Clarifying and Expanding the Rights of Non-Citizens
In this section
Racial Discrimination and the Rights of Non-Citizens (pdf; 230K)
Comments for consideration by the United Nations Committee on the Elimination of Racial Discrimination on the occasion of its thematic session on non-citizens and racial discrimination on March 1-2, 2004. "The human rights of non-citizens are increasingly under threat in many parts of the world. In the wake of September 11, 2001, restrictions on the rights to asylum and the rights of migrants have accelerated in many countries, with many falling victim to arbitrary detention and violent acts at the hand of state agents." Read on (pdf; 230K)
Background
Citizenship poses a special case in implementing the principle of nondiscrimination in that discrimination may occur in access to citizenship, and lack of citizenship may itself constitute grounds for discrimination. Because states are the guarantors of rights but their protections generally extend only to citizens within their borders, non-citizens constitute an extremely vulnerable group. Given that an estimated 175 million individuals are not citizens of the country in which they live, their lack of protection is a wide-reaching and dangerous problem.
What limited international law exists has traditionally accorded states broad discretion to make citizenship policy. Although post World War II international instruments have articulated protections against statelessness and arbitrary deprivation of nationality, these norms are today regularly breached. More recently, international protection mechanisms such as the United Nations High Commission for Human Rights (UNHCR) and the Organization for Security and Cooperation in Europe (OSCE) have suggested that citizenship should be granted to all persons who can establish a “genuine link” with the territory. However, there is to date no universal agreement on this norm.
Discrimination on the basis of citizenship is limited under international law. In principle, non-citizens enjoy many of the same rights as citizens, with exceptions limited chiefly to political participation and freedom of movement. Nonetheless, states frequently subject migrants, refugees and other non-citizens to forms of discriminatory mistreatment which breach international norms, justifying this treatment with concerns of national security, cultural purity, economic welfare, and public health. Since September 2001, their situation has deteriorated, with governments using the threat of terrorism to justify draconian policies and overt denial of rights. All too often, legitimate security measures have given way to xenophobia and scapegoating.
A key to the vulnerability that all non-citizens share is that they do not have an absolute right to residence in the state where they live. Deportation from a country of residence, whether in accordance with due process or not, decisively precludes the assertion of most other rights, including appeal to the legal system for protection. Furthermore, deportation or forced migration causes such disruption to personal and work life, property and community participation, that the mere threat of it cases a long shadow over individuals’ ability to assert the rights they have. Many individuals would rather forego their rights to freedom of expression, to social services or access to court, than risk drawing attention to themselves that could result in deportation. For those deported in illegally or error, there is no ready court of appeal. Thus, many non-citizens live their lives in the shadows, for fear of prompting an even more terrible alternative.
Objectives
Together with our partners, the Justice Initiative aspires to identify unifying legal principles, cutting across traditional classifications, which may form the basis of new norms affording greater protection for all non-citizens. We work towards international consensus on a set of policy norms that, inter alia:
- Protect non-citizens from arbitrary unequal treatment
- Are responsive to the economic forces drawing people from poorer into richer countries
- Satisfy legitimate state interests in pursuing practices narrowly tailored to safeguard national security and other proper goals
- Make meaningful the rights to asylum for refugees and to family reunification for all
- Consistent with the above, respect the ties that individuals may maintain to more than one country at a time.
This will be a multi-year process given concrete force by interim stages of recognition/concretization of the norms by relevant regional and inter-governmental actors—for example, the judgment of a regional tribunal, the comments of a United Nations treaty body, or the report of a special protection mechanism.
To be sure, this process will not be easy, rapid or uncontroversial. At stake is the notion that states maintain exclusive power over entry and presence in their territory, the very essence of national sovereignty. These principles must address squarely the tension which citizenship as we conceive it poses between such fundamental values as universalism and particularism. And yet, in seeking reconsideration of deeply-entrenched notions, it is important to recall the responsibility which states themselves, and the international community at large, bear for producing increasing numbers of increasingly vulnerable refugees, migrants and non-citizens.
Activities
Meeting on Clarifying and Expanding the Rights of Non-Citizen (November 2003)
The Justice Initiative began its concrete work on this issue with a meeting in New York in November 2003. The meeting brought together academics, non-citizens advocates, and representatives of international organizations, to discuss the vulnerability of non-citizens and the particular problem of international norms: are they truly inadequate, or is the greater problem lack of respect for them? Participating institutions included the UNHCR, the International Labour Organisation, the International Catholic Migration Commission, the Quaker United Nations Office, OSCE Office of the High Commissioner for National Minorities, the International Center for Migration, Ethnicity, and Citizenship, the International Council on Human Rights Policy, the Ford Foundation, the Institute for Development and Human Rights in Africa, the Asian Migrant Centre, Sin Fronteras I.A.P., and WARIPNET. Law professors from Rutgers University, the University of Chicago, and the University of Minnesota also participated in the meeting. David Weissbrodt, the UN Committee on the Elimination of Racial Discrimination’s Special Rapporteur on the Rights of Non-Citizens was also present.
Meeting participants concluded that in certain areas, such as access to citizenship and statelessness, legal norms do require further development. The rights of non-citizens have a firmer basis in international law than do rights to access to citizenship, but are under attack from new ‘anti-terrorist’ measures and will require coordinated advocacy to defend.
The Rights of Non-Citizens: A Discussion among Global Advocates (February-March 2004
On March 1-2, 2004 the United Nations Committee on the Elimination of All Forms of Racial Discrimination (CERD) will convene in Geneva a thematic session on the rights of non-citizens. The Justice Initiative, together with an informal working group of experts on the rights of non-citizens, is coordinating a parallel meeting of civil society advocates working on non-citizens’ issues, to be held from February 28, 2004 to March 1, 2004. This meeting will allow non-citizens advocates from around the world to monitor the CERD’s deliberations, meet with individual CERD members, make recommendations for inclusion in the General Comment to emerge from the CERD thematic session, and consider potential advocacy opportunities beyond.
Our hope is that these activities will contribute to an emerging consensus among academics and civil society on new policies for ensuring non-citizens’ rights; that the CERD General Comments will substantially reflect this consensus; and that a global civil society advocacy network for non-citizens will grow from the March 2004 meeting.
Report on the Rights and Vulnerabilities of Non-Citizens throughout the World
By the end of 2004, the Justice Initiative will publish a report on the rights and vulnerabilities of non-citizens worldwide. This report will outline the state of international norms on non-citizens rights, highlight gaps in legal protection, and offer case studies from a multitude of countries showing the devastating effects of citizenship-based discrimination.
Partners
The Justice Initiative has worked closely with David Weissbrodt, the UN Special Rapporteur on the Rights of Non-Citizens. The project will also involve a range of NGO and expert partners at different stages over the coming year.