SUB-COMMISSION CONTINUES CONSIDERATION OF PREVENTION OF DISCRIMINATION FOCUSING ON THE RIGHTS OF NON-CITIZENS

Sub-Commission on the Promotion
and Protection of Human Rights
54th session
9 August 2002
Morning


Non-Governmental Organizations Deplore Discrimination,
Racism and Xenophobia and Advocate the Protection of
Minorities and Indigenous Peoples



The Sub-Commission on the Promotion and Protection of Human Rights this morning continued consideration of its agenda item on the prevention of discrimination with Experts responding to a colleague's report on the rights of non-citizens.
Several non-governmental organizations (NGOs) also took the floor to decry discrimination, racism and xenophobia. They stressed the need to prevent discrimination and protect the human rights of minorities as well as indigenous peoples. Discrimination on the basis of work and descent was also deplored.
As the debate on Sub-Commission Expert David Weissbrodt's report on the rights of non-citizens continued, Expert Jose Bengoa said there was globalization of communications and goods were exchanged - but there was no globalization of the movement of persons. The Sub-Commission had a duty to deal with this aspect of the rights of non-citizens. It was a matter of urgency - even yesterday, 100 immigrants, locked inside Seville University in Spain for protection, had been expelled.
Sub-Commission Expert Soo Gil Park stressed the importance of carrying out more work and collecting more information on un-documented non-citizens. They often found themselves in particularly vulnerable situations with their human rights commonly violated.
Expert Lammy Betten echoed this sentiment and said that there was not enough attention on illegal non-citizens. Their problem was that they were not seen to exist before the law. In the European Union, there were millions of illegal non-citizens, yet it was difficult to get a grip on their situation. Mr. Weissbrodt was asked to pay special attention to the problems of illegal non-citizens in his future work.
NGOs highlighted the violations of non-citizens and asylum seekers in Australia. Discrimination based on work and descent was underlined, particularly against the lower castes and Dalit women through the Devadasi system; against the blacksmith castes of Nepal; the history and social implications of the caste system in Senegal; of the Burakumin of Japan; of the "Osu" caste system of Igboland in Nigeria; and similar practices in Niger, Somalia and Kenya. The rights of all indigenous peoples, all minorities and all migrants were stressed, as well as the important role of the Sub-Commission in the protection of these rights.
Sub-Commission Experts Godfrey Bayour Preware, Yozo Yokota, Antoanella-Iulia Motoc, Marilia Sardenberg, Asbjorn Eide, Fisseha Yimer, Soli Jehangir Sorabjee, David Weissbrodt and Miguel Alfonso Martinez also addressed the Sub-Commission this morning.
A representative of the International Labour Office and a representative of Austria also responded to Mr. Weissbrodt's report.
The following non-governmental organizations spoke: Pax Christi International(on behalf of Caritas Internationalis, Dominicans for Justice and Peace, and Franciscans International); Lutheran World Federation (on behalf of the International Movement against All Forms of Discrimination and Racism, and Minority Rights Group); International Indian Treaty Council (on behalf of Indigenous World Association, Innu Council of Nitassinan, Congreso Indigena de Sur America, and the International Baccalaureat Organization); Minority Rights Group (on behalf of the International Movement against All Forms of Discrimination and Racism, and the International Federation of Human Rights Leagues); Association for World Education; Baha'i International Community; and Human Rights Advocates International.
The Sub-Commission will reconvene at 3 p.m. to continue consideration of its agenda item on prevention of discrimination.

Statements
JOSE BENGOA, Sub-Commission Expert, said discussion of the situation of non-citizens had begun yesterday, and last night, one could have watched on TV how some 100 immigrants who had locked themselves in the University of Seville in Spain were taken away; the police had taken them away without much kindness. Interestingly, the people of Andalucia had requested that they not be expelled. These immigrants were not citizens of Europe. This problem was becoming more complex and important around the world.
