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Abstract
International human rights law consists of a body of basic rights and principles that States are to enforce with respect to every person within their borders. The unfortunate reality, however, is that many States are incapable of ensuring the rights of everyone, and in some instances simply do not wish to do so. Accordingly, citizenship serves as an acknowledgment by a State that the status holder is entitled to a higher degree of protection. Conversely, noncitizens may enjoy less rights than citizens, and certain categories of noncitizens frequently find themselves outside of the State’s protection entirely. This article outlines many of the rights that international law directs should be enjoyed by every human being, the factors that contribute to unequal enjoyment of these rights, and the categories of noncitizen associated with the mediated allocation of basic human rights.
Acknowledgements
The authors thank Anna Gusaas for her assistance in preparing this article. Portions of this article also draw on the authors’ earlier works, The Human Rights of Migrants, Foundations of International Migration Law (Cambridge University) (2012); The Human Rights of Non-citizens, (Oxford, 2008); Office of the United Nations High Comm’n. for Human Rights, The Rights of Non-Citizens, U.N. Doc. HR/PUB/06/11 (2006). Thanks are given to Zaid Clor for his work formatting the references for this piece.
Disclosure statement
No potential conflict of interest was reported by the authors.
Notes
1. In the USA, an arresting authority must inform the nearest US Attorney whenever a noncitizen is arrested. The US Attorney is then obligated to contact the relevant consulate. 28 C.F.R. § 50.5 (2014).
2. In 2006, the International Law Commission – the organization charged under the UN Charter with making recommendations for codifying and progressively developing international law – published its Draft articles on Diplomatic Protection. The Draft articles identify a series of principles, including, for example, States’ right to exercise diplomatic protection (art. 2), diplomatic protection of stateless persons and refugees (art. 8), and recommended practices (art. 19). The draft articles are binding upon States to the extent they codify international law.
3. International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (hereinafter Migrant Worker Convention). Though broad in scope, the Migrant Worker Convention is still in the early stages of gaining wide adoption. As of January 2015, the Migrant Worker Convention has only 38 signatories, and 47 States Parties. The USA has not signed or ratified the Convention.
4. International Covenant on Civil and Political Rights (hereinafter Civil Rights Covenant).
5. Optional Protocol to the International Covenant on Civil and Political Rights.
6. Human Rights Committee, General Comment 15: The Position of Aliens Under the Covenant, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies (hereinafter H.R.C. General Comment 15).
7. African [Banjul] Charter on Human and Peoples’ Rights (hereinafter African Charter).
8. Article 13 of the Civil Rights Covenant requires that the expulsion of a noncitizen lawfully within a territory may only be accomplished ‘in pursuance of a decision reached in accordance with law,’ permitting the noncitizen ‘except where compelling reasons of national security otherwise require … to submit the reasons against his expulsion and to have his case reviewed by, and represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority’.
9. Together, the Universal Declaration of Human Rights; the International Covenant on Civil and Political Rights; and the International Covenant on Economic, Social and Cultural Rights comprise the International Bill of Human Rights. Articles 55 and 56 of the United Nations Charter require that members must take actions toward the ‘achievement of universal respect for, and observance of, human rights and fundamental freedoms for all.’ The Universal Declaration of Human Rights serves to define the human rights guaranteed under the Charter, and reiterates their importance. The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights expand upon the protections, and also contain clauses requiring States Parties to guarantee rights to all persons within their jurisdiction – not just citizens.
10. Article 4 of the Civil Rights Covenant permits derogation from the Covenant’s obligations to the extent absolutely necessary to address a ‘public emergency which threatens the life of the nation.’ Civil Rights Covenant. States, however, must take care to ensure that a derogating act is a proportionate and narrowly tailored response that does not encroach upon other human rights; and which does not involve discrimination ‘solely on the ground of race, colour, sex, language, religion or social origin’. Rights that may never be derogated from – under any circumstance – include, but are not limited to, the rights: to life (art. 6); to be free from torture, cruel, inhuman, or degrading treatment or punishment (art. 7); to be free from slavery and servitude (art. 8); to be free from imprisonment for breach of contract (art. 11); to recognition as a person under the law (art. 16); and to freedom of thought, conscience, and religion (art.18).
11. International Covenant on Economic, Social and Cultural Rights (hereinafter International Covenant on Economic, Social and Cultural Rights).
12. Article 1 of the Convention Relating to the Status of Stateless Persons defines a stateless person as ‘a person who is not considered as a national by any State under the operation of its law.’.
13. The terms ‘citizenship’ and ‘nationality’ will be used interchangeably for the purposes of this article.
14. The Office of the UNHCR lists among the reasons for statelessness: (1) conflict of laws; (2) transfer of territory; (3) laws related to marriage: (4) administrative practices; (5) discrimination; (6) laws related to registration of births; (7) jus sanguinis; (8) denationalization; (9) renunciation of citizenship; and (10) automatic loss of citizenship by operation of law. UNHCR, Information and Accession Package: The Citation1954 Convention Relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness, January 1999, available at http://www.refworld.org/docid/3ae6b3350.html.
