MINELRES: New UN Rules Expand Rights of Non-Citizens

MINELRES moderator minelres@lists.microlink.lv
Tue Aug 10 18:43:23 2004

Original sender: Justice Initiative <info@justiceinitiative.org> 

Open Society Justice Initiative

+1 212–548–0157



New York, August 9, 2004—A United Nations Committee last Thursday
formally adopted new guidelines which clarify and expand the rights of
non-citizens, according to the Open Society Justice Initiative. 


            The UN Committee on the Elimination of Racial Discrimination
(CERD), a UN body whose 18 government-appointed experts monitor
discriminatory laws and practices in member states, approved a General
Recommendation on discrimination against non-citizens. The document,
which sets forth authoritative principles on the minimum rights accorded
to non-citizens worldwide, results from a thematic session that CERD
convened March 1 and 2 in Geneva, in which more than two dozen NGOs took
part, including the Justice Initiative.


            The new General Recommendation marks a significant step
forward in extending international principles of protection for
non-citizens and highlighting the connection between racial
discrimination and mistreatment on the basis of citizenship status.


            “The CERD’s findings properly underscore that non-citizens
enjoy full and equal rights under international law to protection
against racial discrimination,” said James A. Goldston, Executive
Director of the Justice Initiative. “At a time when non-citizens around
the world are being targeted in the war on terrorism, the General
Recommendation offers a useful reminder that governments must enforce
anti-discrimination laws for citizens and non-citizens alike.” 


            The General Recommendation notes importantly that it is
concerned with all categories of non-citizens, including not only
migrants, refugees and asylum-seekers, but also undocumented
non-citizens and persons who cannot establish the nationality of the
State on whose territory they live, even where such persons have lived
all their lives on the same territory. 


            It makes clear that international human rights law imposes
certain limits on governments’ discretion to grant or deny citizenship.
Thus, deprivation of citizenship on the basis of race, colour, descent,
or national or ethnic origin is a breach of States Parties’ obligations
to ensure non-discriminatory enjoyment of the right to nationality. And
in some cases denial of citizenship for long-term or permanent residents
could violate the Convention on the Elimination of All Forms of Racial
Discrimination, the treaty monitored by the CERD, by disadvantaging them
in access to employment and social benefits.


                Furthermore, differential treatment based on citizenship
or immigration status constitutes discrimination if the criteria for
such differentiation, judged in the light of the objectives and purposes
of the Convention, are not applied pursuant to a legitimate aim, and are
not proportional to the achievement of this aim.


            The General Recommendation urges that States parties to the
Convention take a number of actions to protect the rights of
non-citizens, including the following:


˛        Racial Discrimination and Citizenship Status—Ensure that
legislative guarantees against racial discrimination apply to
non-citizens regardless of their immigration status, and that
immigration policies do not have the effect of discriminating against
persons on the basis of race, colour, descent, or national or ethnic

˛        Anti-terrorist Measures—Ensure that any measures taken in the
fight against terrorism do not discriminate, in purpose or effect, on
the grounds of race, colour, descent, or national or ethnic origin and
that non-citizens are not subjected to racial or ethnic profiling or

˛        Access to Citizenship—Ensure that particular groups of
non-citizens are not discriminated against with regard to access to
citizenship or naturalization.

˛        Statelessness—Reduce statelessness, in particular statelessness
among children, by, for example, allowing both parents to transmit their
citizenship to their children.

˛        Racially motivated Violence—Take action against racially
motivated violence against non-citizens and ensure the access of victims
to effective legal remedies and the right to seek just and adequate
reparation for any damage suffered as a result of such violence;
introduce in criminal law the provision that committing an offence with
racist motivation or aim constitutes an aggravating circumstance
allowing for a more severe punishment.

˛        Police Misconduct—Combat ill-treatment of and discrimination
against non-citizens by police and other law enforcement agencies and
civil servants by strictly applying relevant legislation and regulations
providing for sanctions and by ensuring that all officials dealing with
non-citizens receive special training, including training in human

˛        Investigation of Complaints—Ensure that claims of racial
discrimination brought by non-citizens are investigated thoroughly and
that claims made against officials, notably those concerning
discriminatory or racist behaviour, are subject to independent and
effective scrutiny.

˛        Burden of Proof—Regulate the burden of proof in civil
proceedings involving discrimination based on race, colour, descent, and
national or ethnic origin so that once a non-citizen has established a
prima facie case that he or she has been a victim of such
discrimination, it shall be for the respondent to provide evidence of an
objective and reasonable justification for the differential treatment.

˛        Expulsion—Avoid expulsions of non-citizens, especially of
long-term residents, that would result in disproportionate interference
with the right to family life, and ensure that laws concerning
deportation or other form of removal of non-citizens from the
jurisdiction of the State party do not discriminate in purpose or effect
among non-citizens on the basis of race, colour or ethnic or national
origin, and that non-citizens have equal access to effective remedies,
including the right to challenge expulsion orders, and are allowed
effectively to pursue such remedies; ensure that non-citizens are not
subject to collective expulsion.


            The full text of the General Recommendation is available on
the Justice Initiative website at:


            On the eve of the CERD’s thematic session on non-citizens,
the Justice Initiative convened a meeting of 25 NGOs February 28-29,
2004 in Geneva. The meeting offered advocates on behalf of migrants,
refugees and stateless persons the opportunity to provide information to
the CERD. In addition, participants discussed future opportunities for
joint action on behalf of migrants, refugees and asylum seekers,
stateless persons, and other non-citizens. A complete summary of the
discussion is available on the Justice Initiative website. 


The Justice Initiative provided a written submission to the CERD which
focused principally on two issues: the frequent coincidence between
racial discrimination and discrimination based on citizenship status;
and the growing problem of racial discrimination in access to
citizenship and statelessness. The full text of the Justice Initiative’s
submission is available at




The Open Society Justice Initiative, an operational program of the Open
Society Institute (OSI), pursues law reform activities grounded in the
protection of human rights, and contributes to the development of legal
capacity for open societies. The Justice Initiative combines litigation,
legal advocacy, technical assistance, and the dissemination of knowledge
to secure advances in five priority areas: national criminal justice,
international justice, freedom of information and expression, equality
and citizenship, and anticorruption. Its offices are in Abuja, Budapest,
and New York.