There was globalization of communications and exchange of goods, but no globalization in the movement of persons. The Sub-Commission had to take up this matter. The jurisdiction of the State should apply to all individuals. Nonetheless, practice showed that there were categories of people in different situations, foreigners in the territory of a State who had restricted rights. Non-citizenship was decidedly a complex category, also a negative category. Such people did not have citizenship but the category did not say anything positively; what did they have? What problems were hidden behind the term? Mr. Weissbrodt's paper was interesting, but future work could benefit from a broader socio-political analysis, in addition to the current legal one. Non-citizens included people who left for political reasons and for reasons of danger, and people who sought greater economic opportunities. Then there was illegal immigration that was done in "good faith" -- how could you compare a young man at the University of Seville who wanted a good job, and a member of the mafia who travelled around the world on a passport while carrying out criminal activities?
An important problem for Latin American persons in Europe was the fact that it was not possible to have double nationality, so that a child who had had citizenship when he was born lost it when he reached adult age. There also were troubling distinctions in developing countries in which economic rights were not granted to non-citizens. Economic rights were important. Deeper sociological analysis was needed of the whole subject of non-citizenship.
SOO GIL PARK, Sub-Commission Expert, said the report was an ambitious attempt to synthesize the international rights of non-citizens. The contribution towards the elucidation of the situation of the rights of non-citizens was all the more valuable when concerning the limbo of non-citizens in Latvia, as referred to yesterday by Mr. Kartashkin. There were more than 100,000 living in the Baltics in such a limbo. The explanation given yesterday by the representative of Latvia as to the national laws had been highly appreciated. Mr. Park said the treatment of the topic of asylum seekers in the report had been most valuable. Further elaboration of the core rights to which this category of people were allowed would be useful, particular in the light of recent developments.
One of the most important tasks was to make a clear distinction between permissible and impermissible discriminatory treatment of citizens and non-citizens. Finding the criteria to find such a distinction was very important to the future of the work on rights of non-citizens. Mr. Park supported the suggestion that more work and information was needed on undocumented non-citizens who found themselves in a particularly vulnerable situation.
GODFREY BAYOUR PREWARE, Sub-Commission Expert, said the study dealt in a constructive way with the international conventions and principles dealing with the rights accorded to non-citizens. But what he found most interesting was annex 2, where standards of Africa and Europe and specific cases were reviewed. Here the responsibility of States was underlined to ensure all persons basic rights. The African Charter's standards were discussed, including relationships with laws for protection of national security, public health, and public morality; even here, according to the African Court, non-citizens were to be allowed the opportunity to be heard by national judicial authorities. States were not allowed to sacrifice the rights of non-citizens as political palliatives to citizens at times of economic crisis. National legislation in many African countries had been conditioned by concerns from colonial times over possible disapropriation of property to the disadvantage of indigenous peoples. Land in much of Africa remained a sacred heritage to native populations; ownership of land by non-citizens thus was often restricted, and a balance had to be found.
European case law on non-citizens clearly brought out the balance of the rights of individuals versus the needs of States. The law could in fact be applied with a sympathetic face, rather than blindly and arbitrarily. He wondered, meanwhile, if dissolution of a marriage between a citizen and non-citizen fairly could be grounds for non-renewal of a non-citizen's legal residence? How did a State compensate for what the European Court of Human Rights determined had been an arbitrary deprivation of life? What happened -- as mentioned yesterday -- when consular access had been denied in a case where the defendant faced capital punishment? If this had occurred more than once -- and it had occurred more than once -- did that not indicate a situation of impunity, and what should the Sub-Commission do in response? When people had lived in a place for more than 40 or 50 years, they naturally would consider themselves citizens of a country and yet they were considered non-citizens, what was the best course of action then? Perhaps the Sub-Commission could urge such States to accelerate positive actions to naturalize such people.
YOZO YOKOTA, Sub-Commission Expert, said that in the progress report, the terms citizens and nationals had been interchangeable, as if they were the same. The two terms were not identical, at least not in terms of international law. When dealing with political unions such as the European Union, a citizen and a national were not the same. Mr. Yokota asked about the protection of persons without any citizenship or nationality? Nationals of some countries might suffer more than nationals or citizens of another country depending on their national legislation. Concerning treatment of non-citizens, it would be interesting to have more information on the "most favoured nation" principle.
