PART 2.1
Rights confirm that human rights are applicable
to all persons, by virtue of their humanity.74
Many human rights treaties either explicitly
or implicitly assert this position. For example,
application of the International Covenant on
Civil and Political Rights is specifically extended
by article 2 (1) to “all individuals within [the]
territory [of the State party] and subject to
its jurisdiction … without distinction of any
kind”. Article 26 of the International Covenant
on Civil and Political Rights also specifically
guarantees, to “all persons”, equality before
the law and equal protection of the law without
discrimination. The Human Rights Committee has
affirmed that:
The rights set forth in the Covenant apply
to everyone, irrespective of reciprocity,
and irrespective of his or her nationality or
statelessness. Thus, the general rule is that
each one of the rights of the Covenant must
be guaranteed without discrimination between
citizens and aliens.75
In its general comment No. 15, the Human
Rights Committee has further specified that:
The Charter of the United Nations in its Article 55
requires the Organization to: “promote universal respect
for, and observance of, human rights and fundamental
freedoms for all without distinction as to race, sex,
language, or religion”. See also Article 13 which
identifies, as one of the purposes of the United Nations, the
promotion of international cooperation and “assisting in
the realization of human rights and fundamental freedoms
for all without distinction as to race, sex, language, or
religion”. The language of the Universal Declaration of
Human Rights at article 2 is similarly inclusive with the
rights set forth therein applying to “everyone” – 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.
74
Human Rights Committee, general comment No. 15
on the position of aliens under the Covenant. See also
its general comment No. 31 on the nature of the general
legal obligation imposed on States parties to the Covenant
(para.10). The Special Rapporteur on the rights of non75
58
Aliens … have an inherent right to life,
protected by law, and may not be arbitrarily
deprived of life. They must not be subjected
to torture or to cruel, inhumane or degrading
treatment or punishment, nor may they be held
in slavery or servitude. Aliens have the full
right to liberty and security of the person. If
lawfully deprived of their liberty, they shall be
treated with humanity and with respect for the
inherent dignity of their person. Aliens may not
be imprisoned for failure to fulfil a contractual
obligation. They have the right to liberty of
movement and free choice of residence; they
shall be free to leave the country. Aliens shall
be equal before the courts and tribunals, and
shall be entitled to a fair and public hearing
by a competent, independent and impartial
tribunal established by law in the determination
of any criminal charge or of rights and
obligations in a suit at law. Aliens shall not be
subjected to retrospective penal legislation, and
are entitled to recognition before the law. They
may not be subjected to arbitrary or unlawful
interference with their privacy, family, home or
correspondence. They have the right to freedom
of thought, conscience and religion, and the
right to hold opinions and to express them.
citizens has noted that the general comment very much
reflects the substance of the Declaration on the Human
Rights of Individuals Who are not Nationals of the
Country in which They Live: Prevention of discrimination
and protection of indigenous peoples and minorities:
the rights of non-citizens: Preliminary report of the
Special Rapporteur, Mr. David Weissbrodt, submitted in
accordance with Sub-Commission decision 2000/103
(E/CN.4/Sub.2/2001/20, para. 103). In the present
context it is relevant to note that the Declaration specifically
provides that nothing in it “shall be interpreted as
legitimizing the illegal entry into and presence in a State
of any alien, nor shall any provision be interpreted as
restricting the right of any State to promulgate law and
regulations concerning the entry of aliens and the terms
and conditions of their stay or to establish differences
between nationals and aliens. However, such laws and
regulations shall not be incompatible with the international
legal obligations of that State, including those in the field
of human rights”.
RECOMMENDED PRINCIPLES AND GUIDELINES ON HUMAN RIGHTS AND HUMAN TRAFFICKING
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