1.3. APPLICABILITY OF HUMAN RIGHTS TO NON-CITIZENS69 The United Nations has defined a non-citizen as “any individual who is not a national of a State in which he or she is present.”70 Non-citizens include migrant workers and their families as well as refugees and asylum-seekers and trafficked persons. The term “non-citizen” also applies to stateless persons, that is, individuals who have never formally acquired citizenship of the country in which they were born or who have somehow lost their citizenship without gaining another.71 The position of non-citizens under international human rights law is of particular relevance to an assessment of the rights of trafficked persons and the duties owed to them by States. Except in cases of internal trafficking, the most serious violations committed against a trafficked person will almost invariably take place outside the victim’s country of residence or citizenship, including in transit and, particularly, in destination countries. This is not to deny the reality of substantive violations occurring during the recruitment and initial transport phases. However, the purpose of that recruitment and transport is exploitation, and it is for this reason that the country of destination is an especially For more on the issue of trafficked persons as noncitizens (including trafficked persons as migrant workers), see Gallagher, International Law of Human Trafficking, chap. 3. Generally on the issue of the rights of noncitizens, see The Rights of Non-citizens (United Nations publication, Sales No. E.07.XIV.2), especially pages 15-26. dangerous one for trafficked persons and their rights. There is also a clear link between statelessness and trafficking. First, statelessness increases vulnerability to trafficking. Second, stateless people who are trafficked face unique difficulties, for example with regard to establishing their identity and accessing protection and support. Third, trafficking can sometimes result in statelessness, for example when individuals are trafficked abroad for marriage and lose their nationality in the process.72 The rights and obligations identified below apply, as minimum standards, to stateless persons. Such persons may also, under certain circumstances, be entitled to additional or special rights. Can trafficked persons benefit from the protections of international human rights law when they are outside their own country, either physically or legally? In principle, the answer to this critical question will almost always be yes. International law generally accepts that treaties apply to all individuals within a State’s jurisdiction.73 By extension, international human rights law will apply to everyone within a State’s territory or jurisdiction, regardless of nationality or citizenship and of how they came to be within the territory. Both the Charter of the United Nations and the Universal Declaration of Human 69 Declaration on the Human Rights of Individuals Who are not Nationals of the Countries in which They Live, General Assembly resolution 40/144, annex, article 1. 70 David Weissbrodt, “The protection of non-citizens in international rights law” in Ryszard Cholewinski, Richard Perruchoud and Euan MacDonald (eds.), International Migration Law: Developing Paradigms and Key Challenges (2007), pp. 221-222. 71 See further United States Department of State, Trafficking in Persons Report (2009); Vital Voices, Stateless and Vulnerable to Human Trafficking in Thailand (2007). 72 See Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory (Advisory Opinion) [1932] PCIJ (Ser. A/B) No. 44 (identifying a difference between a State’s right to control the admission of foreigners versus the right of individuals found within the State); Vienna Convention on the Law of Treaties, article 29 (indicating that treaties apply to all individuals within the jurisdiction of the State party: “Territorial scope of treaties: Unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory”). 73 COMMENTARY 57