IULIA-ANTOANELLA MOTOC, Sub-Commission Expert, said a large number of non-governmental organizations supported the continuation of the Working Group on indigenous populations, and these groups had extended enormous energy to ensure that the Working Group continued to exist.
On the report on the rights of non-citizens, she was rather surprised by Mr. Weissbrodt's approach towards "permissible forms" of differential treatment. At least on the face of it, it gave the impression that discrimination could be justified. Such an approach should at least be well-justified for readers. The case law included in the annexes should be presented in a practical way, and the Special Rapporteur's point of view should be given, especially in reference to the "exceptions". International and national legal regimes differed, and so cases falling into the two categories could not be put in the same category. Questions of European citizenship were dealt with by a number of examples. She found that the report referred to the EU as a political and economic entity, whereas now it was considered more and more as a multi-level form of government; that was how it was described in academic circles. As regarded the framework convention quoted by Mr. Weissbrodt in addendum 2, she thought the interpretation of how the convention was to be applied to non-citizens was not the current interpretation, based on the judgements of the relevant consultative committee. The European Commission on Racial Discrimination, meanwhile, had fairly extensive case law on non-citizenship, and its decisions were having a fair amount of influence in Europe.
MARILIA SARDENBERG, Sub-Commission Expert, said many speakers had focused on the conceptual framework, however she stressed that one needed to also reflect the day-to-day work of the United Nations human rights system, not only in relation to the dialogue on the issues, but also treaty bodies. This had been a recommendation by one of the inter-committee meetings held in Geneva last June. Treaty bodies must work together. Concerning the report of the Working Group on indigenous populations, she stressed the importance of its future work. This might indicate a real turning point in the work on the protection of indigenous peoples. Today, the Working Group existed in a new environment where it faced new challenges, one of which was to identify its path with the existence of the Permanent Forum as well as the Special Rapporteur on indigenous issues. The record of achievements of the Working Group on indigenous populations was outstanding, however in view of the situation of indigenous peoples in the world today, much remained to be done. Creative ways and means in order to make its work constructive and far-reaching was essential, as stated in the report itself. Decisions taken by the group included working papers to be undertaken by members and the themes of its next sessions. Indigenous peoples had played a great role in the determination of future themes and areas of focus. The Working Group played a crucial role that must be maintained and strengthened.
ASBJORN EIDE, Sub-Commission Expert, said the report on non-citizens was still exploratory. What was particularly useful was the information contained in the addenda. More conclusions could be expected in the forthcoming report, and more exploration of certain issues that were only hinted at in the current paper, among them the matter of exemptions; how far, for example, did those exemptions go? What did access to public service include? What did access to work consist of? Also, the right to "enter one's own country" could be interpreted to mean the country to which a person had spent long years in residence, even if he did not hold citizenship in that country. And how far did the exceptions mentioned go in times of emergency?
The issue of naturalization and the issue of citizenship "deprivation", particularly in times of State succession or State "continuity", had become an important problem, and had been mentioned in the context of the dissolutions of the former Soviet Union and the former Yugoslavia. There were complexities and important problems involved in the allocation of citizenship in these situations, and more examination of them would be welcome. The difference between "citizens" and "nationals", and of persons who could be citizens and corporations that could be nationals could perhaps only be clarified by referring to how the concepts had emerged in international law. In the United States there were the American Indians, who for a long time had been "nationals" but had not been "citizens" -- a situation finally changed in the 1920s. The concept of national minority, widely used in Europe, was often understood to have an ethnic connotation rather than the legal connotation international law normally applied. There also were differences in thinking between Europe and North and South America about what a State was, and whether people were entitled to live there irrespective of their ethnic origin; in Europe there was a tendency to have a view that a State was a place where persons of a certain dominant group and heritage were to live, and hence the term "nation" referred to them.
