The Rights of Non-citizens
36
their dialogues with States parties with regard to the rights accorded to, and the
actual situation faced by, non-citizens within their respective spheres of concern.
Notes
1
This publication has been prepared by the Special Rapporteur on the rights of non-citizens, Professor
David Weissbrodt, who submitted his final report to the Sub-Commission on the Promotion and Protection
of Human Rights in August 2003 (E/CN.4/Sub.2/2003/23 and Add.1–3). The author would particularly like
to thank the John D. and Catherine T. MacArthur Foundation for its support of this project, as well as
Shervon Cassim, Marta Baró i Vilà, Chantal Bostock, Christopher Chinn, Clay Collins, Noriko Kurotsu,
Sasha Mackin, Rosalyn Park, Nandana Perera, Virginie Roux, Mary Rumsey, Bret Thiele, Mark Thieroff, Erik
Williamsen and Zemeney Wondesen for their research assistance.
2
See the judgment of the International Court of Justice of 6 April 1955 in the Nottebohm case
(Liechtenstein v. Guatemala).
3
“World demographic trends: report of the Secretary-General” (E/CN.9/2003/5, para. 53). This figure
of 175 million is indicative of the number of individuals who currently reside in a country other than the
one where they were born. It may include persons who have become naturalized citizens of their new
countries, but may not include individuals whose nationalities have not been recognized in their countries
of origin.
4
The 1948 Universal Declaration of Human Rights recognizes this principle in its article 2 (1): “[e]veryone
is entitled to all the rights and freedoms set forth in this Declaration, 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” (emphasis added). This provision applies to “everyone” and thus includes non-
citizens. The use of the words “such as” indicates that this list is not exhaustive and makes clear that
the operative phrase is: “without distinction of any kind“ (emphasis added). Although this list omits
nationality, according to Professor Lillich, “this omission is not fatal… because the list clearly is intended
to be illustrative and not comprehensive.” He also noted that “nationality would appear to fall into the
category of ‘distinction of any kind’.” Richard B. Lillich, The Human Rights of Aliens in Contemporary
International Law (Manchester University Press, 1984), p. 43. Similar non-discrimination principles with
respect to non-citizens can be found in the Charter of the United Nations; the International Covenant
on Economic, Social and Cultural Rights; the International Covenant on Civil and Political Rights; the
Convention on the Rights of the Child; the International Convention on the Protection of the Rights of
All Migrant Workers and Members of Their Families; the African Charter on Human and Peoples’ Rights;
the American Convention on Human Rights; the [European] Convention for the Protection of Human
Rights and Fundamental Freedoms; the [European] Framework Convention for the Protection of National
Minorities; and many other instruments as well as authoritative interpretations of those instruments.
5
See general recommendation XIV (1993) of the Committee on the Elimination of Racial Discrimination
on article 1, paragraph 1, of the Convention: “The Committee observes that a differentiation of treatment
will not constitute discrimination if the criteria for such differentiation, judged against the objectives and
purposes of the Convention, are legitimate or fall within the scope of article 1, paragraph 4 [relating
to special measures], of the Convention. In considering the criteria that may have been employed, the
Committee will acknowledge that particular actions may have varied purposes. In seeking to determine
whether an action has an effect contrary to the Convention, it will look to see whether that action has an
unjustifiable disparate impact upon a group distinguished by race, colour, descent, or national or ethnic
origin.” In its general comment No. 18 (1989) on non-discrimination, the Human Rights Committee
similarly observed that differences in treatment may be permissible under the Covenant “if the criteria for
such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate
under the Covenant.”
6
See Joan Fitzpatrick, “The human rights of migrants”, Conference on International Legal Norms and
Migration (Geneva, 23–25 May 2002). See, e.g., European Court of Human Rights, Berrehab v. the
Netherlands, No. 10730/84, judgement of 21 June 1988.
7
See general comment No. 15 (1986) of the Human Rights Committee on the position of aliens under
the Covenant.