15. See also David Weissbrodt, Final Report on the Rights of Non-Citizens, par. 9 (indicating that jus soli principle of citizenship has emerged as the international legal norm, and that the rights under the Convention on the Rights of the Child must be enforced without discrimination as to the gender of the parent).
16. See also Convention on the Nationality of Married Women, Art. 2.
17. The Wannsee Conference (20 January 1942) was a ‘meeting of Nazi officials in the Berlin suburb of Grossen-Wannsee for the purpose of planning the ‘final solution’ (Endlösung) of the ‘Jewish question.’ New Encyclopedia Britannica, 489 (15th ed. 1989).
18. See e.g. African Charter note 10; Charter of Fundamental Rights of the European Union; Specific Aspects of Refugee Problems in Africa; Cartagena Declaration on Refugees.
19. The UNHCR stated that the Supreme Court’s decision was ‘contrary to the views of UNHCR’s Executive Committee that refugees should not be refused entry to a country where they are seeking asylum, and that asylum seekers rescued at sea should always be admitted, at least on a temporary basis …’. Press Release, Office of the High Commissioner for Refugees, Office of the High Commissioner concerned by Supreme Court Haitian Decision (22 June 1993). In addition, the UNHCR emphasized that the Sale decision was ‘a setback to modern international refugee law which has been developing for more than forty years’.
20. The Charter of Fundamental Rights of the European Union also declares that ‘[t]he right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees …’. Charter of Fundamental Rights of the European Union. The [European] Convention for the Protection of Human Rights and Fundamental Freedoms, however, does not provide for the right to asylum.
21. For example, in the USA, persons who arrive on US soil and apply for protection are considered ‘asylum seekers’; if their asylum applications are accepted, they become ‘asylees’. If a person leaves their home country, enters a second country, and seeks protected status in the USA, however, they are considered refugees, not asylees, if their application in successful.
22. Convention on Forced Labour, (ILO No. 29); Convention on Freedom of Association and the Right to Organise (ILO No. 87); Convention on the Right to Organise and Collective Bargaining (ILO No. 98); Equal Remuneration Convention (ILO No. 100); Abolition of Forced Labour Convention (ILO No. 105); Discrimination (Employment and Occupation) Convention (ILO No. 111); Convention on Minimum Age (ILO No. 138); Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (ILO No. 182).
23. The ILO Declaration on Fundamental Principles and Rights at Work, 86th Session, Geneva, June 1988, establishes that all member States of the ILO have an obligation arising from the very fact of their membership ‘to respect, to promote and to realize’ the principles of human rights enunciated in the eight fundamental conventions even if they have not yet been ratified by those States.
24. See Asbjørn Eide, Citizenship and international law with specific reference to human rights law: status, evolution and challenges; Asbjørn Eide, Working paper on citizenship and the minority rights of noncitizens; see also Concluding Observations of the Committee on the Rights of the Child: Latvia; Concluding Observations of the Committee on the Rights of the Child: Lithuania. Efforts by States to end discrimination in their nationality laws between children born in and out of wedlock are welcome. Concluding Observations of the Committee on the Rights of the Child: United Kingdom of Great Britain and Northern Ireland.
25. See Concluding Observation of the Committee on the Elimination of Racial Discrimination: Egypt; Concluding Observations of the Committee on the Elimination of Discrimination Against Women: Singapore, UN; Concluding Observations of the Committee on the Elimination of Discrimination Against Women: Guinea, UN; Concluding Observations of the Committee on the Rights of the Child: Monaco; Concluding Observations of the Committee on the Rights of the Child: Lebanon.
26. See e.g. Concluding Observations of the Committee on the Rights of the Child: Palau; Inter-country adoptions must allow adopting parents to transfer their nationality to adopted children, who must be allowed to own or inherit land or benefit from health, education, and social service subsidies.
27. See also Concluding Observations of the Committee on the Rights of the Child: Iceland.
28. Concluding Observations of the Committee on the Rights of the Child: Israel); Concluding Observations of the Committee on the Rights of the Child: United Kingdom of Great Britain and Northern Ireland. See Concluding Observations of the Committee on the Rights of the Child: Italy; Concluding Observations of the Committee on the Rights of the Child: Israel.
29. See e.g. ECRI, Second Report on Croatia.
30. See e.g. Convention Relating to the Status of Refugees; Protocol Relating to the Status of Refugees; Convention Against Torture, and Other Cruel, Inhuman, or Degrading Treatment or Punishment; International Covenant on Civil and Political Rights; European Convention on Human Rights.
31. ILO Gender Promotion Program, Preventing Discrimination, Exploitation and Abuse of Women Migrant Workers: An Information Guide, Booklet 1, ILO Website, available at http://www.ilo.org/public/english/employment/gems/download/mbook1.pdf.
32. For example, the United Arab Emirates requires every foreign laborer to have a national sponsor to keep their status. See R. Sabban, United Arab Emirates: Migrant Women in the United Arab Emirates the Case of Female Domestic Workers.