FISSEHA YIMER, Sub-Commission Expert, said that the subject of non-citizens was difficult. Concerning the national emergency, was this within a limited or broader sense. Mr. Yimer asked. A broader sense could easily be abused. Concerning differential treatment on economic rights, what did this entail, he asked. Mr. Weissbrodt was asked to elaborate on the circumstances in which such differential treatment was acceptable.
MARTIN OELZ, of the International Labour Office, said the work on non-citizenship was timely, important, and urgent. In many countries a crossroads was being reached; there was a growing polarization in practices by States, and even by international institutions. There was some progress in giving protection to the rights of migrants and other non-citizens, including ratification of the convention on migrants' rights. There had been a number of meetings and conferences recently on questions related to migration. At the same time, however, there was a strong counter-trend; there were steps for example being taken in a number of countries in the face of real or perceived threats of terrorism that had serious negative implications for non-nationals.
ILO research clearly indicated that certain aspects of globalization were causing increasing migration; and migrants, including illegal migrants, remained in strong demand in developed countries for some forms of labour. So there would continue to be migration of non-nationals to these countries and the issue of their rights and the treatment they received would continue to be a matter of importance. The Sub-Commission was urged to give increased attention to the question of the protection of the rights of non-nationals, and particularly was urged to give priority attention to the treatment of illegal or irregular migrants.
LAMMY BETTEN, Sub-Commission Expert, said that there did not seem to be enough attention on illegal non-citizens. The problem here was that they were not seen to exist, particularly in the European Union. There were millions of illegal non-citizens and it was difficult to get a grip on their situation. What was said in the report could not be applied to illegal non-citizens, since they did not exist before the law. In the European Union the situation of illegal non-citizens was a far more pressing problem. Would Mr. Weissbrodt pay special attention to the problems of illegal non-citizens in his upcoming work, she asked.
GABRIELA KUEHTREIBER (Austria) said his country was mentioned in addendum 3 of the report; the measure referred to was discussed in 1999 but was at no time adopted as a legal regulation. Under Austrian law the "A" card referred to did not exist. Austria rejected the allegations in paragraph 26 and requested the Special Rapporteur to delete the paragraph from his final report.
SOLI JEHANGIR SORABJEE, Sub-Commission Expert, said the report showed extraordinary scholarship and gave a perspective of non-citizens in various parts of the world. Mr. Sorabjee referred to the rights given to non-citizens in the International Covenant on Civil and Political Rights, particularly public access. More elaboration on this would be useful. Concerning civil and political rights, and the rights of non-citizens to political participation and residence, again more elaboration was needed on this issue. Concerning the part on developing countries differentiating on economic rights, Mr. Sorabjee said the approach must be that if people were residing in an area, all rights should be given to non-citizens.
DAVID WEISSBRODT, Sub-Commission Expert, responding to comments on his report on non-citizens, said he would take into account in the preparation of next year's report all the comments that had been made. He was appreciative of the enlightenment given to him on European situations and matters -- he knew there was always more for him to learn on the topic. As for the questions asked on the situation of Russian-speaking persons in Latvia, he honestly did not have the answer; he would need more information on the matter; he would be pleased to have additional information from Latvia, as the Latvian observer had offered. It was worth noting that the topic did not really fall into his mandate, as he was exploring the rights accorded to non-citizens, not the matter of who was or was not entitled to citizenship.
The concept of who was "within the jurisdiction" of a country was complex and could, in the case of undocumented workers, perhaps be misused. The remark that more sociological information and depth was needed was well-taken, but Mr. Weissbrodt said he would need help to provide such depth, as he was a law professor and not a sociologist. The objections made to language about discrimination against non-citizens on the basis of economic rights did indeed come directly from Article 2.3 of the International Covenant on Economic, Social and Cultural Rights; he agreed it was disturbing language, but nonetheless it was there.
MIGUEL ALFONSO MARTINEZ, Sub-Commission Expert, referred to comments made about the Working Group on indigenous populations. If it was possible to speak about this year's success, it was due to the support given to the Chairman by the Working Group. Ms. Sardenberg's comments were useful; it was important to find efficient, effective and practical co-operation between the three bodies on indigenous issues. It was also, as she had pointed out, essential to increase the cooperation with human rights treaty bodies. He had taken due note of this comment and next year, he would investigate how one could improve relationships with treaty bodies.
