now a permanent feature of European societies”, and therefore provides for freedoms of expression, assembly and association “on the same terms as to its own nationals” (Chapter A, Art. 3), allows for “Consultative bodies to represent foreign residents at local level” (Chapter B), and grants the “Right to vote in local authority elections” (Chapter C). [142]

76.       As of 5 May 1999, the Convention on the Participation of Foreigners in Public Life at Local Level had been signed by eight countries (Cyprus, Denmark, Finland, Italy, the Netherlands, Norway, Sweden and the UK) and had been ratified by four (Italy, Netherlands, Norway and Sweden).  The Convention entered into force on 5 January 1997 with four ratifications. [143]

C. Issues not Adequately Covered by the 1985 Declaration

1.      Distinctions Among Non-Citizens

77.            Increasing distinctions are being made between different categories of non-citizens. [144]   This phenomenon is a particularly prevalent practice of super-national political or economic unions, such as the European Union [145] and the North American Free Trade Agreement (NAFTA). [146]    As Chairman Banton stated, “such developments raise questions from the perspective of the International Convention on the Elimination of All Forms of Racial Discrimination.” [147]

78.       In some respects these problems are not new.  Baroness Elles noted in 1977 that “violations have continued in many parts of the world, both extensively and frequently, against the human rights of individuals who are non-citizens.” [148]   In December 1997, the UN 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.” [149]   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.” [150]   Likewise, Mr. Asbjörn Eide 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. [151]

79.       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.’” [152]   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. [153]

80.       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^{.” [154]}   For this reason, 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.

2.            Gypsies/Roma

81.       Gypsies (Roma) 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 and they are then considered to be non-citizens.  Further complicating the issue surrounding the rights of Gypsies is the concept of Gypsies as ‘national minorities’ – a term which does imply citizenship.

82.       Special concerns regarding Gypsies have recently begun to be considered seriously by the international community.  In 1991, the Congress of Local and Regional Authorities of Europe (CLRAE) organized a hearing entitled:  The Gypsy People and Europe:  The Continuation of the Tradition in a Changing Europe.  The hearing of Gypsy community representatives was held as part of the European Gypsy Festival, and attracted one hundred participants. [155]

83.       Two major accomplishments regarding Gypsies took place in 1993.  CLRAE drafted Resolution 249 – Gypsies in Europe:   The Role and Responsibility of Local and Regional Authorities.  This resolution established the Network of Cities, a small core of cities which is to act as a “testing ground for good practice and sound examples [regarding Gypsies] to be developed through dialogue and exchange of experience”. [156]

84.       Further in 1993, “two important decisions of relevance to Gypsies were taken at the summit of European heads of state and government in Vienna in October 1993:  the Council of Europe was instructed to draw up legal instruments in support of minorities and to launch an action plan and international campaign against racism, xenophobia and intolerance.” [157]   From this statement, it appears that Gypsies are considered ‘minorities’ rather than ‘non-citizens’ or ‘migrants’.  Substantiating this claim, is the statement by the CLRAE Deputy Secretary General, Mr. Leuprecht, that:

[t]he Council of Europe was fully aware of the need to avoid any definition of minorities that might contain further seeds of discrimination and exclusion.  Extreme care would have to be taken to ensure that the concept of national minority was not interpreted in such a way as to exclude Gypsies. [158]

85.       By 1994, CLRAE was able to attract approximately 200 people from 20 or so European countries to the conference at the Palais de l’Europe entitled “Towards a Tolerant Europe:  The Contribution of Gypsies.”  As a response to this conference, the CLRAE stated, “At a national level there can be no meaningful action without granting citizenship of the country of residence and freedom of movement [to Gypsies].” [159]   The debates at the conference focused on dialogue between local authorities and Gypsies and the future for Gypsies and Europe:  Citizenship and Democracy. [160]

86.       The 1994 CLRAE conference resulted in two major proposals:  the need to draft a covenant between the Gypsies and the European institutions;  and the proposed introduction of “a policy to stabilise gypsy populations by granting them permanent residence rights which would allow them to solve their housing and health problems and satisfy their needs for education and vocational training.” [161]

87.             Perhaps the most significant development in regard to the situation of Gypsies in Europe is the development of a plan of work by the Council of Europe’s Committee of Ministers Specialist Group on Roma/Gypsies. [162]   The group has identified “human rights problems (discrimination on ethnic grounds, acts of violence, police behaviour and attitudes, access to rights, law enforcement, racism, racial attacks and incitement to racial hatred) [and] legal status (nationality and citizenship, minority rights)” as among the “main problems facing Roma/Gypsies in Europe today”. [163]   In response to these, and other problems facing Gypsies, the “Group will consider the possibility of drawing up in due course a comprehensive report on the situation of Roma/Gypsies in Europe”. [164]

3.            Trafficking in Women and Children

88.       The 1985 Declaration on the Rights of Non-Citizens did not focus on trafficking in women and children.  There had been some 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) [165] entered into force.  The Trafficking Convention cited four international instruments which were already in force at that time:  (1) International Agreement of 18 May 1904 for the Suppression of the White Slave Traffic; (2) International Convention of 4 May 1910 for the Suppression of the White Slave Traffic; (3) International Convention of 30 September 1921 for the Suppression of the Traffic in Women and Children; and (4)  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. [166]

89.       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. [167]

90.            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. [168]   Under Article 19, countries agree to care for and repatriate trafficking victims. [169]

91.        A trafficking provision was included in the Convention on the Elimination of All Forms of Discrimination against Women, which has been ratified by seventy-two states.   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. [170]

92.       The Children’s Convention calls for the elimination of trafficking in children for any purpose.  Article 11 requires:  “States Parties shall take measures to combat the illicit transfer and non-return of children abroad”. [171] Article 35 requires that:  “States Parties shall 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.” [172]   Article 36 continues:  “States Parties shall protect the child against all other forms of exploitation prejudicial to any aspects of the child’s welfare.” [173]

93.       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. 

