Open Society Justice Initiative
info@justiceinitiative.org
+1 2125480157
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 origin.
* 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
stereotyping.
* 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 rights.
* 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:
http://www.justiceinitiative.org/db/resource2/fs/?file_id=14416.
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 http://www.justiceinitiative.org/publications
___________________
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.
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