Mr. David Weissbrodt, Working Paper on the Rights of Non-Citizens, U.N. Doc. E/CN.4/Sub.2/1999/7 (1999).

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.

 

I.              Origins of the Sub-Commission Decision on the Rights of Non-Citizens

 

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:

(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, guarenteeing the free expression of the will of the electors;

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

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.            Euro