94.       For the past few years, the International Labour Organization (ILO) has been actively involved in finding solutions to the problem of trafficking.  In June 1996, in collabouration with the European Union, the ILO held a conference in Vienna to help design common instruments to combat trafficking in women in Europe.  In the same year (May 1996) the ILO collabourated with 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 Council of Independent States, and devoted particular attention to irregular migration. [174]

95.       The ILO prepared the Declaration and Agenda for Action from the World Congress against the Commercial Exploitation of Children at the World Congress against Commercial Sexual Exploitation of Children in Stockholm, Sweden (27-31 August 1996).  The Congress included representatives of 122 countries, as well as numerous NGOs. 

96.       In 1998 the International Programme on the Elimination of Child Labour (IPEC – a division of the ILO) compiled an analysis on child trafficking in eight Asian countries.  Following this initial study, ILO-IPEC has been actively involved in action against child trafficking both at the country level and sub-regional level. [175]   At a national level, the IPEC-ILO established the “National Plan of Action against Trafficking in Children and their Commercial Sexual Exploitation” in Nepal from 22-24 April 1998.  At a regional level, the IPEC proposed a Framework for Action, “Trafficking in Children for Labour Exploitation in the Mekong Sub-Region,” at a consultation in Bangkok, 22-24 July 1998,   The Framework for Action includes prostitution as a form of labour exploitation. [176]

97.            Trafficking in women is a global problem, which takes place both between and within regions. [177]   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 percentages of prostitutes are made up of illegal immigrants – often trafficked women and girls. [178]

98.             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 Barry (in collabouration with Wassyla Tamzali of UNESCO) developed the proposed Convention against Sexual Exploitation. [179]  

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. [180]  

99.             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.” [181]   The proposed article 2 specifically states that trafficking is a form of sexual exploitation. [182]

4.            The Right to Leave and Return

100.     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 not-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.” [183]

101.     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 that:

(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; . . . [and] (4) No one shall be arbitrarily deprived of the right to enter his own country. [184]

102.     The Human Rights Committee also held that countries may not apply different immigration standards based on sex.  In Shirin Aumeerudy-Cziffra and 19 other Mauritian women v. Mauritius, the Government of Mauritius had adopted an immigration law which provided that if a Mauritian woman married a man from another country, the husband must apply for residence in Mauritius and that permission may be refused.  If, however, a Mauritian man married a foreign woman, the foreign woman was entitled automatically to residence in Mauritius.  The Human Rights Committee did not hold that foreigners have a right to enter or reside in Mauritius.  Nonetheless, the Committee held that Mauritius had violated the Covenant by discriminating between men and women without adequate justification. [185]

103.            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, [186] and the general right to leave and return. [187]   Non-nationals may only be deported in accordance with law, [188] and mass expulsions of non-citizens are prohibited. [189]

104.     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 the Uppsala Colloquium (1972), and the Strasbourg Declaration on the Right to Leave and Return adopted by the Meeting of Experts in Strasbourg (1986).

105.     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. [190]   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 ten years. [191]

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

106.            Continued discriminatory practices against non-citizens demonstrate the absence of effective standards regarding the rights of individuals who are not citizens of the country in which they live.

107.     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. [192]

108.     CERD should consider how to interpret Article 1, paragraph 2, of the Race Discrimination Convention, so as to avoid undermining the protections for non-citizens under other human rights treaties and within the Race Discrimination Convention.  CERD should be encouraged to prepare a General Recommendation on the rights of non-citizens.  One objective of further study by the Sub-Commission might be to help formulate such a General Recommendation, in cooperation with CERD.

109.     CERD is correct in noting that “distinctions are being made between different categories of non-citizens” [193] and that “these distinctions may amount to total exclusion of persons, depriving them of the most fundamental rights and having racist implications.” [194]   Such distinctions raise questions from the perspective of the International Convention on the Elimination of All Forms of Racial Discrimination, in spite of article 2.1, and this subject deserves further study in light of recent developments.

110.     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.

111.       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, alien discrimination has some of the same underlying tendencies as racism, and there is a substantial relation between race discrimination and alien discrimination.  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 Racial Discrimination Convention, the experience of CERD in reviewing States reports, and the experience of the Human Rights Committee as well as other sources of relevant jurisprudence, such as other treaty bodies and the European Court of Human Rights.  Further research needs to be devoted to gathering and analyzing those experiences and relevant jurisprudence.

112.     The rights on non-citizens should be explicitly addressed during the upcoming World Conference on Racism and Racial Discrimination, Xenophobia, and Related Intolerance.

113.     This working paper should be transmitted to CERD in its present form for advice and reaction.   It would be particularly useful if CERD could indicate the extent to which the present working paper fulfills CERD’s request of 1997 and in particular address the following questions:  (1) Are there subjects or areas of inquiry that should be pursued?   (2) Does a further working paper need to be prepared on this topic – as to what issues?  (3) Would it be helpful for the working paper to include an initial draft of a further General Recommendation on the rights of non-citizens, in cooperation with CERD and for the consideration of CERD?   (4) Does CERD consider that a full study of this subject would be useful?

114.     If CERD determines that a full study would be helpful, the Sub-Commission should transmit this working paper along with relevant comments from CERD to the Commission, and propose a full study.