JULIA STUCKY, of Pax Christi International, speaking on behalf of Franciscans International, Caritas Internationalis and Dominicans for Justice and Peace, said Australia's policy of detaining most arrivals in the country who did not carry valid travel documents violated provisions of the Refugee Convention as well as the Universal Declaration of Human Rights. Australia was a party to both instruments. Detention centres in Australia did not provide adequate health, mental health, education and recreation facilities, and this had led to high levels of stress and to mental difficulties, including depression which sometimes led to attempted suicide. Contrary to the International Covenant on Civil and Political Rights, Australia had banned asylum seekers from accessing its courts to challenge the legality of their detention; the constraints placed upon the judiciary at all states of the refugee assessment process were of deep concern. The situation was especially dramatic for detainees to whom refugee status was denied, who generally faced deportation.
The legal basis of the management of detention centres by a commercial entity must also be questioned, and the introduction by Australia of the Temporary Protection Visa had removed the right of family reunion and reduced entitlement to community assistance. The Sub-Commission was called on to consider a resolution denouncing these policies which also called upon the Australian Government to abolish mandatory detention and institute a system of community release for asylum seekers and refugees.
CHRISTOPHER CHAPMAN, of the Lutheran World Federation, speaking on behalf of the International Movement against All Forms of Discrimination and Racism and the Minority Rights Group, drew the attention of the Sub-Commission to discrimination based on work and descent. It was an issue that demanded the attention of the human rights community. There was discrimination of lower castes and Dalit women through the Devadasi system; against the blacksmith castes of Nepal; the history and social implications of the caste system in Senegal; of the Burakumin of Japan; of the "Osu" caste system of Igboland in Nigeria; and similar practices in Niger, Somalia and Kenya.
In Durban, at the World Conference against Racism, over 200 representatives of communities discriminated against on the basis of caste or similar social hierarchies made their demand for attention to the human rights implications of these social structures loud, clear and visible. With their different mandates and possibilities, the Sub-Commission and the Committee on the Elimination of Racial Discrimination had complementary roles to play in addressing this huge and dauntingly complex issue. Both bodies were encouraged to liaise with each other on the critical next steps that must be taken in these discussions. They were urged to find ways of complementing each other and efficiently deploying their respective capacities in the cause of the promotion and protection of the human rights of some of humanity's most severely and routinely marginalised communities.
ANTONIO GONZALES, of the International Indian Treaty Council, speaking on behalf of Congreso Indigena de Sur America (Buffalo River Dene Nation), the International Baccalaureate Organization, Innu Council of Nitassinan, and the Indigenous World Association, said indigenous peoples continued to face widespread violations of their rights, including their right to self-determination. Canada had defeated the Buffalo River Dene Nation at the Supreme Court level with regard to hunting and subsistence foods; in Guatemala over 100,000 indigenous peoples had been killed during the genocide from the 1970s through the mid-1990s, and nobody had been held accountable, and recently the Government had proposed a compensation fund for former members of the Civil Defense Patrols who had participated in that armed conflict. In Peru the Health Ministry recently had issued a public apology for the sterilization of over 200,000 indigenous women during the presidency of Alberto Fujimori. The Organization of American States Human Rights Commission had found the United States Government in violation of human rights in its treatment of Western Shoshone elders Carrie and Mary Dann, who had declared illegal U.S. efforts to secure ancestral Shoshone lands. The Western Shoshone situation was critical as the Government had made a disastrous decision to use Western Shoshone lands, in fact a sacred site, for a high-level nuclear waste dump.
As for the draft Declaration on the Rights of Indigenous Peoples, certain States continued to propose changes that if adopted would seriously undermine the rights which the current text affirmed. The Sub-Commission also was called on to urge the continuation of its Working Group on indigenous populations, with an expanded mandate based on the recommendations proposed by the twentieth session of the Working Group.
