Non-Citizen’s Rights Under International Law

May 14, 2020

This article is written by Marco Mazzeschi and contributed to our publication on Medium.com.

Follow us on Medium.com/StudioMazzeschi for more latest articles.


Photo by sebastiaan stam on Unsplash

NON-CITIZEN or PRECARIOUS RESIDENT is a person who has not been recognized as having effective links to the country where he or she is located, differently from CITIZENS, who are individuals that have been recognized by a State which has given them a full legal status.

“THE RIGHTS OF NON-CITIZENS”, is a study prepared by the UN High Commissioner for Human Right. It is a relevant resource that highlights all the diverse sources of international law and emerging international standards protecting the rights of non-citizens.

According to the latest data provided by the UN, in 2019:

(i) the number of international migrants worldwide has reached nearly 272 million, up from 221 million in 2010. Europe hosted the largest number of international migrants (82 million), followed by Northern America (59 million) and Northern Africa and Western Asia (49 million). The regional distribution of international migrants is changing, with migrant populations growing faster in Northern Africa and Western Asia;

(ii) most of the world’s migrants live in a relatively small number of countries. Two thirds of all international migrants were living in just 20 countries. The largest number of international migrants (51 million) resided in the United States of America, equal to about 19 per cent of the world’s total. Germany and Saudi Arabia hosted the second and third largest numbers of migrants worldwide (around 13 million each), followed by the Russian Federation (12 million) and the United Kingdom (10 million)

DIFFERENT GROUPS OF NON-CITIZENS

Photo by Maxime Bhm on Unsplash

There are different groups of non-citizens, including permanent residents, migrants, refugees, asylum-seekers, victims of trafficking, foreign students, temporary visitors, other kinds of non-immigrants and stateless people.

For non-citizens, there is a large gap between the rights that international human rights law guarantees to them and the realities that they face. In many countries, there are institutional and pervasive problems confronting non-citizens.

In fact, nearly all categories of non-citizens face official and non-official discrimination.

While in some countries there are legal guarantees of equal treatment and recognition of the importance of non-citizens in achieving economic prosperity, in other countries non-citizens face hostile social and practical realities.

THE GENERAL PRINCIPLE OF EQUALITY FOR NON-CITIZENS

Photo by Elyssa Fahndrich on Unsplash

International human rights law is founded on the premise that

all persons, by virtue of their essential humanity, should enjoy all human rights without discrimination

unless exceptional distinctions — for example between citizens and non-citizens — serve a legitimate State objective and are proportional to the achievement of that objective.

The International Covenant on Civil and Political Rights, set forth:

  • article 2 (1), each State party: “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.”
  • art. 26: “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.”

SPECIFIC RIGHTS OF NON-CITIZENS

Photo by Joshua J. Cotten on Unsplash

Chapter II of the UN Report explains in greater detail the sources and extent of specific non-citizen rights, including universal rights and freedoms; civil and political rights; and economic, social and cultural rights.

A. Fundamental rights and freedoms

1. Right to life, liberty and security of the person

2. Protection from refoulement

3. Liberty of movement and the right to enter one’s own country

4. Protection from arbitrary expulsion

5. Freedom of thought and conscience

6. Protection from arbitrary interference with privacy, family, home or correspondence

B. Civil and political rights

1. Right to recognition and equal protection before the law

2. Right to acquire, maintain and transmit citizenship

3. Protection from discrimination on the basis of sex

C. Economic, social and cultural rights

1. Rights of non-citizens as members of minorities

2. Right to health, education, housing, a minimum standard of living and social security

INTERNATIONAL TREATIES THAT PROTECT NON-CITIZENS

Photo by Katie Moum on Unsplash

The UN report outlines that seven principal human rights treaties deal with many of the problems encountered by non-citizens, States should therefore pursue universal ratification and implementation of those treaties, particularly:

  • the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families
  • the Protocol relating to the Status of Refugees
  • ILO Conventions Nos. 97, 118, 143, etc.
  • the Conventions on the Reduction of Statelessness and relating to the Status of Stateless Persons
  • the Vienna Convention on Consular Relations and its Optional Protocols
  • Protocols Nos. 4 and 7 to the European Convention on Human Rights
  • the European Framework Convention for the Protection of National Minorities.

Itis also very important and critical for the actual protection of non-citizens’ rights, that each State takes adequate and practical actions for the full implementation of the international treaties. The narrow exceptions to the principle of non-discrimination that are permitted by international human rights law do not justify pervasive and continuing violations of non-citizens’ rights that take place, at different levels, in many countries.

WHAT ARE THE REMEDIES IN CASE OF BREACH OF THEIR RIGHTS?

Photo by Michael Dziedzic on Unsplash

How can we ensure that these protection mechanisms work? Who or what compels states to carry out their obligations?

At a national level, this work is carried out by courts — when human rights instruments have been ratified or incorporated into national law — but also, depending on the country, by ombudsman offices, human rights committees, human rights councils, parliamentary committees, and so on.
The main international supervisory bodies are commissions or committees and courts, all of which are composed of independent members — experts or judges — and none of whom represent a single state.

The main mechanisms used by these bodies are:

  • Complaints (brought by individuals, groups or states)
  • Court cases
  • Reporting procedures.

Interesting read:

Photo by Aaron Burden on Unsplash

Matthew Gibney — Precarious Residents, migration control, membership and the rights of Non-Citizens

Elene Lambert — The position of aliens in relation to the European Convention on Human Rights

Marco Mazzeschi

Attorney at law. One of the leading corporate immigration lawyers in Italy. Admitted to the Milan Bar Association (1988) and to the Taipei Bar Association (2016), a member of the American Immigration Lawyers Association (AILA) and an accredited partner of Invest in Tuscany.

  • Contact us

    To request an initial assessment or to arrange a consultation call with one of our consultants, please provide us with your contact details and we will get back to you within the next 24 (working) hours.

    Get in touch →
  • MAZZESCHI S.r.l. - C.F e P.IVA 01200160529 - Cap.Soc. 10.000 € I.V. - Reg. Imp. Siena 01200160529 - REA SI-128403 - Privacy Notice - Cookies Policy
    Copyright © 2019 by Mazzeschi - Web Designer Alessio Piazzini Creazione siti web Firenze
  • Mazzeschi S.r.l. | Operazione/Progetto finanziato nel quadro del POR FESR Toscana 2014-2020
    Il progetto ITACA (ITaly Attract ChinA) è un investimento nei paesi/mercati a lingua cinese, in particolare Taiwan con l’obiettivo di accrescere le quote di mercato dell'azienda. Tramite ITACA la Mazzeschi Srl ha aperto un ufficio a Taiwan con assunzione di personale di lingua cinese, creato un sito internet in lingua cinese e partecipato a fiere e varie attività di promozione a Taiwan.

    Mazzeschi S.r.l. | Project co-financed under Tuscany POR FESR 2014-2020
    The ITACA project (ITaly Attract ChinA) is a fund to invest in Chinese-speaking countries/markets, in particular Taiwan with the aim of increasing the company's market shares. With the help of ITACA project, Mazzeschi Srl has opened an office in Taiwan and has hired a Chinese-speaking staff, created a Chinese website and participated in fairs and various promotional activities in Taiwan.