Intervention at special CERD thematic discussion on non-citizens

1 March 2004

Minority Rights Group International would like to commend the Committee on the Elimination of Racial Discrimination for convening this important thematic session and for committing itself to updating their General Recommendation on non-citizens of 1993.1 Recognizing that there are several levels of non-citizens subject to different hardship and obstacles, MRG would like to take this opportunity to highlight a few particular cases from various parts of the world. Much of this information has been received from our partners, most of whom are unable to attend and have requested that we table their concerns today.

MRG would like to bring to your attention the concerns of the Citizens Constitutional Forum in Fiji (CCF). A new Immigration Act came into force in the Fiji Islands in November 2003 which allows only a certain category of "former citizens"- those who are registered as part of traditional land owning groups - to enter, reside and work in Fiji without having to obtain a work permit. Traditional land owning groups are exclusively indigenous Fijians. It is only this category of former citizens that have been granted effectively the same rights as citizens under the Immigration Act, while other former citizens, including unregistered indigenous Fijians, and persons of Indian ancestry (Indo-Fijians) - who make up the majority of former citizens - are excluded. The CCF can find no legitimate objective for this distinction and would like to bring to the attention of the Committee the prima facie racially discriminatory nature of this article of the Immigration Act, which also seems to be wholly inconsistent with the Bill of Rights which envisages conditions prescribed for entry and residence to be the same for all non-citizens. The written submission provided by the CCF provides further details and background information.

The situation of the Haitian minority in the Dominican Republic is complex, but characterised by marginalisation and discrimination. Migrant workers fill the labour gaps left by Dominicans in the sugar plantations, agricultural and construction industries but are often cheated even of the low wages and experience widespread and overt anti-Haitian discrimination. Women are particularly vulnerable to economic and sexual exploitation. MRG shares the concern of our Dominican partner Mudha at the denial of Dominican citizenship to Dominican-born children of Haitian descent despite their entitlement under Dominican law, through the invocation of the 'in transit' clause in its constitution. This denial impedes access to education, healthcare and basic services and provides official justification for the overt prejudice faced by the migrants in the wider society. Both the Haitian migrant and the Haitian Dominican sections of the community exist in a state of insecurity, subject to expulsion to Haiti during times of high anti-Haitian feeling. MRG is also concerned at the harassment of human rights defenders exposing these issues.2

MRG would like to take this opportunity to endorse the concerns of the Latvian Human Rights Committee who are working to address the status of non-citizens most of whom were born in Latvia or arrived as children with their parents. Latvian non-citizens (20% of the residents of the country) do not enjoy any legal status. They have no voting rights even at municipal level. The differences in economic and social rights enjoyed by Latvian citizens and non-citizens remain high.

With regard to the African continent, one of the key issues of concern at the NGO Forum preceding the 33rd session of the African Commission on Human and Peoples' Rights in Niger May 2003 was the use of ethnicity to deny communities full citizenship rights on the African continent as well as the manipulation of citizenship requirements in some states in order to prevent some persons from aspiring to political office.

MRG shares the concern of our partner organization the Centre for Minority Rights Development in Nairobi, over the plight of Kenyan Nubians. Denied the opportunity by the colonial British Government to return to Sudan in the 1930s after forced conscription,3 successive generations of Nubians have lived without full recognition of their Kenyan citizenship, and as non-citizens have never acquired land title which provides an essential basis for the fulfilment of a range of human rights, including economic and social rights.

A few words on the relationship between the rights of non-citizens and those of minorities which are closely linked. Non-citizens are always minorities in the country in which they live, necessarily prone to discrimination, and as communities, to the types of violations that might plague ethnic, religious and linguistic minorities in any country. Indeed it is often the case that their minority status is the basis for the their perpetual relegation as non-citizens. On the other hand, the granting of citizenship to minorities is sometimes made conditional on assimilation, undermining the objectives of the minority rights legal regime. While the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (1992) makes no mention of non-citizens, it encourages states to integrate the different ethnic and religious groups into a multicultural society characterized by tolerance and cooperation and not to assimilate the weaker groups into the culture of the dominant group.4 Moreover, as the Human Rights Committee has made clear in its 1994 General Comment to Article 27 on the rights of persons belonging to minorities of the International Covenant on Civil and Political Rights (ICCPR) "[t]he terms used in Article 27 indicate that ... individuals designed to be protected need not be citizens of the State party. In this regard, the obligations deriving from article 2.1 are also relevant,5 since a State party is required under that article to ensure that the rights protected under the Covenant are available to all individuals within its territory and subject to its jurisdiction, except rights which are expressly made to apply to citizens, for example, political rights under article 25. A State party may not, therefore, restrict the rights under article 27 to its citizens alone".6 And, just as they need not be nationals or citizens to be afforded the protection of the rights under Article 27, they need not be permanent residents, this is in addition to any general rights (under the Covenant).7

MRG would like to express our concern with regard to the situation of the Roma in the context of today's session. As a consequence of the migration of Roma from Eastern and South-Eastern Europe, many Roma are non-citizens in Western European countries facing extreme hardship and discrimination. Problems with Roma acquiring citizenship in Eastern and South-Eastern Europe remains, particularly in successor states in the former Czechoslovakia and Yugoslavia.

The General Recommendation on non-citizens adopted by the Committee might include the following references:

To ensure the implementation of effective procedures in order to regularize the status and secure the citizenship of the state of residence of people continuing to live as de facto or de jure non-citizens in countries formerly under colonial rule;

To ensure the implementation of effective procedures in order to regularize the status and secure the citizenship of the state of residence of people continuing to live as de facto or de jure non-citizens in cases where state succession has occurred;

To take all necessary measures to ensure the protection and promotion of the rights of ethnic, religious and linguistic minorities who are non-citizens;

To take into account the relationship between the denial of citizenship of individuals belonging to specific ethnic, religious and linguistic minorities who have resided in the state for a long period and the restrictions their community face in effectively participating in development and ensuring their rights as minorities are secured within development processes;

To take into account the relationship between the denial of citizenship of individuals belonging to specific ethnic, religious and linguistic minorities and precipitation of ethnic conflict;

Aid programmes should pay attention to the migrant populations and work to ensure the achievement of the Millennium Development Goals in relation to all sectors of the population, devising specific programmes to ensure that the community enjoys economic, social and cultural rights to which they are entitled;

States Parties must ensure that the arbitrary expulsion of non-citizens does not take place;

States Parties must ensure that mass expulsions do not take place;

States parties should recognise and actively seek to provide public information on the contribution made to the economy by migrant workers;

Notes

1 CERD General Recommendation XI, 42nd session, 1993.
2 See, J. Ferguson, Migration in the Caribbean: Haiti, Dominican Republic and Beyond (Minority Rights Group International, 2003).
3 The Nubians of Sudan were forcefully conscripted in the British colonial army and left in Kenya upon demobilization.
4 A. Eide, Citizenship and the Minority Rights of Non-Citizens, Working Paper, 5th session, Working Group on Minorities, UN Doc. E/CN.4/Sub.2/AC.5/1999/WP.3, para. 5
5 ICCPR Art. 2(1): "Each State Party to the present Covenant 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." Emphasis added.
6 Human Rights Committee, General Comment No. 23 on the rights of minorities (Art. 27). 50th session (1994), HRIGEN1Rev.6, para. 5.1.
7 Ibid., para. 5.2.