CHRISTOPHER CHAPMAN, of the Minority Rights Group International, speaking on behalf of the International Movement against all Forms of Discrimination and Racism and the International Federation of Human Rights Leagues, urged the Sub-Commission to call, in its resolution on minorities, for the appointment of a special mechanism on minorities, such as a special representative or rapporteur, working closely with human rights mechanisms. It would fill an important gap in the range of tools at the United Nations' disposal for addressing violent conflicts involving minorities. The special mechanism would work with the security and peace-keeping organs of the United Nations in identifying possible preventive action, and would carry out fact-finding and preventive diplomacy, with a view to promoting a peaceful resolution of the issues.
Minorities still faced grave violations in many parts of the world. In addition to suffering from social and economic exclusion and violations of the full range of human rights, minorities were directly affected by violent conflict to a disproportionate degree. The Sub-Commission was urged to recommend the establishment of a voluntary trust fund to facilitate the attendance of minority representatives at the Working Group on Minorities; to call on States to issue a standing invitation to all mechanisms of the Commission on Human Rights to visit their countries; and to encourage all of the Commission's mechanisms to pay particular attention to the situation of minorities in their work.
DAVID LITTMAN, of the Association for World Education, said the "blood libel" murder ritual allegation was one of the most vicious examples of anti-Semitism dating from medieval times, and was constantly revived in the Arab media, particularly in Syria, Saudi Arabia, the Palestinian Authority, and Egypt. Recently the Government-appointed editor of one of Egypt's main daily newspapers had been served with a French summons for reviving -- in an issue circulated in France -- the ritual murder accusation, and for implying that Israel's army was carrying out ritual murders of Palestinians. During the 1990s, the Mufti of the Palestinian Army had stated on an Arabic news channel that "There can be no peace with the Jews because they use and suck the blood of Arabs on the holidays of Passover and Purim". Last year it was announced that a film adaptation would be made by an Egyptian film producer of the incriminated book "The Matzah of Zion".
The High Commissioner for Human Rights was once again appealed to request the Secretary-General of the Organization of the Islamic Conference to take an urgent policy position on this grave matter. Appropriate human rights bodies also should raise their voices loud and clear. The Sub-Commission could do so through a resolution or a Chairman's statement.
DIANE ALA’I, of the Baha'i International Community, considered all human beings as members of one worldwide family, sharing the same fundamental needs and aspirations, yet infinitely varied in a temperament, language, religion and culture. Diversity was a fact of life that must be embraced as a source of enrichment in the life of society. When differences collided, fair solutions needed to be sought through consultation guided by mutual respect for the rights of others and a belief that harmonious resolution was possible. Based on these convictions, the Baha'i International Community had always given importance to minority rights and had contributed to the studies prepared by Mr. Eide.
The Baha'i International Community supported, in particular, the recent practice of undertaking country visits, which had been initiated by the members of the Working Group. On-site evaluation not only helped the Working Group to assess a particular situation, but also contributed to raising awareness of certain minority issues that tended to be left aside or considered peripheral. All Member States were urged to extend invitations in this regard, and it was hoped that the Working Group developed a method through which it would approach Governments to request such visits.
CONCEPCION LOZANO, of Human Rights Advocates, said migrant workers' rights were frequently violated. In the United States, for example, there were few protections in place for exploited migrant workers and many risked deportation for exercising their rights; employers were increasingly fighting union campaigns by firing or threatening undocumented workers, and the United States Supreme Court recently had approved of this practice. Employers also used immigration controls to suppress unionizing drives. Another example of workplace violations was that of farm workers, whose rights to life, health and safety were repeatedly violated. The death rate among such workers was among the highest for any occupation in the United States.
The Sub-Commission and other bodies should address migrants' concerns in the workplace, as the Special Rapporteur on migrants' rights faced issues too vast for one person to handle. The Sub-Commission also should encourage reporting on workplace violations of migrants' rights; should encourage the review of immigration and labour policies of States to ensure that they were in compliance with international instruments; should ask that the Special Rapporteur on toxic materials address the issue of the effects of pesticides on migrant workers; and should include protections for migrant workers in resolutions addressing globalization.



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